Chandigarh

StateCommission

CC/33/2016

Sh. Rajbir Singh - Complainant(s)

Versus

M/s DLF India Limited - Opp.Party(s)

Ashok Tyagi, Gaurav Tyagi, Adv.

20 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                     UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	:	33 of 2016
Date of Institution	:	28.01.2016
Date of Decision	:	20.05.2016

 

 

Sh. Rajbir Singh son of Shri Charan Singh, resident of Village Islampur, Tehsil and District Gurgaon, Haryana.

                                                       .…Complainant

Versus

 

1. M/s DLF India Limited, through its Managing Director/Authorised Signatory, Chandigarh Technology Park, Plot No.2, tower-D, Ground Floor, Chandigarh, U.T.
2. M/s DLF Universal Limited, Rajiv Gandhi Chandigarh Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh, U.T.

Also at SCO No.191-192, Sector 8-C, Chandigarh – 160009.

                                                ….Opposite Parties.

 

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

 

Present: 

 

Sh. Ashok Tyagi, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate for the Opposite Parties.

               

PER DEV RAJ, MEMBER

              In brief, the facts of the case, are that in the year 2012, Opposite Party No.1 launched a project in the name of “Hyde Park Terrace, Mullanpur” and the complainant vide his application dated 30.08.2012 applied for allotment of an independent floor with right to exclusive use of parking space. It was stated that Independent Floor Buyer’s Agreement was entered into between the complainant and the Opposite Parties on 30.08.2013 (Annexure C-1). It was further stated that the complainant was allotted a flat bearing No.HPE-IF-R1 with Parking bearing No.P-R1-E305, admeasuring 1881 sq. ft. the total price whereof was depicted as Rs.76,89,835.02 in the payment plan. It was further stated that the complainant made payments against the demand letters sent from time to time and on delayed payment, the Opposite Parties charged exorbitant interest. It was further stated that the complainant, had paid Rs.27,38,945/- to the Opposite Parties, as per the detail given in Para 9 of the complaint. It was further stated that despite receipt of the amount, the Opposite Parties failed to handover possession of the residential unit to the complainant within the stipulated period. It was further stated that the complainant visited the project site in the month of September 2014 and found that the execution of the project was not as per the schedule and it was nearly impossible for the Opposite parties to meet the deadline of 30 months period for completion of project.

2.           It was further stated that the complainant was shocked to receive letter dated 27.11.2014 (Annexure C-3) whereby the allotment of residential unit allotted to him was cancelled and an amount of Rs.11,28,542.47 was offered as refundable amount. It was further stated that that the alleged final notice dated 06.08.2014 was never received by the complainant, whereby an amount of Rs.42,49,609.77 was demanded by the Opposite Parties to be deposited by 22.08.2014. It was further stated that for cancelling his allotment, the complainant served a legal notice dated 29.08.2015 (Annexure C-4) upon the Opposite Parties seeking refund of the entire amount deposited alongwith interest @24% per annum.

3.           It was further stated that cancellation of allotment of the plot, in question, forfeiture of the booking amount and non-refund of the remaining amount alongwith interest, by the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.27,38,945/- alongwith interest @24% per annum, from the date of deposit,  Rs.5,00,000/- as compensation for physical harassment and mental agony besides Rs.1,00,000/- as cost of litigation or any other relief, which this Commission deemed fit in the facts and circumstances of the case.

4.           The Opposite Parties, in their written statement, took a specific preliminary objection, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration clause No.40 in the application form & Clause 55 in Independent Floor Buyer’s Agreement and to this extent it also moved an application under Section 8 of Arbitration and Conciliation Act 1996 for referring the matter to the Arbitrator. However, the said application was disposed of vide order dated 17.03.2016 holding that the question qua arbitration would be considered at the time of final arguments in this consumer complaint.  Apart from above objection, the Opposite Parties also took objections as regards the complainant not being a consumer due to non-disclosure of purpose of buying the property in question and that the parties are bound by the terms and conditions mentioned in the Agreement.

