DR.INDER JIT SINGH, MEMBER

1.      The present Consumer Complaint (CC) has been filed by the Complainant against Opposite Party(ies) (OPs) as detailed above, inter alia praying for directions to:-

1. Hold that complainant is having vested right and special equities in respect of flat no. CGT066 on 6^th floor, Block-T,DLF Capital Greens, Phase-II at the price of Rs.1.44 crores inclusive of right of parking, club etc and for any reason the said flat is not constructed or available, then exactly comparable flat be allotted to the complainant at the same total price.

2. Hold that cancellation of said flat or forfeiture of flat / amount carried out by the OP No.1 is void and of no effect.

3. Hold that in the event of any interest or penalty being payable, the OP no.2 shall pay / reimburse the same.

2.      Notice was issued to the OP(s).  Parties filed Written Statement/Reply,  Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table at Annexure-A.  The details of the flats allotted to the Complainant / other relevant details, based on pleadings of the parties and other records of the case are also given in the  Annexure- A.

3.      Brief facts of the case as presented by the Complainant and as emerged from the pleadings of the parties and other case records are that

1.  Complainant submitted an application for flat measuring 1440 sq.ft. under the project / scheme called DLF Capital Greens, Phase-II.  The complainant made the payment of fee of Rs.7,50,000/- with the application in favour of OP No.1 towards the flat proposed to be purchased in the said project of the OP no.1.  The receipt dated 30.09.2009 was issued to the complainant in which it was mentioned that same is neither a provisional nor final allotment. However, certain particulars of the flat were indicated in the receipt viz. CGT066 on 6^th floor on Block-T of the project. It was also indicated that Buyers Agreement will be governing the dealings between the parties, However, no agreement was signed on even sent for signatures to the complainant till then.  The terms and conditions documents, the payment plan documents and the specification documents were all part of the application. 

2. The basic price of the flat applied had been indicated to be Rs.1.08 crores while the total price inclusive of parking, club. PLC etc was Rs.1,44 crores.   The Complainant opted for construction linked plan. The OP No.1 demanded 57.5% upon the laying of ground floor slab which is the initial stage and therefore OP No. 1  collecting almost 60% at the earliest stage which is not construction linked but down payment plan.  Till the filing of the complaint, according to the website of OP no.1, the stage of construction in relation to Tower I, Phase-II in the month of February 2012 had reached the stage of about 3^rd floor.    The OP No.1 did not forward the allotment letter or Buyer Agreement nor the OP No.1 encashed the first cheque.  The OP No.1 also did not send any demand for further payment to the complainant. 

3. During the visit of the complainant’s representative to the office of OP No.1 in April 2010, the staff of OPNo.1 without showing any proof of construction stage claimed that Rs.58,000/- was due upto that time.  The office staff of the OP No.1 claimed that vide communication dated 11.03.2010 which was never served upon the complainant as per the complainant, the allotment had been cancelled.  Till that time no allotment letter had been issued by OP No.1 and no Buyer Agreement had been executed between the parties.  According to the complainant, he had made substantial payment to OP No.1.  There was no default which warranted cancellation on the part of the complainant. 

4. The complainant got sanctioned housing loan of Rs.50.00 lacs from OP No.2 (Bank) with whom the OP No.1 was having project tie-up.  The complainant paid to OP No.1 Rs. 35.00 lacs released by Bank plus Rs. 6.00 lacs from himself.  Initially the complainant had paid Rs. 7.5 lacs.   After getting the said amounts, officials of OP no.1 claimed that Rs. 9.00 lacs more was still due and OP No.1 raised demand of balance Rs. 8.79,724/-. 

5. Vide communication dated 17.06.2010 the OP No.1 furnished the details of payment due being Rs.8,95,000/-.  This amount included roughly Rs.2,00,000/- interest on alleged delayed payment and it was stipulated that interest would be accruing day by day on the outstanding amount of Rs. 8,95,000/-.  The OP No.1 revoked the cancellation and OP No.1 on its own made a stipulation for interest to be paid on the balance amount. 

