State Consumer Disputes Redressal Commission
Delhi Development Authority & Ors. vs Anil Shah on 7 March, 2024
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,
PUNJAB, CHANDIGARH
First Appeal No.102 of 2022
Date of institution : 15.02.2022
Date of Reserve : 01.02.2024
Date of Decision : 07.03.2024
1. Delhi Development Authority, through its Chairman, Vikas Sadan,
INA, New Delhi.
2. Delhi Development Authority, through Vice Chairman, Vikas Sadan,
INA, New Delhi.
3. Delhi Development Authority, the Assistant Director (Housing),
Vikas Sadan, INA, New Delhi.
.......Appellants/Opposite Parties
Versus
Anil Shah, son of Vasant Lal, 2414, Gali No.1, Bagh Ramanand,
Amritsar, Punjab.
.......Respondent/Complainant
First Appeal under Section 41 of the
Consumer Protection Act, 2019
against the Order dated 28.09.2021
passed by the District Consumer
Disputes Redressal Commission,
Amritsar in CC No.489 of 2020.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present :-
For the appellants : Sh.Varun Chawla, Advocate for Sh.Anish Gautam, Advocate For the respondent : Sh.Shubham Mehta, Adv. for Sh.Vivek Singla, Advocate with Sh.Anil Shah, in person F.A.No.102 of 2022 2 SIMARJOT KAUR, MEMBER This Appeal has been filed by the Appellants/Opposite parties under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 28.09.2021 passed by the District Consumer Disputes Redressal Commission, Amritsar (in short 'the District Commission') whereby the Complaint of the Complainant had been allowed.
2. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Complainant before the District Commission are that the Complainant- Anil Shah had applied for a Flat under the DDA Housing Scheme 2019 for EWS. He was allotted the Flat under the category of "persons with disability" in the Draw of lots vide letter No.516/832, R.No.200035 at Flat No.2, Ground Floor, Block A-18, Pocket 5, Sector G 7, Narela. The allotment of flats to the person of disability category had an option of making payment either on cash down basis or installments as per the terms and conditions mentioned in the brochure. The DDA had offered concession of 10% in the construction cost of EWS flats and another 5% for persons with disability for the allotted flat. The Complainant was entitled for the concession offered by DDA. After the allotment, he received the Demand-cum-Allotment (DAL) letter bearing No.131942 dated 04.02.2020 from OP No.2. As per the said letter he was to pay Rs.9,24,197/- before the cut off date i.e. 06.03.2020. It was alleged that in the demand letter no concession of 10% on the construction cost was offered to the Complainant. The amount of construction cost was F.A.No.102 of 2022 3 mentioned as Rs.7,83,734/- in mentioned Demand-cum-Allotment letter, 10% of such construction cost was Rs.78,373.40 which was not offered to him. This fact was brought to the notice of OP No.3 vide letter dated 06.06.2020 but no response was received. Again the OPs issued the same demand letter to deposit the amount. The Complainant had visited the office of the DDA on 19.03.2020 in New Delhi to deposit the sale amount of the flat but due to COVID-19 he was not allowed to enter the said office. It was informed to him that the intimation of the reopening of the office would be displayed on the website of the DDA. The Complainant again sent a reminder to the OPs for concession of 10% as per the terms and conditions mentioned in the brochure. The Complainant had also lodged the Complaint bearing No.101438 dated 2.7.2020 on Toll free No. 18001-10332 of the department. In addition, the complainant sent number of reminders on 06.07.2020, 22.07.2020, 27.07.2020, 03.08.2020, 06.08.2020, 18.08.2020, 24.08.2020, 14.09.2020, 17.09.2020 through emails. The OPs had replied that the matter in question was forwarded to the concerned authorities for taking necessary action. On 18.09.2020 the complainant received reply from OPs that the calculation mentioned in the demand letter dated 06.03.2020 was correct but component wise details of costing of the sale price were not provided. The Complainant sent another email to Sh.S.P.Aggarwal, Under Secretary of the department to provide him the detailed breakup of the cost account and made number of calls but there was no response. Finally, the OPs refused to hear the grievance of the Complainant. The OPs forced the Complainant to cancel the booking of the said flat though he was ready to pay the money after deduction i.e. 10% rebate on cost of F.A.No.102 of 2022 4 construction and 5% rebate in handicapped quota as per the offer made in the brochure. He demanded for refund of Rs.25,000/- with interest that he had deposited as application processing fee after receipt of DAL. However, the OPs informed him that the said amount had been forfeited as per the terms and conditions of the offer/brochure. The Complainant was forced to cancel the flat due to unprofessional act of OPs as they had not provided him with the details/breakup of the sale price demanded by them. They had compelled him to pay excess amount. This act of OPs amounted to 'deficiency in service' on their part. Hence, the Complaint filed by the Complainant and he sought directions to be issued to OPs to refund the deposited amount of Rs.25,000/- along with interest @ 12% p.a. from the date of booking till realization; to pay compensation to the tune of Rs.50,000/- and to pay an amount of Rs.11,000/- as cost of litigation.
