State Consumer Disputes Redressal Commission
M/S Dlf New Gurgaon Homes Developers ... vs Mr. Rajesh Malhotra on 7 October, 2015
Daily Order IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision:07.10.2015 First Appeal- 437/2015 (Arising out of the order dated 05.06.2015 passed in Complainant Case No. 279/2010 by the District Consumer Disputes Redressal Forum (VI), M-Block, Vikas Bhawan, New Delhi) M/s DLF New Gurgaon Homes Developers Pvt. Ltd., DLF centre, Sansad Marg, New Delhi-110001. (Now Known as DLF Home Developers Ltd.), Versus Shri Rajesh Malhotra, S/o Shri K.G. Malhotra, R/o 24, The Mall Apartments, Mall Road, Delhi. ....Respondent CORAM Justice Veena Birbal, President Salma Noor, Member
OP Gupta, Member (Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, "the Act") against the order dated 5.6.15 passed by the Consumer Disputes Redressal Forum (VI), M-Block, Vikas Bhawan, New Delhi (in short, "the District Forum") wherein the following relief has been granted in favour of respondent/complainant:
"1. Interest @ 9% for 15 days of delay on total Rs.21,10,199/- deposited by complainant.
2. To return Rs.1,11,151/-, shortfall with interest of 9% from date of deduction till payment.
3. Pay Rs.20,000/- for harassment and Rs.10,000/- for litigation expenses.
Briefly the facts relevant for the disposal of the appeal are as under:
The respondent herein was the complainant before the District Forum. A complaint under Section 12 of the Act was filed by him alleging therein that an apartment was booked by him in the project of appellant/OP in New Town Height, Sector-90, DLF Gurgaon. On 26.2.08, Apartment No.NGB023 along with Parking Nos. PB1046#NTG was allotted to him and the respondent/complainant had paid Rs.21,10,199/- as payment on construction based plan. It was alleged that due to ongoing recession and market slowdown, the appellant/OP in April 2009 had come up with an 'Exit Policy' to facilitate people who wanted to discontinue their bookings. The respondent/complainant on 1.5.09 wrote a letter to the appellant/OP stating therein that he wished to discontinue and wanted to avail the 'Exit Policy' and applied for the refund of the amount. It was further alleged that it was clearly mentioned in the 'Exit Policy' that the refund of the amount would be paid within 6 month's of the application whether the said flat was retraded or not. It was alleged that despite several emails and phone calls, the appellant/OP did not refund the amount. Finally when vide email dated 14.11.09 and 16.11.09, the respondent/complainant threatened to take a legal action against the appellant/OP, the appellant/OP sent a cheque of Rs.19,98,648/- to respondent/complainant on 17.11.09 which was received by the respondent/complainant on 21.11.09. It was alleged that appellant/OP had illegally deducted Rs.1,11,551/- on account of brokerage. It was further alleged that when "Exit Policy" was announced, it was not brought to the notice of the respondent/complainant or to the public at large that the alleged brokerage would be deducted. It was further alleged that there was no such condition between the parties at any point of time. The respondent/complainant made a prayer before the District Forum directing the appellant/OP to pay Rs.1,11,551/- to him with interest @ 15% from 1.11.09 till payment and also interest @ 15% on Rs.21,10,199/- for the delayed period of 21 days.
The appellant/OP contested the complaint by filing written statement therein it was alleged that the apartment was booked by respondent/complainant through broker. It was alleged that vide letter dated 26.2.08, the respondent/complainant was allotted Apartment No. NGB023 measuring 1760 Sq.ft. @ Rs.2,250/- per square ft. in New Town Heights, Sector 90, DLF Gurgaon. The Payment Schedule was also sent along with the allotment letter. Thereafter demands were raised by the appellant/OP and whatever payments were received, the receipts for the same were issued in favour of respondent/complainant.
