Chandigarh

DF-I

CC/266/2021

Anup Singh - Complainant(s)

Versus

DLF Homes Panchkula Pvt Ltd. - Opp.Party(s)

Narender Yadav, Vineet Yadav

07 Oct 2021

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/266/2021
Date of Institution	:	20/04/2021
Date of Decision	:	07/10/2021

 

Anup Singh S/o Sh.Harikesh Singh, R/o H.No.54A, First Floor, Sector-15A, Hisar, Haryana-125001.

… Complainant

V E R S U S

1. DLF HOMES PANCHKULA Pvt. Ltd., (Earlier Office) SCO 190-191-192, Sector-8C, Chandigarh-UT. Pin-160009 through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing. Present Address:-Registered Office Address:

     DLF HOMES PANCHKULA Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002 Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.

2. Rajeev Singh, Additional Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002 Haryana, India.

Opposite Parties

CORAM :	RAJAN DEWAN	PRESIDENT
	SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                

ARGUED BY	:	Sh.Narender Yadav, Counsel for Complainant.
	:	Sh.Kunal Dawar, Counsel for OPs.

 

Per Suresh Kumar Sardana, Member

1.      The long and short of the allegations are, that the complainant booked a flat in DLF Valley Project on 21.03.2012 and paid an amount sum of Rs.4,00,000/-(Annexure C-1). The unit No.F-3/5 Ground floor was allotted to the complainant vide letter dated 27.03.2012 (Annexure C-2). The total price of the Unit is Rs.87,21,850/-. The complainant till now paid Rs.4,00,000/-to the Opposite Party. The copy of receipt is (Annexure C-3). The Opposite Party completely failed to execute the Independent Flat Buyer agreement despite the number of request made by the complainant to the Opposite Party for execution of the agreement as soon as possible but Opposite Party-Builder never paid any heed to the request of the complainant. The Opposite Party sent an email dated 17.05.2015 stating that the construction of the property has not started yet and will be updated on any further developments on the same (AnnexureC-4). The Complainant wrote a letter dated 15.09.2017 whereby complainant requested the Opposite Party to refund the entire amount of Rs.4,00,000/- (AnnexureC-5).This delay in the grant of possession and further not refunding the total amount deposited against the said unit, has caused financial loss and grave mental agony and disturbance to the deponent. Hence, this present consumer complaint.
2.     The claim of the complainant has been contested by the Opposite Parties on numerous grounds, inter alia, that the complainant have concealed material facts from this Commission, that in the face of existence of arbitration clause in the application for this consumer complaint is not maintainable; that this complaint is also not maintainable before this commission as the complainant are seeking modification/rewriting of terms and conditions of the application form and as such it Can be adjudicated by Civil Court only; that this Commission did not vest with territorial jurisdiction; that they did not fall within the definition of consumer, as they are investors; that the complaint filed is beyond limitation; that the unit in question was cancelled, as the complainant failed to make payment despite the fact that number of reminders were sent to them in the matter and thereby guilty of violation of terms and conditions of the application form, to which the parties were bound to.
3.     On merits, booking of the unit in question by the complainant and payments made by them as mentioned in the complaint have not been disputed. Opposite Parties have made prayer to dismiss this compliant with costs.
4.     Rejoinder was filed and averments made in the consumer complaint were reiterated.
5.     Parties led evidence by way of affidavits and documents.
6.     We have heard the learned counsel for the parties and gone through the record of the case. After perusal of record, our findings are as under:-
7.     First, we will deal with the objection raised by the Opposite Parties that the complainant did not fall within the definition of consumer. It may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the Opposite Parties to establish that the complainant Have purchased the unit in question to indulge in purchase and sale of units/flats as was held by the Hon’ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers. Objection taken in this regard, as such, stands rejected.
8.     Now we will deal with the objection regarding territorial jurisdiction of this Commission, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/For a within the territorial limits of which that occurs. In this case, it is clearly evident from the payment receipts dated 21.03.2012 attached herewith as Annexure C-1. As far as objection taken by the Opposite Parties to the effect that in the face of existence of Arbitration clause in the application form, jurisdiction of this Commission is barred it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh Vs.Emaar MGF Land Limited & Anr., Consumer Case No.701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the contracts/Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos.2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018.

