JUSTICE J.M. MALIK

 1.      This  case portrays the story of sadness and frustration of a  business man who desired to have a business place for his own use/livelihood.  It also reveals, how it has become difficult to have a space in this  cosmopolitan  city.  The  main reason is that prices have  gone  up  by  leaps  and  bounds.  It also depicts how a consumer  has to  tolerate  the tantrums  of  his builder/developer.

 2.      Mr. K.K. Rana, the complainant, is a businessman.  He applied for allotment of commercial office space/parking space to the Opposite Party, M/s. DLF Commercial Complexes Ltd., on 11.03.2008.  The approximate super area of the office space was 196.093 sq.mts, i.e., 2111 sq.ft, approximately, located on the third floor  of   the  proposed  building,  namely, DLF Tower, Shivaji Marg-II, at 15, Shivaji Marg, Najafgarh Road, West Delhi and deposited Rs.7,50,000/-  as the booking  amount  for  the provisional allotment of  above said  office space, vide receipt marked as Annexure C-1.

 3.      On 27.04.2008, the OP raised a demand of Rs.78,44,000/- in respect  of  the said office space, due on 11.05.2008.  On 28.04.2008,  the OP sent a letter of allotment  of  above  said premises in favour of the complainant  along  with a  schedule of  payment. The  payment  plan  initially  sanctioned  for the complainant was  a 2.5 years’  fixed  payment  plan.  Copy of the same has been placed on record as Annexure E.  The OP again raised a demand of Rs.34,37,600/-  which was due  for  payment   on 11.07.2008.  The   complainant  further paid a sum of Rs.25,00,000/- on  01.07.2009 and Rs. 53,44,000/- vide cheque dated 10.07.2008.  No further amount  was  paid despite notices.  On 14.07.2008, OP  sent a reminder demand letter in the sum of  Rs.87,81,600/-  to the complainant  and asked for the remittance of the  said  amount  up to 28.07.2008.  On 28.07.2008, the OP further sent  a  reminder /payment  letter  in the sum  of  Rs.34,37,600/-.  On 14.08.2008, OP sent a notice  for  the  remittance of  Rs.34,37,600/-.  All  these  letters  have  been  placed on record vide  Annexures C-2 toC-11.

 4.      On 03.09.2008,  the OP sent a letter to the complainant  cancelling  the  allotment of above  said   premises in  favour  of  the complainant  on  the  ground  of non-payment  of  Rs.34,37,600/-  and  further alleging therein forfeiture of  amount  of  Rs.71,60,273.32  in  accordance  with  the  terms of Clause 12 of the Agreement to Sell.  However, on 05.09.2008, the OP sent a letter to the complainant  mentioning  therein  that  the application made by the  complainant for  allotment  of  the  said  premises  has  been accepted and the said  letter  was accompanied by  a Space Buyer’s Agreement  in Triplicate  containing  the  terms  and  conditions  of the allotment and  directed  the complainant  to  return  the same after signing the said agreement, within 10 days.  Copies of letters dated  03.09.2008  and  05.09.2008  have  been  placed  on  record as Annexure C-12 and C-13, respectively.   On 10.09.2008, the OP sent a letter to the complainant assuring that all the necessary  pre-construction activities would commence by the end of November, 2008 and that  some  of the necessary  approval  had  already  been received and other approvals  have  been  applied  for and would be received  by  the end of  November,  2008.  The cost related to design engineering  was substantially completed.

 5.      During the last week of November, 2008, the complainant visited the site  but  there was no sign of any construction  work on the said  premises.  The  complainant  approached the officials of OPs but they were  unable to explain the cause of delay.   The complainant  wanted  that  his  money should be paid back but he was assured that construction work  would  start immediately.  On 23.12.2008,  the Space  Buyer’s Agreement was executed and signed by the parties.  The total sale consideration was settled at Rs.3,37,76,000/- and the parking space for Rs.6,00,000/-.  It was  agreed  that   the  premises  would  be  given within a  period of 36 months from the date of execution of the said agreement.