6. The complainant was under the impression that Bank which had sanctioned the housing loan of Rs.50.00 lacs, out of which Rs.15.00 lacs was unutilized and Bank being a partner in the project would remit the further payment as per requirement of OP no.1 but Bank in the absence of binding bilateral document in the form of property purchase agreement signed by both the parties was not in a position to disburse the further amount to OP no.1. 

7. The complainant on 29.06.2010 made a wire transfer of US$ 19,250/- in favour of OP No.1 which comes to Rs.8,90,851/- in Indian currency. The said wire transfer clearly mentioned the complete details regarding US address of the complainant.    However, after gap of less than two months from the wire transfer, there was a cancellation without any notice or intimation to the complainant even though the complainant had made substantial payments.   The complainant was out of India for more than a year till 2011 and during this period, the complainant did not receive any demand from the OP No.1.  The Bank was also not given any demand letter or notice for payment who was having tie-up with OP No.1.

8. On visiting the office of OP No.1 in September 2011, complainant was told that there is outstanding amount to the tune of  Rs. 65.00 lacs on his part.   The complainant requested the Bank to release the balance payment out of the sanctioned housing loan but the Bank refused.  The complainant, however, made the payment of Rs.65 lacs by demand draft. 

9. OP No.1 sent a communication dated 20.10.2011 returning the Demand Draft  of Rs. 65.00 lacs.  OP No.1 took the stand that it has refunded Rs. 41,48,471 to the Bank whereas Bank had paid Rs.35 lacs out of the sanctioned loan of Rs. 50.00 lacs.   The amount did not reach the Bank and till the filing of the complaint, the Bank is collecting / deducting the EMI payment from the complainant.  When the Bank asked for another cheque even long after expiry of cheque sent if any, no compliance was done.  No copy has ever reached the complainant.  OP No.1 unilaterally remitted arbitrary amount and forfeited almost Rs.17.00 lacs.    OP No.1 had not issued any allotment letter nor got the property buyer agreement executed which was binding on both the parties and therefore, it is OP no.1 who is at default.   The complainant had paid the substantial amount and OP No.1 having resorted the cancellation and made it conditional only on payment of interest for delay on the balance outstanding.  It is case of the complainant that he is prepared to pay all the amount including interest. 

10. Even the construction of the apartment building is still at incomplete stage and only the basic structure upto few floors has been built as OP No.1’s own website records of February 2012 and the completion of building will take minimum two years time.  OP No.1 asked for the residential address of the complainant even though OP no.1 was having his address.  The complainant did not furnish the address and even then OP no.1 sent DD of Rs.65.00 lacs to the same address of complainant which shows that OP no.1 was having the address of the complainant. 

11. It is further the case of the complainant that complainant is prepared to deposit Rs.65 lacs in the National Commission and the refund made to the Bank had not reached the Bank.  Even the courier record furnished by OP no.1 does not have signature of the Bank at all.   OP No.1 admitted that the said refund is still lying with them when Bank wrote to OP No.1 pointing out that they have not received the refund. Further, OP no.1 had issued another payment plan relating to same project in which only 27% is to be paid upto the stage of ground floor slab. 

(xii)    Being aggrieved of the said acts of the OP(s), the Complainant has filed the present CC. 

4.      OP-1 in their written statement/reply stated that :

1.  On 23.07.2010 the name of OP No.1 was changed to DLF Universal Limited.  It is stated in the reply of OP No.1 that issue involved in the present case is purely a contractual matter and National Commission does not  have jurisdiction to try and adjudicate the present complaint and as per clause 33 of the agreement, in any event where a dispute arises, the same is out of agreement between the complainant and OP and will be resolved by Arbitration Further, The complainant is not a consumer as complainant has booked the premises for investment purposes i.e.to earn profits, an activity which is purely commercial.   The complainant, is, therefore, not covered under section 2 (d) of the Consumer Protection Act.  The complainant has infact admitted that the said premises was booked for investment purpose. Further, it is stated that complainant had agreed to abide by the terms and conditions of the application including those relating to payment of total price and other deposits, charges, rates, taxes, cesses, levies etc and forfeiture of earnest money and non refundable amount as laid down in the application form and / or in the agreement. 

