Shiv Kumar vs M/s D.L.F. Universal Ltd

Heard Ms. Neha Garg, and Mr. Nitin Garg, Advocate, for the complainant and Mr. Pravin Bahadur, Advocate, for opposite party.

Shiv Kumar has filed aforementioned complaint, for directing the opposite party (hereinafter referred to as the builder) (i) to refund Rs.13262677/- along with interest @18% per annum, from the date of respective deposits till the date of payment, (ii) to pay appropriate compensation and (iii) any other relief, which is deemed fit and proper in the facts and circumstances of the case.

The facts, as stated in the complaint and emerged from the documents attached with the complaint, are that the builder was a company, incorporated under the Companies Act, 1956 and engaged in the business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. In the year 2007, the builder launched a project of commercial complex in the name of “DLF Shivaji Towers” at 15, Shivaji Marg/Nazafgarh Road, West Delhi. M/s. Japmun Enterprises (the predecessor-in-interest of the complainant) booked one unit of commercial space and was allotted Unit No.-DTS-043, on 27.09.2007, on ground floor, in the said complex, super area 1077 sq.ft., sale price Rs.20739900/-, which included Cost of Parking and Preferential Location charge. M/s. Japmun Enterprises deposited total Rs.11423242.75/- with the builder before 11.09.2008. With consent of the builder, the complainant purchased aforesaid Unit No.-DTS-043 from M/s. Japmun Enterprises, on 11.09.2008, for earning his livelihood by way of self employment. The builder took an undertaking dated 13.09.2008 from the complainant that balance amount of Rs.9316657.25/-would be paid to the builder as per agreement. The builder substituted the name of the complainant in their record on 14.09.2008, in place of M/s. Japmun Enterprises. The builder issued a letter dated 30.12.2008, revising the payment schedule as the construction could not be started on due date. In this letter, if any buyer had paid more than 35% of the cost, then he was given advance payment rebate @13% per annum from the date of such payment till due date as per construction linked payment plan. In this letter date of commencement of foundation work was given as 15.03.2009 and date of offer of possession was given as 15.07.2010 and total sale price had to be paid in 12 instalments. Commercial Space Buyer’s Agreement was executed on 19.01.2009, in favour of the complainant. The builder, vide letter dated 15.07.2009, proposed to return the amount, in excess of 35% of sale price along with interest @13% per annum and sent a cheque of Rs.607302/- as rebate on excess of 35% of sale price. Vide letter dated 30.12.2009, the builder informed that excess amount of Rs.4879642.68 had been credited in the account of the complainant. The builder, vide letter dated 31.12.2009, informed that Rs.69160.32/- was charged as interest due to delay. The builder, vide letter dated 12.07.2010, announced “Timely Payment Rebate” of Rs.1000/- per sq.ft. and proposed to change Unit No.DTS-043 (area 1077 sq.ft.) with Unit No.DSM-004 (area 807 sq.ft.). Finally Unit No. DSM-007 (area 1246 sq.ft.) was changed, vide letter dated 15.09.2010. The complainant paid Rs.13262677/- till 08.11.2010. The builder issued demand/reminder letters dated 28.12.2010, 12.01.2011, 14.01.2011, 31.01.2011 and 07.02.2011, raising demands. The complainant, vide letter dated 22.02.2011, inquired about the stage of construction. The builder, vide letter dated 03.03.2011, informed that they would offer interim possession within two months and raised demand of Rs.5578492/- immediately and Rs.2000757/- till 15.03.2011. The builder issued a reminder dated 22.03.2011. The complainant filed a consumer complaint (CC/436/2011) before District Consumer Disputes Redressal Forum, New Delhi on 13.04.2011, for restraining the builder to raise any demand and pay delayed compensation of Rs.2/- lacs. The builder, vide letter dated 11.05.2011, cancelled the allotment of the complainant and forfeited Rs.4790169.25/-. District Forum, vide order dated 06.06.2011, held that cancellation letter dated 11.05.2011 was invalid and directed the builder to permit the complainant to visit the site and accept the amount from him. The complainant gave a cheque of 1606111/- dated 07.06.2011 but the builder did not accept that cheque and returned it. The builder issued a demand letter dated 10.06.2011, demanding total Rs.9376548/- within 10 days. The builder sent another letter dated 10.12.2013, demanding Rs.206899.09/- as maintenance charges. The builder sent another letter dated 24.01.2014, demanding Rs.2423928.43/- as holding charges. The builder also sent electricity bills dated 25.02.2014 and 12.03.2014. Municipal Corporation of Delhi also issued a notice dated 24.02.2014, for assessment of Property Tax. The builder was adamant on their demand of 90% of sale price although construction was not in progress nor possession was expected in near future. Then the complainant withdrew CC/436/2011 on 12.08.2014 and filed this complaint on 26.08.2014 on the allegations that the builder has committed unfair trade practice.

The builder filed written reply on 03.11.2014, in which, material facts have not been denied. The builder took plea that the complainant was not a consumer but investor as such the complaint was not maintainable. The Agreement contained an arbitration clause and the complaint is not maintainable. The complaint for refund was maintainable as Space Buyer’s Agreement has already been cancelled on 11.05.2011. Otherwise also the complaint has been filed on 26.08.2014 and is time barred. The builder, in provisional allotment letter dated 27.09.2007, disclosed that layout plan had not been sanctioned till that day. The complainant also knew that fact and gave an undertaking dated 11.09.2008 and affidavit dated 13.09.2008, to abide by the terms of the allotment letter. The builder vide letter dated 31.12.2009, informed the complainant that payment plan would be ‘construction linked’. The complainant did not pay any amount after 29.09.2008, in spite of demand notices dated 21.10.2010, 06.12.2010, 14.01.2011, 22.02.2011, reminders dated 28.12.2010, 12.01.2011, 07.02.2011 22.02.2011, 03.03.2011, 14.03.2011, 17.03.2011, 22.03.2011, 01.04.2011 and Final notices 31.01.2011 and 20.04.2011. Ultimately allotment was cancelled on 11.05.2011. In compliance of the order of District Forum dated 06.06.2011, the builder apprised that total amount of Rs.9376548/- was payable but the complainant did not deposit that amount. The complainant is a defaulter and this complaint was filed in order to wriggle out of the terms of the Agreement and to avoid forfeiture. The complainant never intended to take possession. When the complainant realized that there was no much increase in the price, he began to avoid payment of instalments. The builder allotted 452 spaces in the project to different buyers and issued possession letters to 399 buyers till date of filing of written reply, after obtaining occupancy certificate on 15.02.2012.

The complainant filed Rejoinder Reply on 23.01.2015. The complainant filed various documentary evidence and Affidavit of Evidence of Shiv Kumar. The builder filed Affidavit of Evidence of Manish Kumar. Both the parties filed their short synopsis.

We have considered the arguments of the counsel for the parties and examined the record. The objection of the builder that the complainant was not a ‘consumer’ as the property in dispute is commercial space, has no force. The complainant has stated that he had got allotted the commercial space for earning his livelihood by way of self-employment. Supreme Court in Sunil Kohli Vs. Puearth Infrastructure Ltd., (2020) 12 SCC 235, held that if commercial property has been booked by a person for earning his livelihood by way of self-employment, then he is a ‘consumer’. Similarly the objection that the complaint is barred by limitation as Space Buyer’s Agreement was cancelled on 11.05.2011 and the complaint was filed on 26.08.2014, has also no force as after cancellation of agreement by alleged letter dated 11.05.2011, the amount was not refunded to the complainant rather the builder issued several demand letters dated 10.06.2011, demanding total Rs.9376548/-, 10.12.2013, demanding Rs.206899.09/- as maintenance charges and 24.01.2014, demanding Rs.2423928.43/- as holding charges.

The space in dispute was booked on 27.09.2007. Till 11.09.2008, the builder realized total Rs.11423242.75/- from the predecessor-in-interest of the complainant. The builder issued a letter dated 30.12.2008, revising the payment schedule as the construction could not be started on due date. In this letter, if any buyer had paid more than 35% of the cost, then he was given advance payment rebate @13% per annum from the date of such payment till due date as per construction linked payment plan. In this letter date of commencement of foundation work was given as 15.03.2009 and date of offer of possession was given as 15.07.2010 and total sale price had to be paid in 12 instalments. From the letter dated 12.07.2010, it is proved that the construction was not started till then. In this letter expected date of commencement of superstructure was shown as 25.09.2010. From these letters, it is proved that even after about three years of booking, the builder was not able to start the construction but delayed interest of Rs.69160.32/- has been charged, which is proved from the letter dated 31.12.2009 (Annexure-H). These facts crated reasonable doubts in the mind of the complainant. The complainant, vide his advocate’s letter dated 22.02.2011, sought information about the stage of construction. Instead of supplying the information about the stage of construction, the builder informed that interim possession for interiors fit-outs would be offered till middle of the year and raised a further demand of Rs.5578492/- and Rs.2000757/-. Thereafter vide letter dated 11.05.2011 cancelled Space Buyer’s Agreement. The action of the builder was arbitrary and unreasonable. Supreme Court in Pioneer  Urban Land & Infrastructure Ltd. Vs. Govind Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and N B C C (India) Ltd. Vs. Shri Ram Trivedi, (2021) 5 SCC 273, held the terms of the contract would not be final and binding if it is shown that the buyer had no option but to sign the dotted lines.

ORDER

In view of aforesaid discussions the complaint is allowed. The builder is directed to refund entire money of the complainant with interest @9% per annum, from the date respective deposit till the date payment, within a period of two months from the date of the judgment.