6.      However, till February, 2009, there was no sign of construction work on the proposed  site, but, on the other hand, the OP denied raising demands from the allottees.  On 17.02.2009, the OP sent a general letter  to all the allottees mentioning therein that the OP would be  starting  the construction work at the site  by April, 2009 and the OP  had  introduced  the Re-trading  Schemes  for the allottees based  on  certain  terms  and conditions  and in the event the property is not treated within  a period of six months, then, the OP will refund  the  entire  amount received from the allottees.  There was no  such provision in the Agreement dated 23.12.2008.  On 20.02.2009,  the  complainant  sent  a  letter  to  the OP seeking refund  of  his  deposited amount  of  Rs.85,94,000/-.  The OP,  even after  ‘Bhoomipujan’,  failed  to start  the  construction  work at the site.  On 27.02.2009, the OP sent a  letter  to  the complainant under the  re-trading  Scheme  and the  provisions of refund of  the deposited  amount  was  also  covered  under  the re-trading Scheme,  itself.   The  OP also  sent   another letter/ demand  notice raising the demand of Rs.34,37,600/-  in respect of the allotment.  Since the month of  March, 2009,   the  complainant   approached  the  OP time and again,  requesting it  to  refund  his  money  but  he was  assured that he would get the refund soon.

7.      On  03.09.2009, the OP sent a general letter to the allottees that the window  for  retrading  Scheme  was  closed  and  the construction of the proposed building had commenced. On  31.12.2009,  the  OP  sent a demand  letter  raising  the  demand  in  the sum of Rs.79,70,605.12ps to the complainant, despite the fact that the complainant had asked for refund of  his amount.  In response to the said letter, the OP sent a letter dated 01.02.2010 stating that  the  re-trading option  was  for those  customers/ purchasers,  who  had  already made  the  payment of 35% of the total amount and  that  only those were eligible for exercising  the option of  retrading.  Vide  letter dated 01.02.2010, the OP alleged that as the complainant was not eligible, for the said option, his request for exit and refund was not  accepted.   It was for the first time that the OP,  vide  letter  dated 01.02.2010,  had  flatly  refused to  refund  the deposited amount  of  the  complainant.  Thereafter, OP sent a  letter  stating  therein  that the construction work was going in full force  and  they would  offer  possession of  the property in  the  middle of the next year.

 8.      Vide letter dated 11.02.2010, the OP  again sent notice asking the complainant to deposit a sum of Rs.68,75,200/-  as the installment  amount  and  Rs.10,95,405.12ps,  as  the delayed  interest. On 02.03.2010,  the  OP sent  a  final notice  to  the complainant demanding the above  said  amount  of  Rs.79,70,605.12ps.  In  response to the said letter, the  complainant  again,  demanded  for refund of his amount, vide reply dated 23.06.2010. 

 9.      On 12.07.2010, the OP sent another letter to the complainant stating  therein that the property allotted to the complainant was changed from DSH305, ad-measuring 2111 sq.ft. to DSM 130, admeasuring 1811 sq.ft. and that it was offering  to the complainant special  rebates of  Rs.2,500/- per sq.ft.  In response to the said letter, the complainant  asked the OP to refund his amount.

  10.    On 17.08.2010, the OP sent a letter stating that the amount deposited by the complainant cannot be refunded as it had given  the exit  option only to  those  allottees  who had abided  by the terms and conditions  and  had  not defaulted on the payments.  It was pointed  out  that  the  complainant  had  not  made the payments  after  the second installment and he committed a breach of the contract.  Further,  on  26.08.2010,  the complainant  again demanded  the refund of  the  money, but in response, the OP sent a demand notice.  Thereafter,  correspondence  went  on,  on  these  lines,  on 09.09.2010,  by   the complainant  and reply dated 27.09.2010 by the OP.

 11.    On 28.09.2010,  the complainant  sent  a letter to the OP claiming refund  of  his deposited amount, along with interest.  The OP sent a demand notice to the complainant, demanding a sum of Rs.72,96,031.75.  Vide letter dated 28.09.2010, the OP submitted that  since there  was  delay  in construction,  the OP has changed the payment plan and now the structure on the site is almost complete and  further  stated that  it also had  the  authority  to change  allotted  premises before the final handing over  of the space.  The demand notices were sent by the OP on 12.10.2010, 20.10.2010 and 01.11.2010.  The complainant   again  sent the response by asking for refund of the money  vide  letter  dated 02.11.2010.  The letters were again sent on  these  lines by the OP on 16.11.2010 and 20.11.2010 and by the complainant on 21.01.2011.

 12.    On 17.03.2011, the OP sent a letter that the allotment of the complainant was cancelled and he is not entitled to any refund.  They, however,  suggested the complainant to settle the issue as they proposed to restore the allotment  with delayed interest with @ 12% p.a.,  as  against  interest  @ 15-18% p.a., and further  asked the complainant  to  pay a  sum of Rs.2,15,05,323/- by 30.03.2011.  In response  to  it,    the  complainant   insisted   the  OP  to   refund    the  money vide, his letters dated 05.08.2011 and 05.10.2011.

