Haryana

Ambala

RBT/CC/236/2023

Vinod Rana - Complainant(s)

Versus

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

Moin Hussain

01 Jul 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	RBT/CC/236/2023
Date of Institution	:	27.05.2022/08.06.2023
Date of decision	:	01.07.2024

1. Vinod Rana son of Sh. Bharat Singh Rana
2. Poonam Rana wife of Vinod Rana

Both resident of House no.8, Shahbad Extension Rohini, Sector-17, near B Block, Pocket-6, Rohini, Sector-15, North West Delhi- 110089.

……. Complainants

Versus

DLF Homes Panchkula Private Limited through its Managing Director.

Regional Office :- SCO 1,2,3 Sector 8-A, Chandigarh (UT).

Registered Office Address:-

2nd Floor, DLF Gateway Tower, DLF City Phase-III, National Highway-8, Gurgaon, India - 122002.

….…. Opposite Party.

 Before:       Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:        None for the complainants.

                      Shri Pushkar Sharma, Advocate, counsel for the OP.

Order:        Smt. Neena Sandhu, President.

                   Complainants have filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Party (hereinafter referred to as ‘OP’) praying for issuance of following directions to it:-

1. To pay excess amount of Rs.18,00,000/- received qua the extra final area 226.50 SQMT(2438.00 SQFT) instead of Booked area 209.49 SQMT (2255.00SQFT) and compensation for delay in delivering the possession of independent floor, illegally, unreasonably and arbitrarily violating the terms and conditions of the independent floor buyer's Agreement no. 617 executed on dated 23rd December 2010 alongwith interest @ 18 % per annum till actual payment.
2. To pay the cost of litigation.