2.      It is further stated in the reply of the OP no.1 that clause 3 of the terms and conditions of the application form / agreement clearly state that on and after the payment of total price and other charges and due as per the application/ agreement, the complainant shall have the (1) ownership of the apartment area of the said apartment , (ii) undivided interest and right to use common areas and facilities alongwith other apartment owners, (iii) right to exclusive use of the parking space (s) and (iv) undivided proportionate interest in the foot print of the aid building calculated in ratio of super area of said apartment to the total super area of all apartments in the said complex.  It is also stated in the application form that complainant shall have right over the said premises and the parking space on the condition of total payment of price towards the purchase of said apartment and same was accepted by the complainant by appending his signatures on all the pages of the application of the application form, after reading, understanding the contentions of the same and without any coercion and objections.

3.  It is   It is further stated that clause 13 of the terms and conditions of the application form clearly states that time is essence in respect of all the payments and complainant miserably failed to adhere to any of the terms and conditions of the application form. Further, clause 21 of the terms and conditions state that complainant had agreed that in case of non-fulfillment of the terms and conditions of the agreement, OP No.1 shall be authorised to forfeit the earnest money, interest on delay payment etc.   The OP No.1 granted various chances to the complainant to fulfil the conditions by paying the remaining amount as per the payment schedule. The complainant had full knowledge of the non-fulfillment of the same but even then the complainant did not pay the money.

4. Further, it is stated that receipt issued by OP No.1 is not an allotment letter but was an acknowledgment of the amounts received by the complainant and said .receipt clearly states that till the time property Buyer’s agreement is executed, the complainant shall be governed solely the terms and conditions stated in the application for allotment submitted by the complainant.    It is denied by OP No.1 that no Space  Buyer’s agreement was sent to the complainant.  Infact vide OP No.1’s letter dated 30.08.2010 reminded the complainant that a Buyer’s agreement has been forwarded and complainant was requested to sign and return all the copies.  The amounts demanded by OP no.1 were according to the terms and conditions  agreed to by the complainant and as per 2.5 years time bound instalment payment plan.

(e ) Further, it is stated that all the communications were sent to the complainant on the address mentioned by him at the time of purchase of the said premises and the complainant never approached OP no.1 nor ever wrote about any change in the address.

6. No objection certificate was issued on the request of the complainant and the Bank.  OP no.2 sent a letter of permission to mortgage the said premises in its favour and thereafter the complainant wrote to OP No.1 admitting that he was aware that allotment was cancelled and showed willingness to restore the said property and further promised to pay all the dues by 30.05.2010.  It is denied by No.1 that OP no.1 and OP No.2 are partners in any way.  Further, an amount of Rs.8,79,724/- was the balance still due from the complainant on the date of issuance of letter dated 01.06.2010.  Also, complainant after restoration of said premises, again defulated in making the payment towards the instalments
7. All the communications were delivered on the address mentioned by the complainant on his application form and it was never informed to OP no.1 that complainant is staying in USA and neither did the complainant ever got his address  updated as per clause 28 of the terms and conditions of the application. Further, OP No.1 vide email dated 24.09.2011 clarified to the complainant the reasons for cancellation of the allotment and further vide email dated 29.09.2011 requested for confirmation of the address.

