Haryana

StateCommission

CC/223/2017

VINAY KALA - Complainant(s)

Versus

DLF UNIVERSAL LTD. - Opp.Party(s)

SHASHANK SINGH

25 Oct 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.223 of  2017

Date of the Institution:18.04.2017

Date of Decision: 25.10.2018

 

1.      Sh.Vijay Kala, S/o Late S.C.Kala

2.      Ms. Mina Kala W/o Sh.Vinay Kala both R/o 3, IT Flats, Havelock Road, Opposite Veterinary Hospital, Lucknow-226001.

                                                                   .….Complainants

Versus

 

1.      DLF Universal Ltd., Arjun Marg, DLF Shopping Mall, 3^rd Floor, DLF City Phase I, Gurgaon 122002.

2.      DLF Universal Ltd, Arjun Marg, DLF Shopping Mall, 3^rd Floor, DLF city Phase-1, Gurgaon 122002. Through its Chairman and CEO

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

 

Present:-    Mr.F.K.Jha, Advocate for complainants.

Mr.Parveen Jain, Advocate counsel for opposite party.

 

 

O R D E R

 

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that  they applied for a 300 sq. yard plot vide application dated 05.01.2012 for the proposed Garden City, Village Purseni,Tehsil Mohanlalganj, Distt. Lucknow, U.P. launched by the opposite parties (O.Ps.) at DLF Shopping Mall, 3^rd Floor,Arjun Marg, DLF City Phase-1, Gurgaon 122002 and the plot No.B-52 in the Garden City of DLF Limited was allotted to complainants of Rs.46,57,356/- . Vide Allotment letter dated 15.10.2012 was signed by both the parties. Earlier plot No.B-208 was allotted to them but subsequently Plot No.B-52 was allotted under certain circumstances.  Before possession, complainants paid Rs.44,24,488.20 to the O.ps.   They received letter dated 21.11.2015 on 27.11.2015 from Mr.Vikas Singh DGM (Sales & CRM) of O.Ps. offering possession of plot No.B-52. The complainants requested the O.Ps. number of times through e-mails as well as letters to give the compensation on account of delay in offering the possession, but they did not respond. The completion certificate was received for Blocks A and D as on 0.10.2015 then why possession for blocks A and D had not been offered alongwith Blocks B and C vide letter dated 21.11.2015 by the O.ps. The complainants received an unsigned letter dated 20.07.2016 with the caption subject possession of B-52, but, the same was returned in original vide letter dated 08.08.2016 with request that every enclosure submitted  earlier be authenticated. They sent letter dated 30.10.2016 to O.Ps. for clarifications on all issues raised through letter dated 05.12.2015.  The complainants requested the O.Ps. to refund the deposited amount alongwith interest, but, they did not bother.  Hence under the constraint circumstances the complainants had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to make payment of a sum of Rs.44,24,488.20  which had been deposited by the complainants alongwith interest @ 15% per annum from the dates of its deposit till realization. The compensation of Rs.Two lacs had also been sought  for deficiency in service and unfair and restrictive trade practices and causing intentional agony and the amount of Rs.90,000/-   as litigation expenses.

2.                Notice of the complaint was issued against the O.Ps. and the reply was filed, wherein the averments taken in the complaint were  strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that the project was spread over 100 hectares of land. The project was planned by the O.Ps. and developed by Shapoorji Pallonji Co. Ltd. The possession shall be offered after receipt of the occupation certificate. The occupation certificate  was applied on 20.02.2014 and competent authority granted the occupation certificate on 10.03.2015 and 01.10.2015 with respect to Blocks B and C and Blocks A and D respectively of the above said project. On 21.11.2015 the possession of the plot was offered to them subject to payment of outstanding dues and completion of necessary documents. Objections about the consumer, maintainability of complaint, concealment of true facts, jurisdiction etc. were also raised and requested to dismiss the complaint.

4.                On merits, O.Ps. denied that complainants paid Rs.44,24,488.20.  The complainants were opted two year construction linked payment plan. The complainants did not pay the installments as per the terms and conditions of the agreement,  the complainants do not qualify for any compensation like delay in offering of possession.  It was also denied that letters were not responded. The complainants established baseless allegations in order to wriggle out of their contractual obligations.  They have defaulted in payment due on 11.03.2012, 11.05.2012, 11.01.2013, 11.7.2013, 21.12.2015, the complainants were not entitled for any type of compensation.  It was also denied that they received unsigned letter dated 20.07.2017.  Thus there was no deficiency in service and unfair trade practice on the part of the O.ps. and prayed for dismissal of the complaint.

