Kushal K. Rana vs Dlf Commercial Complexes Ltd. on 9 September, 2014

[Cites 3, Cited by 7]

National Consumer Disputes Redressal

Kushal K. Rana vs Dlf Commercial Complexes Ltd. on 9 September, 2014

NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION

NEW DELHI

CONSUMER COMPLAINT NO. 88 OF 2012

Kushal K. Rana, S/o. Sh. Baldev Singh Rana

R/o.
38, Top Floor, Uday Park, New Delhi 110 049 ... Complainant

Versus

M/s.
DLF Commercial Complexes Ltd.

1-E, Jandewalan Extension

Naaz Cinema Complex, New Delhi 110 055 Opposite Party

BEFORE:

HONBLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HONBLE
DR. S. M. KANTIKAR, MEMBER

For the Complainant : Mr. Veeneet Malhotra,
Advocate

With Ms. Smita Maan, Advocate

& Complainant in person

For the Opposite Party
:Mr. Aditya Narain, Advocate

With Mr. Anchit Oswal &

Ms. Anushree
Narain, Advocates

PRONOUNCED ON_9TH SEPTEMBER,
2014

O
R D E R

JUSTICE
J.M. MALIK

1. This case portrays
the story of sadness and frustration of a
business man who desired to have a business place for his own
use/livelihood. It also reveals, how it
has become difficult to have a space in this cosmopolitan city. The main reason is
that prices have gone up
by leaps and
bounds. It also depicts how a consumer has to tolerate
the tantrums of his builder/developer.

2. Mr. K.K. Rana, the complainant, is a businessman. He applied for allotment of commercial office
space/parking space to the Opposite Party, M/s. DLF Commercial Complexes Ltd.,
on 11.03.2008. The approximate super
area of the office space was 196.093 sq.mts, i.e.,
2111 sq.ft, approximately, located on the third
floor of the
proposed building, namely, DLF Tower, Shivaji
Marg-II, at 15, Shivaji Marg, Najafgarh Road, West Delhi
and deposited Rs.7,50,000/- as the
booking amount for
the provisional allotment of above
said office space, vide receipt marked
as Annexure C-1.

3. On
27.04.2008, the OP raised a demand of Rs.78,44,000/-
in respect of the said office space, due on
11.05.2008. On 28.04.2008, the OP sent a
letter of allotment of above
said premises in favour of the
complainant along with a
schedule of payment. The payment plan
initially sanctioned for the complainant was a 2.5 years
fixed payment plan.
Copy of the same has been placed on record as Annexure E. The OP again raised a demand of Rs.34,37,600/- which was
due for
payment on 11.07.2008. The
complainant further paid a sum of
Rs.25,00,000/- on 01.07.2009 and Rs. 53,44,000/- vide cheque dated
10.07.2008. No further amount was paid despite notices. On 14.07.2008, OP sent a reminder demand letter in the
sum of Rs.87,81,600/- to the complainant and asked for the remittance of the said
amount up to 28.07.2008. On 28.07.2008, the OP further sent a reminder /payment letter
in the sum of Rs.34,37,600/-. On 14.08.2008, OP sent a notice for
the remittance of Rs.34,37,600/-. All these
letters have been
placed on record vide Annexures
C-2 toC-11.

4. On
03.09.2008, the OP sent a letter to the
complainant cancelling the
allotment of above said premises in
favour
of the complainant on
the ground of non-payment of
Rs.34,37,600/- and further alleging therein forfeiture of amount
of Rs.71,60,273.32 in
accordance with the
terms of Clause 12 of the Agreement to Sell. However, on 05.09.2008, the OP sent a letter
to the complainant mentioning therein
that the application made by the complainant for allotment
of the said
premises has been accepted and the said letter
was accompanied by a Space
Buyers Agreement in Triplicate containing
the terms and
conditions of the allotment
and directed the complainant to
return the same after signing the
said agreement, within 10 days. Copies
of letters dated
03.09.2008 and 05.09.2008
have been placed
on record as Annexure C-12 and
C-13, respectively. On 10.09.2008, the
OP sent a letter to the complainant assuring that all the necessary pre-construction activities would commence by
the end of November, 2008 and that
some of the necessary approval
had already been received and other approvals have
been applied for and would be received by the
end of November, 2008.
The cost related to design engineering was substantially completed.

5. During the
last week of November, 2008, the complainant visited the site but
there was no sign of any construction
work on the said premises. The complainant approached the officials of OPs but they
were unable to explain the cause of
delay. The complainant wanted
that his money should be paid back but he was assured
that construction work would start immediately. On 23.12.2008, the Space Buyers Agreement was executed and signed by
the parties. The total sale
consideration was settled at Rs.3,37,76,000/- and the
parking space for Rs.6,00,000/-. It was agreed that
the premises would
be given within a period of 36 months from the date of
execution of the said agreement.

