Haryana

Panchkula

cc/287A/2015

SUKHDEV SINGH DHILLON. - Complainant(s)

Versus

DLF HOMESPANCHKULA PVT.LTD.&ANOTHERS. - Opp.Party(s)

ASHWANI CHAUDHARY.

02 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                            

Consumer Complaint No	:	287 of 2015
Date of Institution	:	21.12.2015
Date of Decision	:	02.08.2016

                                                                                          

1.       Sukhdev Singh Dhillon, aged about 70 years, S/o Sh.Ranjit Singh, R/o House No.3460, Sai Enclave, Sector 49-D, Chandigarh.

2.       Vinod Kumar, aged about 40 years, S/o Sh.Hari Chand, R/o village Manakpur Thakur Dass, Tehsil Kalka, District Panchkula.

 

                                                                                          ….Complainants

Versus

 

1.       DLF Homes Panchkula Private Limited through its Managing Director, Chandigarh through Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.).

          2^nd Address:-

          Regd. Office at 2^nd Floor, DLF Gateway Tower, DLF City, Phase-III, National Highway-8, Gurgaon (Haryana).

2.       The Chief Executive Officer, DLF Homes Panchkula Private Limited, Chandigarh Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.).

3.       D.L.F., Homes Panchkula Pvt. Ltd., through its Site Incharge/Officer, Village Bhagwanpur, Tehsil Kalka, District Panchkula.

 

                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Arvind Sood, Adv., for the complainant. 

                             Mr.Gaurav G.S.Chauhan, Adv., for the OPs.

 

ORDER

(Dharam Pal, President)

 

1. The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that the complainants booked a plot bearing No.DVPG2/11 measuring about 442 sq. yards in DLF Valley, Panchkula after paying an amount of Rs.12,00,000/- to the Ops by way of cheque on 31.12.2011. At the time of booking, the complainants No.1 visited the office of Ops and they did not disclose any other detail or terms and conditions in respect of plot in question. The complainant No.1 could not read and write in English except doing his signatures. An application form alongwith certain other blank performas were also got signed from the complainant No.1. However, despite requesting several times by the complainant No.1, the contents/terms and conditions contained in the said performas were never read over to the complainant No.1. The cheque of Rs.12,00,000/- paid by the complainants was got encashed by the Ops on 14.01.2012. The name of the complainant No.2 was inserted as co-applicant in the said plot. In the end of February, 2012, the Ops demanded an amount of Rs.19,07,778/- even without offer of any possession and even without any development of the area. Thereafter, the Ops demanded another amount of Rs.13,445/- without any basis or details vide letter dated 18.04.2012. The complainant No.1 approached the Ops to verify about the issuance of letters which were in clear violation of the terms and conditions disclosed to the complainants at the time of booking of the plot. On this, the Ops told the complainant No.1 that since the plot in question had already been booked, so the amount claimed by the Ops would have to be paid by them. Thereafter, the complainants wrote a letter dated 12.05.2012 to the Ops to narrate in detail all the facts and circumstances under which the complainants booked a plot with the Ops and to refund the amount of Rs.12,00,000/- deposited by the complainants at the time of booking. The Ops replied that all the on-going construction activities have been stayed by the Hon’ble Supreme Court of India by passing an order dated 19.04.2012 in S.L.P. No.21786-88/2010 in the matter of Ravinder Singh and others vs. State of Haryana and so the Company might put the construction of project in abeyance and that the Company would not liable for the performance of any of its obligations. The complainant No.1 wrote another letter to the registered office of Ops by making same request of the earlier letter which was not replied nor complied with. After passing 6 months, the complainants received a letter dated 24.12.2012 from the Ops in which the Ops directed the complainants to make the payment otherwise the earnest money should be forfeited by the Ops. Thereafter, the Ops sent another letter dated 04.01.2013 to the complainants also followed the letter dated 24.12.2012 and demanded an amount of Rs.39,93,075/- without disclosing any status of the proceedings pending before the Hon’ble Supreme Court of India. The complainant also visited the office of Ops to know the status of their letter dated 12.05.2012 but to no avail. The complainant No.1 also received another letter dated 23.03.2013 in which a sum of Rs.60,64,927/- had been demanded by the Ops without disclosing about the status of the letters of the complainants. Thereafter, the complainants visited several times to the office of Ops and requested them to refund the amount deposited by them but to no avail. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Ops is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex comprising of 1153 residential plots containing 1775 built up units of various sizes and configuration, 7 numbers school sites and one crèche site, one community centre, one dispensary site, 2 nursing home sites, one religious building site, 2 nos. commercial sites, taxi stand and organized services and green spaces/parks. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Ops have already completed construction of 258 Independent Floors on 86 Plots and another 1517 built up units are nearing completion. It is submitted that out of 1775 built-up units, occupation certificate has been received for 258 units and as on date 86 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is submitted that the agreement between the parties were executed before 4 years which was duly signed and executed by each allottee after properly understanding each and every clause contained in the agreement. It is submitted that the terms of the agreement are binding between the respective parties. The complainant does not fall within the ambit of consumer. Further, the Ops have acted in accordance with the terms and conditions of the Buyers Agreement. It is submitted that the complainant was duly informed about the schedule of possession as per clause 19 of the Application for Allotment entered into between the complainant and Ops.

