STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | : | 217 of 2015 |
Date of Institution | : | 04.09.2015 |
Date of Decision | | 13.10.2015 |
Rajiv Nirmal s/o Sh. J.C. Sharma r/o H.No.46, Sector 13, Urban Estate Karnal through GPA Jaswinder Singh Nat s/o S. Piara Singh Nat r/o H.No.704, Sector 40-A, Chandigarh.
……Appellant/Complainant.
Versus
1. DLF Universal Ltd., Shopping Mall, 3rd Floor, Arjun Marg, DLF City Phase-1, Gurgaon – 122002, Haryana through its Manager.
2. DLF Universal Ltd., Chandigarh, SCO No.190, 191 & 192, Sector 8C, Chandigarh through its Branch Head.
....Respondents/Opposite Parties.
Appeal under Section 15 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
SMT. PADMA PANDEY, MEMBER.
Argued by:
Sh. H. P. S. Ghuman, Advocate for the appellant.
Sh. Avinit Avasthi, Advocate for the respondents.
PER DEV RAJ, MEMBER
This appeal is directed against the order dated 30.07.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short District Forum) vide which, it dismissed Consumer Complaint No.8 of 2015, filed by the complainant (now appellant).
2. The facts, in brief, are that being attracted by advertisement of Opposite Parties, the complainant made an application for allotment of plot of 292.64 sq. yards on 23.3.2011 for Rs.80 lakhs. It was stated that the complainant booked the plot by making payment of Rs.12 lakhs and balance amount was to be paid after handing over of possession of the plot. It was further stated that it was also agreed that the Opposite Parties shall develop the site by providing all the amenities such as metalled road, sewerage, parks, water, electricity etc. within a period of three years upto March 2014. It was further stated that the complainant visited the Opposite Parties many times, but, he was given false assurances that the site would be developed and possession of the plot would be given soon. It was further stated that on 28.5.2012, the Opposite Parties gave a notice (Annexure C-2) to the complainant for making payment or otherwise they would take action as per clause 19. It was further stated that on 21.3.2013, the Opposite Parties wrote a letter (Annexure C-3) to the complainant for cancellation of the allotment. It was further stated that the said letter was not sustainable as the Opposite Parties failed to develop the site in the given period and, therefore, they were liable to refund the amount alongwith interest. It was further stated that the aforesaid act of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice.
3. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs.
4. The Opposite Parties, in their joint written version, stated that the complainant was allotted a residential plot bearing No.R2-C309 measuring 350 sq. yards through the first application form dated 23.3.2011 for allotment and he opted for the down payment plan. It was further stated that at the time of booking, the complainant paid an amount of Rs.12.00 lakhs by way of cheque dated 23.3.2011. It was further stated that the complainant failed to make any subsequent payment as per the down payment plan, despite issuance of various demand letters/demand notices, therefore, the Opposite Parties were compelled to cancel the allotment vide letter dated 12.7.2011. It was further stated that thereafter, the complainant again approached the Opposite Parties vide letter dated 15.7.2011 and requested for a change in the payment plan from down payment plan to installment payment plan. It was further stated that accordingly, a new application for allotment was executed between the complainant and the Opposite Parties on 23.7.2011, but, again he failed to comply with the terms of that application and did not make the payment. It was further stated that the complainant breached the terms and conditions of the application forms. It was further stated that the cancellation of the plot on 21.3.2013 was done in accordance with clause 19 of the application for allotment. It was denied that there was no development at the site. It was further stated that that the Opposite Parties had already received the completion certificate and were in the process of handing over possession alongwith the registration of the conveyance deed for various plots situated at Hyde Park Estate, Mullanpur. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written versions of the Opposite Parties.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties and, on going through the evidence, and record of the case, the District Forum, dismissed the complaint, as stated above, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Complainant.
