Delhi

New Delhi

CC/54/2014

Sudha Gupta - Complainant(s)

Versus

M/S. DLF Ltd. - Opp.Party(s)

14 Sep 2017

ORDER

          CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

 

Case No.CC./54/2014                                   Dated:

In the matter of:

MS. SUDHA RANI GUPTA,

D/o Late Sh. Ram Nath Gupta,

R/o 808, Katra Hindu Farash Khana,

Delhi

 

 

 

                                                              ……..COMPLAINANT

VERSUS

 

DLF UNIVERSAL LIMITED

DLF Centre, Sansad Marg,

New Delhi-110001

 

Through its

Managing Director/Principal/

 

 

………. OPPOSITE PARTY

 

 

 

         

 

 

S.K. SARVARIA, PRESIDENT

ORDER

This complaint Under Section 11 & 12 of Consumer Protection Act is filed by the complainant against respondent company alleging in brief that complainant is a senior citizen and has booked a plot  No. 1225 admeasuring 298.98  sq.mtr. for construction of house as per terms and conditions, set out in the brochures, total price of said plot was Rs. 8,11,600/- . The complainant paid an amount of Rs.1,00,800/- towards the “basic sale price” vide DD NO. 096062 dated 28/9/1991, drawn on Corporation Bank, Delhi to the Opposite Paty (OP).

          The OP sent to complainant an agreement No. 721 in duplicate which was to be signed by the complainant and returned to the OP.  The complainant was described as ‘the purchaser’ in the said agreement.  Thereafter, in accordance with the terms and conditions of the said agreement, the complainant paid to the OP an amount of Rs. 3,89,000/- as per details given below:

 

S.NO.	Date	Amount
1.	3/12/1991	1,20,000/-
2.	13/1/1992	60,000/-
3.	22/2/1992	52,000/-
4.	3/4/1992	82,000/-
5.	4/9/1992	75,000/-
	Total	3,89,000/-

 

          In this way the complainant has paid an amount of Rs. 4,89,800/- inclusive of the ‘basic sale price’ of Rs. 1,00,800/-  which is more than 60% of the sale consideration of the said plot.

          By letter dated 14/1/1993 the complainant inquired about demarcation of the said plot No. 1225 and complained about non-receipt of any allotment letter in accordance with the terms and conditions, agreed between the parties and set out in the said brochure  which were the basis of the said agreement between the parties. The OP replied  by the letter dated 18/1/1993 asking the complainant to pay interest @20% on account of belated payment for which calculation was to be mailed to the complainant by the OP later on.  However, the said calculations were never supplied to the complainant by the OP.  Which speaks volumes of arbitrariness, high handedness, deficiency in service, unfair trade practice and injustice by the OP in their dealings with complainant.

 

          On being dissatisfied the complainant vide her letter dated 8/2/1993, sought/demanded, besides allotment and possession of her plot, certain clarifications and documents for the safety offer investment. But OP did not respond to this request of the complainant.  In the absence of non-furnishing of aforesaid information by OP, the complainant made certain enquiries from the competent authorities including HUDA and after that complainant sent two cheques for Rs.54,636/- and Rs. 62,887/- respectively, both drawn on Corporation Bank. OP returned the said two cheques to the complainant and informed the complainant vide letter dated 5/1/1994 about the alleged cancellation of the booking and forfeiture of an amount of Rs. 1,55,105/- arbitrarily and without any reason or notice.  Complainant lodged protest to the same vide her letter dated 7/2/1994 and requested for withdrawal of the letter dated 5/1/1994 and sought detailed calculations to enable the complainant to make further payments and to get possession of the said plot No. 1225.  In the absence of any response from OP the complainant sent reminder dated 23/2/1994 and 23/3/1994.  Only thereafter, the OP vide its letter dated 2/4/1994 clarified that the notice of cancellation was sent to the complainant and the same was returned with the remark“undelivered” and further clarified that they would not entertain any further correspondence.  The complainant got issued a legal notice dated 12/4/1994 to the OP demanding, withdrawal of cancellation of said plot NO.1225 and to hand over possession of the same within 15 days from the receipt of the notice. But this legal notice was not replied by the OP.  The complainant then met higher authorities of the OP including the Commercial Manager, Executive Director, The Managing Director to settle the matter amicably.  The said higher authority expressed their inability to hand over the possession of the said plot, yet offered their assistance in getting her money back alongwith interest. Accordingly acting on their suggestion the complainant vide letter dated 27/6/1994 strictly without prejudice to her legal right, requested the OP to review the whole matter and to do the needful to avoid litigation.  She wrote letter dated 27/6/1994 making it clear that if OP chooses to refund the amount deposited by the complainant, the OP should refund the entire amount alongwith the interest and mesne profits.  However, once again there was no response.

