State Consumer Disputes Redressal Commission
Mr.Rajdeep Khullar & Another vs Dlf Limited & Another on 11 March, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : CC/71/2009 DATE OF FILING : 16.09.2009 DATE OF FINAL ORDER: 11.03.2011 APPELLANTS 1. Mr. Rajdeep Khullar 2. Mrs. Puja Khullar Both residing at 93/A, Gariahat Road, Flat No. 7A, 7th Floor, Kolkata-700 019. RESPONDENTS 1. DLF Limited having its registered office at 3rd Floor, DLF Shopping Mall, Arjun Marg, Phase-I, DLF City, Gurgaon-2 and its city/state/ Branch/corresponding office at IT Park, 3rd Floor, Tower A, # 8, Major Arterial Road, Block AF, New Town, Rajarhat, Kolkata-700 156. 2. Housing Development Finance Corporation Ltd. having its office at Jeevandeep, 3rd Floor, 1, Middleton Street, Koklkata-700 071. BEFORE : HONBLE JUSTICE MR. P.K.SAMANTA, PRESIDENT MEMBER : MRS. S.MAJUMDER MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. Rajdeep Biswas, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. P.R.Bakshi, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present petition of complaint has been preferred at the instance of the Purchasers (Flat)/Complainants against the builder and promoters/Ops for refund of Rs. 18,48,286.00 paid towards part consideration of the flat and Rs. 2,21,794.32 towards interest on the part consideration so paid together with compensation for harassment to the tune of Rs. 50.00 lakhs and other reliefs.
The complainants case, in brief, is that the complainants being desirous of purchasing a flat for valuable consideration from the Ops entered into an agreement for the same and in the process, paid Rs. 3.00 lakhs towards application fee and after getting allotment in their favour in respect of Apartment No. NRB 153 on the 15th floor together with car parking space paid Rs. 18,50,245.36 towards part payment of the total consideration amount. According to the complainants, the complainants were always ready and willing to perform their part of obligations in terms of the agreement entered into between the parties, but during the subsistence of the said agreement it transpired that the Ops were not inclined to sell and give possession of a flat in the 15th floor as agreed upon between the parties on a vague and wild plea to the effect that as there is no existence of the 13th floor in the said project, there was no alternative before the Ops but to give effect to the agreement in question by allotting a flat in the 14th floor keeping intact other criteria in respect of the flat in question as per agreement entered into between the parties. According to the complainants, this sort of standpoint taken by the Ops tantamounts to unfair trade practice and also deficiency in service. After prolong correspondence between the parties, through which the complainants tried their level best to impress upon the Ops that the complainants want to purchase a flat in the 15th floor of the project as agreed upon between the parties, but all such bonafide pursuance have yielded no positive result.
The Ops for reasons best known to them stuck to the standpoint, which is neither tenable nor acceptable under the present circumstances. Finding no other alternative the complainants have rescinded the agreement between the parties and having failed to get back the amount so paid to the Ops in the aforesaid transactions, have filed the present petition of complaint for proper redressal praying for the reliefs as already mentioned above.
The Ops are contesting the present petition of complaint by filing written version thereby denying all the material averments of the petition of complaint contending inter alia that the petition of complaint is not maintainable. The complainants having opted for a flat in the 14th floor themselves there is no question of taking a vague and wild plea at the instance of the Ops to handover a flat in the 14th floor in favour of the complainants after completion of all the formalities including payment of balance consideration amount. There is no unfair trade practice and/or deficiency in service at the instance of the Ops in the transactions entered into between the parties. The complainants having unilaterally and arbitrarily rescinded the agreement in question the complainants are not entitled to get refund of the amount so paid towards the transaction entered into between the parties and very rightly the Ops are entitled to forfeit the advance so paid by the complainants to the Ops. There is no merit in the present petition of complaint, which has been filed on all vague and fictitious allegations and accordingly the same is liable to be dismissed with cost.
Upon pleadings of the parties the following issues are framed for proper adjudication of the controversy between the parties :-
1) Is the petition of complaint maintainable?
2) Have the complainants been able to substantiate their allegations against the Ops as made out in the petition of complaint?
3) Are the complainants entitled to the reliefs as prayed for?
DECISION WITH REASONS All the issues are taken up together for the sake of convenience. At the time of hearing it has been submitted by the Ld. Advocate for the complainants that in this case the complainants, who happen to be a bonafide consumers, have been unnecessarily harassed and deprived at the instance of the Ops in the matter of purchasing a suitable flat from the Ops for valuable consideration as per agreement entered into between the parties.
According to the Ld. Advocate for the complainants, in this case at the very outset the complainants having applied for a suitable flat in the project of the Ops, the Ops in writing have informed the complainants that a flat in the 15th floor of the project has been allotted in favour of the complainant. The complainants after being so informed have duly proceeded with the formalities namely payment of part consideration, etc. as per agreement entered into between the parties. According to the Ld. Advocate, at this juncture when the complainants were assured of a flat in the 15th floor of the project by the Ops, it came from the Ops as a bolt from the blue that the Ops have actually intended to sell a flat in the 14th floor of the project. According to the Ld. Advocate for the complainants, this sort of arbitrary standpoint on the part of the Ops has caused a setback to the plans and programmes of the complainants and also jeopardized their desire in having a flat in the 15th floor of the project. While elaborating on this point the Ld. Advocate for the complainants has urged before us that the complainants in order to make the Ops understand about the total jeopardy that was faced by the complainants, the complainants left no stone unturned in persuading the Ops to alter their unfair and improper standpoint in the matter of selling a flat to the complainants as per agreement entered into between the parties. According to the Ld. Advocate, all the efforts so put forward on behalf of the complainants were in vain as the Ops with a view to jeopardizing the entire plans and programmes of the complainants in having a suit flat in the 15th floor of the project were not willing to alter their standpoint to the detriment of the interest of the complainants. According to the Ld. Advocate, in such precarious circumstances, there was no alternative left before the complainants but to rescind the contract unilaterally and that the complainants having failed to get back the valuable money so paid to the Ops in advance in pursuance to the agreement entered into between the parties were compelled to institute the present petition of complaint and that the complainants having been successful in substantiating their case by adducing cogent and reliable evidence there is practically no hindrance in the eye of law to allow the petition of complaint as prayed for by the complainants and accordingly the Ld. Advocate has prayed for the reliefs in terms of the petition of complaint.
We have duly considered the submissions so put forward on behalf of the complainants and have also gone through the materials on record including pleadings of the parties and evidence adduced on behalf of both sides. On a careful consideration of the materials on record we find that in this case the complainants have come before this Commission with the allegation that the Ops having initially agreed to sell a flat in the 15th floor and having allured the complainants to part with valuable consideration to the tune of Rs. 18,48,286.00 towards part payment of the consideration money all on a sudden has changed their standpoint to the effect that the Ops actually intended to sell a flat in the 14th floor. According to the complainants, whatever may be the criteria and specifications of the flat in question in the 14th floor, the complainants actually paid the consideration money for purchase of a flat in the 15th floor and not in the 14th floor and the Ops having intentionally and willfully deviated from the agreement entered into between the parties in that respect it was not incumbent upon the complainants to dance according to the tune played by the Ops and therefore, the complainants were within their legal right by rescinding the agreement and ask for refund of the part payment so made in favour of the Ops. The Ops having refused to do so, the complainants were compelled to institute the consumer complaint for proper redressal. The Ops, on the other hand, have tried to put up a case to the effect that question of deviation from the agreement entered into between the parties does not arise at all as it is the complainants who were very much agreeable and willing to have a flat in the 14th floor themselves and thus the question of deviation from the agreed terms and conditions does not arise at all and the complainants without any rhyme and reason having unilaterally rescinded the contract in respect of the flat in question, the Ops were under no obligation to refund the same at all and very rightly the Ops have forfeited the same and on this score the complainants have got nothing to say as the law of the land is not with the complainants, but the same is very much in support of the Ops case and on this score alone the petition of complaint is liable to be dismissed with cost.
We have also perused the evidence on record and find that in this case though the complainants are pursuing the petition of complaint with the positive and only one case that through the Ops initially agreed to sell a flat in the 15th floor of the project and the complainants having agreed to such proposal/allotment document did part with valuable consideration to the tune of Rs. 18,48,286.00 and were nurturing their sweet desire to have the desired flat in the 15th floor, but after the complainants have observed some other formalities the Ops for reasons best known to it have deviated from its initial standpoint by offering a flat in the 14th floor to the detriment of interest of the complainants. In this connection, we find much substance in the submissions so put forward by the Ld. Advocate for the Ops, according to whom, in this case there is a marked variance in the pleadings/allegations of the complainant than what has been produced by way of documents by the complainants in support of their case.
In this connection, the Ld. Advocate for the Ops has drawn our attention to a letter written by the complainant no. 1 to the OP No. 1 (Annexure-C) in which the complainant No. 1 has categorically stated that he booked an apartment in the Ops project in his name along with his wifes name on the 14th floor and as the plan sent by the Ops has indicated a flat in the 15th floor instead of 14th floor, the complainant No. 1 has asked for necessary correction. Besides that, the Ld. Advocate for the Ops has also drawn our attention to an Advocates letter dt. 30.12.08 sent to the OP No. 1 wherein it has been categorically stated that the complainants have requested the Ops several times for clarification of the floor as the complainants all along intended to buy a flat on 14th floor, but the Ops have tried to sell a flat in the 15th floor. Along with this the Ld. Advocate for the Ops have drawn our attention to a letter dt. 3.9.08 written by the Complainant No. 1 addressed to the OP No. 1 wherein the reference has been made in respect of a flat in the 14th floor.
While submitting on this variance in the attempt on the part of the complainants to have their allegations with the pleadings the Ld. Advocate for the Ops have emphatically submitted before us that the complainants appear to have been at a loss as to what to plead and what to prove. In this connection, we also find much substance in the submissions of the Ld. Advocate for the Ops, according to whom, from the materials on record it is quite evident that the present petition of complaint has been filed on a misconceived notion and on this score alone the petition of complaint is liable to be dismissed. In a case where a party pleads and/or alleges on a particular point and deviates from that point in the matter of proving by cogent and reliable evidence, question of giving relief to him does not arise at all as the law of the land does not come to any help to such sort of complaints. Considering the present matter in the light of above observation we are of the considered opinion that in this case the complainants have not been able to substantiate what the complainants have alleged. Rather, there is a marked variance in the pleadings and attempt to prove on behalf of the complainants.
In view of the foregoing discussions we are of the considered opinion that the petition of complaint is not maintainable as the complainants have utterly failed to substantiate any of their allegations levelled against the Ops as made out in the petition of complaint and that the complainants are not entitled to any relief whatsoever. All the points are accordingly disposed of. If that be the position, there appears no merit in the present complaint and the same is liable to be dismissed. In a case of present nature it would have been proper to impose some cost upon dismissal of the complaint, but having regard to the facts and circumstances of the case we refrain ourselves from imposing any cost.
Hence, it is ORDERED that the petition of complaint stands dismissed on contest without any order as to cost.
MEMBER MEMBER PRESIDENT