Haryana

StateCommission

A/856/2016

DLF HOME PANCHKULA PVT.LTD. - Complainant(s)

Versus

HARISH KUMAR KHURANA - Opp.Party(s)

GAURAV G.S.CHAUHAN

19 May 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.856 of 2016

                                                          Date of Institution: 20.09.2016                         Date of Decision: 19.05.2017

 

1. M/s D.L.F. Home Panchkula Pvt. Ltd. DLF Valley, Pinjore, Tehsil Kalka, District Panchkula through its authorized signatory/officer.
2. Rakesh Karewal, Director, DLF Homes Panchkula Private Limited,SCO No.190-191-192, Sector 8-C, Madhya Marg, Chandigarh.

…..Appellants

                                      VERSUS

1.      Harish Kumar Khurana S/o Sh.Ram Chand Khurana

2.      Narender K.Khurana S/oSh.Ram Chand Khurana Both R/o Department ofSurgery, H.N.B.Base Hospital, Sarikot Ganga Nali (Sri Nagar) Paudi Garwal, Utrakhand.

          …..Respondents

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Gaurav G.S.Chauhan, Advocate counsel for the appellants.

Mr.R.P.Sukhija, Advocate counsel for the Respondents.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

Complainants alleged that they booked a flat with appellants-opposite parties (O.Ps.) on 08.02.2012 and deposited Rs.Four lacs.  After receiving demand letter dated 19.03.2012 Rs.10,17,426.41 were deposited on 16.06.2012. They sent  independent  Floor Buyers Agreement on 03.09.2013 in duplicate containing terms and conditions. They went to their office to submit  agreement within 30 days, but, the same was not accepted on he ground that the project was held up due to litigation.  It was alleged that they were not executing any agreement and the terms and conditions mentioned in application  were to be followed. Possession was to be delivered within one year from the date of application,  otherwise amount was to be refunded alongwith interest @ 6% per annum.  When they came to know about litigation, pending before Hon’ble Supreme Court, O.ps. were requested on 03.02.2014 to transfer the amount deposited in this unit to their other two units having No.C-3/10 GF and C-3/12 GF. When they visited office of O.ps. it was assured that either the amount would be refunded or transferred to other units, but, lateron it came to their notice that this allotment was cancelled for non-payment of outstanding dues. This act was altogether illegal and O.ps. be directed to refund Rs.14,42,148.41 alongwith interest @ 18% per annum besides compensation qua mental agony, harassment, litigation expenses etc.

2.      O.ps. filed reply controverting their averments and alleged that the complainants were not covered by the definition of consumer. They booked this unit for the purpose of investment. Consumer Protection Act 1986 (In short “Act”) is meant for the protection of bonafide consumers and not investors.  They were already having two more properties, but, even then booked this unit. Value of this unit was Rs.69,88,938.40/-.  As per payment plan they were supposed to deposit installments within two years, but, they did not clear the balance despite letters issued to them time and again. Due to litigation pending before Hon’ble Supreme Court construction could not be completed. After decision from the Hon’ble Courts construction was resumed and 258 independent floors were already completed and 1517 built up units were near completion. Clause of force meajure was clearly applicable in this case.  Exit offer was made to complainants, but, they did not accept the same. Finding no other alternative allotment was cancelled.  There was no deficiency in service on their part.  Complainants never approached them to execute any agreement. Objections about concealing true facts, lack of territorial jurisdiction etc. were also raised and requested to dismiss the complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panchkula (In short “District Forum”) allowed the complaint  vide impugned order dated  13.07.2016 and directed as under:-

“i        To refund the amount of Rs.14,42,148.41 to the complainants alongwith interest @ 12% per annum from the respective dates 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.”

4.      Feeling aggrieved therefrom O.Ps. have preferred this appeal.

5.      Arguments heard.  File perused.

6.      Learned counsel for complainant vehemently argued that  flat was booked vide application Ex.C-1 on 08.12.2012 and Rs.Four lacs were paid at that time. As per demand of O.Ps. Rs.10,00,000/- were again deposited on 10.06.2012. As per application dated 08.12.2012, possession was to be delivered within one year, but, no offer is made till date.  In this way O.Ps. are liable to refund the amount and pay compensation as alleged by them and  granted by District Forum.  Impugned order is well reasoned based on law and facts and cannot be disturbed.

7.      On the other hand learned counsel for the O.Ps. vehemently argued that value of this unit was Rs.69,88,938/- lacs

and complainants have deposited only Rs.14,42,148.41.  When they did not adhere to payment plan their allotment was rightly cancelled. Even vide letter dated 03.02.2014 Ex.C-9 they requested to transfer the deposited amount in their other two units.  It shows that they were not interested in keeping this unit.  They did not execute agreement as per letter dated 03.09.2013.  After deducting necessary charges remaining amount was refunded to them. Learned District Forum failed to take into consideration all these aspects and wrongly granted aforesaid relief. So impugned order be set aside and complaint be dismissed.

8.      Neither the arguments of complainant’s counsel nor the arguments of O.P’s counsel can be accepted in toto.  If we go through evidence available on the file, it will be clear that there were lapses from both sides. The payment was to be made as per following plan mentioned in agreement:-

CONSTRUCTION LINK PAYMENT PLAN

“ on application for booked	Rs.600000/- (One plot size > 502 sq. yds i.e. 420 sq. Mtr Rs.400000/- (One plot size < 502 sq. yds i.e. 420 sq. Mtr
Within 2 months of Booking	20% of Total Price less Booking amount.
Within 4 months of Booking	10% of Total price
Foundation upto Plinth level or within 6 months of Booking whichever is later	12.5% of Total price
Casting of Ground Floor Roof Slab or within 9 months of Booking, whichever is later	12.5% of Total price
Casting of First Floor Roof Slab or within 12 months of Booking, whichever is later	12.5% of Total price
Casting of Second Floor Roof Slab or within 15 months of Booking, whichever is later	10% of Total price
Completion of Flooring and tile work or within 18 months of booking, whichever is later	10% of Total price
On filing of application for completion certificate or within 21 months of Booking, whichever is later	10% of Total price
On offer of possession	5% of Total price +IBMS+club+ Registration + Stamp Duty + other charges, if any.”

 

Cost of this unit is Rs.69,88,938/- and complainant has deposited only Rs.14,42,148/- when complainant has not paid the amount in time they are not liable to pay the interest.

9.      On the other hand as per terms and conditions of application Ex.C-1, O.Ps. failed to deliver possession within agreed time as mentioned in clause 18. So they are liable to refund amount deposited by complainants. As per application Ex.C-9 dated 03.02.2014 complainants were not willing to retain this unit.  This unit was booked on 08.02.2012 and before expiry of two years this application was written.

10.    As a sequel of above discussion it is clear that both the parties are at fault. As per opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 titled as  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014 complainant cannot ask for interest when he is also at fault.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

11.   If the same analogy is applied in this case, then complainant is also not entitled for interest or litigation expenses etc.

12.    As a sequel to above discussion impugned order dated 13.07.2016 is set aside and  O.ps. are directed to refund Rs.14,42,148.41/- only to the complainant without interest.

13.    With this modification, appeal stands disposed of.

14.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellants against proper receipt and identification in accordance with rules.

 

May 19th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Member Addl.Bench

S.K.j