| SooperKanoon Citation | sooperkanoon.com/1148327 |
| Court | Union Territory Consumer Disputes Redressal Commission SCDRC UT Chandigarh |
| Decided On | Apr-25-2014 |
| Case Number | First Appeal No. 57 of 2014 |
| Judge | SHAM SUNDER (RETD.), PRESIDENT & THE HONOURABLE MR. DEV RAJ, MEMBER |
| Appellant | Raman Kumar |
| Respondent | Dlf Homes, Panchkula, Pvt. Limited and Others |
Per Dev Raj, Member:
1. This appeal is directed against the order dated 06.01.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant(now appellant).
2. In brief, the facts of the case, are that Opposite Party No.1 floated a housing scheme in the area of Pinjore and Panchkula known as DLF Valley, Panchkula and engaged Oppsite Party No.2 for marketing purposes. It was stated that Opposite Party No.2 alongwith his wife Mrs. Namrata Gupta and his daughters namely Ms.Kalyani Gupta @ Monia and Ms.Ishita Gupta, who were also doing property business with their father, induced the complainant to make initial investment at pre-launch stage in the DLF Project in which the allotment would be made at lesser price than the price to be floated by the DLF Company. It was further stated that believing the assurances given by said Mahesh Gupta, complainant paid an Rs.4,00,000/- initially by way of cheque but the same was returned by the bank on technical ground. It was further stated that the said amount was then paid through demand draft, for which, a receipt dated 27.4.2011, Annexure C-1, was issued. It was further stated that the complainant was also given Consumer Code No.R11128 (UNQ/217/001936). It was further stated that Opposite Party No.1 did not supply any terms and conditions of the allotment and almost a sketchy letter of allotment was issued wherein it was mentioned that Unit No.DVF-B1/1-FF in DLF Valley, Panchkula stood allotted to the complainant. IT was further stated that no agreement whatsoever was signed though some blank documents were got signed by Opposite Party No.2, the agent of OP No.1. It was further stated that after sometime, the complainant learnt that the allotment was made at market price and not at pre-launching price. It was further stated that Opposite Party No.2 had got investment made from the complainant by misquoting and misstating the true facts and when the matter was raised with Opposite Party No.2, it was assured by him that he would make the rest of the payment and would dispose of the unit soon and return the amount to the complainant. It was further stated that when no payments were received from Opposite Party No.2, the complainant personally visited the office of Opposite Party No.1 and was surprised to know that the flat allotted to him had been cancelled by Opposite Party No.1 and had further been allotted to some other person. It was further stated that as per the assurance given to the complainant, Opposite Party No.2 issued a cheque No.111104 dated 23.11.2011 for Rs.23,86,750.22 drawn on HDFC Bank Ltd., Chandigarh to Opposite Party No.1 but the same was also returned dishonoured as conveyed through letter dated 28.11.2011, Annexure C-2, of Opposite Party No.1. It was further stated that Opposite Party No.2 has failed to honour his commitment of making entire payment to Opposite Party No.1 and getting the unit restored and/or refunding the amount of Rs.4,00,000/- to the complainant. It was further stated that similarly, Opposite Party No.1 wrongly and illegally resorted to harsh and unfair conditions of cancellation of unit allotted to the complainant even though no written agreement was got signed by Opposite Party No.1 from the complainant. It was further stated that in SLP No.21786-21788/2010 “ Revindera Singh etc. Versus State of Haryana and others, the Honble Supreme Court took a view in the peculiar facts of the case that the Government of Haryana had released huge chunk of land from acquisition in favour of builders. The Honble Supreme Court has impleaded all such builders including Opposite Party No.1 as respondents and ordered all activities relating to ongoing construction to be stopped forthwith. It was further stated that Opposite Party No.1 first illegally acquired the land without following the due procedure prescribed under law and then cancelled the allotment and forfeited the entire amount of Rs.4,00,000/-, which was clearly whimsical, unfair trade practice and amounts to cheating and fraud committed with the public including the complainant. It was further stated that the unit, which was allotted previously to the complainant, was re-allotted at higher rates to some other individual, therefore, the act of forfeiture of the entire amount of Rs.4 lacs amounted to undue enrichment in as much as no loss whatsoever was caused to Opposite Party No.1. It was further stated that Opposite Party No.2 cheated various other persons by exploiting their relations with near and dear ones. It was further stated that the flats/units allotted to the complainant and others were intentionally got cancelled and the amount was forfeited and Opposite Party No.1 gave credit of those deposits towards the payment to be made by Opposite Party No.2 to Opposite Partry No.1. It was further stated that Opposite Party No.1 adjusted/forfeited amounts against the payments payable by Opposite Party No.2 for his and his family members flats/plots. When the grievance of the complainant was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986, seeking directions to the Opposite Parties to refund Rs.4,00,000/- alongwith interest @18% per annum, Rs.1 Lac as compensation for mental agony and harassment etc., was filed.
