Chandigarh

StateCommission

CC/22/2020

Satish Goyal - Complainant(s)

Versus

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

Narender Yadav & Vineet Yadav Adv.

18 Jan 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	22 of 2020
Date of Institution	:	15.01.2020
Date of Decision	:	18.01.2021

 

1. Satish Goyal S/o Sh.Yudhister Parshad
2. Viney Goyal S/o Sh.Yudhister Parshad

Both R/o H.No.707, Sector 6, HUDA Panipat, Haryana.

…… Complainants

V e r s u s

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh-U.T., Pin-160009 through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales & Marketing.

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.
3. Vishal Gupta, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana, India.

Email:- crmchandigarh@dlf.com

.....Opposite parties

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER

 

Present through Video Conferencing:-

                             Sh.Narender Yadav, Advocate for the complainants.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

                        

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

         

                   This complaint has been filed by the complainants seeking refund of the amount of Rs.9,75,285/- paid by them towards purchase of unit bearing no.F-4/4, First Floor,  measuring 1550 sq. feet, in the project of the opposite parties launched by them under the name and style- “The Valley”, Sector 3, Kalka Pinjore Urban Complex, Haryana, alongwith interest, compensation and litigation  cost. It is the case of the complainants that despite the fact that the amount aforesaid had been paid by them to the opposite parties towards booking of the said unit, yet, not even a single brick has been laid at the project site for block No.F, whereas,  by 2013 even the construction of other towers was also raised only to the extent of 50 to 60%. Later on, it came to the knowledge of the complainants that the opposite parties were not keen to construct block no.F, as the same was situated at a low area and also came under the periphery of Kaushyala Dam. However, when request was made to refund the amount paid, the opposite parties sent a cheque in the sum of Rs.2,80,756/- only out of the deposited amount of Rs.9,75,285/-, which the complainant did not encash. Thereafter, they wrote emails dated 03.06.2016, 14.06.2016, 21.06.2016 Annexure C-2 colly and 01.07.2016, Annexure C-3 requesting the opposite parties to refund the entire amount paid but to no avail. To their utter shock, the opposite parties again sent demand draft in the sum of Rs.2,80,756/- dated 14.12.2016 alongwith letter dated 09.01.2017 and informed them that the allotment of unit in question stands cancelled. Thereafter, they visited the office of the opposite parties to return the said demand draft but they refused to receive the same and the same is still lying with the complainants.  Hence this complaint.

2.           The claim of the complainants has been contested by the opposite parties on numerous grounds, inter alia, that the complainants have concealed material facts from this Commission; that in the face of existence of arbitration clause in the application form this consumer complaint is not maintainable; that this complaint is also not maintainable before this Commission as the complainants are seeking modification/re-writing 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 as the unit in question was cancelled as far as back in 2014 and remaining amount after deducting earnest money had been refunded to the complainants in the year 2017; that the unit in question was cancelled, as the complainants 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; and that since no agreement and sale deed has been got executed in respect of the unit in question, as such, the complainants cannot claim that they were owners of the same.
3.           On merits, booking of the unit in question by the complainants and payments made by them as mentioned in the complaint have not been disputed. Prayer has been made to dismiss this complaint with heavy costs.
4.           The parties led evidence in support of their case.
5.           We have heard the contesting parties and have gone through the evidence and record of the case, including the written arguments filed by the parties, very carefully.
6.           First, we will deal with the objection raised by the opposite parties that the complainants 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 complainants 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. 
7.           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/Fora within the territorial limits of which that occurs. In this case, it is clearly evident from the payment receipts dated 12.03.2012, Annexure C-1, 06.02.2013 (at page 34 of the file) and cancellation letter dated 09.01.2017, Annexure C-4 that the same have been issued by the opposite parties from SCO No.190-191-192, Sector 8-C, Chandigarh. Even the application form dated 07.03.2012, Annexure R-2 also reveal that the same has been signed at Chandigarh, meaning thereby that the company was actually and voluntarily residing and carrying on its business and personally work for gain thereat. As such, objection taken with regard to territorial jurisdiction stands rejected. 
8.           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 that on 12.03.2012, the complainants had booked the unit in dispute and made total payment of Rs.9,75,285/- to the opposite parties till 06.02.2013.  It has been vehemently contended by the complainants, through their Counsel, that since not even a single brick had been laid down by the opposite parties in the block-F wherein the said unit was located and also later on they were not keen to construct the said block, as the same was situated at a low area and also came under the periphery of Kaushyala Dam, yet, when they made request for refund of the amount paid, the opposite parties sent a cheque/demand draft of  Rs.2,80,756/- out of Rs.9,75,285/-, which was never encashed. This plea has been taken by the complainants in para no.8 of their complaint, which is reproduced hereunder:-

“8. The OP-Builder allotted the unit to the complainants is F-4/4 First Floor. It is worth while to mention here that the OP-Builder after allotting the block “F” never put a single brick in the above said block in project. However, the other blocks were almost 50-60 percent complete. The complainants also paid the amount of Rs.5,75,285/- on 06.02.2013 but later on the complainants came to know that the OP-Builder is not keen to construct the “F” block as same situated very low as compared to the other blocks, even the same was also came in periphery of Kaushyala Dam. The complainants requested the OP-Builder several times to refund the amount  with interest but all in vain.”