“19.   It shall be incumbent on the application(s) to comply with the terms of payment and /or other terms and conditions of this Application / Plot Buyers’ Agreement failing which the applicant(s) shall forfeit to the Company the entire amount of Earnest Money, interest on delayed payment, brokerage, service tax, other charges and taxes, if any incurred by the company, etc. and the application/plot buyers’ agreement shall stand cancelled and the Applicant(s) shall be left with no lien, right, title, interest or any claim of whatsoever nature in the plot. The company shall thereafter be free to resell and/or deal with the plot in any manner whatsoever at its sole discretion. The amount(s), if any, paid over and above the Earnest Money, processing fee, interest on delayed payment, brokerage, other charges and taxes as may be applicable etc. would be refunded to the applicant(s) by the Company but without any interest or compensation of whatsoever nature only after realization of such amount to be refunded, after resale of the said plot. The Company shall have the first lien and charge on the said plot for all the dues payable by the Applicant(s) to the Company.”

It is submitted that at the time of the signing of the application for allotment, the complainants were aware of all the terms and conditions and specifically clause 19 which clearly stated that the company should be entitled to forfeit the earnest money alongwith the non-refundable amount in case of non fulfillment/breach of the terms and conditions of the application and the agreement including withdrawal of the application. It is submitted that as per clause 12, the company shall not be liable to perform any of its obligations during subsistence of the Force Majeure conditions. It is submitted that even though the possession was to be given within a period of two years, there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. It is submitted that the construction activities at the project site had been put in abeyance and no further activities would be carried out and the Ops had informed the complainant about the stay of Hon’ble Supreme Court. It is submitted that the complainants approached the Ops for purchase of an independent plot in DLF Valley, Panchkula. It is submitted that the complainant paid an amount of Rs.12,00,000/- vide cheque No.500784 and another cheque No.0043716 worth Rs.6 lacs each dated 07.01.2012. It is submitted that the complainant No.1 signed the application for allotment of the independent floor at DLF Valley, Panchkula. It is submitted that various communications sent to the complainants regarding demand of payments as per installment payment plan but the complainants failed to make any payment. It is submitted that the complainants were failed to give any explanation for the failure to make the payments and accordingly, the Ops left with no other choice than to forfeit the earnest money as per clause 19 of the application for allotment. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3. The counsel for the complainants has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-4 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-4 and closed his evidence.
4. We have heard the learned counsel for the parties and have also perused the record.
5. When the case was fixed for filing written statement, the counsel for the Ops has filed an application u/s 8 of the Arbitration & Conciliation Act, 1996 for rejecting/referring the complaint to the Arbitrator. Reply to the application filed by the counsel for the complainant.
6. The objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.35 in Application Form. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the application form/Agreement, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. Not only this, recently also, a similar view was taken by the National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/ Opposite Party challenged that order in the Hon’ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon’ble Supreme Court of India, while dealing with various judgments, including Magma Leasing and Finance Limited and another Vs. Potluri Madhavilata and another (2009) 10 SCC 103 (the one reliance on which has been placed by the opposite parties in present case also)  observed that the same (judgments) have no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to refer to the Arbitral Tribunal. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

In view of the above, the application for the Arbitration & Conciliation Act. 1996 for rejecting/referring the complaint to the Arbitrator is dismissed.  