6. However,
till February, 2009, there was no sign of construction work on the proposed site, but,
on the other hand, the OP denied raising demands from the allottees. On 17.02.2009, the OP sent a general
letter to all the allottees
mentioning therein that the OP would be
starting the construction work at
the site by April, 2009 and the OP had
introduced the Re-trading Schemes
for the allottees based on
certain terms and conditions and in the event the property is not treated
within a period of six months, then, the
OP will refund the entire
amount received from the allottees. There was no such provision in the Agreement dated
23.12.2008. On 20.02.2009, the
complainant sent a
letter to the OP seeking refund of
his deposited amount of
Rs.85,94,000/-. The OP, even after Bhoomipujan, failed
to start the construction
work at the site. On 27.02.2009,
the OP sent a letter to the
complainant under the re-trading Scheme
and the provisions of refund
of the deposited amount
was also covered
under the re-trading Scheme, itself.
The OP
also sent another letter/ demand notice raising the demand of
Rs.34,37,600/- in respect of the
allotment. Since the month of March, 2009,
the complainant approached
the OP time and again, requesting it
to refund his
money but he was
assured that he would get the refund soon.

7. On 03.09.2009, the OP
sent a general letter to the allottees that the
window for retrading Scheme
was closed and
the construction of the proposed building had commenced. On 31.12.2009,
the OP sent a demand
letter raising the
demand in the sum of Rs.79,70,605.12ps to the
complainant, despite the fact that the complainant had asked for refund of his amount.
In response to the said letter, the OP sent a letter dated 01.02.2010
stating that the re-trading option was
for those customers/
purchasers, who had
already made the payment of 35% of the total amount and that
only those were eligible for exercising
the option of retrading. Vide letter dated 01.02.2010, the OP
alleged that as the complainant was not eligible, for the said option, his
request for exit and refund was not
accepted. It was for the first
time that the OP, vide letter
dated 01.02.2010, had flatly
refused to refund the deposited amount of
the complainant. Thereafter, OP sent a letter
stating therein that the construction work was going in full
force and they would
offer possession of the property in the
middle of the next year.

8. Vide letter
dated 11.02.2010, the OP again sent
notice asking the complainant to deposit a sum of Rs.68,75,200/- as the installment amount
and Rs.10,95,405.12ps, as the
delayed interest. On 02.03.2010, the OP
sent a
final notice to the complainant demanding the above said
amount of Rs.79,70,605.12ps. In response to the said letter, the complainant
again, demanded for refund of his amount, vide reply dated
23.06.2010.

9. On
12.07.2010, the OP sent another letter to the complainant stating therein that the property allotted to
the complainant was changed from DSH305, ad-measuring 2111 sq.ft.
to DSM 130, admeasuring 1811 sq.ft.
and that it was offering to the complainant special rebates of
Rs.2,500/- per sq.ft. In response to the said letter, the complainant asked the
OP to refund his amount.

10. On
17.08.2010, the OP sent a letter stating that the amount deposited by the
complainant cannot be refunded as it had given
the exit option only to those allottees who had
abided by the terms and conditions and
had not defaulted on the
payments. It was pointed out
that the complainant
had not made the payments after
the second installment and he committed a breach of the contract. Further, on
26.08.2010, the complainant again demanded the refund of
the money, but in response, the
OP sent a demand notice. Thereafter, correspondence went
on, on these lines,
on 09.09.2010, by the

complainant and
reply dated 27.09.2010 by the OP.

11. On 28.09.2010, the
complainant sent a letter to the OP claiming refund of his
deposited amount, along with interest.
The OP sent a demand notice to the complainant, demanding a sum of Rs.72,96,031.75. Vide
letter dated 28.09.2010, the OP submitted that
since there was delay
in construction, the OP has
changed the payment plan and now the structure on the site is almost complete
and further stated that
it also had the authority
to change allotted premises before the final handing over of the space.
The demand notices were sent by the OP on 12.10.2010, 20.10.2010 and
01.11.2010. The complainant again sent the response by asking for refund
of the money vide letter
dated 02.11.2010. The letters
were again sent on
these lines by the OP on
16.11.2010 and 20.11.2010 and by the complainant on 21.01.2011.