5.                When the complaint was posted for recording evidence of the parties, one of the complainants Mr. Vinay Kala CW-1  in his evidence has tendered the documents Ex.C-1 to Ex.C-20 and closed his evidence.

6.                On the other hand in order to rebut the evidence led on behalf of the complainants the O.Ps. had also tendered the affidavit Ex.RA that of Mr. Vikas Singh authorized signatory of DLF Universal Ltd. and  also tendered the documents Ex.R-1  to R-10 and closed its evidence.

7.                The arguments have been advanced by Sh.F.K.Jha learned counsel for the complainants as well as Mr.Parveen Jain, the learned counsel for the opposite parties.  With their kind assistance the entire record including voluminous documentary evidence as well as whatever the evidence had been led during the prosecution of the complaint had also been properly perused and examined.

8.                As per the admitted facts the complainants have submitted an application jointly for allotment of plot in the project launched by the O.ps. by making different types of allurements alongwith the application, the amount of Rs.Six lacs has also been deposited.  Thereafter, a plot allotment letter Ex.C-2 was executed on 15.10.2012 containing all terms and conditions for making payment of the installments as per the schedule and the delivery of the possession of the plot and making complete development in the project.  As far as the delivery of possession is concerned, the terms and conditions have been incorporated in clause 13 (a) of the allotment letter, there was a provision of grace period of six months and as per the allotment letter, the possession of the property was to be delivered to the complainants by July 2014.  However, as per the documents or the letter written on behalf of O.ps., it was on 27.01.2015 that the possession was offered, but, that do not complete in all respect. 

9.                Now the question arises whether the complainants could seek the refund of the amount, which they have deposited to the extent of 95% of the total cost of the plot.   It is true that most of the buyers have been left to the whims of the builders and the builders have been forging the investors to agree even to unreasonable terms and conditions of the agreement. In the present case and for the sake of repetition, the possession was first time offered on 27.01.2015, but there is a delay of more than seven months and there were certain other conditions to be completed by the O.Ps.   Now can it be treated as offer of possession complete in all respect.

10.              In the considered opinion of this Commission, the answered is in negation as the possession was offered about seven months later and that to subject to completion of other formalities and as such, it cannot be considered for offering a possession complete in all respect.

11.              The next paramount question which has been raised by Sh.Parveen Jain, the learned counsel for the opposite parties that the property is situated at Lucknow and the jurisdiction has only been vested in the High Court of Allahabad or at Lucknow Bench and as such, this Commission lacks the territorial jurisdiction to entertain and try the present complaint. 

12.              In order to rebut this contention, it has been argued by Sh.F.K.Jha, the learned counsel for the complainants that the main office of the O.Ps. situated at Gurgaon, the amount has been paid at Gurgaon.  The entire correspondence has been taken place with the office at Gurgaon and even the documents have been executed at Gurgaon, as such, this Commission has territorial jurisdiction to entertain and try the present complaint, as a part of the cause of action has been accrued  at Gurgaon and within the jurisdiction  of this Commission.  Hence this contention raised on behalf of the O.ps. about the lack of jurisdiction is without any substance and is not legally sustainable.

13.              It is not out of place to make a reference here that the complainants  being a senior citizen of the country and have paid 90% of the total cost of Rs.46,57,356/- and way back in the year 2012, we are in 2018 and even after  gap of six years, the plot has not been delivered and the basic purpose of purchasing the plot and then to raise the construction of the house etc. is frustrated and this proposition has been dealt by the Hon’ble National Commission in the celebrated authorities reported as  Paramvir Singh Vs. P.H.Houses Pvt. Ltd. III (2011) CPJ 465 (NC), wherein it has been observed that a period of three years  for delivery of possession is considered to be a sufficient period and if possession is not delivered, in that eventuality, the investor or the complainants are well within their right to seek the refund of the amount from the developer.  Resultantly, while concurring   with the arguments advanced on behalf of the complainants and since the facts and circumstances of the present complaint are squarely covered by the ratio laid down by the Hon’ble National Commission in Paramvir Singh (supra) case, the complaint stands allowed and the O.Ps. are directed to refund the deposited amount of the complainants alongwith interest @ 12%  per annum from the date of respective deposits and till realization within a period of three months from the date of passing this order.   Hence this question is answered in affirmative.  In case, there is a breach in making payment within the stipulated period  of  three months in that eventuality the complainants would further be entitled to get the interest @ 18% per annum, for the defaulting period.   The complainants are also entitled  to get the compensation of Rs.2,00,000/- for compensation of mental agony and physical harassment.  In addition, the complainants are also entitled of Rs.21,000/-  as litigation charges.    It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

October    25th, 2018                                                Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.