STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UNION TERRITORY, CHANDIGARH
First Appeal No. | 258 of 2013 |
Date of Institution | 19.06.2013 |
Date of Decision | 01.07.2013 |
Raj Kumar Chopra s/o Late Sh.S.R.Chopra, resident of House No.509, Sector 16, Panchkula.
…..Appellant/Complainant
Versus
1. DLF Homes, Panchkula, Pvt. Limited, Shop No.101-102, DLF City Centre, IT Park, Kishan Garh, Chandigarh now named as DLF Universal Ltd. Rajiv Gandhi Technology Park, Plot No.2, Tower-D Ground Floor – Chandigarh, U.T., through its Executive Director/authorized representative.
2. Mahesh Gupta s/o Sh.Y.P.Gupta, r/o House No.2691, Sector 37-C, Chandigarh.
3. M/s NMG Infra Solutions Pvt. Ltd., House No.1095, Sector 15-B, Chandigarh, through its Director Mahesh Gupta, s/o Sh.Y.P.Gupta, r/o House No.2691, Sector 37-C, Chandigarh.
……Respondents/Opposite Parties
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT
SH.DEV RAJ, MEMBER
Argued by:Sh. Dharamvir Sharma, Sr. Advocate alongwith
Ms. Sushma Choptra, Advocate & Sh. Harit Sharma, Advocate for the appellant.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 13.05.2013, 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 Sh. Mahesh Gupta-Opposite Party No.2, induced the complainant to make initial investment at pre-launch stage in the DLF Project, in which the allotment was to be made, at a lesser price, than the price to be floated by the DLF Company. Believing the same, the complainant initially paid an amount of Rs.4,00,000/- on 31.3.2011, for which a receipt dated 13.4.2011 (Annexure C-2) was issued by the authorized signatory of DLF Homes Pvt. Ltd. It was stated that Opposite Party No.1, did not supply any terms and conditions of allotment. However, a sketchy letter of allotment (Annexure C-3) was issued whereby Unit No.B1/5-SF in DLF Valley, Panchkula, was allotted to the complainant. It was stated that some blank documents were got signed from the complainant by Opposite Party No.2, being the agent of Opposite Party No.1. It was further stated that the allotment was made, at the market price instead of pre-launching price. It was further stated that Opposite Party No.2, misrepresented the complainant as regards the Scheme and on being approached, he assured the complainant that he would make rest of payment, dispose of the unit soon and refund the amount.
3. When nothing was paid by Opposite Party No.2, the complainant personally visited the office of Opposite Party No.1, and was surprised to learn that the floor in DLF Valley, Panchkula, allotted to him, was cancelled by it and was further allotted to some other person. It was further stated that Opposite Party No.2 failed to honour his commitment of making the entire payment to Opposite Party No.1, and getting the unit restored. It was further stated that Opposite Party No.1, illegally cancelled the allotted unit, when no written agreement was signed by the complainant.
4. It was further stated that for cheating and fraud committed upon the complainant by Opposite Party No.2, he would be availing of the appropriate remedies separately. It was further stated that Opposite Party No.1, should not have involved itself into unfair trade practice, whereby it paid incentives and made allotments in favour of Opposite Party No.2, and his family members in lieu of payments received from the complainant and others. In this context, a copy of the email dated 12.3.2012 (Annexure C-5) was produced.
5. It was further stated that in SLP No.21786-21788 of 2010 – Revindera Singh etc. Versus State of Haryana and others, the Hon’ble Supreme Court took a view that the Government of Haryana had released huge chunk of land, from acquisition, in favour of the builders including Opposite Party No.1, as respondent. The Hon’ble Supreme Court had ordered all activities relating to the on going construction to be stopped forthwith (Annexure C-4). It was further stated that Opposite Party No.1 first illegally acquired the land without following the due procedure, and by illegally cancelling the allotment, arbitrarily forfeited the entire amount of Rs.4,00,000/-. It was further stated that Opposite Party No.1 was equally liable for illegal acts and deeds of Opposite Party No.2, being its agent. 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.
