Chandigarh

DF-II

CC/254/2014

Ravi Kumar Wadhwa - Complainant(s)

Versus

DLF India Ltd. - Opp.Party(s)

25 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

 

Consumer Complaint No.	:	254/2014
Date of Institution	:	13.05.2014
Date of Decision	:	25/02/2015

 

                  

                                                         

 

Ravi Kumar Wadhwa son of Sh.Madan Gopal Wadhwa aged about 50 years resident of House No.151, Type-5, Nuhon Colony, Ropar Thermal Plant, District Ropar, Punjab.

                                      ...  Complainant.

Versus

1.       DLF India Limited, 2nd Floor, Gateway Tower, R-Block, Phase-III, DLF City, Gurgaon-122002, Haryana.

2.       DLF Universal Limited, Registered Office: Shopping Mall, 3^rd Floor, Arjun Marg, DLF City Phase-1, Gurgaon-122002, Haryana.

3.       DLF Universal Limited, Chandigarh Technology Park Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.)-160101.

4.       Yaman Sandhu, Marketing Agent, DLF Universal Limited, Chandigarh Technology Park Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.)-160101.

…. Opposite Parties.

 

BEFORE:  SHRI RAJAN DEWAN, PRESIDENT

SMT. MADHU MUTNEJA, MEMBER

SHRI JASWINDER SINGH SIDHU, MEMBER

 

Argued by:  Sh.Munish Gupta, Proxy Counsel for Sh.M.S.Longia, Counsel for the complainant.

                        Sh.Avinit Awasthy, Counsel for the Opposite Parties.          

                               ...

PER RAJAN DEWAN, PRESIDENT

1.           In brief, the case of the complainant is that with a view to purchase a house for his own living after his retirement, he approached the Opposite Parties and being induced by their marketing agent (Opposite Party No.4), he agreed to purchase the Independent Floor in the housing project under the name “DLF HYDE PARK’ situated at Village Mullanpur, District SAS Nagar, Mohali Punjab by paying Rs.6 lacs through cheque dated 29.08.2012 as booking amount.  It was further stated that the complainant was requested to sign the application form at the place marked as X, which the sales agent had filled after asking few questions from him. According to the complainant, the rest of the amount would be payable in installments after a period of two months from the date of signing the agreement between the parties, which would be sent to him by post.  It was further averred that on 03.09.2012, the complainant was shocked to hear from the agent of the Opposite Parties that he was required to pay overhead charges including PLC, IDC, EDC, Service Tax, Compulsory Club Fee amounting to Rs.15-20 lacs at the time of the possession of the unit and the said demand. Ultimately, the complainant requested Opposite Party No.3 for refund of the booking amount and he was told that the same would be refunded within a week as still the allotment letter did not issue and also no agreement was signed between the parties.  When no response was received from the Opposite Parties, the complainant sent e-mails/letters (Annexure C-1 to C-7) to them to refund the deposited amount but to no effect.  According to the complainant, ignoring the communications sent by him, the Opposite Parties sent a 16.11.2012 (Annexure C-8) whereby he was required to pay Rs.6,20,923/-. The complainant again sent letter dated 30.12.2012, Annexure C-9 requesting the Opposite Parties to refund the amount.  The complainant received a letter dated 15.01.2013, Annexure C-10 from the Opposite Party requiring him to pay Rs.14,81,740/-. The complainant personally visited the office of the Opposite Party No.3 and requested it to refund the amount of Rs.6 lacs but to no effect.  It was further averred that vide letter dated 04.03.2013, Annexure C-11 the allotment of the complainant was cancelled due to the non-payment of the installments. According to the complainant, since he had applied for refund of the deposited amount before issuance of the allotment letter, therefore, forfeiture of the booking amount and consequent cancellation thereof did not arise. Alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has filed the instant complaint.
2.           In  their written statement,  the Opposite Parties stated that the complainant approached them for the purchase /allotment of an Independent Floor in DLF Hyde Park, Mullanpur and accordingly he signed the application dated 25.08.2012 for the allotment of Independent Floor.  The copy of said application for allotment dated 25.08.2012 and allotment letter dated 03.09.2012 is Annexure R/1. The allegation of the complainant with regard to the overhead charges amounting to Rs.15-20 lacs was denied.  It was further stated that even the e-mails/communications attached with the complaint show that due to some unavoidable circumstances, the complainant was not able to continue in the scheme.  It was further stated as per Clause 27 of the application for allotment, the Company was entitled to forfeit the earnest money alongwith non-refundable amount in case of non-fulfilment /breach of the terms and conditions of the application and the agreement including withdrawal of the application and also in the event of failure of the complainant to sign and returned to the Company.  It was further stated that despite sending repeated reminders, the complainant failed to make the payment as per the schedule and, therefore, the amount paid by the complainant towards the booking amount was rightly forfeited as per the terms and conditions of the application.  According to the Opposite Parties, there was no deficiency in service on their part and the complaint deserves to be dismissed.
3.           The complainant filed rejoinder to the written reply of the Opposite Parties controverting their stand and reiterating his own.
4.           We have heard the learned counsel for the parties and have gone through the documents on record including the written arguments.
5.           The controversy revolves around the small question, “as to whether the action of the Opposite Parties in forfeiting the booking amount of Rs.6,00,000/- of the Independent Floor, in question, especially when the complainant sought the refund of the booking amount before the execution of the agreement between the parties, is justified or not”?
6.           After giving our careful consideration to the matter, we are of the considered view that in the light of the material on record, the answer to the question is in the negative.
7.           The relevant Clause/Condition of the application for allotment Independent Floor in Hyde Park Terraces in Hyde Park Estate, New Chandigarh  (Annexure R/1) placed on record by the Opposite Parties themselves reads as under:-

