Haryana

Panchkula

CC/286/2015

HARISH KUMAR KHURANA. - Complainant(s)

Versus

M/S D.L.F HOMES PANCHKULA PVT.LTD. - Opp.Party(s)

JASWANT SINGH.

13 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                  

Consumer Complaint No	:	286 of 2015
Date of Institution	:	22.12.2015
Date of Decision	:	13.07.2016

 

1.       Harish Kumar Khurana Age 61 years son of Shri Ram Chand Khurana.

2.       Narender K.Khurana Age 63 years son of Shri Ram Chand Khurana    Both residents of Department of Surgery, H.N.B. Base Hospital, Sarikot Ganga Nali (Sr Nagar) Paudi Garhwal, Uttrakhand.

                                                                                          ….Complainants

Versus

 

1.       M/s DLF Homes Panchkula Private Limited Registered office at 12^th Floor DLF Gateway Towers, DLF City, Phase III NH-8, Gurgaon, through its Managing Director.

2.       Rakesh Karewal, Director DLF Homes Panchkula Private Limited SCO No.190-191-192, Sector 8-C, Madhya Marg, Chandigarh.

 3.      Project Inchrge, DLF Homes, DLF, Valley, Pinjore Tehsil Kalka M/s D.L.F., Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Tehsil Kalka, District Panchkula.

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Jaswant Singh, Adv., for the complainant. 

                             Mr.Gaurav G.S.Chauhan, Adv., for the OPs.

 

ORDER

(Dharam Pal, President)

 

1.                          The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that on 08.02.2012 they booked a flat with them and paid Rs.4,00,000/-. Thereafter the complainants also made payment of Rs.10,17,426,41/- against the demand notice issued by the Ops on 16.06.2012. On 03.09.2013, the Ops sent Independent Floor Buyers Agreement containing terms and conditions to the complainants which was to be signed by them within 30 days but the complainants did not accept the terms and conditions and it was intimated to them that the project has been held up due to litigation. As per terms and conditions, the Ops were to deliver the constructed floor to the complainants within a period of one year from the date of application failing which the company would refund the amount alongwith interest @ 6 % per annum. Vide letters dated 18.12.2012 and 08.07.2013, the OPs intimated about construction activities to the complainants but it did not intimate about the stay order granted by Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786/88/2010.  On 03.02.2014 the complainants requested the Ops to transfer the amount deposited by them to other units in the name of complainant No.1 and his wife Dr.Sandhya Khurana. They also visited the officials of the Ops who promised either to transfer the amount towards other units or to refund the same but the Ops cancelled the allotment for non-payment of outstanding dues with malafide intention on dated 04.03.2014. The Ops were under the obligation to refund the amount but they did not comply with the terms and conditions and have committed deficiency in service. They have also not intimated regarding vacation of stay or status of the pending litigation in the Hon’ble Supreme Court. Due to the act and conduct of the Ops, the complainants have not only suffered mental agony, harassment but they have also suffered financial loss. Hence, this complaint.

2.                          The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Ops is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Ops have already completed construction of all 258 Independent Floors on 86 Plots and another 1517 built up units are nearing completion. It is submitted that out of 1775 built-up units, occupation certificate has been received for 258 units and as on date 78 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is further submitted that the parties are bound by the terms and conditions and the complainants do not fall within the ambit of the consumers and they have more than two properties in the same project. They were aware about Clause 2 of the Application Form that the building plants/layout plans were subject to change and were not yet approved. The Ops had clearly informed the complainants about Clause 18 of the Application Form which is as under:

“18. Subject to other terms of this application and the   agreement including but not limited timely payment of the total       price           and other amounts, charges and dues as mentioned in the Application/Agreement, the company shall endeavour to complete the construction of the independent Floor within Twenty Four (24) months from the date of execution of the agreement by the company and thereafter the company shall offer the possession of the said independent floor to the applicant alongwith the execution of the conveyance deed. Any delay by the applicant in taking the possession would attract charges @ Rs.10/- per   Sq. ft. (Rs.107.64/- per Sq.mtr.) per month of the salable area of the said independent floor for any delay of one month or any part thereof. Subject to the terms and conditions of the agreement, in case of delay by the company in completion of the construction of the said independent floor, the company shall pay compensation @ 10/- per sq. ft. (Rs.107.64/- per Sq.mtr.) per month of the salable area of the said independent floor to the applicant, which both parties agree is a fair, just and equitable and reasonable estimate of the damages that the applicant may suffer and the applicant agrees that it shall have no other rights/ claim whatsoever, provided the applicant is not in breach of any of the terms of this applicant/agreement. The adjustment of such compensation shall be done at the time of execution of conveyance deed”.