4. Upon issuance notice, OPs filed written version by raising certain preliminary objections before the District Commission that any dispute between the parties was subject to the jurisdiction of courts at Delhi/New Delhi only. The complaint was liable to be dismissed as per terms and conditions mentioned in brochure i.e. Ex.C-2. Since the agreed jurisdiction was at Delhi/New Delhi, the District Commission had no jurisdiction to try the Complaint. The Complaint was not maintainable as held by the Hon'ble Supreme Court of India in case "M/s. Swastik Gases P.Ltd. Vs. Indian Oil Corpn. Ltd.", in Civil Appeal No. 5806 of 2013 arising of SLP No. 5595 of 2012. The complainant himself opted for cancellation of the allotment, as such he F.A.No.102 of 2022 5 was not a consumer and was not eligible to approach the District Commission. He had applied for the said flat after agreeing to the terms and conditions. Therefore, the District Commission had no territorial jurisdiction to try the Complaint. The OPs had cited the judgments of Hon'ble Supreme Court of India in case "Hakam Singh Vs Gammon (India) Ltd.", 1971(1) SCC 286 and case of "Globe Transport Corp Vs. Triveni Engg. Works" 1983(4) SCC 707, "New Moga Transport Co. Vs. United India Insu.Co. Ltd." 2004(4) SCC 677.
5. It was admitted by the OPs before the District Commission that the Complainant had applied for a Flat under DDA Housing Scheme 2019 at Delhi office of the OP. In the draw of lots, held on 23.12.2019, the Complainant was allotted flat No. 02, Ground Floor, Block A-18, Pocket V, Sector G-7, Narela. The allotment letter was dispatched to the complainant vide letter dated 06.03.2020. Due to outbreak of COVID 19, the public dealing in the office of DDA was suspended. Thereafter, the Complainant/Allottee submitted his request through email whereby he demanded 10% subsidy/rebate on the total cost of construction of Rs.7,83,734/- as mentioned in the DAL i.e. Rs.78,373.4. However subsidy of Rs.46,286/-, 5% total of cost of land and construction had already been offered to him. It was clarified that 10% of rebate was given at the time when scheme was floated and additional 5% was given when DAL was generated. These details were mentioned in the letter No. E/339(44)2020/DDAE19/NA/4375 dated 18.9.2020 sent to the complainant wherein it was informed as under:-
F.A.No.102 of 20226
a) The cost of construction amounting to Rs.7.83,734/- as mentioned in Column 1(b) of the DAL dated 6.3.2020 is reached at after deducting the due 10% construction cost.
b) The amount of Rs.7,83,734/- is the concessional construction cost itself.
c) Further, subsidy of Rs.46,286/- was provided to the allottee at 1(E) , is in addition to the 10% rebate in the construction cost applicable for the allottees belonging to PD category;
d) It was also informed that the DAL issued to the allottee is in consonance with the calculations and he may make the payment to proceed further.
It was reiterated before the District Commission that the allottee/Complainant made a demand for refund of his application processing fee i.e. an amount of Rs.25,000/- as he had surrendered the said flat. The accounts department informed him that his request for such refund could not be entertained as he had raised the demand for refund after a lapse of 90 days from the date of issue of demand cum allotment letter (DAL) dated 06.03.2020. As per point 3(IV) of the brochure, application processing amount had to be deducted as cancellation charges. Therefore, the refund was declined vide letter dated 17.12.2020. Thus, there was no deficiency in service on the part of the OPs. All other allegations were denied and prayed for dismissal of the Complaint.
6. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was allowed vide order dated 28.09.2021 passed by the District Commission. The relevant part of said order is reproduced as under:-
"14. From the facts as above since the opposite parties acted arbitrarily and silently forfeited the amount under the garb of unilateral conditions of the agreement amounts to unfair trade practice and this Commission has no hesitation to held that the complainant has fully proved that it is a case of unfair trade practice and deficiency in F.A.No.102 of 2022 7 service. Accordingly, the complaint is allowed and the following relief is granted to the complainant which is to be made by all the opposite parties jointly and severally.
1. Opposite parties is directed to refund Rs.25000/- alongwith interest @ 9% p.a. from the date of filing of the complaint till realization ;
2. So far as compensation, since the complainant was compelled to knock the door of this Commission and the opposite parties did not bother to redress the grievance of the complainant and certainly this litigation could have been avoided . Though admittedly compensation term has not been explained in the Consumer Protection Act, however since this Act is based on principle of equity, good concise and natural justice and the Commission is empowered to provide compensation after assessing the facts of each case. In the present case the conduct of the opposite parties is so callous and in human which compelled the complainant to knock the door of this Commission, hence, the opposite parties are liable to pay exemplary compensation to meet the ends of justice. This Commission relied upon the latest law on this point of compensation i.e. the Hon'ble Supreme Court in case Amitabha Dasgupta Vs. United Bank of India and others AIR 2021 SC (Civil) 1457 wherein it has been held that " Deficiency in service-
Duty of care should be exercised by bank irrespective of application of laws of bailment to contents of locker- Bank inadvertently broke customer's locker, without giving prior notice, inspite of clearing pending dues by him- Bank acted in blatant disregard to responsibilities owned to customer as service provider- Case of gross deficiency in service- Imposition of costs of Rs. 5,00,000/- on bank, would be appropriate compensation to customer." As the complainant has suffered a lot of mental as well as physical agony due to the act of gross deficiency of service and also the act of the opposite parties falls in unfair trade practice, as such the opposite parties are being guilty of unfair trade practice as well as gross deficiency in service hence are liable to pay compensation to the tune of Rs. 50000/- to the complainant. Opposite parties are also directed to pay litigation expenses to the tune of Rs.5000/- to the complainant jointly or severally."
7. The appellants/OPs have filed the present appeal being aggrieved by the order dated 28.09.2021 passed by the District Commission by raising a number of arguments.
8. Mr.Varun Chawla, Advocate learned proxy Counsel for the Appellants, has argued on the similar lines as per the detailed reply filed before the District Commission. Learned counsel has relied upon judgments of Hon'ble Supreme Court of case titled as "Interglobe Aviation Ltd. Vs. N.Satishchand", 2011 (7) SCC 463, F.A.No.102 of 2022 8 "M/s Swastik Gases P. Ltd. Vs. Indian Oil Corp. Ltd.", Civil Appeal No.5806 of 2013, "Hakam Singh Vs. Gammon (India) Ltd.", (1971) 1 SCC 286 , "DDA Vs. Ashok Kumar Behl", (2002) 7 SCC 135 and judgments of Hon'ble National Commission of case titled as "M/s Freight System (India) Pvt. Ltd. Vs. Omkar Realtors & Developers Pvt. Ltd.", "Hoshiarpur Improvement Trust Vs. Major Amrit Lal Saini", 1 (2008) CPJ 249 NC, "Cosmos Infra Engineering India Ltd. Vs. Sameer Saksena & Ors.", I (2013) CPJ 31 (NC), in support of his arguments. All other averments alleged by the OPs were denied and they prayed for dismissed of the Complaint.
9. Mr.Shubham Mehta, Advocate, learned proxy Counsel for the Respondent/Complainant has argued on the similar lines as mentioned in the Complaint. The main grievance of the Respondent/Complainant was that the OPs/DDA never responded to his numerous communications seeking rebate of 10% as had been mentioned in the brochure. The unprofessional approach of Appellants OPs forced the Complainant to surrender his allotted flat. Learned counsel has submitted that the District Commission had rightly passed the order in his favour. Learned Counsel has relied upon judgment of Hon'ble Supreme Court of case titled as "Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors.", Civil Appeal No.5785 of 2019, decided on 11.01.2021.