12. On
17.03.2011, the OP sent a letter that the allotment of the complainant was
cancelled and he is not entitled to any refund.
They, however, suggested the
complainant to settle the issue as they proposed to restore the allotment with delayed interest with @ 12% p.a., as
against interest @ 15-18% p.a., and further asked the complainant to pay
a sum of Rs.2,15,05,323/- by
30.03.2011. In response to
it, the complainant
insisted the OP
to refund the

money vide, his letters dated 05.08.2011 and 05.10.2011.

13. During the
first week of November, 2011, the
complainant agreed to accept
the offer made by the OP again,
and the complainant agreed to purchase the new space of 1811 sq.ft @ Rs.13,500/- per sq.ft as
already offered. The OP sent a
letter stating therein that
the interest as on date comes to Rs.46,81,119/- and
the OP is ready to make a
waiver of the same to accommodate the request of the
complainant. The OP further stated in
its letter dated 16.11.2011 that it is
willing to restore the allotment upon remittance of dues of
Rs.1,97,59,230/- immediately and
the complainant was asked to deposit the said amount, latest
by 21.11.2011. In the said letter it was
also stated that
the timely payment rebate is not applicable to the property. It is alleged that the OP had raised an
illegal and arbitrary demand
of Rs.1,97,59,230/- whereas,
the amount due on the complainant was
only Rs.1,58,54,000/- as agreed
between the parties, during
the first week
of November, 2011. The complainant wrote
a letter in this context on 25.11.2011.

14. On
26.11.2011, the complainant again received a letter dated 24.11.2011 sent by
the OP wherein it again
demanded a sum
of Rs.1,97,59,230/- instead of
the actual due of Rs.1,58,54, 000/-. On
09.12.2011, the complainant approached the officials of OP and explained that
they had sent an arbitrary demand. The complainant did not receive any response
till 24.12.2011. On 06.01.2012, the OP
sent another letter
stating therein that by considering the case
of the complainant, as a special
case, they had agreed to restore the
allotment and also agreed not to charge the delayed payment interest, i.e.,
Rs.51,41,903/- but further
demanded a sum of Rs.2,23,10,062/- by calculating the cost of the new
allotment @ Rs.16,000/- per sq.ft., instead of the
rate already settled at Rs.13,500/-
per sq.ft.

15. On 03.03.2012, the
complainant asked for
refund of the money.
Vide letter dated 17.03.2012, the
OP informed the complainant that his money was forfeited. Ultimately,
this complaint was filed before this Commission on 04.04.2012, with the
following prayers :-

It is
therefore most humbly and respectfully prayed that this Honble
Forum may kindly be pleased to direct the opposite party to refund the amount
of Rs.85,94,000/- along with interest @ 36% p.a., and
also direct the opposite party to pay the damages to the tune of Rs.1.00 crore for the mental
agony, financial loss, loss of business and profit which was occurred to the
complainant due to the deficiency in services of the opposite party.

Pass
any further order/s in favour of the complainant and
against the opposite party which this Honble Forum
deems fit and proper in the facts and circumstances of the case.

Defence

16. The OP has objected
that the
complainant is not a consumer, under Section 2(1)(d) of the
Consumer Protection Act, 1986. The
property in dispute was obtained for commercial purposes. It is contended that the above said property
was booked with the intent to make profits by making investment in the subject
property which was to be used for commercial purposes. The
complainant has concealed
the material facts
and has, therefore,
approached this Commission with
unclean hands. In view of this Agreement, the
OP has the right to cancel the allotment
and forfeit the
earnest money in case
breach of terms and conditions of
the Agreement is
committed by the
complainant. The complainant has
concealed various reminders
issued by the OP.

17. The jurisdiction
of this Commission has been called into question. It is contended that all these facts can be
decided only by a
Civil Court and not by this
Commission. The application form itself contains the
relevant terms and conditions. The OP has referred
to condition Nos. 12 and 19 which contain the provisions of
forfeiture of the amount. The timely
payment of the installments as per the
schedule prescribed is the essence of the agreement. The area allotted to the complainant was
provisional/ tentative and was likely to be changed upon completion of
the construction. The intending seller, according to the
agreement, has the
sole right and
discretion to decide to
abandon the construction of commercial office space/ parking space, in
the said building. It was also agreed that
the intending sellers shall
calculate on the basis of super area, as
stated in the agreement as tentative
and is subject to change
till construction of the
said building is complete, in all respects.
The seller had the right to intimate how much super area was
ultimately allotted. If the area was to be
reduced, then the proportionate
amount was to be refunded to the
intending allottee.