          Thereafter the complainant filed a complaint before the MRTP Commission, the Predecessor of Competition Appellate Tribunal, New Delhi for handing over possession of said plot NO. 1225 and to register sale deed of the same and compensation of Rs. 1 lakh, By order dated  18/8/1994 on application for injunction, the Hon’ble Commission was pleased to order the OP not to transfer or allot the said plot till further orders. Thereafter complainant filed a contempt application as despite injunction order dated 18/8/1994, the OP started construction over the said plot.  Later Hon’ble  Competition Appellate Tribunal by its order dated 8/3/2013 was pleased to dispose off of the complaint on the ground of non jurisdiction.  The complainant has prayed for the following relief against the OP :-

1. To direct the OP to hand over physical possession of the said Plot No. 1225.
2. To direct the OP not to carry on any construction over the Plot No. 1225, DLF Qutub Enclave, Phase-IV, Haryana and to restrain them from transferring, selling, or creating third party interest/charge in the said Plot.
3. To direct to OP to pay interest@20% p.a. on the amount deposited by the complainant from the date of respective installments till its realization.
4. To direct the OP to pay compensation of Rs. 1,00,000/- for deficiency in service, harassment, humiliation, loss of time and money and mental agony caused to the complainant.
5. To direct the OP to pay to cost of Rs. 20,000/- towards litigation to the complainant.
6. Any other relief as deemed fit & proper in the facts and circumstances of the case.

 

Notice was issued to the OP who contested the complaint and filed reply. The OP has admitted that the complainant has booked plot No. 1225 admeasuring 298.98 Sq.Mt. for the construction of house for herself in DLF, Qutab Enclave, Phase-VI, as per the terms and conditions set out in the broachers. OP has also admitted that the complainant paid the amount of Rs. 1,00,800/- towards basic sale price by DD and the total amount payable under agreement  was Rs. 08,83,113/-, the breakup of which has been detailed as under:-

1. Total basic price- Rs. 6,25,762/-
2. External Development Charges- Rs 46,464/-
3. Preferential location charges- Rs 71,516/-
4. Contingency security deposit- Rs. 7,176/-
5. Maintenance security- Rs. 18,000/-
6. Interest payable under the 2.5 years installment plan- 14,195/-
7. Thus, the total amount payable under the Agreement was Rs. 8,83,113/-. Further, interest was payable upon default in payment of installments in time, which, in the present case amounts to Rs 6,687.87/-

 

According to OP the complainant had the default in payment of the installments which were not paid despite notices and reminders by OP so allotment of plot had been cancelled. According to OP when the allotment was cancelled in June 1993, installment no. 8 to 11 had not become due and there was a default in payment up to installment no 7 together with interest on delayed payment. At the time of cancellation of the plot in June 1993, a total sum of Rs  1,89,374.87 was outstanding against the complainant as on 03/04/1993.

According to OP complainant has concealed several material facts from this District Forum including the following facts:-

• The Complainant had defaulted in making payment of installments,
• The allotment of the Plot had been cancelled on an earlier occasion due to default in payment,
• Cheques issued by the complainant had been dishonored on 2 occasions,
• Several reminders/demand notices were sent by the Opposite Party to the complainant who failed to pay the requisite amount.
• The Complainant sent a letter dated 03.01.1994 to the Opposite Party requesting that her case may be taken sympathetically and stating that the remaining payment will be made.
• In response to which, vide letter dated 05.01.1994, she was informed by the OP that the agreement of the plot had been cancelled due to non-payment and cheque for Rs.3,34,695/- was lying and may be collected.
• The OP having entered into an agreement with Ms. Kamlesh Bali and Mr. Manish Bali for construction of Executive Home upon cancellation of allotment of the said plot on 03/06/1993, the OP had disclosed the aforesaid fact to the Complainant by letter dated 02.06.1994. According to OP it is significant to note that not only has as Executive Home been constructed on the said Plot No. 1225 but the property in question has already been transferred by this OP in favour of Ms. Kamlesh Bali and Mr. Manish Bali by Conveyance Deed dated 17/05/2013 for Rs. 19,45,244.55/-, which was entered into between the parties after order dated 08.03.2013 passed by the Hon’ble Competition Appellate Tribunal.

As also stated in Para 2 of the said Conveyance Deed, the possession of the house has already been taken by the said Vendee and has recorded satisfaction regarding the construction thereof. A true copy of the Conveyance Deed dated 17/05/2013 is annexed herewith and marked as ANNEXURE-E.

• That the Complainant deliberately refused to accept the cheque sent by the OP after the final adjudication of the matter by the Hon’ble Competition Appellate Tribunal.

 

The OP has submitted that the complainant raised unfair trade practice and deficiency in service in the complaint before erstwhile Hon’ble MRTP Commission of the Hon’ble Tribunal. It had no jurisdiction to hand over possession of plot in question in the light of the decision of the Hon’ble Supreme Court on the GDA Vs V P Agarwal  and Hon’ble Tribunal held that complaint was essentially about breach of contract by the OP. The Hon’ble Tribunal also directed the refund of Rs. 3,34,695/- with 9% interest as agreed to by this OP. The complainant has deliberately suppressed the fact that she had filed a Civil Appeal, being C.A. No. 9646 of 2013 before Hon’ble Supreme Court against the order dated 08/03/2013 passed by the Hon’ble Competition Appellate Tribunal.

According to the OP the complainant is pursuing parallel proceedings simultaneously, before the Hon’ble Apex court under MRTP Act and also before this District Forum under Consumer Protection Act, 1986. This is impermissible under law.  

In view of the complainant having pursued a remedy under the MRTP Act, the operation of section 3 of the Consumer Protection Act would disentitle her for filing the complaint before this District Forum, which would amount to derogation of law namely the MRTP Act.

The OP has denied other facts stated in the complaint and prayed for dismissal of complaint with cost.

In the replication the complainant has denied the averments made in the reply and has reaffirmed the facts stated in the complaint.  The complainant has filed her affidavit in evidence in support of her case.  On behalf of OP the affidavit in evidence of Mr. Manish Kumar, A.V.P. Legal with OP Company, is filed.  Both parties have filed written arguments. Hon’ble Supreme Court by order dated 30/8/17 in Civil Appeal No(s) 9646/2013 has directed this District Forum to decide this complaint within 15 days after hearing the same.  As the President of this District Forum was on leave w.e.f. 22/8/17 to 7/9/2017 the arguments were heard partly on 8/9/17 & remained on 11/9/17 (9/9/17 and 10/9/17 were holidays being Second Saturday & Sunday).                                                                                                                                               We have heard the complainant in person and Ld. Counsel for OP and have gone through the written arguments filed by both parties, record of the case, authorities produced on behalf of OP and relevant provisions of law, the arguments on the pending applications and main complaint.  No authority is cited by the complainant.

The basic facts are not disputed. It is admitted that the complaint was allotted plot No.1225 admeasuring 298.98 sq.mtr. in DLF, Kutub Enclave, Phase-IV, Haryana            and she has made total payment of Rs.4,89,800/-, as detailed in the complaint, out of total cost of the plot of Rs.8,11,600/-according to complainant and Rs. 8,83,113/- according to OP.  The allotment of plot was cancelled and it possession was denied to the complainant by OP.  The complainant moved MRTP Commission against the OP  raised the subsequent allottees namely Ms. Kamlsh Bali and Mr. Mahesh Bali.  The MRTP Commission was abolished during pendency of said petition of the complainant and all pending matters were transferred to Hon’ble COMPAT which decided the petition of the complainant by order dated 8/3/13 holding that the said Commission has no jurisdiction when damage is claimed for some breach of contract and the complainant and OP had entered into the agreement in respect of the said plot. However, Ld. Hon’ble COMPAT had directed to refund the amount paid by complainant to the OP alongwith interest @9%.  Admittedly, the said amount was not received by the complainant and instead she has filed an appeal before the Hon’ble Supreme Court against the order dated 8/3/13 of Hon’ble COMPAT.  It is also not disputed that the complainant has lodged FIR No.20 of 1997 on 4/2/1997 U/S 406, 420 and 120 (B) IPC with the Police Station, Connaught Place in which the investigation agency filed cancellation report but on protest petition of the complaint, Ld. Metropolitan Magistrate (in short MM) summoned 6 person as accused vide order dated 25/7/11.  The criminal Revision Petition filed against the said order of Ld. MM was dismissed by Ld. Sessions court by order dated 15/2/14 and against this order petition was filed before Hon’ble High Court of Delhi by accused persons for quashing of the order dated 15/2/14  of Ld. Addl. Distt. Session Judge and Hon’ble High Court has ordered status quo in respect of the subject matter of criminal case vide its order dated 23/5/14 in CRL.M.C. 918/2014.

Alongwith the complaint before us the application for stay was filed by the complainant and this District Forum vide order dated 22/1/14 had directed status quo to be maintained in respect of said plot No. 1225 and directed the OP not to raise any construction or transfer by sale or parting possession of said plot to any person.

 As the complainant has pressed very hard for disposal of her pending applications and since some of the questions raised are common to pending applications and the main complaint we are deciding the applications also alongwith present complaint.  The present complaint before this District Forum was filed by the complainant on 20/1/14 after disposal of her petition by COMPAT by order dated 8/3/13. The contention of the OP is that the Conveyance Deed   was executed in favour of Ms. Kamlesh Bali and Mr. Mahesh Bali on 17/5/13 by registered document and copy of this registered conveyance deed is filed by the OP.  Therefore as on the date of the filing of the present complaint the OP did not have possession of the plot in question which has been transferred to the said persons i.e. Ms Kamlesh and Mr. Mahesh Bali.  The interim relief claimed by the complainant against OP not to create 3^rd party interest or part with possession or sale the plot in question by OP to any other person has become infractuous since the complaint was filed after its transfer by OP to said two persons. Further, the interim relief regarding construction of plot in question can only be granted  if the OP has possession and title of the plot in question as on the date of filing of the complaint, which is not so in the light of the registered conveyance deed dated 17/5/13, referred herein before, the application dated 17/1/14 for interim relief is, in our view, is not maintainable.  There is another technical view which makes this application and interim ex-parte order passed on 22/1/14 as infractuous.  In the light of regulation 17 of The Consumer Protection Regulations 2005 ex-parte interim order issued by the Consumer Forum shall stand vacated after 45days if in the meanwhile the objections to the interim order are not heard and disposed off.   The said period of 45 days having long been passed, the ex-party order dated 22/1/14 by this District Forum stood lapsed long before and no benefit of this interim order accrues to the complainant. Therefore, the contempt application dated 3/3/14 of the complainant is dismissed.

On the same analogy and reasonings the application dated 4/2/14 of the complainant for interim relief regarding sealing of the property is also not maintainable and is therefore dismissed due to the primarily reason, when the complaint was filed, the plot in question had already been transferred by OP in favour  of Ms. Kamlesh Bali and Mr. Mahesh Bali by registered document dated 17/5/13.

 

The third application filed by complainant against the OP is for punishment on account of disobedience of the order dated 22/1/14.  Since application on which interim order dated 22/1/14 was passed is dismissed above, the application dated 3/3/14 for contempt proceedings against OP has become infructuous and is therefore, dismissed, as such.

 

The OP has also filed application of vacation of stay dated 7/3/14. In the light of the fact that the application dated 17/1/14 of complainant is already dismissed resulting into vacation of stay order dated 22/1/14,  the application dated 7/3/14 of the OP has become infructuous and is disposed off as such.  Another application of OP U/S 26 of the Consumer Protection Act is pending in this application the OP has raised some arguments and contentions which are stressed on the present complaint in the final arguments.  Therefore, these contentions are being taken in the main complaint and the application shall be deemed disposed off accordingly.

The question of limitation has cropped up in the pleadings and arguments of the parties so we are dealing with this question first in adjudicating the present complaint.  As per section 24 A of The Consumer Protection Act, 1986 the limitation period for filing complaint before Consumer Fora a is 2 years from the date of accrual  of cause of action.  Although sub section (2) of this section empowers the Consumer Fora to condone the delay in filing the complaint by recording the reasons for condonation of such delay and the complainant is required to show sufficient cause for not filing the complaint within limitation period of two years,  as per settled legal position the condonation of delay is required to be claimed or requested by the complainant at the initial stage by moving the application alongwith complaint disclosing sufficient cause for not filing complaint within time.  In the present case no such application under sub-section (2) of section 24(A) is filed by the complainant.  Therefore, we are required to see whether the present complaint is filed within two years from date of accrual of cause of action.

The allotment of the plot in question in favour of complainant by the OP was cancelled and the letters dated 2/6/93, 24/6/93 and 19/7/93 were issued by the OP to the complainant to intimate her about cancellation of plot.  Admittedly, these three letters were not served upon the complainant and were received back by OP unserved so action of OP in allotment of said plot to a third party without actual knowledge of cancellation to complaint seems improper.  However, complainant filed the petition before MRTP Commission on 27/7/94 which was ultimately decided on 8/3/13 by COMPAT. It is not disputed during the course of arguments that in the reply to the said complaint OP has pleaded the cancellation of plot.  Therefore, during the pendency of the said proceedings before MRTP-COMPAT the complainant came to know about the cancellation of her plot and its allotment to Ms. Kamlesh Bali and Mr. Mahesh Bali, so cause of action for filing the complaint has arisen when the cancellation of plot was pleaded by OP before MRTP Commission/COMPAT where the said proceedings remained pending for about 19 years.  Therefore, we hold that the present complaint is filed after lapse of limitation period of 2 years from the date of accrual of cause of action to the complainant and same is barred by time Under Section 24(A) of the Consumer Protection Act, 1986.

          The technical question is raised on behalf of OP during the course of arguments that present complaint is barred by constructive res-judicata  as the complainant has claimed some relief against OP before MRTP Commission/COMPAT and her petition/complaint by  said Commission was dismissed.  But we do not accept this arguments of OP as appeal against the order dated 8/3/13 is still pending before Hon’ble Supreme Court and that matter is not finally decided.  In order to attract bar of Resjudicata one of the condition requisite is that the earlier matter should have been finally decided.

In the present complaint the complainant has claimed the relief to direct the OP to hand over the physical possession of the plot in question and direct the OP not to carry on any construction over the said plot.  To get these two reliefs the title and possession of the said plot as on date of filing of the said complaint should be with OP. The OP has already transferred the said plot in favour of  Ms. Kamlesh Bali and Mr. Mahesh Bali by registered Conveyance Deed dated 17/5/13 after disposal of the petition of the complainant by COMPAT on 8/3/15 and well before filing of the present complaint before this District Forum on 20/1/14. The construction on the said plot had already completed, as per version of OP. Therefore, as on date of filing of the complaint neither the title of the said plot remained with OP nor its possession was with the OP. Therefore the complaint, in our view, is still born and these main reliefs claimed in the complaint cannot be granted to the complainant. When the relief of possession cannot be granted to the complainant against OP and OP had already transferred the said duly constructed plot in question before filing of complaint, the entitlement of complainant to any compensation with or without interest and litigation cost from the OP, does not arise.

 Another important aspect of the matter is that Ms. Kamlesh Bali and Mr. Mahesh Bali present owners of the plot are not party to the present complaint and main reliefs claimed in the complaint would directly hit their right, title and interest in the said plot which cannot be adjudicated by this District Forum in these summary proceedings, more so, against the persons who are not party to the lis here. Even otherwise no deficiency in service by those two persons namely Ms. Kamlesh Bali and Mr. Mahesh Bali is alleged or can be alleged by the complainant under the provisions of The Consumer Protection Act, to make them party to present complaint.

          Before parting with this order we would like to point out the complainant has filed the application U/s 340 CrPC to conduct enquiry and make complaint to Metropolitan Magistrate against OP. However, keeping in view the fact that proceedings of the criminal matter are pending against concerned persons before criminal court, Hon’ble High Court of Delhi in Crl.M.A. 8498/2014 in CRL.M.C. 918/2014 has passed status quo   order in respect of subject matter of petition before Hon’ble Delhi High Court and also keeping in view the fact that the complaint and other applications of the complainant are not found maintainable and are dismissed we do not feel it expedient in the interest of justice to proceed with application U/s 340 CrPC and this application is also rejected.

          In the light of above discussion on applications of complainant and main complaint we do not feel it necessary to go into other contentions raised from both sides in the written arguments and oral arguments as the same would not alter the fate of this complaint.

          In view of the above the present complaint being not maintainable, is dismissed and all the applications of both parties stand disposed off in above terms.  In view of peculiar facts and circumstances of case, there is no order as to costs.

          A copy of this order be sent to both parties as per statutory provisions free of cost by post.  This order be sent to server (www.confonet.nic.in).

          File be consigned to record room.

          Announced in open Forum on 14/09/2017.

 

(S K SARVARIA)

       PRESIDENT

 

 

 

                                            (NIPUR CHANDNA)                                        (H M VYAS)

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