10. We have heard the oral arguments raised by learned counsel for both the parties. We have also perused the order dated 28.09.2021 as well as all the relevant documents available on the file. F.A.No.102 of 2022 9
11. Facts relating to the filing of the Complaint by the Complainant before the District Commission, thereof, the oral arguments raised by learned counsel for the parties and passing of impugned order dated 28.09.2021 by the District Commission, thereafter filing of present appeal before this Commission by the appellants/OPs are not in dispute.
12. Admittedly, the Complainant had applied for Flat under the Pradhan Mantri Awas Yojna with OPs (Ex.C-4). He was issued Demand-cum-Allotment letter of the Flat under the category of "Persons with Disability" in the Draw of lots as mentioned above. The Complainant had deposited an amount of Rs.25,023.60 on 29.11.2019 (Ex.C-6) towards application process fee. The OPs had issued Demand-cum-Allotment letter (DAL) and further raised a demand of an amount of Rs.7,83,734/-. In response to said demand-cum-allotment letter, the Respondent/Complainant had immediately started enquiring from OPs regarding 10 % concession in construction cost of EWS flats allotted to him as mentioned in the terms and conditions of the brochure. The Complainant had initially visited DDA headquarter, Delhi on 18.03.2020/19.03.2020 but he could not meet the authorities as the public dealing was suspended due to outbreak of COVID-19. The Complainant kept on writing to the OPs through numerous emails/letters but OPs never replied to the same. Eventually, the OPs sent letter dated 18.09.2020, wherein it was mentioned that they had rightly offered him permissible discounts. The OPs were not able to satisfy the Complainant. Feeling aggrieved and harassed by the act of OPs, the complainant decided to surrender the said flat and sought F.A.No.102 of 2022 10 refund of Rs.25,000/-, which he had deposited as application processing fee. The claim for his refund was also rejected by the OPs.
13. Now the issues for consideration by us are as follows:
i. Whether the District Commission had territorial jurisdiction to try the Complaint or not ?
ii. Whether the Respondent/Complainant is entitled for refund of Rs.25,000/- with interest as deposited with the OPs after allotment of flat under Person with disability category or not?
iii. Whether there was any 'deficiency in service' on the part of OPs or not ?
14. We have thoroughly perused the documents placed on record by both the parties in the case file. The Appellants/OPs have a preliminary objection regarding territorial jurisdiction of the District Commission as per the provision of Clause 22 (e). This objection of the Appellants/OPs does not hold any ground as the Respondent/Complainant had filed the Complaint as per Section 34 (2)
(d) of the Consumer Protection Act, 2019, the relevant part of the Section is reproduced as under :-
34. Jurisdiction of District Commission-
(2) A complaint shall be instituted in a District Commission within the local limits of whose jurisdiction,-
(a) xxxxxxxxx
(b) xxxxx
(c) xxxxxx
(d) the complainant resides or personally works for gain.
15. Regarding the refusal to refund of an amount of Rs.25,000/- which was deposited by the Respondent/Complainant as processing fee, it has clearly been established that the Complainant F.A.No.102 of 2022 11 had tried to contact OPs by paying a personal visit to their Head quarter on 18.03.2020/19.03.2020 i.e. 15 days after he receipt Demand-cum- Allotment letter on 06.03.2020. However, he could not meet anyone in the OP department due to outbreak of COVID-19. A copy of news item dated 19.03.2020 (Ex.C-11) has been placed by the Complainant, wherein it has been mentioned that the office of DDA was closed for public dealing. Thereafter, the Complainant sent numerous emails w.e.f. 25.06.2020 to 18.09.2020 i.e. on 25.06.2020, 26.06.2020, 06.07.2020, 23.07.2020, 30.08.2020, 06.08.2020, 08.08.2020, 18.08.2020, 24.08.2020, 14.09.2020 and 18.09.2020 (Ex.C-12 to Ex.C-31), wherein he had sought clarification regarding the amount to be paid after discount of 10% on cost of construction as mentioned in the brochure issued by the OPs under the said Scheme (Ex.C-4). However, no reply was received by him. Finally the OPs had sent him reply on 18.09.2020 (Annexure B) after a period of 3-4 months, wherein it was mentioned that 10% rebate had already been given to him at the time when brochure for the said scheme was circulated (Ex.C-4). It was further mentioned in the said letter that a discount of 5% on the original sale price of flat i.e. Rs.9,25,716/- amounting to Rs.46,286/-, had already been offered to him under the category of Persons with Disability, which was mentioned at point (e) under the details of cost amount in the Demand-cum-allotment letter (Ex.C-8). Again the Complainant had sent emails to the OPs to know about the gross amount i.e. the amount which was to be paid before a rebate of 10% (Ex.C-30 and Ex.C-31). Finally the Complainant had sent a registered letter dated 22.09.2020, wherein he had mentioned that since the exact calculations towards the payment of amount of flat F.A.No.102 of 2022 12 were not provided to him, he being a handicapped person was compelled to give up the allotment of the said flat (Ex.C-32). He had further requested for refund of amount of Rs.25,000/- deposited by him as application process fee along with interest. The said request was declined vide letter dated 17.12.2020 (Annexure E).
