Chandigarh

StateCommission

A/88/2015

DLF India Limited - Complainant(s)

Versus

Ravi Kumar Wadhwa - Opp.Party(s)

Ekta Jhanji & Avinit Avasthi

22 May 2015

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	88 of 2015
Date of Institution	13.04.2015
Date of Decision	22.05.2015

1.     DLF India Limited, 2nd Floor, Gateway Tower, R-Block, Phase-III, DLF City, Gurgaon-122002, Haryana.

2.     DLF Universal Limited, Registered Office: Shopping Mall, 3rd Floor, Arjun Marg, DLF City Phase-1, Gurgaon-122002, Haryana.

3.     DLF Universal Limited, Chandigarh Technology Park Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.)-160101.

4.     Yaman Sandhu, Marketing Agent, DLF Universal Limited, Chandigarh Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.)-160101.

                                        …..Appellants/Opposite Parties.

                                Versus

Ravi Kumar Wadhwa son of Sh.Madan Gopal Wadhwa aged about 50 years resident of House No.151, Type-5, Nuhon Colony, Ropar Thermal Plant, District Ropar, Punjab.                 

                                        ...Respondent/Complainant

 

BEFORE:    SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Avinit Avasthi, Advocate for the appellants.

                 Sh.Munish Gupta, Adocate for the respondent.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 25.02.2015, rendered by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint No.254 of 2014, filed by the complainant, with the following directions:-

“10.          In view of the above discussion, the present complaint deserves to be allowed and the same is accordingly allowed. The opposite parties are directed as under ;-

                     i)      To refund the amount of Rs.6,00,000/- paid by the complainant alongwith interest @ 9% per annum from the respective date of its deposit till realization;

                    ii)      To pay Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;

                   iii)      To pay Rs.7,000/- as costs of litigation. 

 11.         This order be complied with by Opposite Parties within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i)&(ii) above shall carry interest @12% per annum from the date of this order till actual payment besides payment of litigation costs. “

2.             The facts, in brief, are that the complainant   with a view to purchase a house for his own living after his retirement, approached the Opposite Parties and being induced by their Marketing Agent, he agreed to purchase the Independent Floor in the housing project under the name of “DLF HYDE PARK’ situated at Village Mullanpur, District SAS Nagar, Mohali, Punjab and paid the booking amount of Rs.6 lacs through cheque dated 29.08.2012.  It was further stated that the complainant was requested to sign the application form, at the place marked as ‘X’, which the sales agent had filled after asking few questions from him. According to the complainant, the rest of the amount would be payable in installments after a period of two months from the date of signing the agreement between the parties, which would be sent by post to him.  It was further stated that the complainant was in constant touch with Mr.Yaman Sandhu and who on 03.09.2012 told the complainant that he was required to pay overhead charges including PLC, IDC, EDC, Service Tax, Compulsory Club Fee amounting to Rs.15-20 lacs, at the time of possession of the unit. The complainant was shocked to hear the same, as it made the independent floor, out of his reach/budget, and therefore, he approached Opposite Party No.3 on 04.9.2012 and requested to refund the booking amount, upon which, he was assured that his amount would be refunded within a week, as still the allotment letter was not issued and also no Agreement was signed between the parties. 

3.             It was further stated that when no response was received from the Opposite Parties, the complainant sent e-mails/letters (Annexure C-1 to C-7) to them to refund the deposited amount, but to no effect.  According to the complainant, ignoring the communications sent by him, the Opposite Parties sent a letter dated 16.11.2012 (Annexure C-8), whereby, he was required to pay an amount of Rs.6,20,923/-. The complainant again sent a letter dated 30.12.2012 (Annexure C-9), wherein, again he requested the Opposite Parties to refund the amount.  It was further stated that the complainant received a letter dated 15.01.2013 (Annexure C-10) from the Opposite Party, whereby, he was directed to pay an amount of Rs.14,81,740/-. Thereafter, the complainant visited the office of Opposite Party No.3 in February, 2013 and requested to refund the amount of Rs.6 lacs, but to no effect.  It was further stated that the allotment of the complainant was cancelled vide letter dated 04.03.2013 (Annexure C-11), due to non-payment of the installments. It was further stated that since the complainant applied for refund of the deposited amount, before issuance of the allotment letter, therefore, forfeiture of the booking amount and consequent cancellation thereof, did not arise. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.

4.             In their written statement, Opposite Parties No.1 to 4, stated that the complainant approached them for the purchase/allotment of an Independent Floor in DLF Hyde Park, Mullanpur, District Mohali, Punjab and he signed the application dated 25.08.2012 for the allotment of Independent Floor.  Copies of application for allotment dated 25.08.2012 and allotment letter dated 03.09.2012 are Annexure R/1. It was admitted that the complainant paid an amount of Rs.6 lacs vide cheque dated 25.08.2012 to the replying Opposite Parties. It was further stated that the complainant himself breached the terms and conditions specified in the application form because the said application was duly signed by him after properly understanding each and every clause contained in the application form. It was further stated that the complainant was never forced nor influenced by the replying Opposite Parties to sign the said document.  The allegation of the complainant with regard to the overhead charges amounting to Rs.15-20 lacs was denied, as it was clearly apparent from the terms and conditions of the application form that all the total price and other charges were clearly stated in the said allotment letter and he had readily agreed to pay the same as per terms and conditions of the application form.