 

On the other hand, we are surprised to note that against such serious allegations leveled by the complainants, in reply to the said para no.8 of the complaint, the opposite parties without giving any justification or any convincing evidence to the contrary, have only pleaded in their written reply that the contents of para no.8 are wrong and hence denied.  In our considered opinion, to defend the  above-said serious allegations leveled by the complainants to the effect that even a single brick has not been laid down for the block in dispute, it was very easy for the opposite parties,  which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, construction of the said block had been undertaken and completed at the site or not, but they preferred not to do so. It is pertinent to mention here that the onus to prove the stage and status of infrastructure and development/ construction work at the project site is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. However, as stated above, the opposite parties failed to place on record any cogent evidence to counter the serious allegations aforesaid leveled by the complainants, to convince this Commission that the same are not correct. Under these circumstances, in the absence of any contrary evidence in that regard, an adverse inference can very well be drawn against the opposite parties that they were not in a position to counter the allegations leveled by the complainants and decided to defeat the claim of the complainants on bald assertions, which are not sustainable in the eyes of law.

10.             Furthermore, it is not the case of the opposite  parties that it is for the first time that the complainants are taking a plea in their complaint  regarding non construction of units in the said block. But, to the contrary, it is evident from the document/email dated 07.06.2016 (at page 36 of the paper book) that the complainants had brought their concern through email dated 03.06.2016 regarding the above fact. Relevant part of the said email reads as under:-

 

“…Madam/Sir we came to know that now DLF is not building the particular property any more and DLF is refunding the money back to customers with interest.

Therefore i request you for the same in my case also. Please make a refund of our money. An early action will highly be obliged and appreciated…”

 

It is further evident from the record that thereafter the complainants sent reminder emails dated 14.06.2016 Annexure C-2 and 01.07.2016, Annexure C-3 requesting the opposite parties to redress their grievances . It is significant to add here that, despite receiving the email, contents of which are reproduced above, not even a single letter/email was sent by the opposite parties to the complainants, stating therein that the facts narrated by them with regard to non construction of the said units are incorrect. The said information being of highly sensitive nature, if not responded by the opposite parties, in itself is also sufficient to draw an adverse against them  that the company was actually not going to construct the said block and the complainants were kept in dark in that regard.  On this count too, the opposite parties failed to prove their case. It is therefore held that by not refunding the entire amount paid by the complainants, and on the other hand, deducting huge amount therefrom towards earnest money, the opposite parties indulged into unfair trade practice. The complainants were right in refusing to accept the said amount towards full and final settlement of their case.

11.           Under above circumstances, if the complainants had stopped making payment of the remaining amount, when they could discover that the company is not in a position to hand over possession of the property, for dearth of construction at the project site they cannot be termed as defaulters, in view of principle of law laid down by the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the residential units by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. As such, objection taken in this regard stands rejected.
12.           From the peculiar circumstances of this case, it has been proved that the opposite parties made false representations, which were materially incorrect and were made in such a way that the complainants, to whom it was made, were entitled to rely upon it and they may act in reliance on it. The complainants  are thereby involved in a disadvantageous contract in the shape of terms and conditions of application form with the opposite parties and suffered financial loss, mental agony and physical harassment. Representations/statements made at that time were believed to be true.  Deficiency in rendering service and adoption of unfair trade practice on the part of the opposite parties were writ large because despite the fact that they were at fault, they offered refund of the amount after deducting huge amount towards earnest money. Breach of terms and conditions of the application form, if any, was on the part of the opposite parties and not the complainants.  All the facts established that from the very inception there was intent to induce the complainants to enter into the transaction and also intent to deceive them, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.
13.           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.
14.           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.

15.           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.
16.           For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-

 

1. To refund the amount of Rs.9,75,285/- to the complainants, alongwith interest @12% p.a. from the respective dates of deposit onwards, without deducting any TDS, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount of Rs.9,75,285/- shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of passing of this order, till realization.

                   In case, the complainants have received any amount out of the aforesaid amount of Rs.9,75,285/- from the opposite parties, the amount to that extent shall automatically be deducted therefrom accordingly.

 

2. To pay compensation for causing mental agony and harassment and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

 

3.           However, it is made clear in this case that if the complainants have availed loan facility from any Bank/Financial Institution, for making payment towards price of the unit in question, it will have the first charge of the amount payable, to the extent, the same is due to be paid by the complainants.

17.           Certified Copies of this order be sent to the parties, free of charge.
18.           The file be consigned to Record Room, after completion.

Pronounced.

18.01.2021

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 

[PADMA PANDEY]

MEMBER

Rg