5.           On merits, the Opposite Parties admitted the averments made in Paras 1 to 4 of the complaint. It was also admitted that the complainant made payment of Rs.27,38,975/- to the Opposite Parties. It was stated that the complainant was to continue making timely payments as per the schedule of payments annexed with the application for allotment. It was admitted that the complainant paid Rs.6,00,000/- at the time of signing of the application for allotment. It was further stated that after 11.06.2013, the complainant did not make payment despite several reminders/notices sent to him by the Opposite Parties. It was further stated that interest on delayed payments was charged as per the Agreement and, therefore, the complainant could not escape his obligation to pay the same. It was further stated that the complainant himself defaulted in making payments and, thus, breached the terms of the Agreement. It was further stated that Clause 53 of the Agreement expressly provides the events of default and its consequences. It was further stated that in terms of Clause 46 of the Agreement, the Company is also entitled to retain the amount of brokerage as part of non-refundable amounts in case of cancellation of allotment or otherwise. It was further stated that as per Clause 8 of the Agreement, time was the essence with respect to payment. It was admitted that the cancellation letter dated 27.11.2014 was duly sent to the complainant, rightly forfeiting the amount as per terms and conditions of the Agreement. It was further stated that the cancellation letter was sent only when there was no response from the complainant to the notices sent by the Opposite Parties. It was further stated that the Opposite Parties were neither deficient, in rendering service nor did they indulge into unfair trade practice. The remaining averments, made in the complaint, were denied.

6.           The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Parties.

7.           The complainant, in support of his case, submitted his own affidavit, by way of evidence alongwith a number of documents.

8.           The Opposite Parties, in support of their case, submitted the affidavit of Sh. Shiv Kumar, their authorized signatory, alongwith a number of documents, by way of evidence. 

9.           We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully. 

10.         Admittedly, the complainant applied for allotment of a residential flat vide application dated 30.08.2012 and he was allotted Independent Floor No.R1-E-305 (Ground Floor) with parking space No.P-GF, measuring 1881 Sq. ft.,  in the project of the Opposite Parties, total price of which was Rs.75,95,785/-. As admitted by the Opposite Parties in Para 9 of their written statement on merits, the complainant paid an amount of Rs.27,38,275/- (In fact Rs.27,38,945/- as claimed by the complainant) to them. It is also in evidence that due to non-payment of further installments, the allotment of the unit allotted to the complainant was cancelled by the Opposite Parties vide cancellation letter dated 27.11.2014 (Annexure C-3).

11.              The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of Arbitration and Conciliation Act 1996 Act (in short 1996 Act), this Commission has jurisdiction to entertain the consumer complaint or not. It may be stated here that under similar circumstances, in a case titled as Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, this Commission elaborately dealt with this objection noting down the background in which 1986 Act was enacted; the United Nations Draft Guidelines to protect the interest of consumers by passing Resolution No.39/248, to which our country is signatory; objectives of those guidelines; the fact that qua consumers, 1986 Act is a special legislation; the judgment of Hon’ble Supreme Court of India in Fair Air Engineers (P) Ltd. v. N.K. Modi (1996) 6 SCC 385, Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305. In Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha’s case (supra), it was specifically observed that where two different redressal agencies/Acts have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. In Abha Arora Vs. Puma Realtors Pvt. Ltd. and another’s case (supra), this Commission in Para 19 held as under:-

“19. It was specifically observed that even in those cases, where two different redressal Agencies/Acts, have jurisdiction to entertain the dispute, with regard to the same subject, the jurisdiction of the Consumer Fora would not be barred. Taking note of a weak position, in which a consumer is set against multinational companies and other big producers, it was said by the Hon’ble Supreme Court of India in a case titled as United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),that, where there is any ambiguity in understanding the meaning of provision of law, or where two interpretations are possible, one beneficial to the consumer should be accepted. The same view was reiterated in LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC).”