18. The
agreement authorizing the intending
seller to forfeit the money paid by him/her, the earnest money, together
with interest due or
payable, along with
any other amount of non-refundanble nature, in
the event of failure
of intending allottee
to perform his/her obligations to fulfill
all the terms and conditions but not limited to the occurrence of any
event of default as per Clause 12 of this Agreement or in the
event of failure of intending allottee to sign
and return this agreement, within
30 days from the date of dispatch by the intending seller. Vide letter dated 31.12.2008, the OP clearly
informed the complainant
regarding change in the structure of payment plan. It was also informed that the time
bound payment plan
is being changed to
construction linked payment
plan.

19. Again,
reminder dated 21.12.2009 was sent by the OP to the complainant in
response to his letter dated
20.02.2009, informing him that by making
35% of the total sale price of the subject property, the complainant would become entitled to avail and the said
re-trading scheme. On the contrary, the
complainant claimed for refund of money
and absurd baseless figure of Rs.4,000/- per sq.ft
for purchasing the subject property, vide his letter dated 02.03.2009, marked
as Annexure M. The OP sent another demand letter, Annexure N.
However, the complainant
insisted that the money be
returned to him, with interest @ 36%,
vide his letter dated 16.01.2010, marked as Annexure O. OP yet again, issued another reminder to the complainant to
release the sum of Rs.79,70,605.12 , vide letter 27.01.2010, marked as Annexure
P. The complainant was
informed to make
payment as per
the payment plan vide Annexure
Q. Another reminder dated 01.02.2010 was
sent. Again, vide
letter dated 11.02.2010, OP
issued another reminder, marked
as Annexure R. OP issued
final notice on 02.03.2010, marked as Annexure-S. Thereafter, similar correspondence went on
between the parties. The OP, as a further goodwill gesture,
revised the existing payment plan to accommodate the complainant, vide letter dated 12.07.2010, marked as
Annexure U. Another demand was raised
vide letter dated 03.09.2010,
Annexure AA, but the complainant again claimed for refund of money
along with interest @ 36%, vide Annexure BB. The OP intimidated the
complainant, vide
letter dated 27.09.2010, marked as Annexure CC, to pay
the amount, otherwise, they will forfeit the amount of earnest
money with other non-refundable charges. This
demand was reiterated again and
again. Ultimately, the complainant was
given a final
notice on 01.11.2010 to pay the amount by 17.11.2010, otherwise the OP will take action in terms of Clause 12
of the Agreement. Reminders were sent, but they did not
bring the desired result.

20. Ultimately, the OP issued a formal cancellation letter dated
22.11.2010, Annexure II. Again, letter
dated 12.07.2011, was sent. The
complainant, thereafter, vide his letters dated 05.08.2011, 05.10.2011 and
04.11.2011 informed the OP that he is ready and willing to pay the balance
amount if the interest charges are completely
waived off. The OP
acceded to the request
of the complainant
and informed him that as a very
special case and as of exception, the OP is willing to waive off the
interest component which as on date of
letter works out to be Rs.46,81,119/-. OP informed the complainant that
they would restore the allotment
upon remittance of Rs.1,97,59,230/- by 21st November, 2011. The complainant was also
informed that till the property continues to be cancelled,
the status of the property shall remain the same. Another
letter was sent by the OP to the complainant to
get the allotment restored.
The OP
agreed to waive off the delayed payment, in the sum of Rs.51,41,930/-, but the complainant refused
to the said offer as well. Ultimately, a sum of Rs.
85,94,000/-
belonging to the complainant was forfeited.

SUBMISSIONS AND FINDINGS:

21. The
first submission made
by the counsel for the OP was that the complainant is not a
consumer. He contended that the complainant is a
business man and he has got another office space. It is submitted by the OP
that the complainant
has admitted that he was a
Director of a Company, namely, M/s. Kushal Infraproject Industries
(India) Ltd. The address of
the Company has been
suppressed. Our attention was invited to Advik
Industries Ltd. Vs. Uppal Housing Limited & Anr., 4 (2012) CPJ 159 (NC). The complainant has
not even pleaded
that services availed by him are exclusively for the
purposes of earning his
livelihood by means of
self-employment. Our attention was also
drawn towards Cheema
Engineering Services Vs. Rajan Singh
(1997) 1 SCC 131, wherein it was held
that it is
necessary to adduce evidence to
show that the goods/services was
used only for self-employment to earn
his livelihood without
a sense of
commercial purpose and the
burden is on the complainant to
prove the same.

