Delhi

StateCommission

FA/12/1100

DLF NEW GURGAON HOME DEVELOPERS LTD. - Complainant(s)

Versus

SUSHMA CHANDRA GUPTA & ANR. - Opp.Party(s)

15 Mar 2019

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Hearing:15.03.2019

                                                                                                              

                                                                   Date of decision:04.04.2019

 

 

First Appeal No. 1100/2012

 

IN THE MATTER OF

 

          DLF New Gurgaon Home Developers Ltd.

DLF Centre, Sansad Marg,

New Delhi-110001                                                         ….Appellant

 

VERSUS

 

 

Mrs. Sushma Chandra Gupta

W/o Suresh Chandra Gupta

C/o Awdhesh Kumar Gupta

Flat No. 601, Shipra Apartments

Opposite Anand Vihar,

ISBT Kaushambi, Ghaziabad-201010

 

Sh. Suresh Chandra Gupta

S/o Late Sh. Nathu Ram Gupta

C/o Awdhesh Kumar Gupta

Flat No. 601, Shipra Apartments

Opposite Anand Vihar,

ISBT Kaushambi, Ghaziabad-201010....Respondents

 

HON’BLE  SH. ANIL SRIVASTAVA, MEMBER                            

               

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

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

 

Present:       Ms. Kriti Singh, Counsel for the appellant

                   Sh. S.K. Jain and Sh. Akshu Jain, Counsel for the respondents

 

ANIL SRIVASTAVA, MEMBER

JUDGEMENT

1.           Aggrieved by the orders dated 24.07.2012 passed by the Consumer Disputes Redressal Forum-VI, in the matter of Mrs. Sushma Chandra Gupta and Mr. Suresh Chandra Gupta, wife and husband, resident of Kaushambi, Ghaziabad versus DLF New Gurgaon Homes, awarding a total compensation of Rs. Five Lakhs to the OPs and directing the OPs to refund to the complainant the booking amount of Rs. Five Lakhs within 30 days, the DLF New Gurgaon Homes Developers Ltd. have preferred an appeal before this Commission, for short appellant, under Section 15 of the Consumer Protection Act 1986 (the Act) against Mrs. Sushma Chandra Gupta and Anr, hereinafter referred to as respondent, alleging that the impugned order is contrary to the facts and law and praying for the relief as under:

 

1. Staying the operation of the impugned order dated 24.07.2012 passed by the District Consumer Disputes Redressal Forum-VI, New Delhi;
2. Setting aside/quashing the impugned order dated 24.07.2012 passed by the District Consumer Disputes Redressal Forum-VI, New Delhi;
3. Allowing the present appeal and staying the execution proceedings, if any, initiated by the respondent herein;
4. Pass such further order(s)/direction(s) as may be deemed fit and proper in the facts and circumstances of the present case.

 

2.           Facts of the case necessary for the disposal of the appeal are these.
3.           The complainant/respondent had approached the appellant for allotment of a 1760 sq. ft. flat in their project, namely, New Town Heights DLF Gurgaon at Sector 90, Gurgaon by paying the booking amount of Rs. Five Lakhs on 11.02.2008 and in response thereto the complainant was allotted an apartment bearing No: GBB-184 alongwith its parking space for a total consideration of Rs. 50,40,000/-. The appellant/OPs later shifted the allotment of apartment from GBB-184 Sector-90 to another apartment number GBF-081 in the same project of the size of 2125 sq. ft. in Sector 91 for total sale consideration of Rs. 67,18,750/-, for which, according to the OP, the request was made by the complainant. However on scrutiny of record it is noticed that no such request from the complainant is on record. Infact they (Complainant) persisted with their original demand of the apartment of 1760 sq. ft. Since the OPs did not restore the original booking the complaint was filed before the District Forum which complaint stood disposed of by way of an order directing inter alia, to refund the booking amount with interest, which orders have been assailed in this appeal on the ground that the complaint before the District Forum was not maintainable since the complainant is not a consumer they having transacted in the matter not for their personal living but for investment in which case he is not entitled to raise a consumer dispute under the Consumer Protection Act 1986. Secondly the complainant/respondent were defaulter, they having not made the payment as per the terms and conditions agreed to between them. Thirdly, as per agreement the dispute if any had to be referred to an arbitration. Fourthly, the dispute in the complaint being a civil dispute, the consumer forum in the summary proceedings cannot adjudicate on the issue. Fifthly, the complainants having made the request for cancellation of the allotment, forfeiture of the amount in terms of the agreement has to be enforced. Finally the appellant is within its right to alter the allotment.
4.           Respondents were noticed and in response thereto they have filed reply resisting the appeal both on technical ground and on merit. Their first objection is that the appeal having been signed by somebody not authorised, is liable to be dismissed in limine. Secondly, the appeal having been filed beyond 30 days is barred by limitation. Thirdly, on merit, the alteration of the plot without their specific and explicit consent was against the law and cannot withstand the test of judicial scrutiny.
5.           The matter was listed before this Commission for final hearing on 15.03.2019 when the counsel for both sides appeared and advanced their arguments based on the pleadings. The ld. Proxy counsel for the appellant sought time to argue the matter by the main counsel. Liberty was granted to argue the matter till 20.03.2019 but no one appeared. Infact he did not appear till 27.03.2019. In these circumstances I proceed to finalise the order.
6.           In the first instance I may advert to the grounds taken by the appellant. Their averment that the complainant is not a consumer cannot be accepted for want of any cogent or tangible evidence. Secondly their objection regarding referring the matter to an arbitration cannot be stretched beyond a point since as per the verdict of the Hon’ble NCDRC in the matter of Aftab Singh versus Emaar MGF Land Limited and Anr in CC-701/2015, pronounced on 13.07.2017, the arbitration clause in the agreement between the complainant and builder cannot circumscribe the jurisdiction of a consumer forum. Further the issue in the given case being deficiency of service and unfair trade practice, can be adjudicated by a consumer forum. In the given case the forfeiture clause, if any, cannot be enforced since the appellant/OP did not stick to the original booking. In the given case the complainant having sought the cancellation owing to the OP having done the alteration in the matter of booking, without their explicit consent there is no question of forfeiture.
7.           Short question for adjudication in the given case is whether the complainant is entitled for the refund with compensation as prayed for and as allowed by the District Forum. The ld. Counsel for the respondent drawing the attention of a judgment of the Hon’ble NCDRC in the matter of DLF New Gurgaon Home Developers Pvt. Ltd. and ors versus Hari Singh and another as reported in 2014 SCC Online NCDRC 128, holding that the complainant is entitled for the refund, has prayed for the dismissal of the appeal.
8.           On perusal of the records I am of the considered view that the appellant were not correct when they shifted the allotment. Even if they had reasons to shift, they could have done with explicit consent which not having been done, their action per se is bad in law and their action altering the allotment having been quashed by the ld. District Forum their decision does not suffer from any infirmity. Accordingly upholding the orders of District Forum I dismiss the appeal leaving the parties to bear the cost. The appellant/OPs are accordingly directed to refund to the complainant the booking amount of Rs. Five Lakhs as also the compensation of Rs. Five Lakhs as ordered by the District Forum within 30 days from the date of receipt of certified copy of this order.
9.           Ordered accordingly.
10. A copy of this order be forwarded to the parties to the case free of cost as is statutorily required. A copy of this order be sent to the District Forum for their records. Files be consigned to records.

 

 

(ANIL SRIVASTAVA)

                                                                                MEMBER