BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES

REDRESSAL COMMISSION, NEW DELHI

F.A. NO. 671 OF 2018

IN THE MATTER OF:

GODREJ PROPERTIES LTD ……. APPELLANT

Versus

VIDYUT ARORA ……. OPPOSITE PARTY

INDEX
S.NO. PARTICULARS PAGE NO.
1. SHORT SYNOPSIS OF ARGUMNETS ON 1-4
BEHALF OF APPELLANT
2. PROOF OF SERVICE 5

Anoop George & Kartikay Dutta

B5/65, First Floor,
Safdarjung Enclave,
Delhi-110029
Email-office@pragyansharma.com
Ph:9999952008
 BEFORE THE HON’BLE NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION, NEW DELHI

F.A. NO. 671 OF 2018

IN THE MATTER OF:

GODREJ PROPERTIES LTD ……. APPELLANT

Versus

VIDYUT ARORA ……. OPPOSITE PARTY

SHORT SYNOPSIS OF ARGUMNETS ON BEHALF OF APPELLANT

MOST RESPECTFULLY SHOWETH:

A. RESPONDENT IS IN NOTICE OF THE DEMANDS RAISED BY THE OPPOSITE

PARTY AND SERVICE VIA EMAIL IS GOOD SERVICE.
A.1. On 10.09.2012 Respondent books the Apartment and deposited a sum of Rs.
9,00,000/- as the booking amount for his unit and Rs. 4,86,393/- thereafter on 17.11.2012
which was to be paid within 60 days of the Booking. On 20.03.2013 Respondent paid
Rs.6,93,353/- as First Instalment, towards commencement of excavation work.

A.2. On 02.03.2014, 02.06.2014, 27.07.2014, 21.09.2014, 13.10.2014, 04.11.2014

Appellant raised demand letters on the Respondent at his mailing address and by way of e-mail
On Completion of Ground Floor Slab, 2nd Floor Slab, 4th Floor Residential Slab, 6th
Residential Slab, Eighth Residential Slab and Tenth Residential Slab respectively; however,
the Respondent fails to make any payments towards the said instalments @Pg. 119-125. On
06.03.2014 and 05.03.2015 Appellant sent construction updates to the Respondent. @Pg. 127-
128.

A.3. On 17.11.2014, Appellant informed Respondent by way of e-mail and registered

post that a sum of Rs. 38,70,373/- along with due interest was pending and was required to be
paid immediately @Pg. 129. After two months, on 31.01.2015, Respondent BY E-MAIL
requests for demands to be resent to him, which is duly complied with immediately by the
Appellant. @Pg. No. 130

A.4. On 17.02.2015, Appellant was constrained to issue a reminder requesting the

Respondent to pay the outstanding sums @Pg. 131. On 05.03.2015 and 19.07.2015 Appellant
raised two further demands inclusive of the outstanding instalments that were payable by the
Respondent @Pg. 132-133. Respondent is in receipt of demand dated 19.07.2015 as
admitted/acknowledged in the complaint @Pg.151.
A.5. Since Respondent failed to make payments of the outstanding installments and
hence, the Appellant on 13.01.2016 issued a termination notice to the Respondent at his
updated mailing address and via e-mail. @Pg.139

A.6. The change of address was intimated to the Appellants on 16.09.2014 via email.
Thus, all demands raised before this date was duly communicated to the Respondent and
Respondent is in knowledge of the same. Further, as per the Respondent email communication
is not enough, then similarly their email communication of change of address is also not
enough. Again On 31.01.2015, Respondent has requested that demands of payments be resent
to him, which further shows that he is in receipt of and is aware of all demands raised till date
@Pg. 130. Again, Respondent is in receipt of demand dated 19.07.2015 as
admitted/acknowledged in the complaint @Pg.151. All this proves that Respondent has
received all the demand letters and is aware of the fact that he has to make payments.

B. THE RESPONDENT IS A DEFAULTER AND HE HAS NO RIGHT TO CLAIM

REFUND.
B.1. On 02.03.2014, 02.06.2014, 27.07.2014, 21.09.2014, 13.10.2014 and 04.11.2014
Appellant raised demand letters on the Respondent at his mailing address and by way of e-mail
On Completion of Ground Floor Slab, 2nd Floor Slab, 4th Floor Residential Slab, 6th
Residential Slab, Eighth Residential Slab and Tenth Residential Slab respectively; however, the
Respondent fails to make any payments towards the said instalments. @Pg. 119-125.

