TMI Blog2018 (11) TMI 1791X X X X Extracts X X X X X X X X Extracts X X X X ..... ced against the property which has already been constructed at the time of making advance payment by the petitioner and having been appropriated by R-1 against the property agreed to be sold and whether the same constitutes a deposit, we find that there are numerous proceedings pending as against the parties initiated by each other consideration by this Tribunal will result only in multiplicity of proceedings as between the parties before various forums which is required to be eschewed and in the said circumstances this petition is dismissed but without cost. - CP -234/ND/2017 - - - Dated:- 20-11-2018 - R.Varadharajan, Hon'ble Member (JUDICIAL) And Dr.V.K.Subburaj, Hon'ble Member (TECHNICAL) Counsel for the Petitioners: Mr. Arpit Agarwal (Petitioner in person) Respondent: Mr. Ankur Yadav, Mr. B.P.Singh, Advocate ORDER The petitioner as party in person has filed this petition against the first respondent company and other respondents under the provisions of Section 74(3) read with Section 75 (1) and Section 2(31) in relation to non-refund of deposit and under Section 447 of Companies Act, 2013. The facts leading to the filing of the present petition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y respondent No. 1 company which was also deposited and the total deposit/advance which was made in relation to the purchase of property was to the extent of Rs,48,99,223/- by July, 2012 itself which is 90% of the cost of the property. (g) It is further averred that all payments were duly made by account payee cheques and demand drafts drawn in favour of respondent No. 1 company for which purpose an acknowledgment by way of deposit receipts were issued bearing Nos. 5468, 5233, 5525 and 5467 all annexed along with the typed set of papers filed along with the petition. (h) It is averred by the petitioner in the petition that even though substantial amount being 95% of the total cost of the property had been deposited however by virtue of the clauses of BBA the developer retained the authority over the property. It is further averred that the respondent No. 1 shall also not give any lien of the property or interest of the property. (i) Subsequent to the receipt of 95% of advance/deposit despite repeated calls by the petitioner to respondent No. 2 and 3, they never responded and in fact refused to meet the petitioner when efforts were made by the petitioner to contact them in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... executed between R-1, petitioner and the bank on 19.07.2012. It is also pointed out in the reply that R 1 prior to the money being made available by the petitioner had also pumped in money into the project and as stated earlier had completed upto 14 storey and in the circumstances the money paid by the petitioner either by himself or through a loan availed from HDFC Bank stood immediately appropriated against the price of flat booked by the petitioner. It is also further pointed out in the reply that even though R-1 was really willing to hand over possession of the property subject to payment of the remaining balance and since the request has not come from the petitioner in relation to taking possession and the bankers at the said point of time did not release the remaining payment due being 5% balance to be paid by the petitioner. Respondents 1-4 also point out that as per order of National Green Tribunal which had stayed the project construction work including the projects under construction in that area and did not allow the completion of the project and in the circumstances the District Magistrate of the said area had issued a notice directing all the builders in the area to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is pending in relation to the petitioner creating ruckus and nuisance at the corporate office of R-1. 5. All the above it is pointed out that there are multiple proceedings which have been initiated by the petitioner against R 1-4 and having not met with any success and in the circumstances, this petition is therefore, once more attempt on the part of petitioner to extract money from R 1-4 with mala fide intention and that the petitioner has not come before this Tribunal with clean hands and more so this Tribunal being a Court of equity, equitable relief cannot be granted to a person who has come before this Tribunal with unclean hands and in the circumstances has sought the petition to be dismissed with exemplary cost. Perusal of reply of R-5 shows that a contention has been taken by R-5 that it is not a necessary party to the proceedings as no relief has been sought against it. The petitioner has made only some bald allegations against R-5 in the petition and that in the circumstances R-5 is required to be deleted from the array of parties and that heavy costs are required to be imposed upon the petitioner for deliberately including it as a party in the present proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s damages for physical and mental torture, agony, discomfort, sufferings and undue hardships caused to the Complainant and the Complainant's family as a result of above acts of omissions on the part of the O.P. (iv) to direct the O.P. to pay a sum of ₹ 2,OO,OOO/(Rupees two lakh only) to the Complainant towards the cost of litigation. Pass any other order(s) as may be deemed fit and appropriate in the facts and circumstances of the case. 7. From the above reliefs, it is clearly seen that the petitioner had sought for refund of money in a sum of ₹ 48,99,223/- virtually based on the same cause of action as pleaded before this Tribunal in relation to this petition. In addition it is also seen that as between the parties there are several pending cases either slapped by the petitioner against R 1-4 or other way round against the respondents and a separate list has also been given by R 1-4 in their written submissions filed as Annexure A-3. 8. Without going into the legal issues raised herein whether the amount advanced against the property which has already been constructed at the time of making advance payment by the petitioner and having been appropriated b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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