State Consumer Disputes Redressal Commission
Dlf vs Bharminder Singh on 23 August, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 348 of 2013 Date of Institution : 12.08.2013 Date of Decision 23.08.2013 1] M/s DLF Home Panchkula Pvt. Ltd., Regd. Office 12th Floor, DLF Gateway Tower, DLF City, Phase-III, NH-8, Gurgaon 122002, Haryana, through its Managing Director. 2] Regional Manager, M/s DLF Homes Panchkula Pvt. Ltd., Shop No.101-102, DLF City Centre, IT Park, Kishan Garh, Chandigarh 160101 Appellants/Opposite Parties. Versus Bharminder Singh Mann son of Sh.Sadhu Singh Mann, R/o H.No.872, Sector 2, Panchkula. ....Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Avinit Avasthi, Advocate for the appellants.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 29.5.2013, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint, filed by the complainant against the Opposite Parties (now appellants) and directed them as under:-
11] In view of the foregoings, we are of the opinion that the complaint must succeed. The same is accordingly allowed. The OPs are directed to refund the entire deposited amount of the complainant i.e. Rs.10.00 lacs as well as to pay compensation amount of Rs.50,000/- for causing him mental & physical harassment, apart from paying litigation cost of Rs.15,000/-.
This order be complied with by the OPs within a period of 30 days from the date of receipt of its certified copy, failing which the OPs shall be liable to pay the above awarded amount of Rs.10,50,000/- along with interest @12% p.a. from the date of filing this complaint i.e. 06.12.2012 till its actual payment, besides paying litigation cost of Rs.15,000/- as aforesaid.
2. Briefly, the facts of the case are that, the complainant booked one Flat No.D6/24/SF with the Opposite Parties, in their upcoming Project namely DLF Valley, Panchkula on payment of Rs.4.00 Lacs through draft.
The basic sale price of the said flat was fixed as Rs.65,29,530/- and additional charges viz. external development charges, infrastructure development charges and maintenance security were payable by the complainant. It was stated that the initial payment of Rs.4.00 Lacs and submission of application form were made through authorized channel partner of the Opposite Parties, and all the formalities were done through it. It was further stated that it came to the notice of the complainant that the Opposite Parties were not having the requisite clearance and permissions from the authorities concerned. The fact was brought to the notice of the Opposite Parties, but their Manager misled the complainant and gave false assurance about the project. It was further stated that, the complainant further paid Rs.6.00 Lacs through cheque, which was cleared and credited into the account of respondent/Opposite Party Company (Annexure C-3). But the Opposite Parties did not issue any receipt for the said payment. It was further stated that the complainant sought information from the Opposite Parties about the status of clearances and tentative date of start of construction of the section concerned (Annexure C-4), but they instead raised the demand of Rs.11,18,782.79 showing payment due date as 31.5.2011. Thereafter, another demand of Rs.19,18,092.90 was raised by the Opposite Parties, which was protested by him, as he had opted for the construction linked plan, whereas, the construction was not started. It was further stated that the Opposite Parties instead of satisfying the complainant by providing the details of the clearances, approvals etc, issued cancellation letter dated 28.7.2011 qua the flat booked. It was further stated that in the cancellation letter, the amount deposited by the complainant was shown as Rs.4.00 Lacs only, whereas he paid a total sum of Rs.10.00 Lacs. It was further stated that on agitating the cancellation, the Opposite Parties told the complainant that all clearances had been obtained and to avoid cancellation, the complainant had to pay the outstanding amount. It was further stated that in good faith, the complainant again issued a cheque of Rs.19,24,350/- but the Opposite Parties were requested that before forwarding the cheque for realization, the receipts of payment already made and the clearance of the project by the authorities be provided to the complainant. However, it was not done. As such, the complainant stopped the payment of the said cheque of Rs.19,24,350/-, and the same was dishonoured on presentation by the Opposite Parties. It was further stated that since no work was going on at the site and total amount paid by the complainant was not being accounted for, he sought refund of his deposited amount of Rs.10.00 Lacs, but to no effect.
3. It was further stated that a legal notice (Annexure C-8), was sent which was replied to but in the reply, the Opposite Parties denied the receipt of payment of Rs.6.00 lacs made through cheque, which was duly credited in their account. 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 Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), seeking directions to the Opposite Parties, to refund a sum of Rs.10.00 Lacs alongwith interest @18% per annum; pay Rs.1 Lac as compensation for mental agony; and Rs.25,000/- as costs of litigation, was filed.
