DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Raj Kumar Chopra s/o Late Sh.S.R.Chopra, resident of House No.509, Sector 16, Panchkula.

…..Complainant

                                      V E R S U S

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.

……Opposite Parties

QUORUM:   P.L.AHUJA                                                  PRESIDENT

                   RAJINDER SINGH GILL                                MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA         MEMBER

ARGUED BY : Ms.Sushma Chopra, Counsel for complainant.

                       Sh.Anil Sharma, Proxy Counsel for Ms.Ekta Jhanji,

                       Counsel for OP No.1.

                       Sh.Pankaj Chandgothia, Counsel for OPs No.2 & 3.

PER P.L.AHUJA, PRESIDENT

1.                Sh.Raj Kumar Chopra, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against DLF Homes & Ors. - Opposite Parties (hereinafter called the OPs), alleging that OP No.1 had floated a housing scheme in the area of Pinjore and Panchkula known as DLF Valley, Panchkula. Mr.Mahesh Gupta, OP No.2 told that he was doing the business of property and land on a big scale and he was investing money in new Chandigarh at Mullanpur as well as at DLF Valley Panchkula and he had been appointed as Sales Organizer of OP No.1 vide appointment letter dated 25.2.2011 – Annexure C-1. OP No.2 has floated different companies including NMG Infra Solution Pvt. Ltd. – OP No.3 along with his wife Mrs.Namrata Gupta and his daughter namely Ms.Kalyani Gupta @ Monia & Ms.Ishita Gupta, who are also doing property business with their father.  OP No.2 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. Believing on the assurances given by the said Mr.Mahesh Gupta, the complainant paid an amount of Rs.4,00,000/- initially by way of cheque dated 31.3.2011, for which a receipt dated 13.4.2011, copy of which is Annexure C-2 was issued by the authorized signatory of DLF Homes Pvt. Ltd.  OP No.1 did not supply any terms and conditions of the allotment and almost a sketchy letter of allotment, copy of which is Annexure C-3 was issued in which it was only mentioned that Unit No.B1/5-SF in DLF Valley, Panchkula stood allotted to the complainant. No agreement whatsoever was signed though some blank documents were got signed by OP No.2, the agent of OP No.1. After sometime, the complainant learnt that the allotment was made at market price and not at pre-launching price. OP No.2 had got investment made from the complainant by misquoting and misstating the true facts and when the matter was raised with OP No.2, it was assured by him along with his wife and daughters that he would make the rest of the payment and would dispose of the unit soon and return the amount to the complainant. When no payment was received from OP No.2, the complainant personally visited the office of OP No.1 and was surprised to learn that the floor in DLF Valley, Panchkula allotted to him had been cancelled by OP No.1 and had been further allotted to some other person. It has been contended that OP No.2 has failed to honour his commitment of making entire payments to OP No.1 and getting the unit restored and/or refund the amount of Rs.4,00,000/- got paid from the complainant. Similarly OP No.1 has 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 OP No.1 from the complainant. The complainant has contended that for cheating and fraud committed by OP No.2 in connivance with his wife and daughters appropriate remedies are being availed/will be availed separately by the complainant. It has been stated that OP No.1 could not have involved itself into unfair trade practice whereby they have paid incentives and made allotments in favour of OP No.2 and his family members in lieu of payments received from the complainant and others.  In this context, a copy of email dated 12.3.2012 – Annexure C-5 has been produced. It has also been alleged that in SLP No.21786-21788/2010 – Revindera Singh etc. Versus State of Haryana and others the Hon’ble 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 Hon’ble Supreme Court has impleaded all such builders including OP No.1 as respondents and ordered all activities relating to on going construction to be stopped forthwith (Annexure C-4).  It has been contended that OP 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 is clearly whimsical, unfair trade practice and amounts to cheating and fraud committed with the public including the complainant. It has been averred that OP No.2 was appointed as agent by OP No.1 and, therefore the entire liability of consequences arising out of illegal actions of OP No.2 would be upon OP No.1. The complainant has made a prayer for a direction to the OPs to refund the amount of Rs.4,00,000/- wrongly and illegally forfeited by OP No.1 along with interest @18%, apart from making payment of costs of the complaint and damages on account of harassment and mental agony.