3. Opposite Party No.1, in its written statement, submitted that the complainant did not approach the District Forum with clean hands. It was denied that Mr. Mahesh Gupta, Opposite Party No.2 was an agent of Opposite Party No.1. It was stated that Opposite Party No.1 did not have any business relationship whatsoever with Opposite Party No.2. It was admitted that the complainant paid the booking amount for flat No.DBF-D1/1 FF in DLF Valley, Panchkula, whereby he was given the consumer code number on 27.4.2011. It was further stated that the complainant concealed the fact that he did not pay the requisite amount of Rs.23,86,750/- to Opposite Party No.1, whereas, reminders in this regard were issued to him but still he did not pay the said amount within the required time. It was further stated that the complainant wrongfully alleged that the Opposite Parties were bound to refund an amount of Rs.4 lacs to him, rather the payment of the said amount to the complainant did not arise and the property, in dispute, could not be allotted in his name because of the fact that it had been re-allotted to Mr. Neeraj Rana on 4.2.2012. It was denied that Opposite Party No.1 did not supply the terms and conditions of the allotment to the complainant, whereas, from bare perusal of copy of the application for allotment dated 31.3.2011, Annexure OP-1/1, it was very much evident that a sum of Rs.4 lacs had been paid by the complainant and, accordingly, an application for allotment was duly signed by him and the allotment letter also entailed the signatures of the marketing head of Opposite Party No.1. It was further stated that the application for allotment also included the terms and conditions for allotment of an independent floor in Phase II, DLF Valley, Panchkula. It was further stated that the documents forming part of the application for allotment alongwith the terms and conditions for the allotment bore the signatures of the complainant as the first applicant, therefore, it proved the fact that it had been wrongly alleged by the complainant that Opposite Party No.2 had applied for the said flat on his behalf. It was further stated that in lieu of the application for allotment, confirmation of allotment alongwith the original receipt were tendered by Opposite Party No.1, vide letter dated 8.4.2011, Annexure OP-1/2. It was further stated that after the confirmation of allotment of the complainant, demand letter dated 11.5.2011, Annexure OP-1/3 and, reminders dated 2.6.2011, 17.6.2011 and 6.7.2011, Annexure OP-1/4 (Colly.) were sent to the complainant to make the due payment but he chose to ignore the aforementioned demand letter and reminders and Opposite Party No.1 was left with no other option but to cancel the allotment and forfeit the booking amount. It was further stated that the complainant had made the payment of the due amount of Rs.23,86,750.22 by cheque at a belated stage and the same was dishonoured on 23.11.2011, which was duly informed to him vide letter dated 28.11.2011, Annexure OP-1/5. It was further stated that property No.B-1/1-FF stood cancelled on 2.12.2011 due to nonpayment of the requisite amount. It was further stated that in pursuance to the above, the said property was re-allotted to Mr. Neeraj Rana on 4.2.2012. It was further stated that once the property had been re-allotted to another customer, the re-allotment of the said flat to the complainant did not arise. It was further stated that the Opposite party No.1 acquired the land at Panchkula and Pinjore as per the procedure prescribed under the law and have taken extreme caution in acquiring the land for coming up of the Housing Project in the area of Panchkula and Pinjore. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint were denied.
4. Opposite Party No.2, in his written stated, stated that that the complainant was not a consumer qua him, therefore, the complaint was not maintainable before the District Forum. It was further stated that on the contrary, Opposite Party No.2 was the consumer of the complainant, as the complainant had sold all his rights and interests in the allotted unit to him as per various documents relating to transfer of the said unit, Annexure OP-2/1. It was further stated that the adjudication of the complaint would require examination and consideration of detailed and voluminous oral and written documents, which was not within the scope of Consumer Courts. It was further stated that the complainant needed to be relegated to his ordinary remedy before the Civil Court. It was further stated that the complainant was alleging cheating and fraud in the complaint as he himself admitted that he had taken police action against the Opposite Parties, therefore, the complaint did not lie within the purview of the District Forum. It was further stated that the complaint had been filed by the complainant only to harass and blackmail Opposite Party No.2, without any legitimate cause of action. It was further stated that the complaint was not maintainable on account of the averments regarding cheating, fraud and police action. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of Opposite Party No.2, nor did he indulge into unfair trade practice. The remaining allegations, contained in the complaint were denied.
5. However, on 14.5.2013 Sh. Pankaj Chandgothia, Advocate filed his vakalatnama on behalf of Opposite Party No.3 before the District Forum and made an endorsement on the written statement of Opposite Party No.2 that he adopted the reply on behalf of Opposite Party No.3.
6. The complainant filed replication, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
7. The Parties led evidence, in support of their case.
8. After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint, as stated above.
9. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
10. However, the service of respondents No.2 and 3 was dispensed with vide order dated 24.2.2014, as on 24.2.2014 itself, the appellant/complainant made a statement before this Commission that he did not claim any relief against respondents No.2 and 3 in appeal.
11. We have heard the appellant in person, Counsel for respondent No.1, and have gone through the evidence and record of the case, as also the written submissions of the parties carefully.
12. The appellant/complainant, in person, submitted that at the time of launching the project, respondent No.1/Opposite Party No.1 were not having necessary permissions/clearances. It was further submitted that an application was moved by the appellant/complainant before the District Forum to amend the complaint, by inserting therein Para 13-A to the effect that the Opposite Party No.1 had launched the project/scheme of DLF Homes, Panchkula without taking necessary approvals, permission and clearance from the concerned government departments/ agencies and they collected huge amounts, which amounted to unfair trade practice. It was further submitted that the said application for amendment was arbitrarily declined by the District Forum. It was further submitted that the District Forum held that the judgments, relied upon by the complainant could be referred at the time of final arguments and the complainant could not be allowed to amend the complaint at this belated stage particularly when the proceedings before the Forum were summary in nature. It was further submitted that the application for allotment, Annexure OP-1/1, was signed by the appellant/complainant and the same was not signed by respondent No.1/Opposite Party No.1. It was further submitted that the amount of Rs.4 Lacs paid by the appellant/complainant was not the earnest money but the same was paid as advance money. It was further submitted that the Opposite Party No.1 resold the floor, in question at higher rate and, thus, indulged into unfair trade practice. It was further submitted that the payment was construction linked and no construction had been started at the site and, therefore, the deposit and forfeiture of the amount was totally illegal. The complainant placed reliance upon Bharminder Singh Mann Vs. M/s DLF Homes, Panchkula Ltd. and Anr., Consumer Complaint No.800 of 2012 decided by District Forum-I, U.T., Chandigarh on 29.05.2013, against which, First Appeal No.348 of 2013 was dismissed by this Commission vide order dated 23.8.2013.
13. The Counsel for respondent No.1/Opposite Party No.1 submitted that the appellant/complainant, as per the construction linked payment plan opted by him, was required to pay 20% of the total price less booking amount within 2 months of booking and 10% of the total price within four months of the booking, which he failed to remit. It was further submitted that the appellant/complainant only paid Rs.4 Lacs towards the booking and did not pay any amount thereafter. It was further submitted that due to non remittance of the outstanding amount against the appellant/complainant, despite numerous demand notices/reminders, allotment was rightly cancelled and booking amount forfeited by respondent No.1/Opposite Party No.1, in accordance with Clause 21 of the terms and conditions of the said application form, Annexure OP-1/1. It was further submitted that respondent No.1/Opposite Party No.1 had clearly explained the position vide terms and conditions of the application form, Annexure OP-1/1, that the construction would only commence after all necessary approvals were received from the concerned authorities and it, therefore, obtained all the necessary approvals. It was further submitted that, in any case, the appellant/complainant was bound to make payment of arrears and installments in accordance with the schedule laid down in the construction link payment plan. It was further submitted that the District Forum, rightly dismissed the complaint by appreciating the facts and evidence on record, and, as such, the appeal is liable to be dismissed.
14. Admittedly, the appellant/complainant, paid an amount of Rs.4 Lacs towards the booking of the property, in question, and submitted an application form dated 31.3.2011 for allotment of Independent Floor No.DVF-B1/1-FF in DLF Valley, Panchkula. It is also in evidence that the the total price of the independent floor was Rs.93,44,090/- and the appellant/complainant opted for construction linked payment plan.
15. The preliminary objection raised by respondent No.1/Opposite Party No.1, was as regards the existence of arbitration clause in the agreement. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;
œ3. Act not in derogation of any other law.”
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.?
Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. and another Vs. N.K.Modi (1996)6 SCC 385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. In this view of the matter, this objection of respondent No.1/Opposite Party No.1, being devoid of merit, must fail, and the same stands rejected.
16. Clearly, the allotment of Independent Floor bearing No.DVF-B1-1-FF to appellant/complainant, was to be regulated in accordance with the terms and conditions of application form. The allotment, in favour of the appellant/complainant, as is apparent from Annexure OP-1/1, was construction linked. The appellant/complainant was required to make payment, as per construction linked payment plan opted by him. As per the terms and conditions of the application form, Annexure OP-1/1, earnest money means 15% of the total price of the floor. The construction link payment plan [at Page 62 of the District Forum file], duly signed by appellant/complainant is reproduced below:-
CONSTRUCTION LINK PAYMENT PLAN | |
| On Application for Booking | Rs.600000/- (On Plot size ‰¥ 502 Sq Yds i.e.420 Sq Mtr)Rs.400000/- (On Plot size 502 Sq Yds i.e.420 Sq Mtr) |
| Within 2 Months of Booking | 20% of Total Price less Booking Amount |
| Within 4 months of Booking | 10% of Total Price |
| Foundation upto Plinth Level or Within 6 months of Booking, whichever is later | 12.5% of Total Price |
| Casting of Ground Floor Roof Slab or Within 9 months of Booking, whichever is later | 12.5% of Total Price |
| Casting of First Floor Roof Slab or Within 15 months of Booking, whichever is later | 10% of Total Price |
| Casting of Second Floor Roof Slab or Within 15 months of Booking, whichever is later | 10% of Total Price |
| Completion of Flooring and tile work or Within 18 months of Booking, whichever is later | 10% of Total Price |
| On filing of Application for Completion Certificate or Within 21 months of Booking, whichever is later | 10% of Total Price |
| On offer of Possession | 5% of Total Price + IBMS + Club + Registration + Stamp Duty + Other charges, if any. |
œ21. The Applicant agrees that the Company shall be entitled to forfeit the Earnest Money along with the Non refundable Amounts in case of non fulfillment/breach of the terms and conditions of the Application and the Agreement including withdrawal of the Application and also in the event of failure by the Applicant to sign and return to the Company the Agreement within thirty (30) days from the date of its dispatch by the Company. Thereafter the Applicant shall be left with no lien, right, title, interest or any claim of whatsoever nature in the Said Independent Floor. The Company shall thereafter be free to resell and/or deal with the said Independent Floor in any manner whatsoever. The amount(s), if any, paid over and above the Earnest Money and the Non Refundable Amounts, would be refunded to the Applicant by the Company only after realizing such amounts from resale of the Said Independent Floor but without any interest or compensation of whatsoever nature. The Company shall at all times have the first lien and charge on the Said Independent Floor for all its dues payable by the Applicant to the Company. If the amount deposited/paid by the Applicant is less than the Earnest Money and the Non-Refundable Amounts then the applicant agrees and undertakes to make the payment of the difference forthwith at the first written request from the Company.?
18. The District Forum, thus, rightly held that since the appellant/complainant did not make payment to respondent No.1/Opposite Party No.1, as per payment schedule, he committed breach of terms and conditions of the application form. Due and adequate opportunity to comply with the terms and conditions of the application form, was afforded to the appellant/complainant. Admittedly, the booking/allotment of Property No.DBF-D1/1 FF in favour of the appellant/complainant was cancelled on 2.12.2011 and the said property was re-allotted to one Neeraj Rana on 4.2.2012. Though the earnest money i.e. 15% of the price plus interest on delayed payment was forfeitable, yet since the appellant/complainant had deposited only Rs.4 Lacs, respondent No.1/Opposite Party No.1 rightly forfeited the amount to that extent only. The cancellation of allotment and forfeiture of earnest money was done after affording due opportunity to the appellant/complainant. Clearly, respondent No.1/Opposite Party No.1 was well within its rights to allot the flat, in question, to somebody else and the same did not, in any manner, amounted to indulgence into unfair trade practice. When the appellant/complainant did not make payment as per the terms and conditions of the application form and the construction link payment plan opted by him, respondent No.1/Opposite Party No.1 could not indefinitely keep the property in the name of the appellant/complainant and incur losses there for.