9. We have heard the Counsel for the parties and have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellant/complainant submitted that a sum of Rs.12 Lacs was deposited by the appellant/complainant on 23.3.2011 at the time of booking the plot, in question, with the respondents/Opposite Parties. He further submitted that the aforesaid amount was deposited after submission of application dated 23.3.2011 for allotment and no agreement was executed. He further submitted that as per the installment payment plan, possession was to be offered within 21 months of booking. He further submitted that the appellant/complainant was entitled to refund of the amount and the District Forum erred in dismissing the complaint. He further submitted that the terms and conditions in the applications dated 23.3.2011 and 23.7.2011 were never conveyed to the appellant/complainant. He further submitted that the District Forum wrongly observed that the appellant/complainant concealed material facts qua the allotment letter and wrongly found the appellant/complainant as non-suited without realizing the fact that the application form containing terms and conditions is lying with the respondents/Opposite Parties. The Counsel relied upon the judgment of Hon'ble National Consumer Disputes Redressal Commission, New Delhi (in short National Commission) in case titled Emaar MGF Land Limited Vs. Karnail Singh, 2014 (4) R.C.R. (Civil) 136, wherein the developer was directed to refund the amount and the National Commission dismissed the appeal with punitive damages of Rs.5 Lacs.
11. The Counsel for the respondents/Opposite Parties admitted that a sum of Rs.12 Lacs was deposited by the appellant/complainant on 23.3.2011. He further submitted that initially, the complainant opted for down payment plan and when he did not make payment of further installments in accordance with the payment plan opted by him, his allotment was cancelled vide allotment letter dated 12.7.2011 and the booking amount of Rs.12 Lacs was forfeited. He further submitted that the complainant vide his letter dated 15.7.2011 (Annexure R-2) requested for change of down payment plan to installment payment plan wherein he also agreed to revised price of Rs.27,500/- per sq. yard, payment of 20% of the total price alongwith signing of the new application form and delayed interest charges to be deducted from the amount already paid and for crediting the balance amount to his Account. He further submitted that the complainant, accordingly, made payment of Rs.12,55,000/- vide cheque dated 23.7.2011 and submitted application opting for installment payment plan (Pages 81 to 100 of the District Forum file). He further submitted that as per installment payment plan and the revised rate to which the complainant opted, the total price of the plot, in question, came to Rs.1,06,04,987.65 as against the earlier price of Rs.99,05,053.76. He further submitted that once the complainant opted for installment payment plan, the terms and conditions as per application dated 23.7.2011 and letter dated 15.7.2011 were applicable and considering the same, the complainant was not entitled to any refund of earnest money even in terms of judgment of National Commission in case titled D.L.F Ltd. Vs. Bhagwanti Narula, I (2015) CPJ 319 (NC), that earnest money beyond 10% could not be forfeited.
12. It is evident that the appellant/complainant applied for allotment of a residential plot vide application form dated 23.3.2011 (Annexure R-1) and paid Rs.12 Lacs as the booking amount vide cheque dated 23.3.2011 (Annexure R-2/C) against receipt dated 25.3.2011. It is also the admitted case of the parties that plot No.HPE-R2-C309 in Hyde Park Estate, New Chandigarh (Mullanpur PA), Punjab was allotted to the complainant vide allotment letter dated 31.3.2011.
13. Initially the complainant opted for down payment plan, as annexed to his application dated 23.3.2011. The same was as under:-
DOWN PAYMENT PLAN |
On Application for Booking | Rs.12 lacs (for Plot Size less than 500 Sq. yards) Rs.15 lacs (for Plot Size of 500 Sq. yards or more) |
Within 45 days of Booking | 95% of Total Price + 95% of EDC (Less: Down Payment Rebate & Booking Amount) |
On offer of Possession | 5% of Total Price, 5% of EDC, IBMS, Club Charges, Registration & Stamp Duty and other charges, if any. |
14. The total price of the plot, in question, was Rs.99,05,053.76. The complainant did not make the remaining payment (95%) within the stipulated period of 45 days and consequently, the Opposite Parties cancelled the allotment vide letter dated 12.7.2011, whereby the entire amount of Rs.12 Lacs was forfeited. The earnest money forfeitable was calculated as under:-
A. Total amount paid | Rs.12,00,000.00 |
B.Less. Earnest money | Rs.15,57,781.25 |
Processing Fee | Rs.0.00 |
Interest on delayed payments (Upto 12/7/2011) | Rs.2,04,479.97 |
Interest on installments | Rs.0.00 |
Brokerage Paid | Rs.0.00 |
Incentive Paid | Rs.0.00 |
Total Forfeitable amount | Rs.17,62,261.22 |
Balance recoverable (A-B) | Rs.5,62,261.22 |
15. As is evident from letter dated 15.7.2011 (Annexure R-2), the complainant requested the Opposite Parties to change his down payment plan to installment payment plan and he expressed his willingness as under:-
“1) The new price of per sq. yd would be revised to Rs.27,500/-
2) 20% of the total price would be paid along with the signing of the new application form.
3) Delayed late interest charges to be deducted from the amount already paid and the balance amount to be credited to my account.”
16. Accordingly, he executed application dated 23.7.2011 (Annexure R-3), according to which, the price of the plot, in question, was Rs.1,06,04,987.65 and issued cheque No.201671 dated 23.7.2011 for Rs.12,55,000/-. The cheque aforesaid was returned uncashed by the Bankers of the complainant with remarks “Funds insufficient”. As is also evident from record, the complainant did not make payment either of Rs.12,55,000/- or subsequent installments. The Opposite Parties as per schedule of payments issued demand letters to him (complainant) vide letters dated 2.9.2011 and 26.9.2011 for clearing previous balance in the sum of Rs.17,91,952.17 and when the complainant did not respond, he was issued cancellation notice dated 7.10.2011, relevant para whereof, reads as under:-
“Kindly note that as per the clause no 19 of the application form duly signed by you company is entitled to cancel the allotment in case of non fulfillment/breach of the terms and conditions. As you have not abided by the “Terms and Conditions” of the application form we regret to inform you that the allotment of the captioned plot stands cancelled and henceforth you shall have no right, title or interest on the said plot and the company shall be free to deal with the same in any manner whatsoever.”
17. Vide letter dated 1.12.2011, allotment was cancelled by the Opposite Parties in the following manner:-
C.Total amount paid | Rs.9,85,935.03 |
D. Less. Earnest money | Rs.16,62,780.47 |
Processing Fee | Rs.0.00 |
Interest on delayed payments (Upto 01/12/2011) | Rs.91,077.58 |
Interest on installments | Rs.0.00 |
Brokerage Paid | Rs.0.00 |
Incentive Paid | Rs.0.00 |
Total Forfeitable amount | Rs.17,53,858.05 |
Balance recoverable (A-B) | Rs.7,67,923.02 |
18. Once the complainant had agreed to change down payment plan to installment payment plan, his allotment was to be governed as per the terms and conditions of his application dated 23.7.2011. It is also relevant that the Opposite Parties had agreed to this change only on the specific undertaking of the complainant in his letter dated 15.7.2011 that he would be paying the delayed interest charges of Rs.2,04,479.97. As per application dated 23.7.2011, the total price of the plot, in question, being Rs.1,06,04,987.65, the earnest money @15% comes to Rs.15,90,748.15. Thus, the Opposite Parties, as per clause No.19, could forfeit a sum of Rs.15,90,748.15 plus the delayed interest payment of Rs.2,04,479.97, agreed to be paid by the complainant. Even considering the ratio of law laid down by the National Commission in D.L.F Ltd. Vs. Bhagwanti Narula’s case (supra) that forfeiture of earnest money beyond 10% of the total price would not be justified, the forfeitable amount in the instant case, comes to Rs.12,64,978.74 [Rs.10,60,498.77 (being 10% of Rs.1,06,04,987.65) + Rs.2,04,479.97]. Thus, the respondents/Opposite Parties were right in forfeiting Rs.12 Lacs.
19. In view of the above, clearly the complainant failed to abide by the terms and conditions of the application including those relating to payment of total price and other deposits, charges, rates, etc. contained in applications (Annexure R-1 and R-3). When the complainant himself failed to make payment firstly as per the down payment plan, and secondly as per installment payment plan, he could not be heard to say that the Opposite Parties did not offer the possession and that he was entitled to refund of Rs.12 Lacs.
20. The contention of the appellant/complainant that the application form containing the terms and conditions was with the respondents/Opposite Parties, is of no help to him. It is clearly evident from both the applications dated 23.3.2011 and 23.7.2011 that the complainant signed on each page of the application form, meaning thereby that he appended his signatures after duly going through and understanding the terms and conditions thereof. Not only this, the complainant was aware that there was option of three payment plans. Initially he had opted for down payment plan in his application dated 23.3.2011 and when his allotment was cancelled by the Opposite Parties on 12.7.2011, he requested the Opposite Parties for revoking the cancellation and opted for installment payment plan. It is thus apparent that that the complainant was aware of the terms and conditions of the application forms.
21. Further the contention of the appellant/complainant that he visited the Opposite Parties many a times and was given false assurance that the site would be developed and possession of the plot would be given soon, is also falsified from the contents of his letter dated 15.7.2011, which clearly prove that the allotment was cancelled on account non-payment of installments by him and he admitted in his letter dated 15.7.2011 that due to financial constraints, he would not be in a position to pay the amount due and requested to change his down payment plan to installment payment plan. As such, this contention of the appellant/complainant is totally false.
22. The District Forum, in Para 14 of its order has dealt with the objection of the appellant/complainant that the Opposite Parties did not develop the site by providing all the amenities up to March 2014 and the District Forum was right in holding that when the complainant did not make the payment of the due amount as per the down payment plan or installment payment plan, it did not lie in his mouth to allege that the Opposite Parties failed to develop the site and to provide possession of the plot to him.
23. As regards the contention of the appellant/complainant that the District Forum wrongly observed that complainant concealed material facts from the Forum, the District Forum in Para 10 of its order, rightly held, that “…..The complainant in his complaint has nowhere mentioned whether he had opted for the down payment plan or the instalment payment plan. The copy of the application form (Annexure R-1) shows that the complainant had opted for the down payment plan. The complainant has mentioned the price of the plot as Rs.80.00 lakhs in the complaint, but, the copy of the application form (Annexure R-1) shows the price of the plot, including preferential location charges to be Rs.99,05,053.76. According to the payment plan at Annexure I of the application form, the complainant was required to pay an amount of Rs.12.00 lakhs at the time of booking; 95% of the total price + 95% of EDC within 45 days of booking and 5% of the total price, 5% of EDC, IBMS, club charges, registration & stamp duty and other charges, if any, on the offer of possession. All these facts have been concealed by the complainant. Further, the complainant did not make any payment within 45 days of the booking as per the payment plan.” Irrespective of the aforesaid observation of the District Forum, as discussed in Para 18 above, the amount of Rs.12 Lacs paid by the complainant was rightly forfeited.
24. The judgment relied upon by the Counsel for the appellat/complainant in Emaar MGF Land Limited Vs. Karnail Singh’s case (supra), is disguishable on facts and, as such, is no help to the appellant/complainant. In our considered opinion, the appellant/complainant has failed to prove any deficiency attributable to the respondents/Opposite Parties and the District Forum rightly dismissed the complaint. Therefore, the impugned order passed by the District Forum is liable to be upheld.
25. No other point was urged by the Counsel for the parties.
26. For the reasons recorded above, the appeal, being devoid of any substance, is dismissed with no order as to cost. The impugned order dated 30.07.2015 passed by the District Forum is upheld.
27. Certified copies of this order, be sent to the parties, free of charge.
28. The file be consigned to the Record Room, after due completion.
Pronounced.
October 13, 2015.
Sd/-
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
Sd/-
(DEV RAJ)
MEMBER
Sd/-
(PADMA PANDEY)
MEMBER
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