 

12.            This Commission after dealing with the unamended/amended provisions of Section 8 of 1996 Act and Section 3 of 1986 Act, and in view of law laid down in judgments of Hon’ble Supreme Court of India in case titled National Seeds Corporation Ltd. Vs. M. Madhusudhan Reddy  &  anr., I (2012) CPJ 1 (SC) and Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, Civil Appeal No.20923 of 2013 and judgments of National Commission in DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013; Shri Satish Kumar Pandey and another Vs. M/s Unitech Limited’s & Ors., Consumer Complaint No.427 of 2014 decided on 8.6.2015 and Mahindra Holidays & Resorts India Ltd. Vs. Adnan Samoon Rassiawala & 6 Ors., First Appeal No. 127 of 2016, decided on 18.03.2016, came to the conclusion that as held by the Hon’ble Supreme Court of India and also by the National Commission in a large number of cases, Section 3 of 1986 Act provides for an additional remedy available to a consumer and the said remedy is also not in derogation to any other Act. Further the remedy under the 1986 Act is cost effective and much speedier than the proceedings before the Arbitrator. Referring the matter to the Arbitrator would defeat the very purpose of General Assembly Resolution No.39/248 and the provisions of 1986 Act and in view of above, the plea raised by Counsel for Opposite Party No.1 (in that case), was rejected. The ratio of the aforesaid judgments is squarely applicable to the facts of the instant case. Similar view was reiterated by this Commission in in Praveen Kumar Arora and another Vs. Emaar MGF Land Limited, consumer complaint No.198 of 2015, decided on 04.04.2016, by further holding as under:-

“20. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainants have spent their entire life earnings to purchase a unit, in a housing project, launched by the opposite party. It was their hope that they will live therein. However, their hopes were shattered, when despite making payment of entire amount towards price, they failed to get possession of a unit, in a developed project. As per established ratio of the judgment in Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and also in the judgment of United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), it was said that the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

21. In view of the above, the argument raised by Counsel for the opposite party that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected”.

13.         Further this Commission in case titled ‘Sukhjinder Singh Vs. M/s IREO Fiveriver Pvt. Ltd.’, Complaint Case No.278 of 2015 decided on 18.04.2016, held as under:-

“Not only as above, execution of judgment/decree passed by the Consumer Foras is very easy and less time consuming. Invariably, in all the judgments passed, between one to three months’ time, is granted to the judgment debtors(s) to discharge liability. If it is not so done, and the order is not stayed in the meantime by the Higher Fora, two options are available with the complainant/decree holder. Section 25 of 1986 Act provides the procedure to enforce orders by the Consumer Foras. In Sector 25 (3), it is provided that where any amount is due from any person, under an order passed by any Consumer Fora, the concerned Consumer Fora, on an application moved by the decree holder, may issue a certificate to the Collector of the District, to recover the said amount, by way of land revenue, in terms of Section 72 of the Punjab Land Revenue Act, 1887. The said provision is also very stringent. The Collector is supposed to attach the holding of the judgment debtors to take the said property under his own management and control. The Collector is further supposed to manage the said property and raise all rents and profits accruing therefrom to the exclusion of the defaulter, until the decree is satisfied. The above procedure will consume at the maximum four to six months, for realization of the amount awarded. Further option is also available to a complainant/decree holder, to move an application under Section 27 of 1986 Act, which provides that where a trader or a person against whom, a complaint was made, fails or omits to comply with the order passed by the Consumer Fora, such party would entail award of punishment of imprisonment for a term, which shall not be less than one month, but may extend to three years, or with fine, which shall not be less than Rs.2,000/-, and may be extended upto Rs.10,000/-, or both. This provision is very effective, as and when application is moved under Section 27 of 1986 Act, for fear of imprisonment, it is seen that immediately the judgment debtor(s) make an attempt to comply with the order passed by the Consumer Foras. Whereas, to the contrary Section 36 of 1996 Act, provides that award shall be enforced, in accordance with the provisions of the Code of Civil Procedure 1908, in the same manner, as if it was a decree of a Court. Such a procedure is very costly and time consuming. Executing a decree would virtually mean fighting one more litigation, in a Court, to get enforcement of the award. If such a procedure is adopted, it will defeat the very purpose and spirit of 1986 Act. Accordingly, in this view of the matter and also in the face of ratio of judgments, referred to above, the arguments raised by Counsel for the opposite party, stands rejected.”   

 

Recently in Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016, the Hon’ble National Commission held as under:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

In view of ratio of judgments, referred to above, the arguments raised by Counsel for Opposite Parties stand rejected.

 

14.         To defeat claim of the complainant, the next objection raised by the Opposite Parties was that the complainant, being investor, had purchased the flat, in question, for earning profits, as and when there is escalation in the prices of real estate, as such, it would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainant is a property   dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. Consumer Complaint No.137 of 2010, decided on 12.02.2015, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the flat, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs  Nirmala Devi Gupta,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in its written reply, therefore, being devoid of merit, is rejected.  

15.         Another objection raised by Counsel for the Opposite Parties was that since the complainant sought enforcement of the Agreement, in respect of the immoveable property, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, it was to  handover possession of the plot, in question, within a period of thirty months, from the date of Application. Section 2 (1) (o) of the Act, defines ‘service’ as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

16.         From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has a remedy to file a suit, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by it, as it falls within the definition of a consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

17.         The principal question, which falls for consideration, is, as to whether the amount of Rs.6,74,160/-, alongwith interest to the tune of Rs.7,51,014.82 on delayed payments plus brokerage in the sum of Rs.1,85,227.71 totaling Rs.16,10,402.53, out of the total amount of Rs.27,38,945/- paid by the complainant, has been rightly forfeited by the Opposite Parties or not?

18.         Clearly, the allotment of Property No.HPE-IF-R1-E305-GP/P-R1-E305-GF to the complainant was to be regulated in accordance with the terms and conditions of the Independent Floor Buyer’s Agreement. As per Clause No.4 of the Agreement, earnest money means booking amount paid by the applicant (complainant), which in the instant case, was Rs.6,00,000/-.

19.         The complainant was required to deposit the installments in accordance with the Schedule of Payment (Annexure-III at Pages 41 & 42 of the file) opted by him. However, after paying a total amount of Rs.27,38,945/-, he did not pay anything further, for which, he was issued various demand notices/reminders by the Opposite Parties, from time to time, to remit the amounts due towards installments.

20.         Clearly when despite various demand reminders/final notices (at Pages 141 to 148 of written statement of the Opposite Parties), the complainant did not make payment to the Opposite Parties, as per payment schedule, he committed breach of terms and conditions of the application form (Annexure R-2)/Agreement. Despite affording due and adequate opportunity to comply with the terms and conditions, the complainant did not make payments of instalments which became due. The allotment was cancelled vide cancellation letter dated 27.112014 (Annexure C-3). As is evident from the cancellation letter, a sum of Rs.42,49,609.77Ps, was shown as the outstanding amount against the complainant as on 22.08.2014. The complainant had paid a total sum of Rs.27,38,945/-. Admittedly, the payment in the sum of Rs.27,38,945/- was made by the complainant during the period 03.08.2012 till 07.06.2013. Independent Floor Buyer’s Agreement was not executed till then. Admittedly, the earnest money (including S. Tax) was to the tune of Rs.6,74,160/- as mentioned in the cancellation letter dated 27.11.2014 (Annexure C-3). When the complainant did not make further payments, as per Schedule of Payment Plan, opted by him, with the issuance of cancellation letter dated 27.11.2014 (Annexure C-3), the contract stood rescinded and, as such, there was no question of levying any interest for delayed payment viz. Rs.7,51,014.82 and charging of the same, which was beyond the scope of the clause relating to ‘Earnest Money’, of the Agreement. The Opposite Party could forfeit the amount of Rs.6,74,160/- only.

21.         A similar question arose before the Hon’ble National Commission in DLF Commercial Developers Limited Vs. Ravinder Zutshi, 2009 (4) C.P.J. 163. A complaint was filed before the District Forum alleging that the complainant had booked office space at DLF Galleria in 1998 and paid a sum of Rs.4,41,838/- against the total consideration of Rs.16,35,000/-. After paying the aforesaid two instalments, the complainant vide letter dated 18.5.99 requested the Opposite Party to cancel the allotment and refund the amount on account of some unavoidable circumstances. As a result of this, the Opposite Party refunded the amount of Rs.1,98,640/- on 23.2.2002. It was the case of the complainant that the balance amount of Rs.2,43,198/- was still to be refunded by the Opposite Party, to the complainant. The District Forum partly allowed the complaint and directed the Opposite Party to refund the amount after deducting 10% of the basic sale price, i.e. Rs.80,127/-, alongwith interest @12% from 1.8.99 till the date of realisation together with cost of Rs.5,000/-. Aggrieved by this order, an appeal was filed by the Opposite Party before the State Commission, which was dismissed. In Revision Petition, the Hon’ble National Commission, held in Paras 5, 6 & 8, held as under:-

“5.   We have very carefully gone through the provisions and find that as per terms of agreement the petitioner is correct in arguing that in the case of cancellation of space, he is entitled to forfeiture of earnest money, which is 10%. But our careful scrutiny of the terms reproduced above, does not help the case of the petitioner, to recover the interest on account of delayed/non-payment(s) of the instalments due at the time of refund. The learned Counsel  for the petitioner wishes to rely upon this part of Clause 11, which is as under:-

“…..the firm may at its sole discretion waive the breach of agreement committed by the allottee in not making the payments at specified time but on the condition that the allottee shall pay interest @24% p.a. for the period of delay and such other penalties, the firm may impose.”

6.    After careful consideration of the condition 11, part of which is extracted above, we are left in no doubt that the condition 11 would help the case of the petitioner only if the breach is waived. This is not the case here. It is very difficult for us to read the point relating to “payment of interest @24% p.a.” in isolation. It has to be read in continuation of the words appearing earlier to this point on payment of interest, which relates to breach of agreement. In this case, there is no request from the complainant to waive the breach of agreement. Our understanding of the clause is, that this would be applicable only in case, the complainant or the allottee make request for restoration of the property in question. This is not the case here.

7.    xxxxxx

8.    We have very carefully gone through the cited judgments and find that as far as the first judgment passed by the Hon’ble Supreme Court in the case of DLF Universal Ltd. v. Ekta Seth and Anr. is concerned, even though facts are different yet we find no difficulty in agreeing with the decision of the Hon’ble Supreme Court as far as the deduction of amount is concerned, which we are upholding. With regard to other cited judgments, we find that in the facts and circumstances of this case, they have no applicability.”

 

Further in DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-

“10.        We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not.  It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money.  In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-.  It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot.  In a case recently decided by this Bench in “DLF Limited vs. Bhagwanti Narula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it.  Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money.  Since the total value of the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-

11.         In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”

 

The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited. Since, in the instant case, the earnest money is less than 10%, the Opposite Parties could forfeit earnest money in terms of Clause 53 (xi) of the Agreement, to the tune of Rs.6,74,160/-.

22.         In our considered opinion, forfeiture of a sum of Rs.6,74,160/- is adequate enough to compensate the Opposite Parties on account of any alleged loss including brokerage charges.

23.         Thus, in view of above, out of the total amount of Rs.27,38,945/-, the Opposite Parties could forfeit a sum of Rs.6,74,160/- only and the balance amount was refundable to the complainant. Thus, the complainant was entitled to the refund of an amount of Rs.20,64,785/- i.e. [Rs.27,38,945.00 (-) minus Rs.6,74,160.00]. When the Opposite parties cancelled the allotment vide its letter dated 27.11.2014, sum of Rs.20,64,785/- ought to have been refunded to the complainant. By not refunding the aforesaid amount of Rs.20,64,785/-, the Opposite Parties indulged into unfair trade practice and the same also definitely amounted to deficiency, in rendering service, on its part. The complainant is, thus, entitled to refund of a sum of Rs.20,64,785/- alongwith interest @12% per annum from the date of issuance of cancellation letter dated 27.11.2014 (Annexure C-3).

24.         For the reasons recorded above, the complaint, is partly accepted with costs. The Opposite Parties are, jointly and severally held liable and directed as under :-

 

(i)	to refund the amount of Rs.20,64,785/-, to the complainant, alongwith interest @12% per annum (simple), from the date of cancellation viz. 27.11.2014.
(ii)	to pay Rs.50,000/- to the complainant as cost of litigation.
(iii)	The amounts mentioned, in Clauses (i) and (ii) above, shall be paid, by the Opposite Parties, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall pay penal interest @15% per annum, on the amount mentioned in Clause (i) above from the date of cancellation viz. 27.11.2014, till realization and rate of interest i.e. @12% per annum on the amount mentioned in Clause (ii) above from  the  date  of default till realization.

25.         Certified Copies of this order be sent to the parties, free of charge.

26.         The file be consigned to Record Room, after completion.

Pronounced.

May  20, 2016.

 

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER