BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMRITSAR.
Consumer Complaint No. 489 of 2020
Date of Institution: 17.11.2020
Date of Decision:28.9.2021
Anil Shah S/o Vasant Lal, 2414, Gali No.1, Bagh Ramanand, Amritsar
Complainant
Versus
- Delhi Development Authority through its Chairman, Vikas Sadan, INA, New Delhi 110030
- Vice Chairman, Delhi Development Authority, Vikas Sadan, INA, New Delhi
- The Assistant Director (Housing) Delhi Development Authority, Vikas Sadan, INA, New Delhi
Opposite Parties
Complaint under section 35 of the Consumer Protection Act, 2019)
Result : Complaint Allowed
Cases referred:-
- Hon’ble Supreme Court of India in case Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Ors 2021(1) Civil Court Cases 533
- Hon’ble Supreme Court of India in case titled as M/s. Swastik Gases P.Ltd. Vs. Indian Oil Corp. Ltd in Civil Appeal No. 5806 of 2013 arising of SLP No. 5595 of 2012, Hakam Singh Versus Gammon (India) Ltd. 1971(1) SCC 286, Globe Transport Corp. Versus Triveni Engg. Works reported as 1983(4) SCC 707, New Moga Transport Co. Vs. United India Insurance Co.Ltd. 2004(4) SCC 677
- Hon’ble Supreme Court in case Amitabha Dasgupta Vs. United Bank of India and others AIR 2021 SC (Civil) 1457
Counsel for the parties :
For the Complainant : Sh. Sanjay Aggarwal,Advocate
For the Opposite Parties : Sh. Vaibhav Kumar Sharma,Advocate
CORAM
Mr. Jagdishwar Kumar Chopra, President
Mr.Jatinder Singh Pannu, Member
ORDER:-
Mr. Jagdishwar Kumar Chopra, President :-Order of this commission will dispose of the present complaint filed by the complainant u/s 35 of the Consumer Protection Act, 2019.
Brief facts and pleadings
1. Brief facts of the case are that the complainant applied for DDA flat under the DDA Housing Scheme 2019 for EWS and he was allotted the Flat Draw copy No. 516/832, R.No. 200035, Anil Shah. Payment mode-C, G-7, Pocket-5, Block-A-18, Ground Floor, Flat No.2 in Narela. The DDA given the concession of 10% in the construction cost of EWS flats at G-7/G-8, Sector V besides the rebate of further 5% for persons with disability. The complainant was allotted the flat under the category of “persons with disability” and he was entitled for the concession of 10% on construction and the rebate of 5% of disability category. After the allotment, the complainant got the demand letter bearing No. 131942 dated 4.2.2020 and after cutting of date mentioned the date 6th March 2020 which was issued by opposite party No.2 to pay the amount of the flat amounting to Rs. 9,24,197/- and received the same by the complainant on 16th March 2020. But in this demand letter no concession of 10% was given on the construction cost. The amount of construction cost is Rs. 7,83,734/- and the 10% amount on this comes out to be Rs. 78,373.40 which was not deducted and this fact was brought to the notice of opposite party No.3 vide letter dated 6.6.2020 but no response was given by the opposite parties and again issued the same demand letter requiring to deposit the amount. It is pertinent to mention that earlier the complainant visited the office of the DDA on 19th March 2020 in New Delhi for the deposit of money of the flat in Central Bank of India but due to epidemic of Corona, he was not allowed entry in the office of the DDA. The copy of railway ticket is attached. The certificate from postal department with regard to delivery of letter dated 6.6.2020 is also attached. Notification dated 19.3.2020 of DDA with regard to closure of the department due to Corona is attached. It was also told that the intimation of the opening of the office of DDA will be displayed on the website of the DDA. The complainant on 25th and 26th June again sent the reminder in the form of email to the opposite parties for reminding the matter of non deduction of 10% amount from construction cost and correct the calculations after deducting 10% of the construction cost. The complainant also lodged complaint on Toll free No. 18001-10332 of the department regarding the matter having complaint No. 101438 dated 2.7.2020. The complainant who is an old poor handicapped sent number