7. The Ops admitted to the extent that the complainants were allotted an independent plot No.DVP-G2/11 measuring 370 sq. mtr. on the application form for allotment dated 07.01.2012 and the complainants opted for the installment payment plan whereby on the booking of the said independent plot a payment of Rs.12,00,000/- was to be made at the time of booking of the plot. Accordingly, the complainants made the payment of Rs.12,00,000/- on 07.01.2012. The learned counsel for the Ops has submitted that thereafter, in the month of February, 2012 the Ops demanded an amount of Rs.19,07,778/- without offer of any possession and the Ops demanded a sum of Rs.13,445/- without any basis vide letter dated 18.04.2012. However, the complainants have not made further payment and they willfully defaulted in making payment in violation the terms & conditions of the application for allotment and in violation of the schedule of payment i.e. 2 years payment plan. Hence, the Ops cancelled the allotment of the complainants on 16.11.2013 and forfeited the earnest money as per clause 19 of the terms and conditions of the application for allotment.
8. The complainants in the present complaint stated that the complainants applied/booked a plot and paid Rs.12,00,000/- on 07.01.2012 alongwith the application. On the demand raised by the Ops, the complainants did not deposit the further payment and asked for the Ops vide letter dated 12.05.2012 all the facts circumstances under which the complainants booked a plot with the Ops and to refund the amount of Rs.12,00,000/- deposited by them at the time of booking. On this, the Ops replied that all going construction activities at the project site in abeyance in view of the stay order dated 19.04.2012 passed by the Hon’ble Supreme Court in the SLP No.21786-88 of 2010. The complainants in the present complaint claimed that the Ops not only execute the buyer agreement but also not issued the allotment letter and cancelled the allotment of the complainants.
9. It is not denied that the complainants deposited an amount of Rs.12,00,000/- at the time of booking of plot. In the written statement, the Ops have mentioned that the complainants have not made the further payment and willfully defaulted in making payment in violation of terms and conditions of the application for allotment and in violation of the schedule of payment i.e. 2 years payment plan. The Ops were left with no other option than to cancel the allotment of the complainants on vide letter dated 16.11.2013 and rightly forfeited the earnest money as per clause 19 of the application for allotment (Annexure R-3). The Ops in para C (iv) of preliminary objection of the written statement have admitted that the Ops were liable to offer possession within 24 months from the date of execution of the agreement. The Ops also admitted that the complainants made the payment of Rs.12,00,000/-. It is well proved on record that the Ops did not issue the allotment letter neither executed the buyers agreement with the complainants despite depositing of a sum of Rs.12,00,000/-. There is no cogent explanation by the Ops that why they did not issue the allotment letter despite receipt of huge amount of Rs.12,00,000/- from the complainants. Even the plea of the Ops that the complainants did not follow the payment schedule, after making payment of Rs.12,00,000/- and stopped making further installments to it, has no force at all because no agreement was executed between the parties and therefore, the terms and conditions of the application were not binding upon the complainants. Since there was no agreement between the parties, the terms and conditions as quoted by the Ops were not applicable in the matter. It is very clear, therefore, from the record and also admitted during hearing that despite the deposit of Rs.12,00,000/- with the Ops, they did not take any steps to issue the allotment letter or to execute the Buyers Agreement. The Ops have not been able to show anywhere, whether they made any efforts to have the Buyers Agreement executed. The Ops themselves violated the terms and conditions of the application. Such conduct of the Ops proves their rendering deficiency in service to the complainants. In view of the matter, we are of the considered view that the complainants or any allottee (s) cannot be made to wait for an indefinite period for an allotment of plot in their favour after depositing part of their hard earned money with the Ops. As there exists no agreement duly executed between the parties so the Ops have no right to withhold the amount of the complainants for indefinite period. Hence, the Ops are liable to refund the amount deposited by the complainants.
10. Before we conclude, we must record that the present case is a classic exemplification of highheadedness on the part of a builder (DLF, in this case) who not only had been unfair to individuals desirous of a residential dwelling but also tried to resist the grant of a favourable (and appropriate) consideration to the grievances of the complainant by averring that the complainant was bound by documented terms and conditions which, infact, never ever came to be executed by the complainants. It is to state the obvious that in the absence of any permissible view to the contrary, the parties to a documented contractual transaction would be bound thereby. However, in the present case, the complainants herein are not proved to have been a party to the execution of any such terms and conditions. Inspite thereof, the OPs opted to make an averment that the complainants had indeed executed the relevant documentation.  
11. In view of the above discussion, we allow the present complaint against the Ops, therefore, the Ops are directed as under:-

(i)      To refund the amount of Rs.12,00,000/- to the complainants alongwith interest @ 12% per annum from the respective date of deposits till its paid.

(ii)     To pay Rs.25,000/- as compensation for mental agony and physical harassment to the complainants.

(iii)    To pay Rs.10,000/- as cost of litigation.

 

12. The abovesaid order be complied with by the Ops within 30 days of its receipt. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

 

Announced           (S.P.Attri)             (Anita Kapoor)          (Dharam Pal)

02.08.2016           Member                 Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

 

                                                     Dharam Pal                                                                                 President