9.       There is no dispute with regard to the fact on 21.03.2012 the complainant had booked the flat in dispute and made total payment of Rs.4,00,000/- to the Opposite Parties till 21.03.2012. It has been vehemently contended by the complainant, through their Counsel, that not even a single brick had been laid down by the Opposite Parties in the Block-F, and also later on they were not keen to construct the said block, so they made request for refund of the amount paid and the Opposite Parties have not refunded the said amount of Rs.4,00,000/-.

10.     At the same time, as far as objection taken to the effect that this consumer complaint is not maintainable because the complainants are seeking rewriting/modification of the terms and conditions of the application form and that only the civil court has the  power to adjudicate the matter is concerned, it may be stated here that it is a simple case of adoption of unfair trade practice, negligence and deficiency in providing service on the part of the opposite parties, as they have failed to even construct the unit in question for which they had received substantial amount. Even the queries raised by the complainants were not entertained by the opposite parties seriously and they were left in lurch. Their hopes to have a house have been dashed to the ground. In Lucknow Development Authority Vs. M.K.Gupta, Civil Appeal No.6237 of 1990, decided on 5.11.1993,  the Hon’ble Supreme Court held that where the developer is at fault in not delivering possession of an immovable property, the act so amounts to denial of service and consumer complaint is maintainable before the Consumer Fora. As such, objection raised by the opposite parties in this regard stands rejected.
11.      Since the opposite parties are still utilizing the amount paid by the complainants and have not refunded the same, as such, in that event there is a continuing cause of action in their favour, in view of observations made by the Hon’ble National Commission in KNK Promoters & Developers Versus S.N. Padmini, Revision Petition No. 340 of 2011, decided on 31 Aug 2016 in which it was held that the builder cannot withhold the amount deposited by the allottee and if it is so, there is a continuing cause of action in favour of the allottee, to file a complaint seeking refund of the said amount.

          In the instant case, fault if any, as explained above, was on the part of the opposite parties and they cannot take benefit out of that by saying that the consumer complaint is barred by limitation. In National Insurance Co. Ltd. vs. Hindustan Safety Glass Works Ltd. and allied cases, in Civil Appeal No. 3883/2007, decided on 07.04.2017, the Hon’ble Supreme Court of India held that the provisions concerning the limitation issue in the Act, 1986 could not be strictly construed to the disadvantage of a consumer in cases, where the supplier of goods or services itself was instrumental in causing delay.

12.      Now, we will deal with the question, as to what rate of interest should be awarded to the complainants, while ordering refund of amount paid.  It may be stated here that compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. The party concerned in refund case is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot but he is deprived of same; he is deprived of the benefit of escalation of the price of that flat/plot; and also he would have to take out more money from his pocket for beating the escalation in price, for buying a new flat/plot and as such, compensation to be granted by way of interest on the deposited amount in such cases would necessarily have to be higher. Our this view is supported by the principle of law laid down by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 wherein it was held that in a case where money is being simply returned, the purchaser is suffering a loss in as much as he had deposited the money in the hope of getting a flat/plot and therefore, he has been deprived of the benefit of escalation of the price. The compensation in such cases, therefore, would necessarily have to be higher. In the present case also, if we grant interest @12% p.a. on the amount to be refunded to the complainants, that will meet the ends of justice.
13.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. Opposite Party No.1 and 2 jointly and severally are directed as under:-

1. to pay ₹4,00,000/- to the complainant alongwith interest @ 12% per annum from the date of deposit till realization.
2. to pay an amount of ₹40,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay ₹10,000/- to the complainant as costs of litigation.

14.     This order be complied with by the Opposite Party No.1 and 2 within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 15% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
15.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
07/10/2021	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rajan Dewan]
Ls	Member	Member	President