of reminders on 6.7.2020, 22.7.2020, 27.7.2020, 3rd August 2020, 6th and 18th August 2020, 24th August 2020, 14th Sept. 2020, 17th Sept.2020 via emails but got only answer that the matter is forwarded. But on 18th Sept, 2020 the complainant got reply from the opposite parties that the calculation shown in the demand letter dated 6th March 2020 is correct but no details was provided and on the same date the complainant sent email to Sh. S.P.Aggarwal, under secretary of the department to provide him the detail of the account and made number of calls but no response and finally refused to hear the grievance of the complainant. The complainant who is a handicapped person with old age booked the flat for passing the rest of his life but the non responsive attitude of the opposite parties forced the complainant to cancel the booking though he was ready to pay the money at one shot after deduction i.e 10% rebate on construction and 5% rebate in handicapped quota and demanded back the money amounting to Rs. 25000/- given on 29th Nov. 2019 with interest but the opposite parties told that his deposit have been forfeited by the opposite parties. It is pertinent to mention that the complainant cancelled the flat in compulsive conditions as the opposite parties shown the unprofessional attitude by not providing the details of the amount claimed and forced the complainant to pay the excessive amount which is deficiency in service in the eyes of law. Vide instant complaint, complainant has sought for the following reliefs:-
(a) Opposite parties be directed to refund the deposit of Rs. 25000/- alongwith interest @ 12% p.a. from the date of booking till realization;
(b) Compensation to the tune of Rs. 50,000/- may also be awarded to the complainant.
(b) Opposite party be also directed to pay Rs. 11000/- as litigation expenses to the complainant ;
(b) Any other relief to which the complainant is entitled be also awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties appeared and filed written version taking certain preliminary objections therein interalia that any dispute shall be subject to the jurisdiction of courts at Delhi/New Delhi only since the agreed jurisdiction is at Delhi/New Delhi, the instant complaint suffers from inherent lack of jurisdiction. Thus the complaint is not maintainable before this commission and in support of this version it was held by the Hon’ble Supreme Court of India in case M/s. Swastik Gases P.Ltd. Versus Indian Oil Corpn Ltd. in Civil Appeal No. 5806 of 2013 arising of SLP No. 5595 of 2012 that in the jurisdiction clause of an agreement, the absence of words like “alone” , only, exclusive or exclusive jurisdiction is neither decisive nor does it make any material difference in deciding the jurisdiction of a court. The very existence of a jurisdiction clause in an agreement makes the intention of the parties to an agreement quite clear and it is not advisable to read such a clause in the agreement like a statute.” It is pertinent to mention here that the complainant himself opted for cancellation of the allotment made to him , as such complainant does not qualify for the true meaning of consumer, therefore, is not eligible for approaching this Commission. The complainant had applied after agreeing to the terms and conditions and given his consent for the jurisdiction at Delhi for any dispute arise/arose between the parties, so in the said circumstances the present Commission does not have territorial jurisdiction to try the present matter. It was held by the Hon’ble Supreme Court of India in case Hakam Singh Vs Gammon (India) Ltd. 1971(1) SCC 286 that “ Notwithstanding the place where the work under this contract is to be executed, it is mutually understood and agreed by and between the parties hereto that this contract shall be deemed to have been entered into by the parties concerned in the city of Bombay and the court of law in the city of Bombay alone shall have jurisdiction to adjudicate thereon. It was held that only the courts in Bombay and not Varanasi had jurisdiction over the subject matter in dispute.” Same