OR

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that Mr. Sanjiv Rathee and Richa Rathee made payment of Rs.6,00,000/- alongwith application for allotment of independent floor. Resultantly, independent floor buyer's agreement no. 617 was executed between the OP and the original purchasers/allottees on 23rd December 2010 in respect of independent floor no. A1/42-SF in the DLF Valley Panchkula, videletterno.DLF/CS/UNQ/217/ 000048/S14091 on 10/03/2010.  As per the clause 1.1 of the above said independent floor buyer's agreement, the OP agreed to sell the salable area 209.49 SQMT (2255.00 SQFT) at the rate of Rs.18519.46 per SQMT (Rs. 1720.5 per SQFT) i.e. for the consideration of basic sale price Rs.3879727.50/-. The original purchaser/allottee paid the OP amount of Rs.352,545.34/- by cheque dated 05/05/2010, Rs.476,155.00/- by cheque dated 02/07/2010; Rs.10902.74/- by cheque dated 29/09/2010 and Rs.48,891.00/- by cheque dated 12/03/2012. The OP issued letter demand-cum-intimation notice dated 17.07.2013 specifying the customer code no. S14091 (UNQ/217/000048) for the payment of Rs.614,782.23, which stood due on 27/07/2013 as per the schedule of payments. The original purchaser/allottee paid to the OP an amount of Rs.614,782.23/- by cheque dated 26/07/2013 and the OP issued receipt dated 27/07/2013 in which the OP had specified the super area of size 2255 SQFT. The OP issued letter demand-cum-intimation notice dated 29.10.2013 specifying the customer code no.S14091(UNQ/217/000048) for the payments of Rs. 556,324.11 due on 08/11/2013 as per the schedule of payments. The original purchaser/allottee paid Rs.556,324.11/- by cheque dated 08/11/2013 and the OP issued receipt dated 11/11/2013.  The OPs thereafter issued letter demand-cum-intimation notice dated 29.11.2013 specifying the customer code no. S14091  (UNQ/217/000048) for the payment of Rs. 492,243.78 which was paid by the complainants by cheque dated 18/01/2014 and the OP issued receipt dated 20/01/2014. The original purchaser/allottee paid to the OP, an amount of Rs.67,827.24/- by cheque dated 16/10/2014 and the OP issued receipt dated 07/01/2015. The original purchaser/allottee paid to the OP, another amount of Rs.393245.55 on 02/07/2015, Rs.113000.00/- on 14/07/2015; Rs.700/- on 08/10/2015, Rs.9452/- on 01/04/2016, Rs.208587.50 on 12/12/2016 and Rs.177,215.00/- by cheque dated 21/12/2016 and the OP issued receipt dated 26/12/2016. Thereafter, they paid Rs.90,000.00/- by cheque on  21/12/2016, Rs.3085.07/- on  21/01/2017, Rs.16927.50/- on  07/06/2017, Rs.35473.00/- on 05/07/2017, Rs.1016882.00/- and the OP  issued receipt dated 26/12/2016 in which the OP had specified the super area of size 2255 SQFT agreed to be sold as per terms and conditions of DLF Valley Panchkula. On 16.08.2018, the OP  wrongly received Rs.12,65,400.00 and after that received Rs.1024620.00 on 23.08.2018, Rs.92000.00 on 02.06.2020 and Rs.32899.00 on 13.08.2020. Thereafter, the complainants purchased the said unit in resale and the transfer was confirmed by the OP, vide letter dated 21.02.2018. Hence the original purchasers / allottees complied all the conditions to make the payment including all kind of taxes in time as per the schedule of above said agreement. The OP has failed to deliver timely possession of the unit in question as a result of which the original allottees made number of representations in the matter.  Resultantly, the OP issued possession letter dated 09.06.2020 to original purchasers/allottees, which was taken over by them on 08.07.2020.  On 23.07.2020, the complainants were substituted the nominees of the original purchasers/allottees and became deemed purchasers in place of the original purchasers which the OP and original purchasers endorsed and duly signed and sealed. Hence, the complainants have every right, title and interest as per the terms and conditions of the above said agrement No. 617 dated 23.12.2010 regarding the independent floor no. DVF-A1/24-SF in DLF Valley Sector-3, Pinjore Kalka Urban Complex, Village Bhagwanpur, Islamnagar, Panchkula. However, on 02.01.2021, the complainants calculated the total cost of above said unit and came to know that the OP had received excess amount under the pretext of extra final area 226.50 SQMT (2438.00 SQFT) and again 261.24 SQMT (2811.90 SQFT) instead of booked area 209.49 SQMT (2255.00 SQFT), illegally, unreasonably and arbitrarily violating the terms and conditions of the independent floor buyer's Agreement. Number of requests were made by the complainants to the OP to refund the excess amount received under the pretext of increase in area and also to pay compensation for delay in delivery of possession of the sad unit but to no avail.  Hence, the present complaint.
3.           Upon notice, OP appeared and filed written version wherein it raised preliminary objections to the effect that the complaint  is an abuse of process of law; the complainants are not consumers; the present complaint is  hopelessly barred by time because possession of the unit in question was offered way back in June, 2017, whereas the complaint has been filed after a gap of 5 years only in May, 2022; the complaint has been filed in total disregard to the terms of Floor Buyers Agreement executed between parties; the complainants have been seeking amendments in executed agreements; the Hon'ble Supreme Court in the case of (i) "Bharti Knitting Co. vs. DHL Worldwide Courier (1996)$CC 704" observed that that a person who signs a document containing contractual terms is normally bound by them even though he has not read them; (ii) In "Bihar State ElectricityBoard, Patna and Ors. Vs. Green Rubber Industries and Ors,AIR (1990) SC 699" it was held that the contract, which frequently contains many conditions, is presented for acceptance and is not open to discussion etc. On merits, it has been stated that this complaint is not maintainable on behalf of the complainants who are subsequent purchasers as they have purchased the property in question in July, 2020 with open eyes from the original allottees Sh. Sanjeev Rathee and his