 13.    During  the  first week of  November, 2011, the complainant agreed  to  accept  the offer made  by the OP again, and the complainant agreed to purchase the new space of 1811 sq.ft @ Rs.13,500/- per sq.ft  as  already offered.  The OP sent a letter stating  therein  that  the interest  as on  date comes to Rs.46,81,119/-  and  the OP  is ready to make a waiver  of  the same to accommodate the request of the complainant.  The OP further stated in its letter dated 16.11.2011  that  it  is willing to  restore  the allotment upon remittance of dues of Rs.1,97,59,230/- immediately and  the  complainant  was asked to deposit the said amount, latest by 21.11.2011.  In the said letter it was also stated  that the timely payment  rebate  is not applicable  to the property.  It is alleged that the OP had raised an illegal  and arbitrary  demand  of  Rs.1,97,59,230/-   whereas,   the  amount  due on the complainant  was  only  Rs.1,58,54,000/- as  agreed  between  the parties, during the  first  week  of  November, 2011.  The complainant  wrote  a letter in this context on 25.11.2011.

14.    On 26.11.2011, the complainant again received a letter dated 24.11.2011 sent   by  the OP wherein  it  again  demanded  a  sum  of  Rs.1,97,59,230/- instead of the actual due of Rs.1,58,54, 000/-.  On 09.12.2011, the complainant approached the officials of OP and explained  that  they had  sent  an arbitrary demand.  The complainant did not receive any response till 24.12.2011.   On 06.01.2012, the OP sent  another  letter  stating therein  that  by considering the  case  of  the complainant, as a special case, they had agreed  to restore the allotment and also agreed not to charge the delayed payment interest, i.e., Rs.51,41,903/-  but  further  demanded a sum of Rs.2,23,10,062/- by calculating the cost of the new allotment @ Rs.16,000/- per sq.ft., instead of  the  rate already settled at Rs.13,500/-  per sq.ft.

 15.    On  03.03.2012,  the  complainant   asked  for  refund  of  the money.  Vide  letter  dated 17.03.2012,  the  OP  informed the complainant  that his money was forfeited. Ultimately, this complaint was filed before this Commission on 04.04.2012, with the following prayers :-

“It is therefore most humbly and respectfully prayed that this Hon’ble Forum may kindly be pleased to direct the opposite party to refund the amount of Rs.85,94,000/- along with interest @ 36% p.a., and also direct the opposite party to pay the damages to the tune of Rs.1.00 crore for the  mental agony, financial loss, loss of business and profit which was occurred to the complainant due to the deficiency in services of the opposite party.

Pass any further order/s in favour of the complainant and against the opposite party which this Hon’ble Forum deems fit and proper in the facts and circumstances of the case”.

 Defence

16.    The OP  has objected that  the  complainant  is  not a consumer, under Section 2(1)(d) of the Consumer Protection Act, 1986.  The property in dispute was obtained for commercial purposes.  It is contended that the above said property was booked with the intent to make profits by making investment in the subject property which was to be used for commercial  purposes.  The  complainant  has  concealed  the  material  facts  and  has,  therefore,  approached  this Commission with unclean hands.   In view of this Agreement,  the  OP  has the right to cancel  the allotment  and  forfeit  the  earnest  money  in case  breach of terms and conditions of  the  Agreement  is  committed  by the complainant.  The complainant  has  concealed  various  reminders  issued  by  the  OP.

17.    The  jurisdiction of  this  Commission has been called into question.  It is contended that all these facts can be decided only by  a Civil Court  and not by this Commission.   The  application form itself contains the relevant terms and conditions.  The OP  has  referred  to condition Nos. 12 and 19 which contain the provisions  of  forfeiture of  the amount.  The  timely  payment  of  the installments as per  the  schedule prescribed is the essence of the agreement.  The area  allotted to the complainant  was  provisional/ tentative  and  was likely to be changed upon completion of the construction.   The  intending seller, according to the agreement,  has  the  sole  right  and  discretion to decide  to abandon  the  construction of  commercial office space/ parking space, in the said  building.  It was also agreed  that  the  intending sellers shall calculate on the basis of  super area, as stated in the agreement  as  tentative  and is subject  to  change  till  construction  of  the said building is complete, in all respects.  The seller had the right to  intimate  how much super area  was  ultimately  allotted. If  the area was to be reduced, then the proportionate  amount  was to be refunded to the intending allottee.