22. This argument is bereft of merit.
The allegation that the complainant is owner of
another space is merely an
assertion which is not supported by any
cogent or plausible evidence. At the time of arguments, the complainant was present and he
informed this Commission that he did not have any other office space. The complainant also explained
that he is a resident of Uday
Park, New Delhi, which is exclusively a
residential accommodation. It must be borne in mind
that the case was filed in the
name of an individual and
not by any company.
An individual proprietor can run the business for his own and his family benefits or
he can earn his livelihood by transacting
any business, as per explanation appended to Section 2(1)(d)(ii) of C.P.Act,
1986. There lies no rub. His status
as a consumer, does not
stand clouded. In para 5 of
the complaint, the
complainant has mentioned
that he requires the
said office space for his own
personal use and for carrying
out his business work therein. Consequently, the present case falls within the four
corners of Section 2(1)(d) of the
C.P.Act, 1986.
The argument advanced by the counsel for the OP does not
deserve any consideration.

23. The
second submission
made by the counsel for the OP was that
no deficiency can be attributed on the part of the OP. He explained that
on the contrary, the complainant has suppressed the material
facts before this Commission. In this context, he has invited our
attention towards the application
for provisional allotment by sale of office retail space in DLF Towers,
wherein it was specifically mentioned as under :-

I/We are making this application with the full knowledge that Company
has the sole right and

discretion to decide on the location of the building on the Land and I/We
also understand and agree that the dimensions, size and the location of
provisional allotment, if any, may change and further I/We shall not have
objection to the same in any manner, whatsoever. The building plans for DLF Towers, New Delhi,
in which the office/retail space (s) applied for is located are not yet
sanctioned by the competent authority. I/We
have instructed the company that if for any reason(s) including but not limited
to abandoning of the construction of office/retail space(s) in DLF Towers
and/or non-sanction of the building plans, as the case may be, the company is
not in a
position to finally allot a office/retail/space(s)
applied for within a period of one year from the date of this application or
any further time extended at the sole discretion of the company.

It was also mentioned, as under :-

Basic sale price (super area) :
Rs. 1,72,224/- per sq.mtr;
Rs.16,000/- per sq.ft., aggregating to Rs.3,37,76,000/-

Parking space charges (if any) Rs. _____ @
______ per parking space.

The learned counsel for
the OP vehemently argued that the Complainant is
guilty of suppression of
material facts which were kept
under the hat for
the reasons best known to the
complainant. He contended that
the case should
be dismissed at the
threshold.

24. The next submission
made by the counsel for the OP was that the
complainant was entitled
for refund of the money if he had deposited
35% of the total amount till the
date of cancellation. In this context, he has invited our
attention towards the terms and conditions
of the agreement,
dated 23.12.2008. Clauses 12
& 19 of the said agreement, are reproduced here, as under
:-

12. The
payment on or before due date, of sale price and other amounts payable by the
Intending Allottee as per the payment plan accepted
by the Intending Allottee or as demanded by the
Company, from time to time, is the essence of this application and the
office/retail space buyers agreement.

19. It shall be incumbent on the intending allottee to comply with the terms of payment and/or other
terms and conditions of the office/ retail space buyers agreement, failing
which, he/she, shall forfeit the
entire amount of
application money/ earnest money,
interest on delayed payment etc., and the
allotment/office/retail space buyers agreement shall stand cancelled and the
intending allottee shall be left with no lien, right,
title, interest or any claim of
whatsoever nature in the office/ retail
space(s) along with parking space(s). The company shall thereafter be free to
resell and/ or deal with the said office/retail space(s) in any manner
whatsoever at its sole discretion. The amount(s), if any, paid over and
above the application money/earnest money, processing fee, interest on delayed
payments, interest on installments, brokerage, etc., would be refunded to the
intending allottee by the company only after
realizing such amounts to be refunded on resale but without any interest or
compensation of whatsoever nature. The
company shall have the first lien and charge on the said office/retail
space(s) for all its dues payable by the intending allottee
to the company.

Without prejudice to the companys aforesaid rights, the company may at its
sole discretion, waive the breach by the intending allottee
in not making payments as per the payment
plan but on the condition that the intending allottee
shall pay to the company interest which shall be charged for the first ninety
(90) days from the due date @ 15% per annum and for all periods exceeding first
ninety (90) days after the due date @ 18% per annum.

25. The
agreement executed on 23.12.2008, between the parties, says that, time is the
essence. Clause 8 of the agreement, provides for the same. The payment schedule
is reproduced here, as under :-

Sr.No.

Linked Stages

Due Date

BSP

IBMS

INT

PRKG-BSP

TOTAL

On Application for booking

11-MAR-08

75000.00

0.00

750000.00

Within 2 months of booking

11-MAY-08

7694000.00

0.00

150000.00

7844000.00

Within 4 months of booking

11-JUL-08

3377600.00

0.00

60000.00

3437600.00

Within 6 months of booking

11-SEP-08

3377600.00

0.00

60000.00

3437600.00

Within 9 months of booking

11-DEC-08

3377600.00

0.00

60000.00

3437600.00

Within12 months
of booking

11-MAR-09

2533200.00

0.00

45000.00

2578200.00

Within15 months
of booking

11-JUN-09

2533200.00

0.00

45000.00

2578200.00

Within18 months
of booking

11-SEP-09

1688800.00

0.00

30000.00

1718800.00

Completion of
Building Struc

2533200.00

0.00

45000.00

2578200.00

10.

Completion of MEP
Services

2533200.00

0.00

45000.00

2578200.00

11.

On Application
for Occ.Cer

1688800.00

0.00

30000.00

1718800.00

12.

On Receipt of Occ.Certific

1688800.00

1055500.00

0.00

30000.00

2774300.00

Total Rs.

33776000.00

1055500.00

0.00

600000.00

35431500.00

26. The counsel for the OP submitted that the complainant was
bound to
deposit first five items
mentioned above, which have been
shown separately in order
to claim the benefit of retrading scheme and refund of money. Since the complainant had not adhered to the terms
and conditions of the agreement, therefore, he was not entitled to
claim benefit of refund. He vehemently
argued that the amount of the
complainant was legally
forfeited and he was not
entitled for the refund of
the money. In support of his
case, he has cited few authorities. In Prakash Kumar Shahi Vs.
Ghaziabad Development Authority (2000) 4 SCC 120, wherein the Honble Apex Court has held as under :-

4. ..
Having failed to perform his part of the contract, the appellant cannot
be permitted to urge that he is not liable to pay the balance amount
along with interest as according to him the respondent Authority had failed to deliver possession as per terms of the brochure. The Authority was not expected
to deliver possession in the absence of the payment of the agreed amount.
Having failed to perform his part of the agreement, the appellant cannot be
permitted to urge, at this stage, that he was not liable to pay the interest as agreed to by him at the time
of accepting the allotment of the plot in his favour.

On the
other hand, the counsel for the complainant has argued with vehemence
that this authority is not applicable to the present case He has invited our attention towards the
foot of para No.2 of the same judgment, which runs as
follows :-

It was further pleaded that the paucity of financial resources had been
caused due to delay or default in payment by the allottees
like the appellant.

27. The learned counsel for the OP vehemently argued that it is well
settled that the terms and
conditions of a document
is binding upon the parties. In this context, he has cited an authority reported in Bharti Knitting Company Vs. DHL Worldwide Express
Courier Division of Airfreight Ltd., (1996) 4 SCC 704.

28. Lastly, it was submitted
that this case should be relegated to the Civil Court. In this case, reference was made to Trai
Food Vs. National Insurance Co. Ltd., (2004) 13 SCC 656.

29. This was also argued that this Commission
has treated an application for allotment of property as
an agreement in case of Sahara India Vs. Madhu
Babu, II (2011) CPJ 3 (NC) and Sahara India Vs. P. Gajendra Chary, III (2010) CPJ 190 (NC), following
the judgment of the Honble Apex Court in HUDA Vs. Kewal
Krishnan, 1969 (3) SCC 522, to the effect that a forfeiture clause
provided for terms and conditions of the allotment would be binding on the
parties. Again contractual issues cannot
be adjudicated summarily under the C.P. Act, 1986, as per
law laid down in Saurabh Prakash
Vs. DLF Universal Limited, (2007) 1 SCC 228 and Pawan
Hans Vs. Union of India, (2003) 5 SCC 71. The complainant has
suppressed the material facts and
the Honble Supreme
Court of India in S.P. Chengalvariya Vs. Jagannath,
(1994) 1 SCC 1 Amar Singh Vs. Union of India, (2011) 7 SCC 69, Dalip Singh Vs. State of U.P., (2010) 2 SCC 114, has held that
a person who has approached the Court with unclean hands can be thrown
out of the court summarily.

30. Lastly, the complainant cannot take advantage of his own faults. No negligence on the
part of
the OP stands established. The complainant has not stated that the
terms of the agreement are invalid or
illegal. The Honble Supreme Court of
India in Union Bank of India Vs. Seppo Rally Oy & Anr., (1999) 8 SCC 537,
Consumer Unity & Trust Society, Jaipur Vs. Chairman & Managing
Director, Bank of Baroda, Calcutta & Anr., (1995)
2 SCC 150 and Godfrey Phillips India Ltd. Vs. Ajay Kumar, (2008) 4 SCC 504, has
held that negligence must be proved against the OP,
before awarding compensation.

