Kushal K. Rana Vs DLF Commercial Complexes Ltd. On 9 September, 2014

Kushal K. Rana vs Dlf Commercial Complexes Ltd.
on 9 September, 2014
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
Indian Kanoon - http://indiankanoon.org/doc/71905577/ 1
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
RDER
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
1. On Application for booking 11-MAR-08 75000.00 0.00 0.00 0.00 750000.00
2. Within 2 months of booking 11-MAY-08 7694000.00 0.00 0.00 150000.00 7844000.00

3. Within 4 months of booking 11-JUL-08 3377600.00 0.00 0.00 60000.00 3437600.00
4. Within 6 months of booking 11-SEP-08 3377600.00 0.00 0.00 60000.00 3437600.00
5. Within 9 months of booking 11-DEC-08 3377600.00 0.00 0.00 60000.00 3437600.00
6. Within12 months of booking 11-MAR-09 2533200.00 0.00 0.00 45000.00 2578200.00
7. Within15 months of booking 11-JUN-09 2533200.00 0.00 0.00 45000.00 2578200.00
8. Within18 months of booking 11-SEP-09 1688800.00 0.00 0.00 30000.00 1718800.00
9. Completion of Building Struc 2533200.00 0.00 0.00 45000.00 2578200.00
10. Completion of MEP Services 2533200.00 0.00 0.00 45000.00 2578200.00
11. On Application for Occ.Cer 1688800.00 0.00 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/

Kushal K. Rana Vs DLF Commercial Complexes Ltd. On 9 September, 2014

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Kushal K. Rana Vs DLF Commercial Complexes Ltd. On 9 September, 2014

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Kushal K. Rana vs Dlf Commercial Complexes Ltd.

National Consumer Disputes Redressal

CONSUMER COMPLAINT NO. 88 OF 2012

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

1-E, Jandewalan Extension

Naaz Cinema Complex, New Delhi 110 055 Opposite Party

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

For the Complainant : Mr. Veeneet Malhotra, Advocate

With Ms. Smita Maan, Advocate

& Complainant in person

For the Opposite Party

With Mr. Anchit Oswal &

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Indian Kanoon - http://indiankanoon.org/doc/71905577/ 4

The cost related to design engineering was substantially completed.

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15. On 03.03.2012, the complainant asked for refund of the money.

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belonging to the complainant was forfeited.

SUBMISSIONS AND FINDINGS:

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.

Linked Stages Due Date BSP IBMS INT PRKG-BSP TOTAL

1. On Application for booking 11-MAR-08 75000.00 0.00 0.00 0.00 750000.00

2. Within 2 months of booking 11-MAY-08 7694000.00 0.00 0.00 150000.00 7844000.00

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3. Within 4 months of booking 11-JUL-08 3377600.00 0.00 0.00 60000.00 3437600.00

4. Within 6 months of booking 11-SEP-08 3377600.00 0.00 0.00 60000.00 3437600.00

5. Within 9 months of booking 11-DEC-08 3377600.00 0.00 0.00 60000.00 3437600.00

6. Within12 months of booking 11-MAR-09 2533200.00 0.00 0.00 45000.00 2578200.00

7. Within15 months of booking 11-JUN-09 2533200.00 0.00 0.00 45000.00 2578200.00

8. Within18 months of booking 11-SEP-09 1688800.00 0.00 0.00 30000.00 1718800.00

9. Completion of Building Struc 2533200.00 0.00 0.00 45000.00 2578200.00

10. Completion of MEP Services 2533200.00 0.00 0.00 45000.00 2578200.00

11. On Application for Occ.Cer 1688800.00 0.00 0.00 30000.00 1718800.00

33776000.00 1055500.00 0.00 600000.00 35431500.00

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towards cost of the litigation incurred by her.

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

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

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