 18.    The agreement  authorizing  the intending  seller  to  forfeit the money paid by  him/her, the earnest money, together with  interest  due or  payable,  along  with  any other amount  of  non-refundanble  nature, in  the event  of  failure  of  intending allottee to perform his/her   obligations  to fulfill  all the terms and conditions but not limited to the occurrence of  any  event of  default  as per Clause 12 of this Agreement or in the event of failure of  intending allottee  to  sign  and  return this agreement, within 30 days from the date of  dispatch  by the intending seller.  Vide letter dated 31.12.2008, the OP clearly informed the complainant  regarding change in the structure of payment plan.  It was also informed  that  the  time  bound payment  plan  is  being changed  to  construction linked  payment plan.

 19.    Again, reminder dated 21.12.2009 was sent by the OP to the complainant  in  response  to his letter dated 20.02.2009, informing him that  by making 35% of the total sale price of the subject property, the complainant  would become entitled to avail and the said re-trading scheme.   On the contrary, the complainant claimed for refund of  money and absurd baseless figure of Rs.4,000/- per sq.ft for purchasing the subject property, vide his letter dated 02.03.2009,  marked  as  Annexure M.  The OP sent another demand  letter,  Annexure N.   However,  the  complainant   insisted that the  money be returned to him, with  interest @ 36%, vide his letter dated 16.01.2010, marked as Annexure O.  OP yet again, issued  another reminder to the complainant to release the sum of Rs.79,70,605.12 , vide letter 27.01.2010, marked as Annexure P.  The complainant  was  informed  to  make  payment  as  per  the payment  plan vide Annexure Q.  Another reminder dated 01.02.2010 was sent.  Again,  vide  letter  dated 11.02.2010, OP issued another  reminder,  marked  as  Annexure R.   OP  issued  final notice on 02.03.2010, marked as Annexure-S. Thereafter, similar correspondence  went  on  between  the parties.  The OP, as a further goodwill gesture, revised the existing payment plan to accommodate  the complainant,  vide letter dated 12.07.2010, marked as Annexure U. Another demand  was  raised  vide  letter dated 03.09.2010, Annexure AA,  but the complainant  again claimed for refund of  money  along with interest @ 36%, vide Annexure BB. The OP intimidated the complainant,  vide letter dated 27.09.2010, marked as Annexure CC, to  pay  the amount,  otherwise,  they will forfeit the amount  of earnest  money  with other  non-refundable charges. This  demand was reiterated again and again.  Ultimately, the complainant was given a  final notice on 01.11.2010  to  pay the amount by 17.11.2010, otherwise  the OP will take action in terms of Clause 12 of the Agreement.  Reminders were sent, but  they did not bring the desired result.

 20.    Ultimately, the OP issued a formal cancellation letter dated 22.11.2010, Annexure II.  Again, letter dated 12.07.2011, was sent.    The complainant, thereafter, vide his letters dated 05.08.2011, 05.10.2011 and 04.11.2011 informed the OP that he is ready and willing to pay the balance amount if the interest charges are completely   waived  off.  The  OP acceded  to  the request  of  the  complainant   and  informed him that as a very special case and as  of  exception, the OP is willing to waive off the interest component which  as on date of letter works out to be Rs.46,81,119/-. OP informed  the complainant  that  they  would restore the allotment upon remittance of Rs.1,97,59,230/- by 21^st November, 2011.  The complainant was  also  informed  that  till the property continues to be cancelled, the status  of  the property shall remain the same. Another letter was sent by the OP to the complainant  to  get  the allotment  restored.  The  OP agreed to waive off  the  delayed payment, in the sum of  Rs.51,41,930/-, but the complainant  refused  to the said offer as well. Ultimately, a sum of Rs. 85,94,000/-  belonging  to the complainant  was forfeited.

 SUBMISSIONS AND FINDINGS:

 21.    The  first  submission  made  by the counsel for the OP was that the complainant is not a consumer.  He contended that the complainant  is  a  business man  and  he has got another office space.  It is submitted by the OP that the complainant  has  admitted that he was a Director of a Company,  namely, M/s. Kushal Infraproject Industries (India) Ltd.  The address  of   the Company  has been suppressed.  Our attention  was invited to Advik Industries Ltd. Vs. Uppal Housing Limited & Anr., 4 (2012) CPJ 159 (NC).  The complainant  has  not  even  pleaded  that services availed by him are exclusively for  the  purposes of  earning  his  livelihood  by means of self-employment.  Our attention was also drawn towards  Cheema Engineering  Services  Vs. Rajan Singh (1997) 1 SCC 131, wherein it was held  that  it  is  necessary  to adduce evidence to show that  the goods/services was used  only  for self-employment  to earn  his  livelihood  without  a  sense  of  commercial purpose  and  the  burden  is on the complainant to prove the same.

 22.    This argument is bereft of merit.  The allegation that the complainant  is owner  of  another  space is merely an assertion which is not  supported  by  any cogent  or plausible evidence.  At the time of arguments,  the complainant was present and he informed this Commission that he did not have any other office space. The complainant  also  explained  that  he is  a resident of Uday Park, New Delhi, which  is exclusively a residential accommodation.  It must be borne  in  mind  that  the case was filed in the name of  an individual  and  not  by any  company.  An individual proprietor can run the business  for his own and his family benefits or he can earn his livelihood  by  transacting  any business, as per explanation appended to Section 2(1)(d)(ii)  of C.P.Act, 1986.  There lies no rub.  His  status  as  a ‘consumer’,  does not  stand  clouded.    In para  5 of  the complaint,  the complainant  has  mentioned  that  he requires  the  said office space  for  his own  personal  use and for carrying out  his business work therein.  Consequently, the present case falls within  the  four  corners  of Section 2(1)(d) of the C.P.Act, 1986.   The  argument  advanced by the counsel for the OP does not deserve any consideration.

 23.    The  second  submission made  by the counsel for the OP was that no deficiency can be attributed on the part of the OP.  He explained  that  on  the contrary,  the complainant has suppressed the material facts  before this Commission.  In this context,  he has invited  our  attention  towards the application for provisional allotment  by  sale of office retail space in DLF Towers, wherein it was specifically mentioned as under :-

“I/We are making this application with the full knowledge that Company has the sole right and  discretion to decide on the location of the building on the Land and I/We also understand and agree that the dimensions, size and the location of provisional allotment, if any, may change and further I/We shall not have objection to the same in any manner, whatsoever.  The building plans for DLF Towers, New Delhi, in which the office/retail space (s) applied for is located are not yet sanctioned by the competent authority.  I/We have instructed the company that if for any reason(s) including but not limited to abandoning of the construction of office/retail space(s) in DLF Towers and/or non-sanction of the building plans, as the case may be, the company is not in  a position to finally allot a office/retail/space(s) applied for within a period of one year from the date of this application or any further time extended at the sole discretion of the company”.

 It was also mentioned, as under :-

“Basic sale price (super area) : Rs. 1,72,224/- per sq.mtr; Rs.16,000/- per sq.ft., aggregating to Rs.3,37,76,000/-

Parking space charges (if any)  Rs. _____ @ ______  per parking space”.

The learned counsel  for  the  OP  vehemently argued that the Complainant  is  guilty of  suppression  of  material facts which were kept  under  the  hat for  the reasons  best known to the complainant.  He  contended  that  the  case  should  be dismissed  at the threshold.

 24.    The next submission  made  by  the counsel for the OP was that the complainant  was  entitled  for refund of  the money if  he  had  deposited  35% of  the total amount till the date of cancellation.  In this context, he  has invited our attention towards the terms and conditions  of  the  agreement,  dated 23.12.2008.  Clauses 12 & 19 of the said agreement, are reproduced here, as under :-

”12.  The payment on or before due date, of sale price and other amounts payable by the Intending Allottee as per the payment plan accepted by the Intending Allottee or as demanded by the Company, from time to time, is the essence of this application and the office/retail space buyer’s agreement.

19. It shall be incumbent on the intending allottee to comply with the terms of payment and/or other terms and conditions of the office/ retail space buyer’s agreement, failing which, he/she, shall  forfeit  the  entire  amount  of  application  money/ earnest money, interest  on  delayed payment etc., and the allotment/office/retail space buyer’s agreement shall stand cancelled and the intending allottee shall be left with no lien, right, title,  interest or any claim of whatsoever  nature in the office/ retail space(s) along with parking space(s). The company shall thereafter be free to resell and/ or deal with the said office/retail space(s) in any manner whatsoever at its sole discretion. The amount(s), if any, paid over and above the application money/earnest money, processing fee, interest on delayed payments, interest on installments, brokerage, etc., would be refunded to the intending allottee by the company only after realizing such amounts to be refunded on resale but without any interest or compensation of whatsoever nature.  The company shall have the first lien and charge on the said office/retail space(s) for all its dues payable by the intending allottee to the company.