view has been taken by the Hon’ble Supreme Court of India in case Globe Transport Corp Versus Triveni Engg. Workds 1983(4) SCC 707, New Moga Transport Co. Vs. United India Insu.Co. Ltd. 2004(4) SCC 677 ; that the complaint is liable to be dismissed as per terms and conditions mentioned in brochure Ex.C-2 and the complainant cannot travel beyond the said brochure. The complainant applied under DDA Housing Scheme 2019 at Delhi office of the opposite party. In the draw held on 23.12.2019 complainant was allotted flat No. 02, Ground Floor, Block A 18, Pocket V, Sector G-7, Narela. The allotment letter was sent to the complainant at his postal address via letter dated 6.3.2020. It is pertinent to mention that due to COVID 19 outbreak, India has been under a nation wide lock down from 22.3.2020 till 3.5.2020 and lock down was again extended time to time due to which the public hearing was closed and the allottee submitted his request via email whereby he demanded 10% subsidy/rebate on the cost of construction i.e. Rs. 78,373.4/-. However subsidy of Rs. 46,286/- which is 5% of the total of land cost and cost of construction i.e. Rs. 9,25,716/-. In order to clarify the same, the file was routed to the system branch from where the DAL is generated. It was informed that the concessional rate is charged as per HAC branch supplied the costing. It is further clarified that the 15% of rebate is given to the allottee under PD category as per orders. It is pertinent to mention that a letter No. E/339(44)2020/DDAE19/NA/4375 dated 18.9.2020 was sent to the complainant whereby it was informed as under:-
a) The cost of construction amounting to Rs. 7.83,734/- as mentioned in Column 1(b) of the DAL dated 6.3.2020 is reached at after deducting the due 10% construction cost.
b) The amount of Rs. 7,83,734/- is the concessional construction cost itself.
c) Further, subsidy of Rs. 46,286/- was provided to the allottee at 1(E) , is in addition to the 10% rebate in the construction cost applicable for the allottees belonging to PD category;
d) It was also informed that the DAL issued to the allottee is in consonance with the calculations and he may make the payment to proceed further.
It was submitted that via E-office Diary 69270/2020/R&D(S) PR-1 dated 22.9.2020, the allottee/complainant at point 6 requested to refund of his application money i.e. Rs. 25000/-. The file was routed to the accounts branch for cancelling the flat allotted and refund the application amount i.e. Rs. 25000/-. The accounts department quoted that the request for refund of application money was made after lapse of 90 days from the date of issue of demand cum allotment letter i.e. 6.3.2020. Hence, as per point 3(IV) of the brochure , full application money will be deducted as cancellation charges, therefore, there may be no refund. The same was informed to the allottee via letter dated 17.12.2020. The complainant himself is guilty of not fulfilling the agreed terms and conditions mentioned in the brochure Ex.C-2. There is no deficiency in service on the part of the replying opposite party. On merits the opposite parties have taken the similar pleas as were taken in the preliminary objections, as such there is no need to reproduce the same. While denying and controverting other allegations, dismissal of complaint was prayed.
Evidence of the complainant and Arguments
3. Alongwith the complaint, complainant has filed his self attested affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-37 and closed his evidence.
4. On the other hand opposite parties alongwith written version have filed affidavit of Sh. Ashok Jangid , Dy. Director (Janta)-H, demand cum allotment letter Annexure A, letter dated 18.9.2020 Annexure B, copy of E-office diary dated 22.9.2020 Annexure C, copy of brochure at point 3(IV) Annexure D, copy of letter dated 17.12.2020 Annexure E and closed the evidence on behalf of the opposite parties.
5. We have heard the Ld.counsel for the parties and have carefully gone through the record on the file . We have also gone through the written synopsis submitted by both the parties.
