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2010(1) CPR 395 (NC)
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
NEW DELHI
Ashok Bhan, President and Mr. B.K. Taimni, Member
M/s. UNITECH Limited —Appellant
versus
Jaidev Kapoor —Respondent
First Appeals Nos. 103 and 104 of 2005
Decided on 25.1.2010
For the Appellant:Mr. Sukumar Pattjoshi and Mr. S.K. Dubey, Advocates.
For the Respondent:Mr. Ankit Malhotra, Advocate.
IMPORTANT POINT
In the matter of allotment of plot by a colonizer, parties are bound by terms and conditions of allotment.
Headnote:Consumer Protection Act, 1986—Sections 2(1)(g),(o), 15,19—Allotment of plot—Appellant a colonizer—Accepted earnest money from respondent for a particular plot along with extra charges for preferential location—Under terms and condition of agreement, appellant had absolute discretion to effect suitable and necessary alterations in layout place and also to charge position boundaries area and number of the plot—No finding by the State Commission that alteration in layout was not necessary—Appellant changed location of plot from preferential plot to non-preferential one—It was it’s absolute discretion—Plot already allotted to respondent—State Commission not justified in awarding a sum of Rs. 2 lacs by way of compensation which was ordered to be deleted—Rest of the order of the State Commission upheld. (Paras 7, 8)
Result: Appeal allowed.
Ashok Bhan, President —This Order shall dispose of First Appeal No.103 of 2005 arising from Complaint Case No. C-607 of 1993 filed by Shri Jaidev Kapoor and First Appeal No.104 of 2005 arising out of Complaint Case No. C-546 of 1993, filed by Smt. Sarla Kapoor, before the State Consumer Disputes Redressal Commission, Delhi (hereinafter referred to as ‘the State Commission’ for short), seeking the relief, which have been disposed of by the State Commission by passing identical Orders dated 07.02.2005 giving the same relief. In First Appeal No.103 of 2005, the number of plot in question is H-44 whereas in First Appeal No.104 of 2005, the number of plot in question is
H-47. Since, rest of the facts in both the First Appeals are identical, we are disposing them of by a common Order. For convenience sake, we are taking facts from First Appeal No.104 of 2005.
2. Briefly stated, the facts leading to the filing of this case are as under: -
As per the allegations made in the Complaint, in response to the advertisement in various newspapers, respondent/complainant booked plot No. H- 47 measuring 420 sq. mtrs. in preferential location called as ‘B’ Category on 07.03.1986 at South City, a colony being raised by the appellant in Gurgaon and paid Rs. 40,549/- through cheque dated 07.03.1986 as earnest money plus extra charges of Rs. 10,057 for preferential location. It is stated that the respondent continued to make the payment from time to time as per Plan ‘C’ category inclusive of interest, development charges as per the demands raised by the appellant. That respondent paid last installment of
Rs. 4,981/- in the month of March, 1990 which the appellant did not accept on the plea that a letter would be sent to the respondent sometime in July or August, 1990 for final payment and formal allotment of plot to the respondent. That the respondent did not receive any such communication in spite of having sent reminder dated 05.09.1990. That respondent received letter dated 17.04.1992 from the appellant informing that the preferential category has been changed to ordinary category under Clause 3 of the Terms and Conditions of Allotment singed and agreed by the respondent. That respondent again requested the appellant, vide letter dated 06.06.1992, for allotment of preferential location plot followed by reminders but did not receive any response. Thereafter, respondent served Legal Notice dated 12.10.1992 on the appellant to which appellant informed and advised the Advocate of the appellant that they have not allotted any plot to the appellant as per their records and, therefore, the Notice was irrelevant. Thus, being aggrieved, respondent filed the Complaint before the State Commission seeking direction to the appellant to allot the preferential plot No. H-47 to the respondent which was booked by the respondent on 07.03.1986 and, in case the appellant fails to allot the preferential plot, a direction be issued to the appellant to allot a plot from the general category and pay the difference of consideration of Rs. 5,00 000/- to the respondent. Respondent also sough damages to the tune of Rs. 2,00,000/- for non-allotment of plot so far and for causing mental tension and agony to the respondent.
3. On being served, appellant filed its Written Statement denying all allegations made by the respondent.
4. State Commission, after taking into consideration, the pleadings and the evidence, lead by both the parties, allowed the Complaint and it was held that the appellant had changed the location of the plot arbitrarily and discriminately. That the appellant did not have the absolute discretion to change the location of the plot under Clauses 3 and 6 of the Agreement. That the appellant had failed to disclose any reason whatsoever which compelled it to change the location of the plot from preferential plot to a site which is non-preferential. Based on this finding, the State Commission partly allowed the Complaint and directed the appellant to