4. The Opposite Parties, in their joint written version, admitted the allotment of flat, in question, in the name of complainant, as well as payment of Rs.4.00 Lacs as booking amount. It was also admitted that the amount of Rs.6.00 Lacs was received by the Opposite Parties, but was wrongly credited into the account of some other party. It was assured to the complainant that the amount of Rs.6.00 Lacs paid by him would be credited against his property. It was stated that the complainant was requested to provide the details of the cheque deposited by him, but he failed to provide the same. It was denied that the complainant was given assurance by the Opposite Parties, that the possession would be given within 21 months of allotment. It was further stated that as per the payment plan opted by the complainant, he had to pay 20% of the basic sale price within two months, as agreed to by him, but since he failed to comply with the same and neglected to pay the balance amount due, as per the payment plan, in-spite of reminder, therefore, his allotment was canceled and the amount so paid stood forfeited. It was further stated that the construction was in full swing, but the progress of the project came to halt only after the interim order passed by the Honble Supreme Court in SLP No.21786-21788 of 2011 in case titled as Ravinder Singh & Others Vs. State of Haryana, wherein the acquisition proceedings were challenged by the petitioner regarding the land, on which, the Opposite Parties were building the project, in question. It was further stated that the contention of the complainant that the Opposite Parties did not have the requisite permission from the competent authorities was wrong and hence denied and the delay, if any, caused in the progress of the project was due to the stay order. 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. The remaining averments, were denied, being wrong.
5. The complainant filed replication wherein, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version, filed by the Opposite Parties.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
9. We have heard the Counsel for the appellants/Opposite Parties, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellants/Opposite Parties, submitted that the District Forum overlooked Clause 34 of the application for allotment, which stated that in case of any dispute, arising between the complainant/respondent and the appellants, the same shall be resolved through arbitration. It was denied that construction of the flat was not going on. It was stated that the progress of the project came to a halt after the interim order was passed by the Honble Supreme Court in SLP No.2176 21788 of 2010. It was further submitted that the District Forum erred in allowing the false complaint observing that onus was on the appellants that the project/scheme, in question, had been launched after taking necessary approvals, permissions and clearances from the concerned Government Departments/Agencies. It was further submitted that all necessary clearances and permissions had lawfully been obtained from the competent authorities for building the above mentioned township. It was further submitted that the list of documents, pertaining to necessary permissions and clearances, obtained by the appellants, before commencing the construction, were annexed as Annexure A/4 (Colly). It was further submitted that the District Forum overlooked Clause 11 of the terms and conditions of the said application form, whereby the applicant had agreed that the time was the essence in respect of all payments, to be made, by him. It was further submitted that the District Forum overlooked Clause No.21 for allotment wherein, it was agreed to by the respondent/complainant that if he was unable to pay the dues on time, then the earnest money alongwith other non-refundable amount, shall be forfeited by the appellants. It was admitted that the respondent/complainant had further paid an amount of Rs.6,00,000/- which was wrongly credited into the account of some other party. It was further submitted that the District Forum failed to appreciate Clause 26 of the terms and conditions of the application form dated 31.03.2011.
Lastly, it was prayed that the appeal filed by the appellants/Opposite Parties, be allowed, and the impugned order dated 29.05.2013 passed by the District Forum be set aside.
11. It is evident from record, that the respondent/complainant booked a flat, with the appellants/Opposite Parties, the price whereof was Rs.65,29,530/-. Besides this external development charges, infrastructure development charges and maintenance security were payable by the complainant. Payment of Rs.10 Lacs is an admitted fact by the parties.
12. After giving our thoughtful consideration, to the submissions, made by the Counsel for the appellants/Opposite Parties and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons to be recorded hereinafter.
13. The first question, that arises for consideration, is, as to whether, the complaint under Section 17 of the Consumer Protection Act, was maintainable or not before the District Forum, on account of the reason, that an arbitration Clause 34 existed in the application form for allotment. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under ;
3.Act not in derogation of any other law.
The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.
14. Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the document, aforesaid, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act. Similar principle of law, was laid down, in Fair Engg. Pvt. Ltd. & another Vs N.K.Modi (1996)6 SCC385 and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC233. In this view of the matter, the submission of the Counsel for the appellants/Opposite Parties, being devoid of merit, must fail, and the same stands rejected.
15. The next question, which arises for consideration is, as to whether, the appellants/Opposite Parties had all the necessary permissions and sanctions and whether the construction was going on as per the construction linked payment plan. As per Construction Linked Payment Plan, annexed to Annexure R-1, which the appellants/Opposite Parties, claimed to have sent to the respondent/complainant, 95% payment was to be made within 21 months of the booking at different stages or on filing of application for completion certificate, whichever was later, which meant that construction was to be completed substantially within 21 months. Clause 18 of the terms and conditions, forming part of the application for allotment in the project, in question, is extracted below:-
Subject to other terms of this Application and the Agreement including but not limited timely payment of the Total Price and other amounts, charges and dues as mentioned in the Application/Agreement, the Company shall endeavor to complete the construction of the Said Independent Floor within Twenty Four (24) months from the date of execution of the Agreement by the Company and thereafter the Company shall offer the possession of the Said Independent Floor to the Applicant along with the execution of the Conveyance Deed. Any delay by the Applicant in taking the possession would attract charges @Rs.10/- per sq. ft. (Rs.107.64/- per sq. mtr.) per month of the saleable area of the Said Independent Floor for any delay of one month or any part thereof. Subject to the terms and conditions of the Agreement, in case of delay by the Company in completion of the construction of the Said Independent Floor the Company shall pay compensation @10/- per sq. ft. (Rs.107.64/- per sq. mtr.) per month of the saleable area of the Said Independent Floor to the Applicant, which both parties agree in a fair, just and equitable and reasonable estimate of the damages that the Applicant is not in breach of any of the terms of this Application/Agreement. The adjustment of such compensation shall be done at the time of execution of conveyance deed.
16. The application of the respondent/ complainant, for allotment of an Independent Floor in DLF Valley, Panchkula, is dated 31.03.2011 (Annexure R-1) and he made payment of Rs.10 Lacs i.e. Rs.4.00 Lacs on 31.3.2011 (Annexure C-2) and Rs.6.00 Lacs on 28.04.2011 (Annexure C-3), which was well within two months of the application. An amount equivalent to 20% of the total price, less Rs.10.00 Lacs, was to be deposited within two months of the booking. The appellants/Opposite Parties, did not acknowledge the payment of Rs.6.00 Lacs, despite persuasion/ communication (Annexure C-4) by the respondent/complainant. The respondent/ complainant, before depositing further amount, wanted to know, as to whether the appellants/Opposite Parties had necessary approvals and whether there was a ruling against the Company from CCI (Annexure C-4). The respondent/complainant clearly expressed that only after knowing the factual position, one could pay his hard earned money to the Opposite Parties. The respondent/complainant did not get any reply to this communication. The appellants/Opposite Parties, in their written statement, denied these averments of the complainant and pleaded that they had all the necessary clearances and permissions obtained from the competent authorities, and also asserted that construction was in full swing but no cogent evidence, in support of their stand, was produced on record. The written statement filed by the Opposite Parties, before the District Forum, and verification thereof, was not signed by the Opposite Parties. Even sworn affidavit was not filed. Had the appellants/Opposite Parties been in possession of the necessary approvals and permissions, they would have very well produced the same, in evidence, before the District Forum. They also did not bring in evidence any report of an expert engineer/architect to the effect that the construction was in progress. In the legal notice (Annexure C-8) sent to the appellants/Opposite Parties, it was, inter-alia, pointed out that the appellants/Opposite Parties were not having requisite clearances and permissions. While replying to the legal notice vide letter dated 27.09.2012 (Annexure C-9), the appellants/Opposite Parties, denied receipt of payment of Rs.6.00 Lacs made by the respondent/complainant. Such deficient service was bound to shake the faith of the respondent/complainant and obviously, he could have made further payments only after satisfying himself that his hard earned money was being accounted for properly. Clearly, the appellants/Opposite Parties, have admitted in Para 8 of their written statement that a sum of Rs.6.00 Lacs was received from the respondent/complainant and the same was wrongly credited into the account of some other party.