Findings
6. From the appreciation of the facts and circumstances of the case, the case of the complainant is that he has applied for DDA flat under DDA Housing Scheme 2019 for EWS and he was allotted flat Draw copy No. 516/832, R.No. 200035, Anil Shah, Payment Mode-C, G-7, Pocket -5, Block A-18, Ground Floor, Flat No.2 in Narela. It is also pleaded that DDA has given concession of 10% in the construction cost of EWS Flat besides the rebate of 5% for persons under disability. The complainant was allotted the flat under the category of “persons with disability”and he was entitled for the concession of 10% on construction and rebate of 5% of disability category. It is further averted that the allotment of the flat is not disputed . However, when after the allotment the complainant got the demand letter dated 4.2.2020 and after cutting of date mentioned the date 6.3.2020 and the complainant was asked to pay the amount of Rs. 9.24,197/- which was paid by the complainant on 16.3.2020. However, in this demand letter no concession of 10% was given on the construction cost. The amount of construction cost is Rs. 7,83,734/- and the 10% amount on this comes out to be Rs.78,373.40 which was not deducted . In this regard complainant approached the opposite party vide letter dated 6.6.2020 but no response was given by the opposite parties. In this regard complainant also approached the opposite party office of the DDA on 19.3.2020 in New Delhi but to the epidemic of Corona he was not allowed entry in the office of the DDA. The complainant also sent reminder on 25th and 26th June for reminder the matter of non deduction of 10% amount . The complainant also sent reminders dated 6.7.2020, 22.7.2020, 27.7.2020, 3.8.2020, 6.8.2020, 18.8.2020, 24.8.2020, 14.9.2020, 17.9.2020 via emails but to no avail. The opposite party vide letter dated 18.9.2020 sent reply that the calculations shown in the demand letter dated 6.3.2020 is correct but no details was provided. The complainant on the same date sent email to Sh.S.P. Aggarwal, under secretary of the department to provide him the detail of the account and made number of calls but the opposite party refused to hear the grievance of the complainant. As such the complainant demanded back the money amounting to Rs. 25000/- with interest but the opposite parties told that his deposit have been forfeited by the opposite parties and the act of the opposite parties amounts to deficiency in service which cause lot of mental tension, harassment besides financial loss to the complainant.
7. On the other hand the pleas of the opposite parties are that the complaint is not maintainable before this Commission as jurisdiction for the purpose of any dispute ought to be raised at Delhi/New Delhi. The other plea of the opposite parties is that the complainant was provided the subsidy of Rs. 46,286/- (which is 5% of the total of land cost and cost of construction i.e. Rs. 9,25,716/-) which is in addition to the 10% rebate in the construction cost applicable for the allottees belonging to PD category. It was further submitted that request of the complainant for refund of application money was made after lapse of 90 days from the date of issue of allotment letter , as such as per point 3(IV) of the brochure full application money was forfeited. It was further submitted that as per section 28 of the Indian Contract Act, 1972 the parties cannot arbitrarily decide the jurisdiction of court , as such the present complaint is barred as the jurisdiction was agreed between the parties and complainant gave his consent for the same. Ld. Counsel for the opposite parties vehemently argued that there is no deficiency in service on the part of the opposite parties in forfeiting the application amount and the complaint as such is liable to be dismissed.
8. During the course of arguments, the complainant has draw attention of this Commission to Ex.C-8 i.e. the demand letter where the details of the flat is given . In column B land cost is shown as Rs. 1,41,982/-, cost of construction depicted as Rs. 7,83,734/- total cost Rs. 9,25,716/- and less subsidy as Rs. 46,286/- and total deposited cost was depicted as Rs. 8,79,430/-. Under one time maintenance charges Rs. 15675/- was charged for Civil, Rs. 5000/- for Electrical and Rs. 3722/- was shown as GST etc. More or less every detail is given. The main grouse of the complainant is that the complainant has not given 10% concession which was to be agreed under clause B of Ex.C-8 dated 4.2.2020 and this is the main dispute between the complainant and the opposite party. On 6.6.2020 the complainant has given a letter Ex.C-12 seeking clarification from the opposite party that why 10% concession is not mentioned in Ex.C-8 and prayed that after deducting 10% rebate new demand notice be issued , so that he may deposit remaining request amount. Besides this complainant also placed on record track record qua this letter Ex.C-12 which depicts that letter was delivered to the opposite parties but no reply was given. Besides this complainant has placed on record Ex.C-15 to Ex.C-18 different emails sent to the opposite parties as reminders . But due to Covid the complainant was not able to visit. On the other hand the complainant was asked by the opposite party vide emails Ex.C-19 and Ex.C-20 that he should visit to the DDA office for further clarification, if any. Whereas the complainant has argued that it is admitted fact that due to Covid none was able to move. The complainant also put reliance on another letter dated 3.8.2020 wherein he has stated that on 19.3.2020 he personally visited the DDA office but at that time DDA office was closed and there was lock down and none was available. It is also argued by the complainant that inspite of the request made to the guard present in the office he was not allowed to meet with any official qua his query about his flat. A bare reading of that letter dated 6.6.2020 specifically mentioned that he is ready with the money and he encashed his FDR from the bank and the money is lying in the saving account of the complainant and placed on record Ex.C-37 to Ex.C-43 depicting that complainant was ready with money but only due to non cooperative attitude of the opposite party, he was compelled to cancel his allotment vide its letter Ex.C-32 which is supported by track report. But it is sorry state of affairs that authorities of the DDA has not bothered to reply any of the letter sent by the complainant and thus the complainant argued that the conduct of the opposite party was clearly comes within the ambit of unfair trade practice. The complainant also relied upon the law as held by the Hon’ble Supreme Court of India in case Ireo Grace Realtech Pvt.Ltd. Vs. Abhishek Khanna & Ors 2021(1) Civil Court Cases 533 in which the Hon’ble Supreme Court has categorically held that “Unfair trade practice –Apartment Buyer’s Agreement-Incorporation of one sided and unreasonable clauses in Apartment Buyer’s Agreement constitute an unfair trade practice u/s 2(1)® of the Act- Developer thus, cannot compel apartment buyers to be bound by one sided contractual terms contained in Apartment Buyer’s Agreement.”
9. The only argument on behalf of the opposite party is that jurisdiction of this Court/Commission is barred as per brochure of the DDA attached with the written version and as per clause 22( E)any dispute shall be subject to the jurisdiction of courts at Delhi/New Delhi only and placed reliance upon the judgement of the Hon’ble Supreme Court of India in case titled as M/s. Swastik Gases P.Ltd. Vs. Indian Oil Corp. Ltd in Civil Appeal No. 5806 of 2013 arising of SLP No. 5595 of 2012, Hakam Singh Versus Gammon (India) Ltd. 1971(1) SCC 286, Globe Transport Corp. Versus Triveni Engg. Works reported as 1983(4) SCC 707, New Moga Transport Co. Vs. United India Insurance Co.Ltd. 2004(4) SCC 677 and as such the Consumer Court/Commission has no jurisdiction to try and entertain the present complaint. Since it is also averted that as per section 28 of the Indian Contract Act since it was a contract between the complainant and the opposite party and the complainant himself has entered into the contract with the opposite party and now he himself resile from this contract and for that opposite party is not liable to pay anything to the complainant. Counsel for the opposite party during arguments draw the attention of this commission at page 29 of the brochure that since the complainant has not made good on his part of payment, hence his amount of Rs .25000/- initially paid stands forfeited and his flat was cancelled. Since the complainant has not fulfilled the requirement of the contract as agreed in the brochure itself and it is categorically mentioned in the brochure that , if nobody respond within 90 days, full application money stands forfeited.
10. This Commission has given thoughtful consideration to the averments made by both the parties. So far as the matter of jurisdiction is concerned, section 34(2) of the Consumer Protection Act is reproduced as under:-
“34- Jurisdiction of District Commission:-
(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction ;
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain ;
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case the permission of the District Commission is given ; or
( c) the cause of action, wholly or in part, arises ; or
(d) the complainant resides or personally works for gain.
So far as the present complaint is concerned, since the complainant is residing personally within the jurisdiction of this Commission, he has preferred to file the present complaint within the jurisdiction of this Commission. From the bare reading of this section, it clearly stated that as per section 34(2) the complainant has given right to file the complaint where he resides or work. Since the opposite party relied upon the fact that there was a brochure while applying for this flat , the complainant accepted all the conditions mentioned in the brochure but the law laid down by the Hon’ble Supreme Court as stated above 2021(1) Civil Court Cases 533 (supra) clearly mentioned in para 19.7 of the judgement as under:-
“19.7 We are of the view that the incorporation of such one sided and unreasonable clauses in the Apartment Buyer’s Agreement constitutes an unfair trade practice under section 2(1)( r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one sided as an incident of the power to discontinue unfair or restrictive trade practices. An unfair contract has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.