wife Richa Rathee, who, after fully satisfying themselves took possession of the property on 08.07.2020, whereas, the possession was offered to them way back in June, 2017. As per the terms and conditions of the agreement, the original allottees were allotted unit no. A-1/42SF, having a tentative specific area of 181.02 sq meters (1949 sqft.) and an approximate saleable area of 209.49 sq meters (2255 sq feet) at the sale price of Rs.18519.46 per sq meters. The said clause clearly mentions the area to be approximate and clause 1.2 provides that the area can increase or decrease because of which the total payable amount would increase as well. The clauses specifically records that the allottees agree to pay the increased amount, if any, as a result of increase in saleable area. Further, Clause 10 of the agreement provides that in case the increase/decrease in the saleable area is more than 15%, then the OP would give a notice to the allottees intimating the change in the saleable area and if the allottee has any objection to such increase or decrease, then he/she shall submit the same in writing. The allottee would also have an option to seek refund of his amount deposited with the OP with interest in case the change is not acceptable. After obtaining the occupation certificate from the Department of Town and Country, Planning, Haryana, the OP offered possession of the unit to the original allottees vide letter dated 19.06.2017 and alongwith the same a demand notice for Rs.11,06,684,70/- as outstanding amount was also sent. In the offer of possession it has been clearly mentioned that the unit now being offered has a saleable area of 2438 sq ft (226.38 sq meters), which is an increase of 182 sq feet (16.99 sq. meters). Since the increase in size of the unit was within the permissible 15%, therefore, the allottee had no right to object to the same and also even otherwise, the original allottees never objected to the increase in the size of the unit. The original allottees for change of Independent Floor allotted to them and for alternative bigger size floor moved application dated 08.08.2017. Their request for change of unit from A-1/42-SF to A1/24-SF was approved by the OP but since there was lien of Oriental Bank of Commerce over the property, the OP wrote to the bank, vide  letter dated 12.09.2017, for their no objection to the change sought by the original allottees. Since some issues regarding the outstanding dues cropped up between the original allottees and the OP, a settlement dated 28.09.2017 was executed, whereby the accounts of the original allottees were settled by the OP for a full and final amount of Rs.10,16,882/- which was credited in the account of the  original allottees  and it was agreed that this settlement agreement, settles all disputes whatsoever between the parties once and for all. It was also agreed that the original allottees will execute all the necessary documents and take possession of their unit A-1/24-SF without any delay and they would not be left with any right title or interest qua unit A-1/42-SF henceforth, which shall revert back to the OP. On further discussions between the parties, the  original allottees  did not agree to pay preferential location charges applicable to newly allotted unit i.e. A-1/24-SF and the OP further agreed to adjust/waive off another amount of Rs.12,65,400/- on account of PLC charges and resultantly, an addendum to the settlement deed was executed on 10.08.2018. In pursuance of above settlements, the original allottees  cleared all their dues qua the new unit i.e. A-1/24-SF, and the OP credited an amount of Rs.10,16,882/- in their account and waived off Rs.12,65,400/- towards PLC and letter in this regard was issued by the OP on 21.02.2018. Thus, the  original allottees  got a total benefit of Rs.22,82,282/- through the above said settlements. Despite having settled all disputes vide the above settlement deeds, the original allottees did not take physical possession of the unit in question and resultantly, the OP, vide various reminders asked them to take over the same, which was ultimately taken over by them on 09.06.2020, after making a payment of Rs.92,000/- and also executed an undertaking i.e. 'Acceptance of Possession', in favour of the OP. It is only thereafter that the complainants have purchased the property from the original allottees and has become the allottees of the unit. The original allottees never raised any such dispute which the complainants are trying to raise now against the OP regarding interest on delayed possession and increase in the saleable area of the unit, rather, the  original allottees  had already accepted the increase in the saleable area and sought change in unit. Besides, whatever disputes had arisen between the  original allottees  and the OP, the same were settled vide settlement deeds dated 28.09.2017. Not only that, the OP had even given a discount of Rs.2,25,514/- to the  original allottees  on account of Mr. Rathee being a Govt.  Employee, even though it was not part of the agreement. Once the original allottees have unconditionally accepted the possession of the unit and have executed an undertaking and no claim of any nature whatsoever is left against the OP, then the complainants, who have purchased the property subsequently, cannot be permitted to turn back and raise the issues such as interest of delayed possession and increase in saleable area of the unit. In fact, these issues were not even raised by the  original allottees  in the first place at any stage and therefore, the complainants, in any case, cannot be permitted to raise them now. The complainants are estopped from raising the issues in question. Further the complainants at the time of transfer of property from the original allottees in their favour executed an Undertaking dated 22nd July 2020 stating that they are satisfied themselves with all the aspects concerning the substitution of the floor in their favour and not hold the company responsible and liable in the event any discrepancy of whatsoever nature is noticed in any of the documents at a later date. Rest of the averments of the complainants were denied by the OP and prayed for dismissal of the present complaint with exemplary costs.