In April, the appellant/OP sent a letter to the respondent/complainant intimating about 'Exit Policy' whereby all the allottees of the project were given certain benefits to continue in the project and at the said time, they were given 'Exit Option' in case they did not wish to continue. In response to said letter, respondent/complainant wrote a letter dated 1.5.09 requesting for the exit from the Project and for refund of the amount. His request was acceded to and a cheque of Rs.19,98,648/- was sent to him vide letter dated 11.11.09 as full and final refund of amount after deducting Rs.1,11,551/- towards brokerage. On 12.11.09, the respondent/complainant also received Apartment Buyer's Agreement from the appellant/OP. It was alleged that on 16.11.09, respondent/complainant had sent an email intimating that the cheque was not received. On enquiry from courier company, it was informed that the house of respondent/complainant was locked, as a result of which letter along with cheque could not be delivered. However, it was delivered on 17.11.09. On 18.11.09 vide e-mail, the respondent/complainant confirmed having received the cheque on 17.11.09 and also enquired about the amount which was deducted towards brokerage and asked for the refund of said amount along with interest for delay of 17 days in refunding the payment. Appellant/OP informed the respondent/complainant on 19.11.09 that since he had booked the apartment through an agent M/s Harbans Mahajan Real Estate Consultants, the commission was paid to the said agent on 27.11.08 and on that account, the amount was deducted from the refundable amount. Appellant/OP had alleged that the amount was also paid well within time. There was no delay in refund, as such appellant/OP was not liable for any payment and complaint was liable to be rejected.
Both the parties had led evidence in the form of affidavits before the Ld. District Forum.
After considering the pleadings and the evidence on record, Ld. District Forum held that there was deficiency in service on the part of appellant/OP in not refunding the amount as per 'Exit Policy'. It was further held that there was untrade practice on the part of appellant/OP in going back from 'Exit Policy'. Accordingly, the District Forum directed the appellant to pay the amount deducted towards brokerage, interest etc. as has been stated above.
Aggrieved with the abovesaid order, the present appeal has been filed.
Ld. Counsel for the appellant has contended that the Ld. District Forum erred in holding that there was unfair trade practice and deficiency in service on the part of appellant/OP. It is contended that the respondent/complainant was fully aware that in case of cancellation of allotment, the appellant would deduct the brokerage in terms of Clause 8 of the 'Application for Provisional Allotment'. It is further contended that under Clause 16 of the 'Apartment Buyers Agreement' between the parties, also the appellant/OP was justified in deducting brokerage amount. It is further contended that the District Forum exceeded its jurisdiction by allowing interest on the deposited amount. It is contended that the refund of principal amount less brokerage i.e. Rs.19,98,648/- had already been encashed by the respondent/complainant. It is contended that after encashment, the protest on the part of respondent/complainant is of no consequence. In support of its contention, Ld. Counsel has relied upon the judgement of the Hon'ble Supreme Court in Bhagwati Prasad Pawan Kumar vs Union of India, (2006) 5 SCC 311 wherein it is held that once the cheque has been accepted and encashed, the same amounts to acceptance of offer. It is contended that since the principal amount less brokerage was accepted and encashed by respondent/complainant, as such the respondent/complainant can't challenge the same now. It is contended that the same was also not accepted under protest.
We have considered the submissions made and perused the material on record.
Clause 8 of the "Application for Provisional Allotment" reads as under:
"The Applicant(s) hereby agree that the Company shall be entitled to forfeit the Earnest Money along with the interest on delayed payments, interest on installments (paid or payable) and brokerage paid, if any, etc. in case of non-fulfillment of the terms and conditions herein contained and those of the Apartment Buyer's Agreement and also in the event of failure by the Applicant(s) to sign and return in the Company the Apartment Buyer's Agreement within thirty (30) days from the date of its dispatch by the Company.
The Applicant(s) agree that time shall be the essence in respect of payment on or before due date of Total Price and other amounts payable by the Applicant(s) as per the payment plan opted by the Applicant(s) and/or as demanded by the Company from time to time."
As per aforesaid clause, the appellant/OP has the right to forfeit the earnest money along with interest and brokerage paid, if any, in case of non-fulfillment of terms and conditions contained in the aforesaid application. Present is not a case of non-compliance with terms and conditions of 'Application for Provisional Allotment', as such contention raised has no force. The aforesaid clause is not applicable to the facts of present case.