11. Above all since the Consumer Protection Act, 2019 itself is a complete code and it has categorically explained the jurisdiction how the jurisdiction of the District Commission is made out for filing a complaint. Any unilateral contract cannot prevail upon the statutory provisions of law made as mentioned in the said Act. In other words since it is clearly mentioned that complaint can be lodged by the complainant where he resides or carries on business clearly gives jurisdiction to file the complaint. This new insertion in the new Act 2019 which was not in the old Act. The complainant has to face lot of difficulties in institution a Consumer complaint because the complainant who resides at one place and cause of action carries on other place such complainant was finding the difficulty to institute the complaint to get redressal of grievances in speedy and in-expensive manner.
12. So this Commission is of the considered view that since the Consumer Protection Act is made to protect the right of the consumers preferably and the provisions should not be sacrificed merely on he grounds of technicalities . Hence, this Commission held that this Commission is fully empowered to entertain this complaint.
13. It is admitted fact that opposite party did not bother to respond letters vis-à-vis email and unable to get reply that concession of 10% is given or not . The complainant has made best to his efforts to get reply from the opposite party and it is sorry state of affairs that DDA is not a private agency rather it is Semi-Government department and this type of attitude by forfeiting the earnest money of the complainant does not behove on the part of the Government owned institution which is otherwise made for the welfare of the people.
14. From the facts as above since the opposite parties acted arbitrarily and silently forfeited the amount under the garb of unilateral conditions of the agreement amounts to unfair trade practice and this Commission has no hesitation to held that the complainant has fully proved that it is a case of unfair trade practice and deficiency in service. Accordingly, the complaint is allowed and the following relief is granted to the complainant which is to be made by all the opposite parties jointly and severally.
- Opposite parties is directed to refund Rs. 25000/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization ;
- So far as compensation , since the complainant was compelled to knock the door of this Commission and the opposite parties did not bother to redress the grievance of the complainant and certainly this litigation could have been avoided . Though admittedly compensation term has not been explained in the Consumer Protection Act, however since this Act is based on principle of equity, good concise and natural justice and the Commission is empowered to provide compensation after assessing the facts of each case. In the present case the conduct of the opposite parties is so callous and in human which compelled the complainant to knock the door of this Commission, hence, the opposite parties are liable to pay exemplary compensation to meet the ends of justice. This Commission relied upon the latest law on this point of compensation i.e. the Hon’ble Supreme Court in case Amitabha Dasgupta Vs. United Bank of India and others AIR 2021 SC (Civil) 1457 wherein it has been held that “ Deficiency in service- Duty of care should be exercised by bank irrespective of application of laws of bailment to contents of locker- Bank inadvertently broke customer’s locker, without giving prior notice, inspite of clearing pending dues by him- Bank acted in blatant disregard to responsibilities owned to customer as service provider- Case of gross deficiency in service- Imposition of costs of Rs. 5,00,000/- on bank, would be appropriate compensation to customer.” As the complainant has suffered a lot of mental as well as physical agony due to the act of gross deficiency of service and also the act of the opposite parties falls in unfair trade practice, as such the opposite parties are being guilty of unfair trade practice as well as gross deficiency in service hence are liable to pay compensation to the tune of Rs. 50000/- to the complainant. Opposite parties are also directed to pay litigation expenses to the tune of Rs. 5000/- to the complainant jointly or severally.
Compliance of this order be made within 30 days from the date of receipt of copy of this order ; failing which complainant shall be entitled to get the order executed through the indulgence of this Commission . Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission.
Announced in Open Commission (Jagdishwar Kumar Chopra) President
Dated:28.9.2021
(Jatinder Singh Pannu)
Member