4.           Learned counsel for the complainants tendered affidavit of the complainant No.1 as Annexure C-A alongwith documents as Annexure C-1 to C-27 and closed the evidence on behalf of the complainants. On the other hand, learned counsel for the OP tendered affidavit of Vinod Kumar, Authorized Representative of M/s DLF Homes Panchkula Private Limited, DLF Valley, Bhagwanpura, Sector-3, Pinjore Kalka Urban Complex, Panchkula, Haryana as Annexure RW1/A alongwith documents as Annexure R-1 to R-17 and closed the evidence on behalf of OPs.
5.           None put in appearance on behalf of the complainants on the date of arguments, therefore, we have heard the learned counsel for the OP and have also carefully gone through the case file.
6.           Learned counsel for the OP while reiterating the objections and contentions raised in the written version submitted that since valid possession of the unit in question stood delivered to the predecessor of the complainants, with whom all the disputes stood settled vide Deed of Settlement dated 28.09.2017, Annexure R-6 and Addendum to the said settlement deed dated 28.09.2017, Annexure R-7 and also at the same time, the time had also given an Undertaking for Compensation dated 22.07.2020, Annexure R-14 to the OP to the effect that he is not entitled for any compensation on account of delayed compensation as agreed upon with the First Allottee and that he is satisfied with all aspects  concerning qua the unit in question and  will not hold the company responsible and liable at a later date, as such now the complainants, who have  purchased the unit in question in resale, have no right to seek the reliefs on behalf of their predecessors. 
7.           From the pleas taken by the complainants in their complaint; from the documents on record; and also from the arguments raised by the OP, it has been found by this Commission that the complainants are seeking relief qua payment of delayed compensation for delay in delivery of possession of the unit in question; and also excess amount received by the OPs towards increase in area of the said unit. Under these circumstances, the only short question which needs to be decided by this Commission is as to whether, the complainants are entitled to seek these reliefs or not.
8.           It may be stated here that it is not in dispute that the unit in question, measuring 2255 square feet, was in the first instance purchased by Mr.Sanjiv Rathee and Richa Rathee vide agreement to sell dated 23.12.2010, Annexure R-1, for total amount of Rs.48,75,309.97/-. Possession of the said unit was offered to Mr.Sanjiv Rathee and Richa Rathee vide letter dated 19.06.2017, Annexure C-1, which was ultimately taken over by them vide Final Acceptance of Possession Letter dated 08.07.2020, Annexure C-5. From this document-Annexure C-5, it is   evident that Mr.Sanjiv Rathee and Richa Rathee have clearly undertaken that they have taken possession of the said unit complete in all  respects and have no claim against the OP qua work done, defect, design, specifications, building materials used or any reason whatsoever.  Apart from this, Mr.Sanjiv Rathee and Richa Rathee have also executed Deed of Settlement dated 28.09.2017, Annexure R-6 and Addendum to the said settlement deed dated 28.09.2017, Annexure R-7 with the OP, wherein, in para no.5 it has been clearly undertaken by Mr.Sanjiv Rathee  and Richa Rathee  that The First party herein agrees and undertakes that the terms of present settlement agreement would constitute a full and final settlement between the parties and neither party shall have any claim/demand/liability against each other be it past, present or future. Thus, from these documents, it has been established that Mr.Sanjiv Rathee  and Richa Rathee  have already extinguished their all the rights qua increase in area or delayed compensation etc. by way of  entering in these Deed of Settlement dated 28.09.2017, Annexure R-6 and Addendum to the said settlement deed dated 28.09.2017, Annexure R-7 with the OP. Significantly, the complainants before purchasing the said unit in resale from Mr.Sanjiv Rathee  and Richa Rathee , confirmation of which was given by the OP vide letter dated 13.08.2020, Annexure C-26, have also given an Undertaking for Compensation dated 22.07.2020, Annexure R-14 to the OP to the effect that they are not entitled for any compensation on account of delay possession of the said independent floor, as agreed upon with the First Allottee and that they are satisfied with all aspects concerning qua the unit in question and  will not hold the company responsible and liable in the event any discrepancy of whatsoever nature is noticed in any of the documents at a later date.
8. Thus, in the peculiar facts and circumstances of this case, we are of the considered opinion, that when the original allottees i.e. Mr.Sanjiv Rathee  and Richa Rathee  had waived off their rights qua delayed compensation or any other dispute relating to the unit in question and took vacant and peaceful possession of the same and that too after executing Deed of Settlement dated 28.09.2017, Annexure R-6 and Addendum to the said settlement deed dated 28.09.2017, Annexure R-7 with the OP,  and at the same time, at the time of  purchase of the said unit in resale, the complainants have also given Undertaking for Compensation dated 22.07.2020, Annexure R-14 to the OP to the effect that they are not entitled for any compensation on account of delayed compensation as agreed upon with the First Allottee and that they are satisfied with all aspects  concerning qua the unit in question and  will not hold the company responsible and liable at a later date, as such, now the complainants cannot seek any relief from this Commission in this complaint.  
9. For the reasons recroded above, this complaint stands dismissed with no order as to costs. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.