5.             It was further stated that even the e-mails/communications attached with the complaint showed that due to some unavoidable circumstances, the complainant was not able to continue in the scheme.  It was further stated as per Clause 27 of the application for allotment, the Company was entitled to forfeit the earnest money alongwith non-refundable amount, in case of non-fulfilment/breach of the terms and conditions of the application and the agreement including withdrawal of the application and also in the event of failure of the complainant to sign and return to the Company.  It was further stated that despite sending repeated reminders, the complainant failed to make the payment, as per the schedule and, therefore, the amount paid by him was rightly forfeited as per the terms and conditions of the application.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice.

6.             The complainant, filed rejoinder to the reply of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

7.             The parties led evidence, in support of their case.

8.             After hearing the proxy Counsel for the complainant, Counsel for the Opposite Parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

9.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

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

11.            The Counsel for the appellants/Opposite Parties submitted that respondent/complainant applied for the allotment of an independent floor No.R2-E801-FF at DLF Hyde Park, Mullanpur and he paid an amount of Rs.6 lacs vide cheque dated 25.08.2012 and, accordingly, the allotment was made to him vide application for allotment dated 25.08.2012. He further submitted that the complainant opted for Installment Payment Plan, in accordance with which, a sum of Rs.22,58,751/- was due for payment by 04.03.2013 but he failed to make the requisite payment, despite repeated reminders/notices issued by the appellants.  He further submitted that all the terms and conditions of the said application form were accepted by him and duly signed by himself, therefore, he was well versed with the terms and conditions of the application for allotment but the District Forum erred in allowing the complaint, without appreciating the terms and conditions of the application for allotment. He further submitted that the appellants had specifically relied upon Clause 16 of the terms and conditions of the said application form dated 25.08.2012, whereby, it was made clear to the complainant that the payment without delay was the essence of the said application form, which was agreed by him but he had failed to honour the said clause and rather defaulted by not making the due amount payable, as per the payment schedule opted by him. He further submitted that as per the payment plan opted by the complainant, he had to pay 15% of the total price less booking amount paid by him within two months of the application for allotment but he failed to pay the same,  despite various reminders/letters to the complainant and, therefore, the appellants were left with no other option but to cancel the allotment of the complainant vide cancellation letter dated 04.03.2013 and, accordingly, the booking amount paid by him (complainant), stood forfeited in the light of Clause No.27 of the terms and conditions of the application form and, appellants validly and legally allotted the same to some third person, after the cancellation of the allotment of the said independent floor. He prayed for setting aside the impugned order and allowing the appeal.  

12.            The Counsel for the respondent/complainant submitted that instead of refunding the booking amount, the appellants/Opposite Parties wrongly cancelled the allotment of the unit and forfeited the booking amount, which amounted to clear deficiency on their part. He further submitted that the Opposite Parties resold/re-allotted the independent floor, in question, to some other person at higher price. He further submitted that the Opposite Parties also adopted unfair trade practice by making false and misleading representation for alluring the consumer for applying the independent floor in their project. He further submitted that the District Forum rightly allowed the complaint and directed the Opposite Parties, to refund the amount.

13.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellants/Opposite Parties, Counsel for the respondent/complainant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be accepted, for the reasons to be recorded, hereinafter.

14.            The core question, that falls for consideration, is, as to whether, the appellants/Opposite Parties rightly forfeited the amount, as deposited by the complainant. The answer, to this, is in the affirmative. Admittedly, the complainant, after paying an amount of Rs.6 Lacs towards booking amount, and submission of application form for allotment dated 25.08.2012, was allotted Independent Floor No.IF-R2-E801-FF/P-R2-E801-FF in the project of the Opposite Parties i.e. Hyde Park Estate IF, New Chandigarh (Mullanpur PA), Punjab vide allotment letter dated 03.09.2012 (Annexure R-3). The total price of independent floor was Rs.80,12,800/- and the complainant opted the Installment Payment Plan, as stipulated at page No.54 of the application form. Clearly, the allotment of the Independent Floor to the complainant, was to be regulated in accordance with the terms and conditions of the application form and the payment plan opted by him. The complainant had opted for Installment Payment Plan, according to which, a certain amount of money had to be paid by the allottee every two months for a period of 2.5 years. As per the terms and conditions of the application form (at page No.55 of the District Forum record), earnest money means booking amount paid by the applicant alongwith the application. As per the payment plan opted by the complainant, he had to pay 15% of the total price less booking amount paid by him within two months of the application for allotment. The appellants/Opposite Parties, in terms of the schedule of payment, opted by the complainant, vide Demand-cum-Intimation Notice dated 09.10.2012 (Annexure R-4), asked him to remit an amount of Rs.6,38,318/- by 27.10.2012. When the aforesaid amount of Rs.6,38,318/- was not paid by the complainant, the Opposite Parties issued reminders dated 29.10.2012 and 16.11.2012 (Annexure R-5 and Annexure R-6), asking him to remit the said amount, without any further delay as the time was the essence of the contract executed between the complainant and the Company, whereby, he agreed to pay the installments as and when due and demanded by the Company but the complainant failed to deposit the said amount. Subsequently, final notice dated 03.12.2012 (Annexure R-7) was sent to the complainant to remit the amount of Rs.6,44,432/- with other dues positively by 19.12.2012. Thereafter, the appellants sent Demand-cum-Intimation Notice dated 19.12.2012 (Annexure R-8) to the complainant and requested to remit the amount of Rs.14,75,583/- positively by 27.12.2012, followed by a reminder dated 29.12.2012 (Annexure R-9) to remit the amount of Rs.14,75,583/- and another reminder on 15.01.2013 (Annexure R-10) to remit the amount of Rs.14,81,740/- but the complainant failed to pay the said amounts to the appellants.  The Counsel for the appellants/Opposite Parties has drawn our attention to Clause 16 of the terms and conditions of the application form dated 25.08.2012, which is reproduced as under :-

“16.    The Applicant agrees that time shall be the essence in respect of all payments to be made by the Applicant including Total Price and all other amounts, charges and dues, payable by the Applicant as per the payment plan opted by Applicant and/or as demanded by the Company from time to time and as mentioned in this Application/Agreement.”

From the afore-extracted clause, it is clearly proved that the payment without delay is the essence of the said application form, which was duly accepted by him while signing the same but he failed to honour the said clause and rather defaulted by not making the due amount payable, as per the payment schedule opted by him.  However, when the complainant did not come forward to discharge his obligation and failed to deposit the amount, the appellants/Opposite Parties rightly forfeited the booking amount of Rs.6 Lacs, and cancelled the allotment vide letter dated 04.03.2013 (Annexure R-11), in accordance with Clause 27 of the terms and conditions, forming part of the application form for allotment, which is reproduced hereunder:-

“27.    The Applicant agrees that the Company shall be entitled to forfeit the Earnest Money along with the Non refundable Amounts in case of non fulfillment/breach of the terms and conditions of the Application and the Agreement including withdrawal of the Application and also in the event of failure by the Applicant to sign and return to the Company, the Agreement within thirty (30) days from the date of its dispatch by the Company. Thereafter the Applicant shall be left with no lien, right, title, interest or any claim of whatsoever nature in the Said Independent Floor/Parking Space. The Company shall thereafter be free to resell and/or deal with the said Independent Floor in any manner whatsoever. The amount(s), if any, paid over and above the Earnest Money and the Non Refundable Amounts, would be refunded to the Applicant by the Company only after realizing such amounts from resale of the Said Independent Floor but without any interest or compensation of whatsoever nature. The Company shall at all times have the first lien and charge on the Said Independent Floor for all its dues payable by the Applicant to the Company. If the amount deposited/paid by the Applicant is less than the Earnest Money and the Non-Refundable Amounts then the applicant agrees and undertakes to make the payment of the difference forthwith at the first written request from the Company.”

 

15.          The District Forum, thus, grossly erred in holding in Para No.9 of its order that the Opposite Parties cannot be allowed to enrich themselves by forfeiting/digesting the hard earned money of the poor consumers like the complainant, which amounted to unfair trade practices. It is evident that due and adequate opportunity to comply with the terms and conditions of allotment, was afforded to the complainant. In fact, despite repeated notices/reminders, the complainant failed to pay the amount, demanded by the Opposite Parties in accordance with terms of allotment and as per the cancellation letter (Annexure R-11), the earnest money including interest on delayed payments i.e. Rs.14,08,731/-, was forfeitable, yet since the complainant had deposited only Rs.6 Lacs, the appellants/Opposite Parties rightly forfeited the amount to that extent only. The cancellation of allotment and forfeiture of earnest money was done after affording due opportunity to the respondent/complainant. Clearly, the appellants/ Opposite Parties were well within their right to allot the independent floor, in question, to somebody else and the same did not, in any manner, amounted to indulgence into unfair trade practice. When the respondent/complainant did not make payment, as per the terms and conditions of the application form and the plan opted by him, the appellants/Opposite Parties could not indefinitely keep the property in the name of the respondent/complainant and incur losses there for.

16.            Since the terms and conditions were binding upon the respondent /complainant, and he failed to adhere to the same, there was no deficiency, in rendering service or indulgence into unfair trade practice on the part of the appellants/Opposite Parties, in cancelling the allotment and forfeiting the amount. In these circumstances, the District Forum wrongly held the appellants/Opposite Parties deficient in rendering proper service to the respondent/complainant.

17.            In view of the above discussion, it is held that the District Forum, erred in allowing the complaint and order passed by it, suffers from illegality, warranting the interference of this Commission.

18.            For the reasons recorded above, the appeal, filed by the appellants/Opposite Parties, is accepted, with no order as to cost. The order of the District Forum is set aside. Consequently, the complaint filed by the respondent/complainant, before the District Forum, is dismissed with no order as to costs.

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

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

Pronounced.

22.05.2015                                                                 Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER