Chandigarh

DF-I

CC/96/2015

Ravinder Kumar - Complainant(s)

Versus

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

Vishal Madaan

21 Oct 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/96/2015
Date of Institution	:	12/02/2015
Date of Decision	:	21/10/2015

 

 

Ravinder Kumar son of Sh. Aad Ram r/o Flat No.302, Shakti Apartment, Sector-14, Panchkula.

…..Complainant

V E R S U S

1. DLF Homes Panchkula Private Limited, Office : SCO No.190-191-192, Sector 8-C, Chandigarh through its Director.
2. DLF Homes Panchkula Private Limited, Regd. Office : 2^nd Floor, DLF Gateway Tower, DLF City Phase III, National Highway – 8, Gurgaon 122002, Haryana through its Managing Director.

……Opposite Parties

 

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                               

                                               

ARGUED BY	:	Sh. Vishal Madaan, Counsel for complainant.
		Sh. Avinit Avasthi, Counsel for OPs

                       

                 

PER P.L.AHUJA, PRESIDENT

1.         Sh. Ravinder Kumar, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against DLF Homes Panchkula Private Limited, Opposite Parties (hereinafter called the OPs), alleging that the OPs floated a residential project of plots, independent floors, affordable housing apartments under the name and style of “DLF Valley, Panchkula” situated at Village Bhagwanpur, Tehsil Kalka, District Panchkula.  The complainant approached OP-1 to purchase a 1450 sq. ft. independent floor in the aforesaid project of the OPs and entered into an Independent Floors Buyer’s Agreement dated 31.01.2012 with the OPs whereafter he was allotted independent floor No.D8/19-FF for Rs.58,29,000.04 and service tax of Rs.1,40,593/- was to be paid extra.  The possession of the independent floor was to be delivered within 24 months from the date of execution of the agreement and the payment schedule was 2 years construction linked payment plan. 

                According to the complainant, he paid a total sum of Rs.18,00,693/- to the OPs on different dates. The complainant received a letter dated 8.7.2013 from the OPs informing that the construction was kept in abeyance due to stay order with regard to project  in question passed by the Hon’ble Supreme Court which was ultimately dismissed vide order dated 12.12.2012. It was further mentioned in the said letter that the completion of the project had been delayed for 12 months due to aforesaid reason and the OPs sought confirmation from the complainant to extend 12 months time in completion of the project in question and that in case he did not agree, the company would cancel the allotment and refund the amount paid alongwith simple interest @ 9%.  The complainant opted for cancellation of the allotment and sought refund of money with simple interest.  Accordingly, the OPs cancelled the allotment and sent a DD dated 28.11.2013 of Rs.19,93,401.05  vide letter dated 10.12.2013.  The complainant has contended that the OPs did not refund the amount with 9% interest and thus made less payment of Rs.2,12,792/-. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint. 

2.         In their joint written reply, OPs have not disputed the factual matrix of the case. It has been averred that the complainant had approached the OPs through a broker by the name of Arya Estate and as per the application as well as builder buyer agreement, brokerage comes under non-refundable amount.  It has been pleaded that an amount of Rs.1,15,130/- was deducted as brokerage charges paid to Arya Estate by the OPs and the complainant was refunded the deposited amount alongwith interest @ 9%. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint. 
3.         The parties led evidence in support of their contentions.
4.         We have perused the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the learned Counsel for the parties. 
5.         It is the admitted case of the OPs that they had floated a residential project of plots, independent floors, affordable housing apartments under the name and style of “DLF Valley, Panchkula”. It is also admitted that the complainant approached OP-1 to purchase one 1450 sq. ft. independent floor in the said project and entered into an agreement dated 31.1.2012. The complainant was allotted independent floor No.D8/19-FF for Rs.58,29,000.04.  The possession of the said independent floor was to be delivered within 24 months from the date of execution of the agreement.  The complainant paid a total of Rs.18,00,693/- towards the booking amount and installments as detailed in para 5 of the complaint. It has also been admitted that the complainant was informed by the OPs on 8.7.2013 that the construction was kept in abeyance due to stay order passed by the Hon’ble Supreme Court in SLP No.21786-88/2010 which was dismissed vide order dated 12.12.2012 and the stay order was vacated.  It was further mentioned in the said letter that the completion of the project was delayed for 12 months due to aforesaid reason and a confirmation was sought from the complainant for extension of 12 months time for completion of the project. However, the complainant was also given an option for cancellation of the allotment and refund of the amount paid alongwith simple interest calculated @ 9% per annum. The complainant opted for cancellation of the allotment and sought refund of the money received by the company alongwith simple interest @ 9% per annum. The OPs cancelled the allotment of the independent floor in question vide letter dated 10.12.2013, copy of which is Annexure R-5 (Colly.) and sent a demand draft of Rs.19,93,401/- to the complainant.  According to the complainant, the total interest upto 10.12.2013 was Rs.4,05,500/- and the OPs had made the less payment of Rs.2,12,792/-. The sole point for determination in this case is whether the complainant is entitled to the refund of the amount of Rs.2,12,792/- alongwith interest or not?
6.         It has been urged by the learned counsel for the OPs that the complainant had approached the OPs through a broker by the name of Arya Estate as mentioned in the application for allotment (Annexure R-1) and also in the independent floor buyer agreement.  He has contended that as per the application for allotment and the builder buyer agreement, the brokerage comes under non-refundable amount.  He has further submitted that as per clause 46 of the independent floor buyer agreement, if the company has paid commission to a broker on behalf of the allottee, then the company shall retain the amount of brokerage as part of non-refundable amount in case of cancellation of allotment or otherwise, therefore, the payment of Rs.1,15,130/- was deducted as brokerage charges and payment of Rs.19,93,401/- was made to the complainant vide demand draft dated 28.11.2013.  The learned counsel for the OPs has vehemently argued that there is no deficiency in service on the part of the OPs.
7.         We have given our anxious consideration to the above arguments of the learned counsel for the OPs, but, we find the same to be devoid of any merit.  A perusal of the letter dated 8.7.2013 (Annexure C-7) sent by the OPs to the complainant reveals that the complainant was asked to confirm for additional time to be taken for completion of the construction and in case he did not agree to the same, the company will cancel the allotment and refund the amount paid by him alongwith simple interest calculated @ 9% per annum. In reply to that that letter, the complainant sent a letter dated 18.7.2013 (Annexure C-8) to OP-1 wherein he requested the company to cancel his allotment and refund the money received by it from him alongwith simple interest of 9% per annum.  It is evident that the offer made by the OPs in the letter dated 8.7.2013 (Annexure C-7) was accepted by the complainant.  In the said offer, the OPs nowhere mentioned that they were entitled to deduct the brokerage charges to the tune of Rs.1,15,130/- while refunding the amount paid to them.  Hence, the action of the OPs in deducting the amount of brokerage, while sending the payment vide letter dated 10.12.2013, is clearly in contravention to their offer made in their letter dated 8.7.2013 (Annexure C-7). Accordingly, the deduction of the amount of brokerage is an act of deficiency in service on the part of the OPs.
8.         The learned counsel for the complainants has also drawn our attention to an order dated 14.10.2014 passed by this Forum in Consumer Complaint No.226 of 2014 titled Kamal Kumar Vs. DLF Homes Panchkula Private Limited wherein the OPs, while refunding the payment to the consumer, made less payment of Rs.2,02,698/- on the ground that the amount deposited for the service tax had been deducted. In the said complaint, the amount of Rs.2,02,698/- was ordered to be refunded to the complainant of that case alongwith interest apart from compensation and litigation expenses. According to the learned counsel for the complainant, the OPs did not file any appeal against that order and that order has become final. On the same analogy, in this case also the OPs have deducted the amount of brokerage while refunding the amount paid by the complainant and the deduction of the amount of brokerage is also illegal and unwarranted.  The OPs cannot take the shield of clause 46 of the buyer’s agreement in view of clear offer vide letter dated 8.7.2013 (Annexure C-7) about the refund of the amount paid alongwith simple interest @ 9% per annum.
9.         For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  OPs are directed :-

1. To refund an amount of Rs.1,15,130/- in respect of brokerage alongwith interest @ 9% per annum from the date of payment till realization to the complainant.
2. To pay Rs.20,000/- to the complainant on account of deficiency in service and causing mental agony and harassment to him.
3. To also pay Rs.10,000/- to the complainant towards costs of litigation.

10.         This order be complied with by OPs within one month 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 @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of direction at Sr.No.(iii) above.
11.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
21.10.2015		[Surjeet Kaur]	[P. L. Ahuja]
hg		Member	President