6. Opposite Party No.1, in its written version, admitted the factum of the complainant approaching it, for booking of an independent floor, in the township named “DLF Valley, Panchkula” through Sales Organizer. It was stated that the complainant was allotted an independent floor, bearing No.DVF-B1/5-SF, in the said township, which was to be developed by Opposite Party No.1, as per the terms and conditions of the application for allotment. It was further stated that the District Forum had no jurisdiction to decide the controversy, regarding the contractual disputes. It was further stated that all the terms and conditions of the application form dated 31.3.2011 (Annexure OP-1/1) were accepted by the complainant. It was further stated that as per Clause No.34 of the said application for allotment, any dispute, arising out of the contract, between the parties, was to be resolved through arbitration. It was further stated that as per Clause 11, time was the essence in respect of all payments, which were to be made by the complainant. It was further stated that the complainant defaulted in making payments, in time, and also failed to comply with the terms and conditions of the allotment letter as well as payment schedule. It was further stated that despite various reminders, sent to the complainant, he did not make payment of the balance amount. Ultimately, a cancellation letter and cancellation advice was sent to the complainant vide memo dated 15.2.2012. It was further stated that there was no relationship of employee and agent between Opposite Party No.1 and the appointed Sales Organizer. It was further stated that vide order dated 12.12.2012, the Hon’ble Supreme Court was pleased to dismiss the SLP titled as Ravindera Singh etc. Versus State of Haryana and others and the interim order dated 19.4.2012 was vacated. It was further stated that the allotment, in the name of the complainant, was cancelled vide cancellation letter dated 9.8.2011, which was duly communicated to him through courier on 10.8.2011It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint were denied.
7. Opposite Party No.2, in his written version, stated that he had nothing to do with the present complaint. It was further stated that he had lent a sum of Rs.5,00,000/- vide cheque, which was credited to the complainant’s account on 22.11.2011, as per bank statement (Annexure OP-2/1). It was further stated that when Opposite Party No.2, asked for the refund of the said amount, with interest, the complainant refused and filed the present case as a counter-blast only to harass him. 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.
8. Opposite Party No.3, in its written version, stated that the complainant had not paid any amount to it, and was not its consumer. 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 the Consumer Forum. It was further stated that there was, thus, neither any deficiency, in rendering service, on the part of the Opposite Party No.3, nor did it indulge into unfair trade practice. The remaining allegations, contained in the complaint, were denied.
9. The Parties led evidence, in support of their case.
10. 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.
11. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
12. We have heard the Counsel for the appellant, and have gone through the evidence and record of the case, carefully.
13. It is evident that the appellant/complainant booked one flat/unit on 13.4.2011 and paid an amount of Rs.4 Lacs (Annexure C-2) at the time of submitting an application for booking. He was allotted an independent Floor No.B1/5-SF in DLF valley, Panchkula vide letter No.DLF/CS/UNQ/217/001943/R11205 dated 25.04.2011 (Annexure C-3). An extract from the contents of the letter is reproduced hereunder:-
“We are pleased to inform you that you have been allotted Independent Floor No.B1/5-SF in the above project. We take this opportunity to congratulate you for being part of the project i.e. “DLF Valley, Panchkula.”
Please find enclosed herewith your booking receipt for the captioned property along with the “2 Years Construction Linked Payment Plan” The payments may be made in favour of “DLF HOMES PANCHKULA PVT LTD. Collection Account…….”
14. The allotment, in favour of the appellant/complainant, as is apparent from above, was, thus, construction linked, The construction linked payment schedule [OP-1/1(Colly.)], duly signed by the 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 | 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. |
15. There is, no dispute, that the appellant/complainant had opted for construction linked plan. The appellant/complainant submitted that when construction did not start, there was no question of making the payment of installments. As per payment plan (page 3 of C- 2), the due date for booking was 13.4.2011 and within two and four months of booking i.e. on 13.6.2011 and 13.8.2011 respectively, the complainant was required to remit an amount of Rs.11,26,306.06Ps and Rs.7,58,560.87Ps respectively. Thereafter, the remaining payment was to be deposited linked with various stages of construction, as indicated at Serial Nos.4 to 10 of the Payment Plan annexed to Annexure C-2, as also Construction Linked Payment Plan, reproduced above. It is a matter of record that the appellant/complainant was issued demand notices dated 24.05.2011, 15.6.2011, and 30.6.2011 for depositing Rs.11,52,835.06Ps. Thereafter vide demand-cum-intimation notice dated 25.7.2011, the appellant/complainant was asked to deposit an amount of Rs.7,58,560.87Ps, which was due on 13.8.2011 alongwith outstanding amount of Rs.11,26,306.06Ps [Annexure OP-2 (Colly)]. The total payment due against the complainant, was Rs.19,29,751.53Ps. When these payments were not made, Opposite Party No.1 issued cancellation letter No.F/0566/DVF-B1/5-SF dated 9.08.2011 pointing out that forfeitable amount was Rs.11,63,542/-. Since the complainant had paid only Rs.4 Lacs against the earnest money of Rs.11,37,159/-, as per the cancellation letter, the amount recoverable, from the appellant/complainant by including component of interest on delayed payment came to Rs.7,63,542/-.
16. According to the appellant/complainant, the earnest money could be forfeited in terms of the application alone. The argument that Opposite Party No.1 illegally cancelled the allotment and forfeited the amount in violation of Clause 21 of the terms and conditions, in view of the payment plan opted by the appellant, is not sustainable being devoid of merit. Clause 21 of the terms and conditions, is extracted below:-
“21. 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.”
17. Thus, the argument of Counsel for the appellant, that the installments were to be paid only, if the construction had started and not, otherwise, is devoid of merit. It is very clear that besides initial deposit of Rs.4 Lacs, the appellant/complainant was required to make payment of two installments, in June 2011 and August 2011 even before the start of construction, as discussed above and payment of these two installments had no relation with construction. The cause of action could arise to the appellant/complainant to step further payment if foundation up to plinth level had not been laid. Even, before that stage had reached, the complainant failed to make payment of the outstanding amount.
18. Booking amount and earnest money are two different things. The payment of Rs.4 Lacs was on account of booking amount. As per cancellation letter dated 09.08.2011 [Annexure OP-2 (Colly)], the earnest money was Rs.11,37,159/-. Therefore, the plea of the appellant/complainant, as made out in Para 8 of the appeal that earnest money of Rs.4 Lacs deposited by him had been forfeited, is misconceived.
19. The grievance of the appellant complainant qua respondent No.1 is with regard to the forfeiture of booking amount of Rs.4.0 lacs, which as per the position, aforesaid, was rightly forfeited. The findings of District Forum, on this issue, are also clear and categoric. The District Forum in Para 8 of its order, held, “…….In this case, since the complainant did not make the payment to the OP No.1 as per the payment schedule, therefore, he committed breach of the terms and conditions of the application………” The District Forum in Para 9 of its order also held that there was no definite evidence of deficiency in service and unfair trade practice on the part of Opposite Party No.1. The aforesaid finding of the District Forum cannot be said to be in any way illegal or perverse.
20. As regards passing of an interim stay order dated 19.4.2012 (Annexure C-4) by the Hon’ble Supreme Court of India, it may be stated here that the complainant had booked the flat with Opposite Party No.1 on 13.4.2011. When the complainant failed to make the payments as per payment schedule, the allotment was cancelled on 09.08.2011. As such, the order dated 19.4.2012 passed by the Apex Court had no relevance to the cancellation of the unit on 9.8.2011 and forfeiture of the booking amount.
21. The District Forum has held that the question that Opposite Party No.2 alongwith his wife and daughters assured the complainant that he would make the rest of the payment, dispose of the unit soon and return the amount to the complainant requires detailed evidence and cannot be decided in summary proceedings. The complainant in para 10 of his complaint submitted that OP No.2 had got investment made from complainant, by misquoting and misstating the true facts, and when the matter was raised with him, it was assured by him alongwith his wife and daughters that he would make the rest of the payment, dispose of the unit soon and return the amount to him. The appellant/complainant himself stated that for cheating and fraud committed upon him by the Opposite Party No.2, he would be availing of the appropriate remedies separately. Opposite Party No.3, filed affidavit of Sh. Mahesh Gupta, its Director, wherein it was testified that the adjudication of the complaint required examination and consideration of detailed and voluminous oral evidence and written documents, which was not within the scope of Consumer Forum. It was further testified that the complainant needed to be relegated to the ordinary remedy before the Civil Court as he was alleging cheating and fraud in the complaint. The District Forum, considering the allegations of the appellant/complainant and Opposite Party No.3, of misquoting, misstatement, fraud and cheating, dismissed the complaint and granted liberty to the appellant/complainant to agitate the issues, involved in the complaint, in the Civil Court. The findings of the District Forum, in this regard, being correct are affirmed.
22. No other point, was urged, by the Counsel for the appellant/complainant.
23. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
24. For the reasons recorded above, the appeal filed by the appellant/complainant, is dismissed, at the preliminary stage, with no orders as to costs. The impugned order, passed by 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.
Pronounced.
1st July, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)]
PRESIDENT
Sd/-
[DEV RAJ]
MEMBER
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STATE COMMISSION
(First Appeal No.258 of 2013)
Argued by:Sh. Dharamvir Sharma, Sr. Advocate alongwith
Ms. Sushma Choptra, Advocate & Sh. Harit Sharma, Advocate for the appellant.
Dated the 1st day of July, 2013.
ORDER
Vide our detailed order of the even date, recorded separately, this appeal filed by the appellant/complainant, has been dismissed, at the preliminary stage, with no order as to costs.
(DEV RAJ) MEMBER | (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT |
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