As per clause 17 of the Application the company shall not be liable to perform any or all of its obligations during the subsistence of the force majeure condition. The possession was to be given within a period of two years but there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. The construction activities at the project site had been put in abeyance and no further activity could be carried out and the Ops cannot be held liable for the delay in question.  The complainants were duly intimated about stay vide letter dated 08.07.2013. As per clause 21 of the application for allotment, the company is entitled to forfeit the earnest money alongwith the non-refundable amounts in case of non-fulfillment/breach of the terms and conditions of the application. The Ops have rightly cancelled the allotment of the complainants and forfeited the earnest money as they have committed default in making the timely payment as per schedule. The present complaint is time barred as the cancellation letter was issued on 16.11.2013. It is further submitted that the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon’ble Supreme Court. Thereafter, a Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide its order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activities at the project site in abeyance and the Ops were compelled to not carry out any further construction at the site in pursuance to the directions that led to delay in handing over possession, the same being entirely beyond the control of the Ops. It is submitted that the Hon’ble Supreme Court vide order dated 12.12.2012 dismissed the Special Leave Petition and vacated the stay order & to which the Ops made an endeavor to immediately resume the construction at the project site. It is submitted that there was considerable difficulty for the Ops to gather the work force and to resume construction activity in the project. It is submitted that the complainant was also informed about the clause 18 of the application for allotment in accordance to which in case of delay by the Appellant Company in completion of construction, the Ops should pay compensation at Rs.10/- per sq. ft. per month of the saleable area to the complainants. The complainants was allotted floor No.D-4/15-FFF measuring 1450 sq.feet  and qua the same the complainants have deposited Rs.4,00,000/- and Rs.10,17,426,71 but thereafter they did not make any payment and violated the schedule of payment therefore, the allotment was cancelled on 04.03.2014 in accordance with clause 21 of the application for allotment. Moreover, the complainants have not approached this Forum with clean hands. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3.                          The counsel for the complainants has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-10 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-6 and closed his evidence.

4.                          We have heard the learned counsel for the parties and have also perused the record.

5.                          The Ops admitted to the extent that the complainants were allotted an independent floor No.D-4/15-FFF measuring 1450 sq. ft. on the application form for allotment dated 06.02.2012 and the complainants opted for the installment payment plan whereby on the booking of the said independent floor a payment of Rs.4,00,000/- was to be made at the time of booking and in every 2 to 3 months installment payment were to be paid by the complainants as per the payment scheduled which is a part of the application form. Accordingly, the complainants made the payment of Rs.4,00,000/- on 08.02.2012 (Annexure C-5). Subsequently on the demand raised by the Ops on 19.03.2012, the complainants deposited a sum of Rs.10,17,426.41 on 16.06.2012. However, the complainants have not made further payment and they willfully defaulted in making payment in violation the terms & conditions of the application for allotment and in violation of the schedule of payment i.e. 2 years payment plan. Hence, the Ops cancelled the allotment of the complainants on 04.03.2014 and forfeited the earnest money as per clause 21 of the application for allotment.

6.                          The complainants in the present complaint stated that the complainants applied/booked a flat and paid Rs.4,00,000/- (Annexure C-1) on 08.02.2012 alongwith the application. On the demand raised by the Ops, the complainants deposited Rs.10,17,426.41 (Annexure C-3) on 16.06.2012. Further the complainants stated that as per and conditions of the application, the Ops have to deliver the possession within 1 years. However, the Ops issued the letters dated 18.12.2012 and 08.07.2013 to the complainants informing that they had put the construction activities at the project site in abeyance in view of the stay order dated 19.04.2012 passed by the Hon’ble Supreme Court in the SLP No.21786-88 of 2010 and a communication dated 30.04.2012 from the DTCP, Haryana. They further informed that the Hon’ble Supreme Court dismissed the abovesaid SLP vide order dated 12.12.2012 and vacated the stay. It was further informed that the company will endeavour to complete the project subject to the delay of 12 months which has occurred due to stoppage of work mentioned above. The complainants has stated that during the stay order, the Ops accepted the amount of Rs.10,17,426.41 on 19.06.2012 (Annexure C-4). The complainants in the present complaint claimed that the Ops not only execute the buyer agreement but also not issued the allotment letter. The complainants added in the complaint that the Ops have not accepted the buyer agreement when he went to hand over the same to the Ops.  