“The applicant understands that by submitting this application, the applicant does not become entitled to the final allotment of the said Independent Floor in the said building/said project, notwithstanding the fact that the Company may issue a receipt in acknowledgment of the money tendered with this Application. The applicant further understands that it is only after execution of the agreement and the applicant agreeing to abide by the terms and conditions laid down therein, the allotment of the said Independent Floor shall become final. If the applicants fails to execute and return the agreement within thirty (30) days from the date of its dispatch by the Company, then the Company shall have the discretion to treat this application as cancelled and on such cancellation the earnest money (hereinafter defined) alongwith with the non-refundable amounts (hereinafter defined) paid by the applicant shall stand forfeited”.

8.           The perusal of the Clause aforesaid of the application for allotment of an Independent Floor itself shows that the complainant did not become entitle to the final allotment of the said Independent Floor in the said building/said project, notwithstanding the fact that the Company issued the receipt in acknowledgment of the money tendered with this Application.  The said Clause/Condition further reveals that the allotment of the Independent Floor shall be final only after execution of the agreement and the complainant agreeing to abide by the terms and conditions laid down therein.  In this view of the matter, the allotment of the Independent Floor was a provisional one and the same would become final only after the execution of the agreement between the parties. In the instant case, no such agreement was signed/entered into between the parties. It is not the case of the Opposite Parties that they had ever sent the agreement in respect of the Independent Floor  to the complainant and the same was not executed/returned within thirty (30) days  from the date of dispatch by the Company.  Rather, in the instant case, before the execution of the agreement between the parties, the complainant sought withdrawal of the deposited amount verbally on 04.09.2012 and by writing e-mail dated 17.09.2012, the receipt of which has not been denied by the Opposite Parties. Had the Opposite Parties sent the agreement to the complainant before his request for refund of the deposited amount, then the matter certainly would have been different.  In fact, there is no legal contract between the parties. Clause 27 of terms and conditions for allotment of an Independent Floor in Hyde Park Terraces in Hyde Park Estate, New Chandigarh available on page 39 is goes contrary to Clause/Condition as mentioned in the application for allotment of an Independent Floor in Hyde Park Terraces in Hyde Park Estate, New Chandigarh, Annexure R/1 at page 1 wherein it was clearly stipulated by the OP Company itself that “it is only after execution of the agreement and the applicant agreeing to abide by the terms and conditions laid down therein, the allotment of the said Independent Floor shall become final”. Thus, the execution of the agreement between the parties i.e. the complainant and the Opposite Parties would make them to abide by its terms and conditions, which is not the position in the case in hand.  However, the facts and circumstances of the case law relied upon by the Opposite Parties in their written statement are entirely distinguishable from the facts of the instant case and the same are, thus, not applicable to the case in hand.
9.           Moreover, the Consumer Protection Act, 1986 is a beneficial and benevolent Act and the same has been enacted by the parliament for the protection of the poor consumers like the complainant. A complaint under this Act is not decided on mere technicalities, substantial justice has to be ensured.  It is even settled principle of law that if there are two views possible, then the view which protects the interest of the consumer and serve the purpose should always be accepted and given effect to.  In this view of the matter, we are of the considered view that the Opposite Parties cannot be allowed to make enrich themselves by forfeiting/digesting the hard earned money of the poor consumers like the complainant. Such an act of the Opposite Parties is not only amounted to deficiency in service but also indulgence into unfair trade practice on their part.  
10.           In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

1. To refund the amount of Rs.6,00,000/- paid by the complainant alongwith interest @ 9% per annum from the respective date of its deposit till realization;
2. To pay Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;
3. To pay Rs.7,000/- as costs of litigation. 

11.           This order be complied with by Opposite Parties within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @12% per annum from the date of this order till actual payment besides payment of litigation costs.
12.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

25/02/2015

Sd/-

(RAJAN DEWAN)

PRESIDENT

 

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

cmg