16. It is observed that the OPs had not bothered to send reply to communications of the Complainant for a period of approximately 5/6 months. Being dissatisfied with the attitude of OPs, the Complainant was compelled to surrender his flat as communicated vide letter dated 22.09.2020 (Ex.C-32). In the said letter itself he had demanded the refund of Rs.25,000/- along with interest which had been deposited as application process fee. However, the Appellants/OPs had declined to refund the same on 17.12.202020 (Annexure E). While declining the said amount, they had cited the relevant Clauses of terms and conditions as mentioned in the brochure i.e. 3 (iv) and Clause 3 (vi), the said clauses are as reproduced below:
Clause 3 (iv) "Refund of Application Money :
The applicant may, satisfy himself with regard to location, cost, existing facilities in the surrounding area and other related issues before applying for the allotment of flat. The surrender/cancellation charges as prescribed below, shall be recovered:-
S.N. Period Surrender/Cancellation
Charges
(i) From the date of draw and upto 15thNIL
day from the date of issue of
demand cum allotment letter
(ii) From the 16th day till 30th day from 10% of the Application
the date of issue of demand cum Money.
allotment letter
F.A.No.102 of 2022
13
(iii) From 31st day till 90th day from the 50% of the Application
date of issue of demand cum Money.
allotment letter
(iv) After 90 days from the date of issue Full Application Money.
of demand cum allotment letter
Clause 3 (vi)
As per Clause 3(vi) of the brochure which is an admitted and exhibited document by the Respondent it has been mentioned "since the Application will be accepted through online mode only conditional application will not be accepted."
17. As per said reproduced clauses of the brochure and the detailed discussion, it has emerged that the delay of 90 days had occurred on the part of the Appellants/DDA and not on part of the Respondent/Complainant/Allottee. Thus, the Appellants cannot take shelter of the above said clauses as mentioned in the brochure. The refusal to refund of an amount of Rs.25,000/- so deposited by the Respondent/Complainant tantamounts to a case of deficiency in service on the part of OPs. The condition regarding forfeiture of processing fee if the allottee fails to surrender/cancel his or her flat after 90 days from the date issue of demand-cum-allotment letter (Clause 3 (iv), (iv) in the table under caption "Refund of Application Money") has been used unilaterally by the Appellants whereas there is no clause in the terms and conditions in the brochure with regard to non-action on the part of Appellants. In case the delay has been caused by OPs then what penalty could be imposed upon them. Accordingly, the plea for refusal of refund of Application process fee within a period of 90 days is rejected.
F.A.No.102 of 202214
18. It was also alleged by OPs that the Complainant himself had chosen to surrender the flat as he did not have sufficient funds to deposit towards the cost amount of the said flat. The Complainant has also tendered copies of his term deposit receipts of Central Bank of India (Ex.C-37 to Ex.C-43) to prove that he had sufficient funds to deposit. Thus, this plea of the Appellants is also rejected.
19. In view of the above mentioned facts and reasons, we are of the view that order passed by the District Commission is well reasoned and no interference is required. Accordingly, the Appeal filed by the Appellants is dismissed and the order dated 28.09.2021 passed by the District Commission is upheld.
20. The Appellants had deposited an amount of Rs.41,453/- at the time of filing the appeal with this Commission. Said amount, along with interest, which has accrued on the amount deposited by the appellants, if any, shall be remitted by the Registry to the District Commission after the expiry of 45 days of sending of certified copy of the order to the parties. The concerned parties may approach the District Commission for release of the same and the District Commission may pass the appropriate order in this regard, in accordance with law.
21. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.
F.A.No.102 of 202215
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER March 07, 2024 (Rupinder 2)