Without  prejudice  to  the company’s aforesaid  rights, the company may  at its  sole discretion, waive the breach by the intending allottee in not making payments as per the payment  plan but on the condition that the intending allottee shall pay to the company interest which shall be charged for the first ninety (90) days from the due date @ 15% per annum and for all periods exceeding first ninety (90) days after the due date @ 18% per annum”.

25.    The  agreement  executed  on 23.12.2008,  between the parties, says that, time is the essence.  Clause 8 of  the agreement,  provides for the same.  The  payment  schedule  is  reproduced here,  as under :-

26.    The counsel  for  the OP submitted that the complainant was bound  to  deposit first five items  mentioned  above, which have been shown  separately  in order  to  claim the benefit of retrading scheme and refund of money.  Since the complainant had not adhered   to the  terms  and conditions of the agreement, therefore, he was not entitled  to  claim benefit of refund.  He vehemently argued that the amount  of  the  complainant  was  legally  forfeited and he  was  not  entitled  for  the refund of  the money.   In support of his case, he has cited few authorities.  In Prakash Kumar Shahi Vs. Ghaziabad Development Authority (2000) 4 SCC 120, wherein the Hon’ble Apex Court  has held as under :-

 “4.    ….. Having failed to perform his part  of the contract, the appellant  cannot  be permitted to urge that he is not liable to pay the balance amount along with interest as according to him the respondent  Authority had failed to deliver possession as per terms of  the brochure. The Authority was not expected to deliver possession in the absence of the payment of the agreed amount. Having failed to perform his part of the agreement, the appellant cannot be permitted to urge, at this stage, that he was not  liable to pay  the interest as agreed to by him at the time of accepting the allotment of the plot in his favour”.

 On  the  other hand, the counsel for the complainant has argued with  vehemence  that this authority is not applicable to the present  case He has invited our attention towards the foot of para No.2 of the same judgment, which runs as follows :-

“It was further pleaded that the paucity of financial resources had been caused due to delay or default in payment by the allottees like the appellant”.

 27.    The learned counsel for the OP vehemently argued that it is well settled that  the  terms and  conditions  of  a document  is binding upon  the parties.  In this context,  he has cited an authority reported in Bharti Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd., (1996) 4 SCC 704.

  28.    Lastly, it was submitted that this case should be relegated to the Civil Court.  In this case, reference was made to Trai Food Vs. National Insurance Co. Ltd., (2004) 13 SCC 656.

 29.    This was also argued that this Commission has treated an application for allotment of property  as  an agreement  in  case of Sahara India Vs. Madhu Babu, II (2011) CPJ 3 (NC) and Sahara India Vs. P. Gajendra Chary, III (2010) CPJ 190 (NC), following the judgment of the Hon’ble Apex Court in  HUDA Vs. Kewal Krishnan, 1969 (3) SCC 522, to the effect that a forfeiture clause provided for terms and conditions of the allotment would be binding on the parties.  Again contractual issues cannot  be adjudicated  summarily under the C.P. Act, 1986, as per law laid down in Saurabh Prakash Vs. DLF Universal Limited, (2007) 1 SCC 228 and Pawan Hans Vs. Union of India, (2003) 5 SCC 71. The complainant  has  suppressed  the material  facts and  the  Hon’ble  Supreme  Court of  India in S.P. Chengalvariya Vs. Jagannath, (1994) 1 SCC 1 Amar Singh Vs. Union of India, (2011) 7 SCC 69, Dalip Singh Vs. State of U.P., (2010) 2 SCC 114,  has held that  a person who has approached the Court with unclean hands can be thrown out of the court summarily.

  30.    Lastly,  the  complainant  cannot  take advantage of  his own faults.  No  negligence  on  the part  of  the OP stands  established.  The complainant has  not  stated  that  the terms of  the agreement are invalid or illegal.  The Hon’ble  Supreme Court  of  India in Union Bank of India Vs. Seppo Rally Oy & Anr., (1999) 8 SCC 537, Consumer Unity & Trust Society, Jaipur Vs. Chairman & Managing Director, Bank of Baroda, Calcutta & Anr., (1995) 2 SCC 150 and Godfrey Phillips India Ltd. Vs. Ajay Kumar, (2008) 4 SCC 504,  has  held  that  negligence must be proved against the OP, before awarding compensation.

 31.    Instead of touching the heart of the problem, the learned  Counsel for the Opposite Party just skirted it. The complainant applied for the business  place  in the year March, 2008.  The installments were  paid in March  and  July, 2008, in the sum of  Rs.85,94,000/-.  It transpired   that construction  work  had  not started  at  all,  for  a considerable time.  The terms and conditions  appended to the application  for allotment,  clearly, specifically  and  unequivocally  mentioned   that  business  space  will  be  handed over, within 30 months and after some lapse 36 months. Agreement  dated 23.12.2008, arbitrarily changed the date of possession.  Para 10.2 of the agreement runs as follows :-

             10.2   Possession

“The intending Seller based on its present plans and estimates and subject to all just exceptions, contemplates to complete construction of the said Building/said Premises within a period of thirty six (36) months from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in Clauses (11.1), (11.2), (11.3) and Clause (39) or due to failure of intending Allottee(s) to pay in time the price of the said Premises along with other charges and dues in accordance with the schedule of payments given in Annexure-III or as per the demands raised by the intending Seller from time to time or any failure on the part of the intending Allottee(s) to abide by all or any of the terms or conditions of this Agreement.”

32.    This  is an admitted  fact  that   possession of the flat was not ready till 22.12.2011.  Where goes the essence of time? It is too early to harp  time and again  on the same issue.  What is the use of tom-toming.  The admission of this fact comes out from the horse’s mouth itself.   Letter, dated 17.02.2009, written by the OP, mentions:-

“This  communication  supersedes  all our earlier  letters regarding   the re-trading  programme for DLF Towers, Shivaji Marg

1. Those of you, who have paid excess amount beyond 35% of the cost i.e. third installment; will be given advance payment rebate @ 13% p.a. from the date of such payment till the date as per construction linked installments, as per the Revised Payment Plan (already sent to you by letter dated 30^th Dec. 2008, copy enclosed for your ready reference). Such rebates will be adjusted against  the  next installments, when due.

4.   From the date of your re-trading request being logged in there will be no installment payable beyond 35% of the cost and penal interest will not be charged.

 6.   In the event that the property is not treated within an additional period of 6 months, then  DLF will refund the entire money received from the customer”.

 The earlier letter dated 10.09.2008, sent by the OP, mentions as under

               “Site

The site is in our possession and necessary pre-

construction activities  on the site are  due  to

commence by end November, 2008”.

Approvals

We have already received some of the approvals and all other necessary approvals have already been applied for and we expect to receive the  balance approvals by end November, 2008”. 

 33.    No heed was paid to the letter sent by the complainant on 20.02.2009,  for refund  of  money, sent after three days from the letter dated 17.02.2009.  The  OP insisted to enroll the complainant  under  the retrading  scheme  vide letter dated 27.02.2009.  In their  letter dated 01.02.2010,  there is clear admission of delay, which  runs as follows :-

“This is with reference to your letter dated January 20, 2010 addressed to our Vice Chairman.  We have received all the relevant approvals for the said scheme and the construction is going in full force and we shall be offering the possession of the property by the middle of next year.  There has been some delay in starting the construction because certain requisite approvals took longer time to come through.  Though the same was clearly mentioned in the Application Form, still we firstly changed the Payment Plan from the “Time Bound” to “Construction Linked” Payment Plan and also offered to the customers, in case they desire, the re-trading window, whereby any customer who has paid over and above 35% payment, is eligible for the same (copy of our letter dated 17.02.2009 enclosed) The same covered the Exit Option also in case the property is not re-traded within a reasonable time.

 In your case you have not completed 35% payment, hence you were not eligible for the said option.  We had again vide our letter dated 29.02.2009 requested you to complete the balance payments, however, needful was not done by you.  We therefore, once again regret that we shall not be in a position to accept that your request for Exit and refund, as desired by you.  You are requested to make the payments as per the Payment Plan”.

 34.    The introduction of  re-trading  scheme out of blue was brought  into play by the company unilaterally,  without  consulting the buyers.   Why did  the OP insist that the complainant must enroll himself under the retreading scheme  by sending him a written request for the same.  This is an eye-wash.

35.    The OP  wanted  to have the benefits of both the worlds.  On the one hand, the OP wanted to have interest from the complainant and on the other hand, it wanted to sell the same on higher price to another builder.  Same is the position with the change of plot.  That was also done,  unilaterally  without  the  consent of  the complainant.  Although  the OP had created such an agreement which would benefit  the OP only  and  not  the consumers, yet, it was the bounden duty of  the OP to ask  the  complainant,  whether   the reduced space  would be suitable to his purposes or not?.   They should  have  told  the  complainant  point-blank  that they cannot offer to give him bigger space and if he does not  want to have the  small space, the amount could be returned to him.   Without taking consent  of  the complainant,  the OP cannot make the changes, even though it was authorized to do so.

 36.    Moreover, the OP  is  guilty  of contradicting its stand, every now and then.  Sometimes, it cancels the plot and yet, by another letter, it wants to restore it,   subject to further conditions.  The retrading  scheme   introduced  by the OP is difficult to fathom because it  is  not  in  accordance with  the terms and conditions  of the agreement. It is also clear  that  the  suppression of  terms and conditions of the allotment does  not carry  any material value.  This was a known  factor and known to everybody.          Moreover, the OP  has specifically mentioned that  there  was  provisional  allotment of  the  above said office space.  There is  no suppression of  facts  as such  and therefore the issue urged by the counsel for the OP pales into insignificance.  There is further construction  about the time bound construction.

 37.    The  OP   promised  that  it  will  start  the  construction   in November, 2008,  but  no construction was started till February, 2009, but demand  letter  was  sent.  The matter  of construction was adjourned to April, 2009, despite the fact that “Bhoomi Poojan” ceremony,  was performed.  For the first time, on 20.02.2009, the complainant, asked the OP  to  refund his amount, within a span of less than two months, from the  date  of execution of  the  agreement.  It is  true  that  the complainant  waddled  out of the commitments and did not  deposit the entire  first  five installments.  The crux of the matter is, “Whether,  he  was  justified or  had some malafide intention?”. It  must  be borne  in mind that the terms  and  conditions of the agreement  is not  a one-way traffic.  Both the parties are bound by it.   It  came out from the horse’s mouth  itself  that the construction of the building was delayed.  It was not ready,  even after expiry of three years’, as promised and till the filing  of  this  complaint.  Had  the  OP  refunded the amount  on  the complainant’s  request,  made  in February, 2009, with nominal  penalty,  this  dispute  would not have cropped up.

 38.    The OP is  withholding that  amount  for  the last five years’, without  melafide intention.  An  ordinary  person can know the value and importance of money.  This much money  would have benefitted him otherwise. OP contends that the deposit of the entire amount of installments be made,  then it would refund the same, to the complainant.   The OP has utilized his huge amount for the last  more than five-and-a-half years.   The OP’s attempt to feather its own nest has succeeded.  All  these  factors, clearly reveal arrogant, despotic, and coercive manner.  The deficiency on OP’s part stands proved.

 39.    In a recent authority reported in  of  K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos. 6730-31 of 2012, decided on 19.09.2012,  the Hon’ble Apex Court  has held at paras 25  26,  as under :

 “25.  The case of the complainant is covered by one of the examples  cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above.  In this case also, the amount was simply returned  and  the complainant  is suffering a loss inasmuch as she had  deposited  the money in the hope of getting a flat, but she is  being  deprived of  that  flat and thereby deprived of the benefit of escalation of the price of that flat.  Therefore, the compensation  in this case should necessarily have to be higher, as per the decision of this Court.

               26.  For the reasons aforesaid, we allow  the appeals and pass the following orders :- 

i) The respondent is directed to pay the appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/-  from  the date of its respective deposit till the date of realization with further direction to refund the amount of Rs.3,937/- to her, as directed by the Consumer  Forum.

ii) The respondent is directed to pay the appellant – complainant further sum of Rs.50,000/- as compensation for deficiency in service on their part.

iii)  The respondent is also directed to pay the appellant-complainant a sum of Rs.20,000/- towards cost of the litigation incurred by her”.

 40.    For all these reasons, we find that the OP is liable to refund the  entire  amount, i.e. Rs.85,94,000/-  and  we order, accordingly. However,  the demand  raised  by  the  complainant  to  re-pay  the amount with interest at  the rate of 36% p.a.,  is on  the higher side.  Hence, we are of considered view  that  the complainant  is entitled to interest @ 18% p.a., and direct  the OP  to refund  the  entire deposited amount(s) (i.e. Rs.85,94,000/-)  to the complainant, with interest @ 18% p.a., from  20.02.2008, till realization.  We also  impose  costs  of  Rupees  two lakhs (Rs.2,00,000/-) towards harassment, mental agony and litigation charges.  The entire  amount  to be  paid  within 90 days from the date of  receipt  of  this  order,  otherwise  entire amount  and  costs in the  sum  of  Rs. 2.00 lakhs shall carry interest at the rate of 18% p.a.,  till realization.