Delhi

StateCommission

A/57/2015

M/S DLF NEW GURGAON HOMES DEVELOPERS LTD. & ANR. - Complainant(s)

Versus

SH. RAJESH KUKREJA - Opp.Party(s)

23 Nov 2015

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                 Date of Decision: 23.11.2015

First Appeal No. 57/2015

(Arising out of the order dated 02.12.2014 passed in complaint case No. 162/2010 by the District Consumer Disputes Redressal Forum-VI, ‘M’ Block, Ist Floor, Vikas Bhawan, I.P.Estate, New Delhi-110002)

In the matter of:

 

1. M/s DLF New Gurgaon Homes

Developers Ltd.

DLF Centre, Sansad Marg

New Delhi-110001

 

2. Sh. Satish Kumar Tyagi
3.  

DLF New Gurgaon Homes Developers Ltd.

H. No. 92, Khasra-360, Ghazipur

Near NH-24, Delhi-110096

 

3. Sh. Nilesh Ramjiyani
4.  

DLF New Gurgaon Homes Developers Ltd.

C-62, First Floor, East of Kailash

New Delhi-110065

 

4. Sh. Surendra Kumar Sharma
5.  

M/s DLF New Gurgaon Homes

Developers Ltd.

A-30, Girimarg, Mandawali Fazalpur

Complex, New Delhi-110092

 

5. Ms. Shweta Awasthi
6.  

M/s DLF New Gurgaon Homes

Developers Ltd.

Flat No. 113, Plot No. 104, Ashirwad

Enclave Society

Patparganj, New Delhi-110092                                  Appellants

 

Versus

 

Sh. Rajesh Kukreja

S/o Sh. D.R.Kukreja

R/o EG-04, Parsvnath Prestige

Sector 93-A, Noida Expressway

Noida                                                      Respondent

 

CORAM

N P KAUSHIK                                -                       Member (Judicial)

S C JAIN                                         -                       Member

1.     Whether reporters of local newspaper be allowed to see the judgment? Yes

2.     To be referred to the reporter or not? Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGEMENT

1.     Appellant has impugned the orders dt. 02.12.2014 passed by the Ld. District Forum-VI, New Delhi. Vide impugned orders the appellant herein was directed to pay to the complainant/respondent herein interest @ 9% p.a. on the amount deposited by him till the date of its payment. Ld. District Forum also directed for refund of an amount of Rs. 01,49,783/- allegedly paid by the appellant herein towards brokerage. The said amount was also directed to be paid @ 9% p.a. from the date of its payment.
2.     Facts of the case are not in dispute. Parties shall be referred hereinafter by their original status in the complaint in the District Forum.
3.     OP floated an advertisement for a residential scheme called ‘New Town Heights’ in Section 86 of the Gurgaon. It is the admitted case of the OP that he did not get environmental clearance for the project in question. Despite this, OP kept on collecting money from the various prospective buyers. Complainant in the present case deposited an amount of Rs. 26,82,563/-. On failure of the OP to start with the construction of the project, OP sent a letter to its various customers asking them to exercise ‘exit option’ either to continue with the project or to opt for the exit option. The said exit option was given somewhere in April 2009. Initial booking of the flat was done on 07/02/2008.
4.     Defence raised by the OP was that there existed a contract between the parties and for that reason the complainant was not entitled to recover the amount of Rs. 01,49,783/- paid by the OP to the brokerage. Next submission made by the OP was that the complainant had not paid all the instalments on time after receiving demand notice. Contention of the OP is that the complainant is not entitled to any interest on the amount deposited by him. For this purpose, OP has relied upon clause 8 of the terms and conditions of the provisional allotment annexed to the application form.
5.     With the aforesaid factual matrix, we are confronted with the question as to whether the OP rightly forfeited the amount of brokerage allegedly paid by him to the broker. Besides this, the question arises as to whether the OP was not liable to pay any interest on the amount deposited by the complainant.
6.     Before proceeding further, it may be mentioned here that the project did not take off due to lack of environmental clearance. Ld. District Forum observed that the OP did not file any affidavit either sworn by him or the Shefali Brokers to saying that the apartment in question was booked through the broker only. Ld. District Forum opined that a simple stamp of Shefali Broker without indicating the brokerage amount, did not prove anything.
7.     We have heard the arguments addressed by the Ld. Counsel for the OP (Appellant) Sh. Aditya Narayan, Advocate and the counsel for the complainant (respondent) Sh. R.K.Sahani, Advocate, at length. Ld. Counsel for the OP Sh. Aditya Narayan has simply relied upon clause 8 of the terms and conditions annexed to the application form for allotment. The same is reproduced below:

 

“Applicant(s) hereby agreed that the company shall be entitled to forfeit the Earnest Money along with the interest on delayed payments, interest on instalments (paid or payable) and brokerage paid, if any, etc. in case of non-fulfilment of the terms and conditions herein contained and those of the Apartment Buyer’s Agreement and also in the event of failure by the Applicant(s) to sign and return to the Company the Apartment Buyer’s Agreement within thirty (30) days from the date of its dispatch by the Company.”

 

8.     A careful perusal of clause 8 shows that it is applicable only in case of any default committed by the complainant for timely payment of the instalments. Brokerage and interest thereon is not attracted in an eventuality when the project itself does not take off. It may also be mentioned here that the no Apartment Buyer’s Agreement was entered into subsequently between the parties.
9.     Ld. Counsel for the OP has relied upon the Exit Scheme. Penultimate para of which is relevant. The same is reproduced below:

 

“We have done our best by doing all the above, to keep you happy and satisfied in the project and are also doing our best to start the construction within a month’s time positively. Despite all the above, if you are still not happy to continue, you may exercise the EXIT OPTION, and please let us know so that we shall do our best to re-trade your property and refund the amounts paid by you, in the shortest period, but, maximum within 6 month’s time, even if we are not in a position to do re-trading by then. We would also like to clarify here that we shall not be doing any further concessions/discounts, of whatsoever nature.

 

10. Vide abovesaid scheme, the OP ventured to further sell the apartments sold by him including the apartment in question. OP wanted to trap the gullible customers by keeping them in dark that the project had not taken off.
11.  Ld. Counsel for the OP has argued that the complainant  committed default by not making payments after having paid an amount of Rs. 26,82,563/-. Complainant was within its right not to make further payments when the OP had not even started the construction.
12.  Ld. Counsel for the OP has argued that the complainant having encashed the cheque for an amount of Rs. 25,32,780/-, was not entitled to seek relief from any court of law. Reliance has been placed upon the case of Bhagwati Prasad Pawan Kumar Vs. Union of India (2006) 5 Supreme Court Cases 311. In the said case, while sending the cheque, a condition was stipulated that in case the offer was not acceptable, the cheque should be returned forthwith. Coming to the case in hand, the cheque for an amount of Rs. 25,32,780/- was sent on 30.10.2009. Cheque was got encashed on 03.11.2009. The complainant made protest to the OP vide its letter dt. 10.11.2009. Clearly, it was immediately after the encashment of the cheque that the complainant discovered the factum of less payment by OP and made a protest. The case thus cited by the Ld. Counsel for the OP is of no avail.
13.  OP has not placed on record any communication from the complainant opting for the exit policy. An e-mail dt. 12.04.2009 sent by the complainant to the OP shows that the complainant had raised certain queries which remain unanswered. It, therefore, cannot be concluded that the complainant actually opted for the exit policy.
14.  OP has failed to place on record any cogent evidence to show that it paid the alleged brokerage amount of Rs. 1,49,783/- to the broker. There is no agreement between the parties to the effect that in the event of the project not taking off, the amount received towards brokerage was liable to be forfeited.
15.  In view of the reasons above, we are of the considered opinion that the OP was not only ‘deficient in service’ but also indulged in ‘unfair trade practice’ by re-allotting the apartments knowing fully well that he won’t be also to start with the project for want of environmental clearance. Appeal is, therefore, dismissed with costs of Rs. 50,000/- and the costs to be deposited in Consumer Welfare Fund of the State maintained by this Commission.
16.  Copy of the order be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.
17.  FDR, if any, deposited by the appellant be released as per rules.

 

(N P KAUSHIK)
MEMBER (JUDICIAL)

 

 

(S C JAIN)

MEMBER