2.                OP No.1 in its written reply has pleaded that the complainant approached OP No.1 Company for booking an independent floor in the township named “DLF Valley, Panchkula” situated at Pinjore Kalka Urban Complex, Sector 3, Village Bhagwanpur & Islam Nagar, Tehsil Kalka, District Panchkula, Haryana through Sales Organizer. The complainant was allotted an independent floor bearing No.DVF-B1/5-SF through application form dated 31.3.2011.  It has been averred that the said township is to be developed by OP No.1 Company as per the terms and conditions of the application of allotment and this Forum has no jurisdiction to decide the controversy regarding the contractual disputes.  It has been averred that the complainant booked the said premises vide application for allotment and all the terms and conditions of the said application form – Annexure OP-1/1 were accepted by the complainant. It has been averred that Clause No.34 of the said application for allotment specifically stated that in case of any dispute arising out of the contract between the complainant and OP Company is to be resolved through arbitration and this Forum has no jurisdiction in the matter. It has been further stated that as per Clause 11 of the terms and conditions of the said application form dated 31.3.2011 time was the essence in respect of all payments to be made by the complainant. It has been averred that the complainant did not comply with the said clause and defaulted in making the payments in time. The complainant has breached the terms and conditions of the said application form by not paying the balance amount. It has been averred that the complainant failed to comply with the terms and conditions of the allotment letter and payment schedule opted by him. OP No.1 sent various reminders to him to make payment of the balance amount but he neglected to pay the balance amount. Ultimately a cancellation letter and cancellation advice was sent to the complainant vide memo dated 15.2.2012. It has been further stated that there was no relationship of employee and agent between OP No.1 and the appointed Sales Organizer.  It has further been stated that OP No.1 has no concern with OP No.2. It has also averred 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 has been averred that the allotment of the complainant was cancelled vide cancellation letter dated 9.8.2011, which was duly communicated to the complainant through courier on 10.8.2011.

3.                OP No.2 in his reply has pleaded that he has nothing to do with the present complaint. On the contrary, he had lent a sum of Rs.5,00,000/- vide cheque which was credited in the complainant’s account on 22.11.2011 as per bank statement – Annexure OP-2/1 and when he asked for the return of the said amount with interest, the complainant refused and filed the present case as a counter-blast only to harass him.

4.                OP No.3 in its reply has pleaded that the complainant has not paid any amount to it and is not its consumer. It has been averred that the adjudication of the complaint would require examination and consideration of detailed and voluminous oral and written documents, which is not within the scope of Consumer Forum.

5.                The parties led evidence in support of their contentions.

6.                After going through the entire evidence and hearing the arguments of the learned Counsel for the parties, we find that the complaint merits dismissal.

7.                At the outset, it is significant to note that the complainant has leveled the allegations of misrepresentation, fraud and cheating against OP No.2. It has been further pleaded that Mr.Mahesh Gupta, OP No.2 along with his wife and daughters induced him to make initial investment at pre-launch stage in the DLF Project in which the allotment was to be made at lesser price then the price to be quoted by the DLF Company. Believing his assurances, the complainant paid an amount of Rs.4,00,000/- by cheque in favour of OP No.1. However, later on the complainant learnt that the allotment was made at market price and not at pre-launching price and OP No.2 had got investment made from him by misquoting and misstating the true facts. Further according to complainant, OP No.2 had assured along with his wife and daughters that he would make the rest of the payment and would dispose of the unit soon and return the amount to him. The complainant has alleged cheating and fraud committed by OP No.2 in connivance with his wife and daughters. It is pertinent to note that the letter dated 25.2.2011 – Annexure C-1 pertains to the appointment of M/s NMG Infra Solutions Pvt. Ltd. to be a Sales Organizer of OP No.1. It does not show that Mr.Mahesh Gupta was a Sales Organizer of OP No.1. OP No.2 has categorically pleaded that he lent a sum of Rs.5,00,000/- vide cheque to the complainant and when he asked the complainant to repay that amount with interest, he refused and filed the present case. We are of the view that the allegations leveled by the complainant against OP No.2 in respect of misrepresentation, fraud and cheating require detailed and voluminous evidence particularly when the complainant has also alleged that some blank documents were got signed by OP No.2, as the agent of OP No.1. Fraud is to be proved like a criminal charge, therefore, detailed cross examination of the witnesses and the production of the original documents would be required. The allegations of the complainant cannot be decided by way of summary adjudication before this Forum. It would be appropriate, if the complainant files a civil suit against the OPs for decision of the issues involved in the complaint because it has also been alleged by him that OP No.1 gave credit of the deposit of individual depositors including the complainant towards the payment to be made by OP No.2 to OP No.1. According to the complainant, OP No.1 has adjusted the forfeited amount against the payments payable by OP No.2 and his family members flats/plots as per copy of email dated 12.3.2012 – Annexure C-5. Considering the above position, we feel that the abovesaid issues are beyond the purview of the summary jurisdiction of this Forum.

8.                As far as the allegations of the complainant about the action of OP No.1 in canceling the allotment of the unit and forfeiture of the amount of Rs.4,00,000/- is concerned, a perusal of the application of allotment of an independent floor in DLF Valley, Panchkula – Annexure OP-1/1 (Colly.) duly signed by the complainant shows that he opted for construction linked plan. The said plan shows that an amount of Rs.4,00,000/- was to be paid on making application for booking, 20% of the total price less booking amount was to be paid within two months of booking, 10% of the total price was to be paid within 4 months of booking and so on. The total price payable for the said independent floor was Rs.76,82,060/-. The booking amount of Rs.4,00,000/- was paid by the complainant on 13.4.2011 and, thereafter, absolutely no payment was made by the complainant despite the demand notices dated 24.5.2011, 15.6.2011, 30.6.2011, 5.7.2011, 19.7.2011 and 25.7.2011 – Annexure OP-2 (Colly.). Then lastly on 9.8.2011, the complainant was informed that despite the communications of the OP No.1 they had not received the old due payments, therefore, the earnest money along with interest on delayed payment and other non refundable amount was forfeitable and accordingly an amount of Rs.11,63,542/- stood forfeited. Clause No.21 of the terms and conditions of the application – Annexure OP-1/1 duly signed by the complainant shows that the complainant agreed that the company shall be entitled to forfeit the earnest money along with non refundable amounts in case of non fulfillment/breach of the terms and conditions of the application and the agreement ------------------------.  In this case, since the complainant did not make the payment to the OP No.1 as per payment schedule, therefore, he committed breach of terms and conditions of the application. As already mentioned, the question that OP No.2 along with his wife and daughters assured the complainant that he would make the rest of the payment and would dispose of the unit soon and return the amount to the complainant requires detailed evidence and cannot be decided in summary proceedings.

9.                 So far as the question of passing of an interim stay order – Annexure C-4 by the Hon’ble Supreme Court is concerned, it is pertinent that the said order was passed on 19.4.2012 while the complainant had booked the unit with OP on 13.4.2011. The complainant was required to make the payment as per payment schedule, which was not made by him. At any rate, the said interim stay order has also been vacated by the Hon’ble Supreme Court vide order dated 12.12.2012 – Annexure OP-1/3. Thus, the circumstances on record do not justify any breach of terms and conditions on the part of complainant. There is no definite evidence of deficiency in service and unfair trade practice on the part of OP No.1.

10.              For the reasons recorded above, we do not find any merit in the complaint and the same is dismissed with liberty to the complainant to agitate the issues involved in the complaint in the Civil Court. In the circumstances of the case, the parties are left to bear their own costs.

11.              The certified copies of this order be sent to the parties free of charge. The file be consigned.