31. Instead of touching the heart of the problem, the learned Counsel for the Opposite Party just skirted
it. The complainant applied for the business place
in the year March, 2008. The
installments were paid
in March and July, 2008, in the sum of Rs.85,94,000/-. It transpired that construction work
had not started at
all, for a considerable time. The terms and conditions appended to the application for allotment, clearly, specifically and
unequivocally mentioned that
business space will
be handed over, within 30 months
and after some lapse 36 months. Agreement dated
23.12.2008, arbitrarily changed the date of possession. Para 10.2 of the agreement,
runs as follows :-

10.2 Possession

The intending Seller based
on its present plans and estimates and subject to all just exceptions,
contemplates to complete construction of the said Building/said Premises within
a period of thirty six (36) months from the date of execution of this Agreement
unless there shall be delay or there shall be failure due to reasons mentioned
in Clauses (11.1), (11.2), (11.3) and Clause (39) or due to failure of
intending Allottee(s) to pay in time the price of the
said Premises along with other charges and dues in accordance with the schedule
of payments given in Annexure-III or as per the demands raised by the intending
Seller from time to time or any failure on the part of the intending Allottee(s) to abide by all or any of the terms or
conditions of this Agreement.

32. This is
an admitted fact that
possession of the flat was not ready till 22.12.2011. Where goes the essence of time? It is too
early to harp time
and again on the same issue. What is the use of tom-toming. The admission of this fact comes out from the
horses mouth itself. Letter, dated
17.02.2009, written by the OP, mentions:-

This communication supersedes
all our earlier

letters regarding the re-trading programme for DLF
Towers, Shivaji Marg

1.
Those
of you, who have paid excess amount beyond 35% of the cost i.e. third
installment; will be given advance payment rebate @ 13% p.a. from the date of
such payment till the date as per construction linked installments, as per the
Revised Payment Plan (already sent to you by letter dated 30th Dec.
2008, copy enclosed for your ready reference). Such rebates will be adjusted against the next installments, when due.

4. From the date of your re-trading request
being logged in there will be no installment payable beyond 35% of the cost and
penal interest will not be charged.

6. In the event that the property is not
treated within an additional period of 6 months, then DLF will refund the entire money
received from the customer.

The
earlier letter dated 10.09.2008, sent by the OP, mentions as under

Site

The site is in our possession and necessary pre-

construction
activities on the site are due to

commence by end
November, 2008.

Approvals

We have already received some of the approvals and all other necessary
approvals have already been applied for and we expect to receive the balance approvals
by end November, 2008.

33. No heed was paid to the letter sent by the complainant on 20.02.2009, for refund of
money, sent after three days from the letter dated 17.02.2009. The OP insisted to enroll the
complainant under the retrading scheme
vide letter dated 27.02.2009. In their letter dated
01.02.2010, there is clear admission of
delay, which

runs as follows :-

This is with reference to
your letter dated January 20, 2010 addressed to our Vice Chairman. We have received all the relevant approvals
for the said scheme and the construction is going in full force and we shall be
offering the possession of the property by the middle of next year. There has been some delay in starting the
construction because certain requisite approvals took longer time to come
through. Though the same was clearly
mentioned in the Application Form, still we firstly changed the Payment Plan
from the Time Bound to Construction Linked Payment Plan and also offered to
the customers, in case they desire, the re-trading window, whereby any customer
who has paid over and above 35% payment, is eligible for the same (copy of our
letter dated 17.02.2009 enclosed) The same covered the Exit Option also in case
the property is not re-traded within a reasonable time.

In your case you have not
completed 35% payment, hence you were not eligible for
the said option. We had again vide our
letter dated 29.02.2009 requested you to complete the balance payments, however, needful was not done by you. We therefore, once again regret that we shall
not be in a position to accept that your request for Exit and refund, as
desired by you. You are requested to
make the payments as per the Payment Plan.

34. The introduction of re-trading scheme out of blue was brought into play by the company unilaterally, without
consulting the buyers. Why did the OP insist
that the complainant must enroll himself under the retreading scheme by sending him a written request for the
same.

This
is an eye-wash.

35. The OP wanted
to have the benefits of both the worlds.
On the one hand, the OP wanted to have interest from the complainant and
on the other hand, it wanted to sell the same on higher price to another
builder. Same is the position with the
change of plot. That was also done, unilaterally without
the consent of the complainant. Although
the OP had created such an agreement which would benefit the OP only
and not the consumers, yet, it was the bounden duty
of the OP to ask the
complainant, whether the reduced space would be suitable to his purposes or
not?. They should have
told the complainant
point-blank that they cannot
offer to give him bigger space and if he does not want to have the small space, the amount could be returned to
him. Without taking consent of
the complainant, the OP cannot
make the changes, even though it was authorized to do so.

36. Moreover, the OP is
guilty of contradicting its
stand, every now and then. Sometimes, it
cancels the plot and yet, by another letter, it wants to restore it, subject to further conditions. The retrading scheme introduced
by the OP is difficult to fathom because it is
not in accordance with the terms and conditions of the agreement. It is also clear that the
suppression of terms and
conditions of the allotment does not
carry any material value. This was a known factor and known to everybody. Moreover,
the OP has
specifically mentioned that there was
provisional allotment of the above
said office space. There is no suppression of facts as such and therefore the issue urged by the counsel
for the OP pales into insignificance.
There is further construction about the time bound construction.

37. The
OP promised that
it will start
the construction in November, 2008, but no
construction was started till February, 2009, but demand letter
was sent. The matter of construction was adjourned to
April, 2009, despite the fact that Bhoomi Poojan ceremony,
was performed. For the first
time, on 20.02.2009, the complainant, asked the OP to
refund his amount, within a span of less than two months, from the date
of execution of the agreement.
It is true that
the complainant waddled out of the commitments and did not deposit the entire first
five installments. The crux of
the matter is, Whether,
he was justified or
had some malafide intention?. It must be borne
in mind that the terms and conditions of the agreement is not
a one-way traffic. Both the
parties are bound by it. It came out from the
horses mouth itself that the construction of the building was
delayed. It was not ready, even after expiry
of three years, as promised and till the filing of this
complaint. Had
the OP refunded the amount on the
complainants request, made
in February, 2009, with nominal
penalty, this dispute
would not have cropped up.

38. The OP is withholding that amount for the
last five years, without melafide intention. An ordinary person can know the value and importance of
money. This much money
would have benefitted him
otherwise. OP contends that the deposit of the entire amount of installments be
made, then it
would refund the same, to the complainant.
The OP has utilized his huge amount for the last more than five-and-a-half years. The OPs attempt to feather its own nest has
succeeded. All these factors, clearly reveal arrogant, despotic,
and coercive manner. The deficiency on
OPs part stands proved.

39. In a recent authority reported in of K.A. Nagamani Vs. Karnataka Housing Board, Civil Appeal Nos.
6730-31 of 2012, decided on 19.09.2012, the Honble Apex
Court has held at paras
25 26,
as under :

25. The case of the
complainant is covered by one of the examples
cited by this Court in Ghaziabad Development Authority Vs. Balbir Singh, as quoted above. In this case also, the amount was simply
returned and the complainant is suffering a loss inasmuch as she had deposited
the money in the hope of getting a flat, but she is being
deprived of that flat and thereby deprived of the benefit of
escalation of the price of that flat.
Therefore, the compensation in this case should necessarily have
to be higher, as per the decision of this Court.

26. For the reasons aforesaid, we allow the appeals and
pass the following orders :-

i) The respondent is directed to pay the
appellant-complainant interest at the rate of 18% per annum on Rs.2,67,750/- from
the date of its respective deposit till the date of realization with
further direction to refund the amount of Rs.3,937/- to her, as directed by the
Consumer Forum.

ii) The respondent is
directed to pay the appellant complainant further sum of Rs.50,000/- as compensation for deficiency in service on their
part.

iii) The respondent is also directed to pay the
appellant-complainant a sum of Rs.20,000/-

towards cost of the litigation incurred by
her.

40. For all these reasons, we find that the OP
is liable to refund the
entire amount, i.e.
Rs.85,94,000/- and we order, accordingly. However, the demand
raised by the complainant to re-pay the amount with interest at the rate of 36% p.a., is on the
higher side. Hence, we are of considered
view that the complainant is entitled to interest @ 18% p.a., and
direct the OP to refund
the entire deposited amount(s)
(i.e. Rs.85,94,000/-) to the
complainant, with interest @ 18% p.a., from
20.02.2008, till realization. We also impose costs of Rupees two lakhs (Rs.2,00,000/-) towards harassment,
mental agony and litigation charges. The
entire amount to be paid within
90 days from the date of receipt of this
order, otherwise entire amount and costs in the sum of Rs. 2.00 lakhs shall
carry interest at the rate of 18% p.a., till realization.

...

(J. M. MALIK, J) PRESIDING MEMBER ....

(DR. S. M. KANTIKAR) MEMBER dd/

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National Consumer Disputes Redressal

Kushal K. Rana vs Dlf Commercial Complexes Ltd. on 9 September, 2014