7.                          It is not denied that the complainants deposited an amount of Rs.14,42,148.41 by paying 3 installments amounting to Rs.4,00,000/-, Rs.10,17,426.41 and Rs.24,722/- vide receipt Annexure C-4, C-5 and C-6 respectively. In the written statement, the Ops have mentioned that the complainants have not made the further payment and willfully defaulted in making payment in violation of terms and conditions of the application for allotment and in violation of the schedule of payment i.e. 2 years payment plan. The Ops were left with no other option then to cancel the allotment of the complainants on 04.03.2014 (Annexure C-10) and rightly forfeited the earnest money as per clause 21 of the application for allotment (Annexure R-5). The Ops in para 6 of the written statement have admitted that the Ops were liable to offer possession as per clause 18 of the application for allotment within 24 months from the date of execution of the agreement. The Ops also admitted that the complainants made the payment of Rs.14,42,148.41/-. It is well proved on record that the Ops did not issue the allotment letter neither executed the buyers agreement with the complainants despite depositing of a sum of Rs.14,42,148.41/-. There is no cogent explanation by the Ops that why they did not issue the allotment letter despite receipt of huge amount of Rs.14,42,148.41 from the complainants. Even the plea of the Ops that the complainants did not follow the payment schedule, after making payment of Rs.14,42,148.41/- and stopped making further installments to it, has no force at all because no agreement was executed between the parties and therefore, the terms and conditions of the application was not binding upon the complainants. Since there was no agreement between the parties, the terms and conditions as quoted by the Ops were not applicable in the matter. It is very clear, therefore, from the record and also admitted during hearing that despite the deposit of Rs.14,42,148.41/- with the Ops, they did not take any steps to issue the allotment letter or to execute the Buyers Agreement. The Ops have not been able to show anywhere, whether they made any efforts to have the Buyers Agreement executed. The Ops themselves violated the terms and conditions of the application. The Ops even refused to adjust the amount against the other units booked by the complainants with the Ops in the same project. Such conduct of the Ops proves their rendering deficiency in service to the complainants. In view of the matter, we are of the considered view that the complainants or any allottee (s) cannot be made to wait for an indefinite period for an allotment of flat in their favour after depositing part of his hard earned money with the Ops. As there exists no agreement duly executed between the parties so the Ops have no right to withhold the amount of the complainants for indefinite period. Hence, the Ops are liable to refund the amount deposited by the complainants.

8.                          Before we conclude, we must record that the present case is a classic exemplification of highheadedness on the part of a builder (DLF, in this case) who not only had been unfair to individuals desirous of a residential dwelling but also tried to resist the grant of a favourable (and appropriate) consideration to the grievances of the complainant by averring that the complainant was bound by documented terms and conditions which, infact, never ever came to be executed by the complainants. It is to state the obvious that in the absence of any permissible view to the contrary, the parties to a documented contractual transaction would be bound thereby. However, in the present case, the complainants herein are not proved to have been a party to the execution of any such terms and conditions. Inspite thereof, the OPs opted to make an averment that the complainants had indeed executed the relevant documentation.  

9.                          In view of the above discussion, we allow the present complaint against the Ops, therefore, the Ops are 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.

 

The abovesaid order be complied with by the Ops within 30 days of its receipt. A copy of this order be sent to the parties free of costs and file be consigned to record room after due compliance.

 

 

 

Announced           (S.P.Attri)             (Anita Kapoor)          (Dharam Pal)

13.07.2016           Member                 Member                      President

Note: Each and every page of this order has been duly signed by me.

 

 

                                                     Dharam Pal                                                                                           President