B.2. Again on 17.11.2014, Appellant informed Respondent that a sum of Rs. 38,70,373/-
along with due interest was pending and was required to be paid immediately @Pg 129. After
two months, on 31.01.2015, Respondent by e-mail requests for demands to be resent to him,
which is duly complied with immediately by the Appellant @Pg. 130. Again on 17.02.2015,
Appellant was constrained to issue a reminder requesting the Respondent to pay the
outstanding sums. @Pg. 131

B.3. On 05.03.2015 and 19.07.2015 Appellant raised two further demands inclusive of
the outstanding instalments that were payable by the Respondent. @Pg 132 and 133.
Respondent is in receipt of demand dated 19.07.2015 as admitted/acknowledged in the
complaint @Pg.151.

B.4. Since Respondent failed to make payments of the outstanding instalments even
after so many reminders and giving ample opportunities, the Appellant on 13.01.2016 was
forced to issue a termination notice to the Respondent. @Pg.139

C. THE RESPONDENT IS NOT A CONSUMER

C1. That the present case is not governed by the Act since the Respondent/Complainant
in the instant case is not a consumer in terms of Section 2(1)(d) of the Act. It is important to
note that the booking of said Unit was exclusively for investment purposes and not for
residential purposes.
C2. It is a well-settled law that if the Complainant is only an investor in the unit in
question for earning commercial benefit, then he would not be within the meaning of Section
2(1)(d) of the Act. Hence, the Complainant in the present case is not a consumer, and therefore,
the present Complaint is liable to be dismissed.

C.3. Respondent booked properties with other builders such as BPTP Ltd., Anant Raj
and also preferred consumer complaints against them titled as Vidyut Arora v/s BPTP Ltd. C.C
no. 1169/2017 and Vidyut Arora v/s Anant Raj Limited C.C 3170/2017, which are currently
pending consideration before the Hon'ble Commission. The said facts, proved that the
Respondent was an investor in real estate and not a 'consumer' under the Consumer Protection
Act, 1986.

D. APPELLANT WAS WELL WITHIN ITS RIGHTS TO TERMINATE THE

CONTRACT AND RETAIN THE ERANEST MONEY

D.1. Appeallant well within it rights to terminate the contract and forfeit the earnest
money as per clause 8.4 of the agreement between @ page 81.
D.2. In the case of Shri Hanuman Cotton Mills and Others vs. Tata Air Craft Limited,
1969 (3) SCC 522, the Apex Court laid down the following regarding ’earnest’: "(1) It must
be given at the moment at which the contract is concluded. (2) It represents a guarantee that
the contract will be fulfilled or, in other words, "earnest" is given to bind the contract. (3) It
is part of the purchase price when the transaction is carried out. (4) It is forfeited when the
transaction falls through by reason of the default or failure of the purchaser. (5) Unless there
is anything to the contrary in the terms of the contract, on default committed by the buyer, the
seller is entitled to forfeit the earnest."

D.3. In the H.U.D.A. & Anr. V. Ravinder Nath Sharma CIVIL APPEAL NO. 7850 OF
1996 (Arising out of SLP(C) Nos. 28081/95) the Apex Court has held that; This being the legal
position and the allotee having accepted the allotment and having made some payment on
instalment basis then made the request to surrender the land, has committed default on his part
and therefore the competent authority would be fully justified in forfeiting the earnest money
which had been deposited and not the 10% of the amount deposited as held by the High Court.

E. THE HON’BLE STATE COMMISSION HAS FAILED TO CONSIDER

RELEVANT FACTS IN PASSING THE IMPUGNED ORDER.

E.1. The state commission vide the impugned order allowed the complaint and directs
the appellants herein to refund the amounts paid with interest @ 12% + Compensation for
deficiency of service Rs. 25,000 and Litigation cost Rs. 11,000/-.
E.2. Without appreciating the chronology of events or documents produced or
arguments advanced has held that the act of termination is without rhyme or reason. Tribunal
has glossed over all the arguments regarding demands raised by the Appellant. State
commission went into error by discount the validity of demands made through email as well as
demands made in the correct address before the change in address. No reasoning given in the
order as to why the arguments as well as materials placed on record by the appellant herein
where not considered. No application of mind and recording of reasons on the part of the State
commission. @ Pg.41.
E.3. The interest rate @12% as granted by the State Commission is exorbitant. In the
following judgments, the Supreme Court, 9% interest was held to be appropriate.
Experion Developers Pvt. Ltd Vs. Sushma Ashok Shiroor, Civil Appeal Nos. 6044 & 7149 of
2019; Ireo Grace Realtech Pvt. Ltd Vs. Abhishek Khanna & Others (Civil Appeal No. 5785 of
2019; Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra Civil Appeal No. 3182 of
2019; DLF Homes Panchkula Pvt.Ltd & Anr.Vs Sudesh Goyal, Etc.(Civil Appeal No. 4942-
4945 of 2019).

Anoop George & Kartikay Dutta

B5/65, First Floor,
Safdarjung Enclave,
Delhi-110029
Email-office@pragyansharma.com
Ph:9999952008