17. Further when the respondent/complainant came to know that construction was not going on as per payment linked plan and that the appellants/Opposite Parties did not have necessary permissions and sanctions, he seemed to have become apprehensive about the genuineness of the project. It is, however, in evidence that the respondent/complainant issued a cheque of Rs.19,24,350/- dated 23.11.2011, payment of which, was stopped by him subsequently. The appellants/Opposite Parties vide Annexure C-7, requested the respondent/complainant to remit the overdue amount/payment urgently. Annexure C-7, which was issued on 28.11.2011, impliedly superseded cancellation letter dated 28.07.2011 and forfeiture of Rs.4 Lacs (Annexure C-6). In case Kamal Sood Vs. DLF Universal Ltd., reported as III(2007) CPJ-7 (NC), it was held that a builder should not collect money, from the prospective buyers, without obtaining the required permissions, such as zoning plan, layout plan, and schematic building plan. It is the duty of the builder, to obtain the requisite permissions or sanctions, such as sanction for construction etc., in the first instance, and, thereafter, recover the consideration money from the purchasers of the apartments/building. The ratio of law, laid down, in the aforesaid case, is squarely applicable to the facts and circumstances of the instant case. By collecting huge money from the prospective buyers, without having requisite permissions, in the first instance, for raising the construction etc., the Opposite Parties indulged into unfair trade practice.
18. The evidence/documents, now produced, in appeal, were very much in possession of the appellants/Opposite Parties, which they could produce before the District Forum during the pendency of the complaint. Without producing any evidence, it was pleaded, that the construction was in progress. In the absence of production of any documentary evidence, before the District Forum, regarding the grant of approvals/clearances, by the concerned authorities, it could very well be presumed that no such approvals were granted. Thus, the Opposite Parties, without obtaining the necessary approvals/clearances, mislead the potential users, including the complainant, and fleeced them of their hard earned money and kept on using the same. At the stage of appeal, the documents produced by the Opposite Parties/appellants could not be taken into consideration.
19. The Opposite Parties launched the project, without taking prior permissions and approvals from the concerned Authorities/Departments and, thus, indulged into unfair trade practices. These acts on the part of the appellants/Opposite Parties, also amounted to deficiency, in rendering service, on their part. One could really imagine the plight of a person, who had deposited his hard earned money to the tune of Rs.10 Lacs, for the allotment of a flat, to reside therein, but later on came to know that there were no permissions and approvals for raising construction. The District Forum was right in awarding compensation to the tune of Rs.50,000/- for mental agony and physical harassment, suffered by the complainant and for unfair trade practice adopted by the Opposite Parties. Compensation awarded by the District Forum, could not be said to be excessive, unfair or unreasonable, but on the other hand, it could be said to be fair, reasonable and adequate.
20. No other point, was urged, by the Counsel for the appellants/Opposite Parties.
21. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
22. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
23. Certified copies of this order, be sent to the parties, free of charge.
24. The file be consigned to Record Room, after completion.
Pronounced.
23rd August, 2013.
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT [DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.348 of 2013) Argued by: Sh. Avinit Avasthi, Advocate for the applicants/appellants.
Dated the 23rd day of August 2013.
ORDER Alongwith the appeal, an application for condonation of delay of 38 days as per the applicants/appellants (37 days as per the office report), in filing the same (appeal) has been filed, by the applicants/appellants.
2. Arguments, on the application for condonation of delay, 38 days as per the applicants/appellants (37 days as per the office report), in filing the appeal, at the preliminary stage, heard.
3. We are of the considered opinion, that no doubt, there is delay of 37 days, in filing the appeal, yet, the same cannot be said to be so huge, to deny the substantial justice. It is settled principle of law, that technicalities should not stay, in the way of the Commission, in granting substantial justice. Every lis, should normally be decided, on merits, than by default. The procedure, is, in the ultimate, the handmaid of justice, meant to advance the cause thereof, than to thwart the same. When the procedural wrangles, and the substantial justice, are pitted against each other, then the latter will prevail over the former.
4. Hence, in view of the reasons, mentioned in the application, which is supported by a duly sworn affidavit of Sh. Vinod Kumar, Authorised Signatory of the appellants/Opposite Parties, and finding sufficient cause, the delay aforesaid, in filing the appeal, is condoned. The application is disposed of, accordingly.
5. Arguments, in the main appeal already heard.
6. Vide our detailed order of even date, recorded separately, the appeal has been dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum has been upheld.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad