Chandigarh

DF-I

CC/57/2015

Rakesh Goyal - Complainant(s)

Versus

DLF Universal Ltd. - Opp.Party(s)

Sumit Narang

02 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

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Consumer Complaint No.	:	CC/57/2015
Date of Institution	:	30/01/2015
Date of Decision	:	02/12/2015

 

1.      Rakesh Goyal s/o Sh. G.C. Goyal r/o H.No.943, Sector-16, Panchkula.

2.      Mukesh Goyal s/o Sh. G.C. Goyal, r/o H.No.943, Sector-16, Panchkula, through it’s General Power of Attorney/authorised representative Sh. Rakesh Goyal

…..Complainants

V E R S U S

1.      DLF Universal Limited through it’s Managing Director/Principal Officer, having its Registered Office at - DLF Shopping Mall, 3^rd Floor, Arjun Marg, DLF City Phase-I, Gurgaon-122002.

2.      DLF Universal Ltd., through it’s Manager, SCO No.190-191-192, Sector 8-C, Chandigarh.

……Opposite Parties

 

QUORUM:	P.L.AHUJA	PRESIDENT
	MRS.SURJEET KAUR	MEMBER

                               

                                               

ARGUED BY	:	Sh. Sumit Narang, Counsel for complainants
		Sh. Avinit Avasthi, Counsel for OPs

                       

PER P.L.AHUJA, PRESIDENT

1.         S/Sh. Rakesh Goyal and Mukesh Goyal, complainants have filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against M/s DLF Universal Limited and another, Opposite Parties (hereinafter called the OPs), alleging that they had purchased property No.HPA-R2-SCO-014#275 in the scheme of the OPs namely Hyde Park Estate, New Chandigarh (Mullanpur PA), Punjab for self-use and made the payment of Rs.10,39,300/- vide cheque dated 23.7.2013 as installment due which was received by the OPs vide receipt dated 26.7.2013.

According to the complainants, the OPs vide their letter dated 29.10.2013 informed that the cheque given by them had been returned uncashed by the bankers with the remarks “signature mismatch”. Consequently, complainants deposited another cheque dated 4.11.2014 amounting to Rs.10,39,300/- with the OPs within a week on 7.11.2014.  However, vide letter dated 9.12.2013, the OPs demanded a sum of Rs.44,589.18 from the complainants as interest towards delay of 102 days in making the payment. The complainants have contended that though the bank informed the OPs regarding non-encashment of the cheque on 2.8.2013, yet, the OPs intimated them regarding the same only on 29.10.2013, therefore, there was a delay of three months on the part of the OPs. The complainants through letters/reminders requested the OPs to look into the matter. The complainants also served a legal notice dated 4.7.2014 upon the OPs to waive off the interest imposed, but, to no avail.  Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainants have filed the instant complaint. 

2.         In their written reply, OPs have taken a number of preliminary objections including that the complainants are investors who had applied for allotment in the project in order to obtain profit; that since the present dispute arises out of agreement, therefore, the same may be referred to arbitration in accordance with Section 8 of the Arbitration & Conciliation Act, 1996.  The factual matrix of the case has not been disputed. It has been averred that the cheque dated 23.7.2013 was returned uncashed with the remarks “signature mismatch” and the OPs were compelled to issue a demand notice for payment of the said installment after which the complainants again issued a cheque of the same amount after a delay of more than 3 months. The receipt of request to waive off the delayed interest charges has been admitted, however, it has been stated that as per terms and conditions of the of the plot buyers agreement, timely payment is the responsibility of the complainant. It has been further stated that the complainant was informed both telephonically and personally regarding non-acceptance of the waiver of the delayed interest charges. It has been contended that as per terms and conditions of the plot buyer’s agreement, the OPs rightfully issued a letter dated 9.12.2013 for a sum of Rs.44,589.18 being the delayed interest charges. Pleading that there is no deficiency in service or unfair trade practice on their part, OPs have prayed for dismissal of the complaint.
3.         In their rejoinder, the complainants have controverted the stand of the OPs and reiterated their own.
4.         The parties led evidence in support of their contentions.
5.         We have appraised the entire evidence, written arguments submitted by both sides and heard the arguments addressed by the learned Counsel for the parties. 
6.         At the outset, the learned counsel for the OPs has urged that the complainants have nowhere mentioned in the complaint as to what was the purpose for applying for a commercial plot in the township named Hyde Park, New Chandigarh, Mullanpur. He has argued that the complainants are investors who applied for allotment in the project in order to obtain profits out of real estate speculation, therefore, they do not fall under the definition of ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act, 1986.
7.         We have given our thoughtful consideration to the above arguments of the learned counsel for the OPs, but, feel that the same are devoid of any force. The complainants have specifically mentioned in para 2 of the complaint that they had purchased the property No.HPA-R2-SCO-014#275 in the scheme of the OPs namely Hyde Park Estate, New Chandigarh (Mullanpur PA), Punjab for self-use purposes.  The OPs have not led any evidence to this effect that the complainants are property dealers and they have the history of buying plots and selling them in order to obtain profits. Since the complainants purchased the aforesaid plot and they hired the services of the OPs after making the payment of Rs.10,39,300/- to them through cheque, therefore, they clearly fall under the definition of ‘consumer’ as defined in Section 2(1)(d) of the Consumer Protection Act. 
8.         The next objection raised by the OPs is to the effect that as per clause 38 of the application, it was mutually agreed between the parties that all disputes arising out of the agreement shall be settled amicably, failing which they shall be referred to arbitration. It has been contended by the learned counsel for the OPs that as the present dispute arises out of the agreement, which the arbitration clause covers, therefore, the matter may be referred to the arbitrator in accordance with Section 8 of the Arbitration and Conciliation Act, 1996. However, the above contention of the learned counsel for the OPs is also devoid of any merit because the remedy provided to the consumer under Section 3 of the Consumer Protection Act is an additional remedy. Hence, it is immaterial if the complainants instead of getting the dispute referred to the arbitrator have filed the present complaint.
9.         The central issue involved in this case relates to the interest for delayed payment demanded/charged by the OPs from the complainants. Admittedly, the complainants issued cheque No.850955 dated 23.7.2013 for an amount of Rs.10,39,300/- in favour of the OPs as installment due under the scheme of the OPs. The due date of payment was 28.7.2013. The said cheque was received by OPs vide receipt dated 26.7.2013, copy of which is Annexure C-1.  However, OPs vide letter dated 29.10.2013 (Annexure C-2) informed the complainants that the cheque given by them drawn on ICICI Bank, Chandigarh had been returned uncashed by the bankers of the OPs with the remarks “signature mismatch”. Thereafter, the complainants deposited another cheque dated 4.11.2014 amounting to Rs.10,39,300/- with the OPs on 7.11.2014. After that, vide letter dated 19.12.2013, the OPs demanded an amount of Rs.44,579.18 as interest towards delay of 102 days in making the payment.
10.         It has been urged by the learned counsel for the OPs that as per clause 25(b) of the application for allotment (Annexure R-1), if the applicant does not make the payments within the stipulated time, then he shall pay to the company interest which shall be charged for the first 90 days from the due date @ 15% per annum and for all periods exceeding first 90 days after due date @ 18% per annum. The learned counsel for the OPs has contended that the OPs have rightly charged the delayed interest of Rs.44,579.18 from the complainants in accordance with clause 25(b) of the application for allotment dated 29.9.2012 (Annexure R-1).
11.         We have carefully considered the above arguments of the learned counsel for the OPs, but, we are not impressed with the same.  It is significant to note that the cheque dated 23.7.2013 of Rs.10,39,300/- was given by the complainants to the OPs against receipt dated 26.7.2013 (Annexure C-1). However, the copy of letter dated 17.11.2014 (Annexure C-3) shows that the cheque was presented to ICICI Bank for payment only on 1.8.2013 and it was returned on 2.8.2013 with the reason of “sign differ”.  The photocopy of the letter dated 29.10.2013 (Annexure C-2) shows that alongwith that letter the copy of the cheque and the return memo by the bank are enclosed.  The return memo of the bank shows that it was sent on 2.8.2013 to the OPs alongwith the cheque on the ground of sign mismatch.  Thereafter, strangely enough OPs went into deep slumber and informed the complainants only on 29.10.2013 that cheque No.850955 dated 23.7.2013 for Rs.10,39,300/- had been returned uncashed, therefore, the receipt dated 26.7.2013 stood cancelled. Thus, there was a delay of three months on the part of the OPs in informing the complainants regarding the non-encashment of cheque. Admittedly, the complainants deposited another cheque No.850957 dated 4.11.2014 amounting to Rs.10,39,300/- on 7.11.2014. There was no undue delay on the part of the complainants in depositing the fresh cheque. Since the OPs did not take any prompt action in informing the complainants regarding non-encashment of the cheque on 2.8.2013 and slept over the matter, there is gross deficiency in service on the part of the OPs. In similar circumstances, in case titled Unit Trust of India & Ors. Vs. The Consumer Rights Society and Anr., Revision Petition No.356 of 2007 decided by the Hon’ble National Commission on 27.1.2015, it was found that the UTI’s failure to inform the complainant about dishonour of the cheque received by it towards premium and not returning the same to him with bank’s memo does constitute deficiency in service on its part causing mental agony to the complainant for which he deserved to be compensated. Evidently, until the consumer receives information about the dishonour of the cheque on some ground, he shall presume that the cheque was duly honoured.  We are of the view that since there was a patent mistake on the part of the OPs in not taking prompt action in informing the complainants about non-encashment of the cheque, they (OPs) were not entitled to interest on delayed payment. Needless to say, the OPs cannot derive any benefit out of their own mistake. Since the delay was on the part of the OPs, it is the complainants who are entitled to get compensation for deficiency in service and mental agony suffered on account of that.  It is pertinent to note that despite the request made by the complainants about the waiver of interest for delayed payment, no action was taken by the OPs and the OPs started charging further interest upon interest on delayed payment and such an action on the part of the OPs is clearly unwarranted and illegal.  
12.         For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  The OPs are directed :-

(i)     To waive off the interest for the delayed period illegally charged/demanded by them from the complainants.

(ii)    To pay to the complainants a compensation of Rs.40,000/- for harassment, mental agony and deficiency in service.

(iii)   To also pay Rs.7,500/- to the complainants as litigation expenses. 

13.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amount mentioned at Sr.No.(ii) above, with interest @ 12% per annum from the date of filing of the present complaint till realization, apart from compliance of directions at Sr.No.(i) & (iii) above.
14.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

		Sd/-	Sd/-
02.12.2015		[Surjeet Kaur]	[P. L. Ahuja]
hg		Member	President