19. As regards the allegation of the appellant/complainant that respondent No.1/Opposite Party No.1 did not have necessary approvals/permissions before launching the project, there is no averment, in the complaint, to this effect. The factual position in respect of the same stood clearly explained to the appellant No.1/complainant vide the terms and conditions of the application form, Annexure OP-1/1, that the construction would only commence after all necessary approvals were received from the concerned authorities. Since the appellant/complainant was well aware that the layout plans/building plans for the development of the said project were not yet sanctioned, therefore, it could not be said that respondent No.1/Opposite Party No.1 gave any tempting advertisement to deliver possession within the stipulated time and misrepresented the appellant/complainant that it had all the required permission. The following stipulation appearing in application form for allotment of an Independent Floor in DLF Valley, Panchkula (at Page 48 of the District Forum file), is extracted hereunder:-
œThe Applicant has clearly understood that by submitting this Application the Applicant does not become entitled to the final allotment of the Said Independent Floor in the Said Building/Said Complex, notwithstanding the fact that the Company may have issued a receipt in acknowledgement of the money tendered with this Application. The Applicant further understands that it is only after the issuance of the letter of allotment that the allotment will get confirmed and after the Applicant signing and executing the Agreement and agreeing to abide by the terms and conditions laid down therein that the allotment of the Said Independent Floor shall become final. If the Applicant fails to execute and return the Agreement within thirty (30) days from the date of its dispatch by the Company, then the Company shall have the discretion to treat this Application as cancelled and on such cancellation the Earnest Money (hereinafter defined) along with the Non Refundable Amounts (hereinafter defined), paid by the Applicant, shall stand forfeited. The Applicant is aware that the layout plan/building plans for development of the Said Project are not yet sanctioned by Director Town and Country Planning (DTCP), Chandigarh. The construction will only commence after all necessary approvals are received from the concerned authorities. The Applicant understands that if for any reasons, including non-sanction of the layout plan, the Company is not in a position to finally allot the the Said Independent Floor within a period of one year from the date of this Application, the Company shall refund the booking amount deposited by the Applicant, with simple interest @ 6% per annum, calculated for the period such amount has been lying with the Company for which the Applicant give notice to the Company. The Company shall refund the amounts within 30 days of receipt of the notice from the Applicant. The Applicant understands that the Company shall have no other liability of any kind except the refund of such amounts.?
20. In view of the above, it cannot be said that the appellant/complainant was not aware of the fact that the construction would only commence after all necessary approvals were received by respondent No.1/Opposite Party No.1 from the concerned authorities. The District Forum, thus, rightly held that the appellant/complainant could not derive benefit out of the law settled in Kamal Sood Vs. DLF Universal Ltd., III (2007) CPJ 7(NC), as he was well aware that the layout plans/building plans for the development of the said project were not yet sanctioned. Therefore, this contention of the appellant/complainant, being devoid of merit, stands rejected. The case titled Bharminder Singh Mann Vs. M/s DLF Homes Panchkula Pvt. Ltd. and Anr. (supra), is distinguishable on facts and, thus, is of no help to the appellant/complainant.
21. Since the terms and conditions were binding upon the appellant/complainant, and he failed to adhere to the same, there was no deficiency, in rendering service or indulgence into unfair trade practice on the part of respondent No.1/Opposite Party No.1, in cancelling the allotment and forfeiting the amount. In these circumstances, the District Forum, holding no deficiency in rendering service or indulgence into unfair trade practice, rightly dismissed the complaint.
22. No other point, was urged, by the Counsel for the parties.
23. In view of the above discussion, it is held that the order passed by the District Forum, does not suffer from any illegality, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal, filed by the appellant/complainant, is dismissed, with no order as to costs. The order of the District Forum is upheld.
25. Certified Copies of this order be sent to the parties, free of charge.
26. The file be consigned to Record Room, after completion.