Ld. Counsel has further relied upon Clause 16 of the 'Apartment Buyer's Agreement' between the parties to justify the deduction of brokerage. The said clause is reproduced as under:
"If for any reason other than those given in Clauses 14, 15 supra and Clause 50, DHDL is unable to or fails to deliver possession of the Said Apartment to the Allottee within thirty six (36) months from the date of execution of this Agreement or within any extended period or periods as envisaged under this Agreement, then in such case the Allottee shal be entitled to give notice to DHDL, within ninety (90) days from the expiry of said period i.e. thirty six (36) months or such extended periods, as the case may be, for terminating this Agreement. In that event, DHDL shall be at liberty to sell and/or dispose of the Said Apartment and the Parking Space to any other party such price and upon such terms and conditions as DHDL may deem fit and thereafter DHDL shall within ninety (90) days from the date of full realization of the sale price after sale of Said Apartment and the Parking Space refund to the Allottee, without any interest, the amounts paid by the Allottee in respect of the Said Apartment and the Parking Space without deduction of Earnest Money but after deduction of brokerage paid by DHDL to the broker / sales organizer in case the booking is done through a broker/sales organizer. For the avoidance of doubt, it is stated that the Allottee shall have no other right or claim against DHDL in respect of the Said Apartment and Parking Space.
If the Allottee fails to exercise the right of termination within the time limit as aforesaid, then the Allottee's right to terminate this Agreement shall stand waived off and the Allottee shall continue to be bound by the provisions of this Agreement."
The aforesaid clause is applicable in case the possession is not delivered by appellant/OP within the stipulated period as has been stated therein and the allottee gives notice for termination of Agreement. The aforesaid clause is not applicable to the facts of the present case. The respondent/complainant had not applied for refund under the aforesaid terms and conditions of the Agreement.
The 'Exit Policy' has been issued after the execution of 'Apartment Buyer's Agreement'. There is no reference of 'Exit Policy' either in the 'Application for the Provisional booking of the flat' or in the 'Apartment Buyer's Agreement'. The same is an independent document. The letter dated 9.4.2009 giving 'Exit Option' is reproduced as under:
"We have done our best by doing all the above, to keep you happy and satisfied in the project and are also doing our best to start the construction within a month's time positively. Despite all the above, if you are still not happy to continue, you may exercise the EXIT OPTION , and please let us know so that we shall do our best to re-trade your property and refund the amounts paid by you, in the shortest period, but, maximum within 6 month's time, even if we are not in a position to do re-trading by then. We would also like to clarify here that we shall not be doing any further concessions / discounts, of whatsoever nature."
The said letter is dated 9.4.2009. It has been issued as a gesture of goodwill on the part of appellant/OP as is stated in aforesaid letter. There is no mention of deduction of brokerage charges in the said letter. Further as per the aforesaid letter, respondent/complainant had to inform as to whether he was interested in the exit or not and in case of exercising the option of exit, the amount was to be refunded maximum within 6 months time. The appellant/OP has failed to show any document on record that for exercising the 'Exit Option', the respondent/complainant was informed that the brokerage amount would be deducted. Further the alleged broker is of the appellant only. It is not the stand of the appellant/OP that the alleged broker was hired by the respondent/complainant. The letter dated 9.4.2009 gives an unconditional 'Exit Option'. The appellant/OP cannot burden the respondent/complainant with the brokerage as is alleged.
The judgement of the Supreme Court titled Bhagwati Prasad Pawan Kumar vs Union of India (supra) is of no help to appellant/OP as the facts of the said case are entirely different. Immediately on receiving the cheque, the appellant had protested for the brokerage as is evident from the email dated 18.11.09.
Further there is also a delay of 15 days in refunding the amount. The 'Exit Option' was exercised by respondent/complainant vide letter dated 1.5.09. The cheque has been sent on 16.11.09 which is received by the respondent/complainant on 17.11.09. The period six months as is mentioned in the letter had expired on 1.11.09. In these circumstances, there is delay of 15 days in refunding the amount.
In view of the above discussion, no illegality is seen in the impugned order which calls for interference of this Commission.
The appeal stands dismissed in limini.
A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
(Justice Veena Birbal) President (Salma Noor) Member (OP Gupta) Member (Judicial)