8. It is denied by OP no.1 in their written statement that OP No.2 had only disbursed Rs.35,00,000/-.  OP No.1 had refunded an amount of Rs. 41,48,471/- received by the Bank on 12.11.2010 after the full and final settlement of the account and no right or lien of the complainant or the Bank is left on the said premises.  OP No.1 confirmed that the cheque has been delivered  to the Bank and requested the officer to check at their end if the same would be lying with the staff as ‘stale’.  No such communication was exchanged between OP No.1 and Bank, which indicates that amount has  been debited. The OP no.1 Company has right to revise its payment plans, change its payment plans, introduce schemes, discontinue schemes, offer rebates and discounts etc.

5.      OP No.2 ( Bank ) did not file any reply to the complaint.   Complainant also did not file any rejoinder to the reply filed by OP No.1.

6.      Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. 6.1. It is argued by learned counsel for the complainant that after payment of huge amount i.e. more than Rs.55,00,000/- by the complainant, the flat was cancelled for non payment of just one instalment.  The cancellation was effected vide communication dated 14.09.2010, by which date, even the sanction of building plan, has not yet been  obtained.    OP No.1 had itself filed on record the sanction letter dated 20.10.2011 by which the building plan for Tower No.2 had  been sanctioned.  Therefore, no construction linked demand could have arisen on any date prior to 20.10.2011.   The communication dated 23.08.2010 or the cancellation letter dated 14.09.2010 or the email dated 24.09.2011 and 29.09.2011  were all issued prior to even the sanction of building plan.    Further, all amounts upto and prior to July 2010 stood paid and regularized by OP No.1 taking the payment with the interest and restoring the flat of the complainant on 12.07.2010.
    
   6.2. It is further argued that complainant had remitted Rs.41,68,674/- leaving balance of Rs.8,95,000/- and giving opportunity to the complainant to pay the same, which the complainant paid by way of wire transfer from USA and flat was restored.
    
   6.3. The time granted by OP No.1 dated 02.08.2010 was 90 days at reduced interest of 15% p.a., which period did not expire and OP no.1 prematurely cancelled the flat.  It is also argued that OP No.1 admitted that it had received intimation from the complainant to the effect that complainant was based in the USA.  Further,  for cancelling the allotment of flat, and more so after paying almost paying 50% of the total sale consideration,  which was sent to the earlier address of the complainant amounts to deficiency in service on the part of OP No.1 when telephone number and email was very much available with OP No.1 and one senior official Mr. Ramakrishnan had been corresponding on email with complainant.
    
   6.4. It is also argued that complainant made payment of Rs.65,00,000/- which was due on 16.07.2010 was accepted by OP No.1 and that complainant had also made earlier payment of more than Rs.58 lacs, meaning thereby that complainant had made 100% payment.  The communications relied upon by OP No.1 to reject the restoration  even after payment of further Rs.65,00,000/- nowhere state that building plan has been sanctioned. OP No.1’s communication is dated 20.10.2011, when building plan was sanctioned, therefore, default cannot be attributed to the period from July to September 2010 nor could any subsequent default in payment   can  be ground for cancellation or non-restoration of flat as all the instalments after March 2010 were construction liked and could not be validly demanded till the building plans were sanctioned.
    
   6.5. It is also argued that OP No.1 did not intimate the Bank about the demand or cancellation of the flat even though the bank had lien on account of loan of Rs.50,00,000/- granted to the complainant.  The entire loan had not been disbursed and therefore any reference to the bank could have resulted in the bank paying the undue amount.   Further, Bank was aware that the building plan had not been sanctioned and Bank could have intimated to the complainant by email. Further, OP No.1 had illegally forfeited Rs.13.00 lacs towards earnest money and also misappropriated lacs of rupees towards interest as upto 20.10.2011, even the building plans had not been sanctioned.  Further, it is argued that flat of the complainant was cancelled on 14.09.2010 and amount was remitted to the Bank thereafter.  When the bank had lien over the property and also there was a mortgage in favour of the  bank and almost 58 lacs stood received by OP no.1 from the complainant, as there could be no cancellation except by associating the bank to find out whether the bank was prepared to take over the flat by making the payment of the nominal amount which was claimed by OP No.1 because building plan  had not been sanctioned.  It is admitted that Bank had received payment from OP no.1 for an amount of Rs.41,48,471/- after 28 months delay and during the period from 2010 to 2013, complainant had to continue to pay EMIs to the bank.  Infact, the complainant had paid about Rs.10.00 lacs to the Bank by way of EMIs and complainant has been put to loss.  OP No.1 had caused 3 years delay in sending the amount to the Bank. 
    
   6.6. It is further argued that complainant is interested in flat at the rate agreed to the complainant.
    
   6.7. Learned counsel for the Complainant regarding the prayer of the Bank for being deleted from the present case made on 11.10.2012 argued that  all papers relating to the project, including in particular the record of sanction of the building plans, if any, ought to be available with the OP No. 2 at its headquarters in the file, in which this project was approved for disbursement of loan. Further bank had declined to remit more than Rs 35 Lacs out of sanctioned Rs 50 Lacs loan.  The OP No. 2 as the banker of the project, by correctly reacting to wrongful cancellation (may be by writing a strong letter of protest, or by cautioning to blacklist the project), could very well have got the illegal action reversed / remedied / set right. However, the OP No. 2 did not do so.  It is further argued that the OP No 2 as the banker associated with home loans of the project, was in the best position to know about the stage of the construction and whether further moneys beyond Rs. 58 Lac already paid by the Complainant, could be demanded or not. Rather from the disinclination of the OP No. 2 to disburse beyond Rs. 35 Lac (out of total sanctioned Rs. 50 Lac), itself it is clear that OP No. 2 had some reservations regarding liability to pay further amount to the DLF.  Further, it is argued that the if OP No. 2 (ICICI Bank) is found to be correct in its stand, to not disburse more than Rs. 35 Lacs out of the sanctioned Rs. 50 Lacs, then obviously DLF could not have demanded further payment. On the other hand, if OP No. 2 (ICICI Bank) has been deficient in not disbursing the balance amount of Rs.15 Lacs, which was lying sanctioned with it, then the said OP No. 2 has to compensate the Complainant for the loss suffered by the Complainant. Thus, in either case, the OP No. 2 is very much a necessary party in the present case and cannot ask to be deleted.  OP No. 2 as the approved banker for home loans, was a signatory to a tripartite agreement in relation to the loan taken for the flat in question. Not only was there a banker's lien over the flat allotment, but there was also an amount of Rupees 15 Lac lying sanctioned and waiting to be disbursed. The agreement being tripartite in nature, no action of cancellation could have taken without putting the bank to notice. Further,  in the event of non-payment of any EMIs by the Complainant, the OP No. 2 bank had full rights under the Securitization Laws to take over the transaction of the flat allotment itself.
    
   6.8. It is also argued that Bank has been collecting EMIs with interest in the intervening period and therefore, cannot now accept the refund amount as if it has been paid to them retrospectively. The amount of refund claimed by DLF to have been dispatched, was more than Rs. 41 Lacs.  OP No. 2 had conveyed to the Complainant that keeping in view the stage of construction, they cannot disburse more than Rs. 35 Lac out of the Rs. 50 Lac sanctioned for disbursement.  OP No.1 gave permission to mortgage and has also placed on record its communication dated 25.05.2010, wherein it is specifically recorded that in the event of cancellation, DLF is to refund all amounts to the bank and thereafter, the Bank "shall release" their lien on the above-said apartment. In the present case, refund has not reached the OP . 2 and therefore, no question could arise of Respondent No. 2 releasing its lien on the apartment. However, DLF claims that without release of the lien by the banker, they have allegedly sold the flat to some third party, which independently constitutes an illegality under the tripartite arrangement, which was in place under a written document.  It is also argued that OP No.1 claims that it sold the flat to a third party on 25.03.2011. Thus there was almost 6 months time gap between the alleged intimation sent by OP No.1 to the OP No. 2 Bank, and the so called resale to third party. If OP No. 2 bank had received such an intimation of cancellation, it was duty bound to inform the complainant / loan taker.  OP No. 2 was also duty bound to enforce its lien vis-a-vis the flat, by asking what is the amount due resulting in cancellation and since in this case it was less than half the amount which was sanctioned and pending for disbursement,  OP No. 2 ought to have either remitted the money, or if it had objection on the ground  that the construction had not matured sufficiently for disbursement beyond Rs. 58 Lac, then the Respondent Bank ought to have communicated it's stand/objection to OP No.1.  It is also argued that OP No.2 could on being approached for release of lien, verified the amount due to them. Also, when it would have found that there are Rs. 15 Lacs lying with them waiting to be disbursed, OP No.2 would have immediately contacted the complainant that they have been approached for release of lien. Thereupon, complainant could have either remitted the money himself, or requested OP No.2 to disburse the balance remaining sanctioned amount. In case, the Bank with its better knowledge about the status of construction, on the basis of multiple loans under disbursement for this very project, would have objected to disbursement of further amount on the ground that the construction has not started, or not sanctioned, or not matured enough for further disbursement, the complainant could have taken up the matter with OP No.1.
    
   6.9. Complainant also filed written submissions on 22.11.2021.  In the said written submissions, it is stated that  that complainant did not receive any communication or intimation from OP No.1 or even the receipt for the payment of Rs.41,68,674/-.  Further,  complainant received a letter from OP No.1 dated 20.1.2011 addressed to him at USA address referring to certain emails which were never received by the complainant and stating that allotment of flat has been cancelled.   It is further argued that vide email by OP No.1 to Bank, the amount of Rs.41,48,471/- was returned to the Bank in lieu of full and final settlement against the flat, however, vide email dated 28.11.2010, the Bank confirmed that no such payment was received by them.   Further, complainant neither received any intimation or demand from OP No.1 nor from Bank.   
    
    
   6.10. It is further stated that OPNo.1 received building plan approvals from the competent authorities in the month of October 2011 i.e.much after the said flat was cancelled for non payment of construction linked instalment.  No construction work can commence unless and until there is a proper sanction of building plans by the competent authority.  Therefore, without approval of building plan, instalment no.7 ( which was to become due at the start of foundation work) could not have been demanded.  Therefore, there was no question of cancellation of the said flat for non payment of the same since it never became due.  
    
   6.11. Further, if there was any balance amount left, after confirmation from the financial institution, then the said amount should have  been mandatorily sent to the complainant immediately, however, OP No.1 has failed to refund any amount till date.   Even after cancellation of said flat, OP No.2 kept charging EMI alongwith interest and penalty from the complainant till August 2012 and for the said period, the complainant had already paid almost Rs.10,00,000/- on the cancelled flat.  Further, as per email dated 1.06.2010, the OPs were duly informed that complainant lives in USA and, therefore, OP cannot alleged that there were not aware of the complainant’s address in the USA and the cancellation letter did not reach the complainant.  The email address of the complainant was always available with the OPs.
    
    
   6.12. It is also averred that that National Commission directed the OPs to maintain status quo with regard to the flat in question.  However, as admitted by OP No.1, the same was already re-allotted to a third party i.e. Mr. Gopal Ramdev and Mrs. Meenakshi Ramdev on 25.03.2011.   When there was lien of the said flat by the Bank till 08.02.2013, OP no.1 had already created a third party interest in the same by illegally selling the said flat. 
    
   6.13. Learned counsel for the complainant relied on the following order of the National Commission / Hon’ble Supreme Court :
    
   (a)   Kushal K Rana Vs. DLF Commercial Complexes Ltd. – CC No. 88 of 2012.
    
   (b)   Shalabh Nigam Vs. Orris Infrastructgure Pvt. Ltd. and Ors. – CC No. 1702 of 2016
    
   (c)   Jaswinder Kaur Vs. Parsvnath Developers Ltd. and Ors. – CC No. 282 of 2015
    
   (d) Kailash Nath Associates Vs. Delhi Development Authority – Civil Appeal No. 193 of 2015 
    
   6.14. Learned counsel for OP No.1 apart from repeating the points which have been stated in preceding paras argued that complainant had paid a sum of Rs.55,46,250/- to OP No.1 as part payment of the allotment.  In terms of cancellation letter dated 14.09.2010 and on account of non payment, the OP no.1 after cancellation of the allotment and forfeiting an amount of Rs.16,61,053/- as per the terms and conditions of the allotment had paid to the Bank the refundable amount as Bank had a first charge on the said allotment.  
    
   6.15.     Learned counsel for OP No.2 – Bank argued that Bank had sanctioned the loan amount and disbursed an amount of Rs.35,82,462 to OP No.1 vide two disbursals dated 28.05.2010 and 31.05.2010 and the amount disbursed to OP No.1 has been received by the Bank on 25.03.2013 and status of the loan is closed.  The present dispute is between the complainant and OP No.1 and no averments have been made against OP No.2 bank nor any deficiency in service has been made out against the Bank in the complaint. All the claims of the complainant lie against OP No.1 and no cause of action lies against the Bank.  

7.      This is a complaint alleging unfair trade practice on the part of OPs by cancelling the allotment and otherwise also not adhering to the terms and conditions of the allotment as such the relief of possession together with other ancillary reliefs has been prayed for and also to hold that the cancellation and forfeiture on the amount paid to the OPs be declared as invalid.

8.      An IA No. 13735 of 2023 was filed by OP no.1 seeking a change in the nomenclature of the array of parties as the name of OP No.1 has altered to DLF Universal Ltd. w.e.f 23.07.2010 and a certificate of incorporation was also annexed with the said IA.  Further, it was submitted that said name has also changed now after the merger known as DLF Home Developers Ltd consequent to the orders passed by the Delhi High Court. The application was allowed vide this Commission’s order dated 23.11.2023.

9.      During the hearing on 19.10.2023, OP No.2 submitted that Bank has already received its dues from the OP No.1 and, therefore, the said OP no.2 be discharged from these proceedings.  However, complainant contended that keeping in view the nature of the relief prayed for, continuation of OP No.2 as proper and necessary party is desirable.

10.    On 30.09.2009 the Complainant applied to OP No.1 for allotment of an apartment in the project ‘Capital Greens’ to be developed by OP No.1.  An amount of Rs.7,50,000/- was paid as booking amount ( application  bears no date). Subsequently, vide letter dated 09.10.2009 Complainant was allotted apartment no. CGT066 and parking no. PT 1029.  Receipt dated 30.09.2009 evidencing receipt of booking amount of Rs.7.50 lacs was issued by OP No.1.  This receipt states that till the property buyer’s agreement is executed, the Complainant shall be governed solely by the terms and conditions stated in the application. The said allotment letter dated 09.10.209 states as follows :

Enclosed is the original Booking receipt alongwith the Construction Lined Payment Plan.Also note that the payments have to be made in favour of DLF Retail Developers Ltd.

We would also like to mention here that even if you have not taken a final decision about the Payment Plan, you can still think of it, as in the case of Down Payment Plan, full payment of 95% of the Sale Price is payable within 30 days from the date of booking and you get 8.5% of Sale Price ( which is equivalent to Interest @ 12% p.a. on reducing balance) as Down Payment Rebate alongwith Rs.500/-p.s.ft. as TimelyPayment Rebate.Whereas under Construction Linked Payment Plan, you get Rs.500/- p.s.ft. being the Timely Payment Rebate after we have got 100% possession on due dates and the same will be credited to you only in the last instalment when we offer the possession.

Hence, if you desire to covert the Payment Plan to ‘Down Payment Plan’, then after crediting the Down Payment Rebate of Rs.1,109,250.00 and Timely Payment Rebate of Rs.720,000.00, a net sum of Rs.9,818,250.00 is payable by 30-Oct-2009.

11.    The details of unit allotted,  sale consideration and payment plan enclosed were as follows :

Scheme Name DLF Capital Greens Phase II

Customer Ref No. UNQ/210/001564Customer code : M05166

Payment Plan :33 monthsCustomer Name : MUKESH DILWARI

1. SUMMARY OF DUES

Interest Bearing Maintenance Security @ Rs.100.00 psft extra

Payable at the time of possession144,000.00

1. PAYMENT PLAN

# Including booking amount

** Payable to condominium association at the time of possession

*Whichever is later

Some of the important terms and conditions of the application form are reproduced below :

Agreement means the apartment buyer’s agreement to be executed by the Applicant and the Company on the Company standard format.

Earnest Money means 10% of the Total Price of the said Apartment payable by the Appellant.

Non Refundable Amounts means interest paid or due on delayed payments, deduction of brokerage paid by the Company, if any etc.

Total Price means the amount amongst others, payable for the Said Apartment which includes basic sale price, PLC ( if the Said Apartment is preferentially located) calculated on per / per sq.mt./sq.feet basis of the super area of the Said Apartment and cost of Parking Space (s) but does not include other amounts, security amount etc., which are payable as and when demanded by the Company in accordance with the terms of this Application / Agreement, including but not limited to.

2.  The Appellant shall pay the Total Price of the Said Agreement in accordance with the payment plan opted by Applicant and in addition, the Applicant shall also be liable to pay all other amounts, charges and dues mentioned in this Application and / or the Agreement in accordance with the demand raised by the Company from time to time.

13. The Applicant agrees that time is the essence in respect of all payments to be made by the Applicant including the Total Price and all other amounts, charges and dues, as mentioned in this Application / Agreement.

14)(i) The Applicant has seen and accepted the plans and has applied for the allotment of the Said Apartment with the specific knowledge that the building plans, designs, specifications, measurements, dimensions, location and number of the Said Apartment and / or Said Building, floor plans and all other terms and conditions are tentative and are  liable to change, alteration, modification, revision, addition, deletion, substitution or recast at the sole discretion of the Company and may also change due to changes / modification required by the competent authority.  The Applicant is fully aware that the plans are not yet sanctioned by the competent authority(ies). The Applicant hereby agrees that the Company is fully entitled to increase  / change in the number of floors or the location of the Said Apartment in any of the buildings and / or the height of the Said Building and the Applicant shall have no right to object to the same.

21.The Applicant agrees that the Company shall be entitled to forfeitt the Earnest Money along with the Non Refund amount in case of non fulfillment/ breach of the terms and conditions of the Application and the Agreement including withdrawal of the Application and also in the event of the failure by the Applicant to sign and return to Company the Agreement within thirty (30) days from the date of its dispatch by the Company. Thereafter Applicant shall be left with no lien, right, title, interest or any claim of whatsoever nature in the Said Apartment Company shall thereafter be free to resell and/or deal with the Said Apartment in any manner whatsoever. amount(s), if any, paid over and above the Earnest Money and the Non Refundable Amounts would be refunded to Applicant by the Company only after realizing such amounts from resale of the Said Apartment but without interest or compensation of whatsoever nature. The Company shall at all times have the first lien and charge on Said Apartment for all its dues payable by the Applicant to the Company. If the amount deposited/ paid by Applicant is less than the Earnest Money and the Non-Refundable Amounts then the Applicant agrees undertakes to make the payment of the difference forthwith at the first written request from the Company.

22. Without prejudice to the Company’s aforesaid rights, the Company may at its sole discretion waive the breach by the Applicant is not making payments within the stipulated time by the Applicant on the condition that the Applicant 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 period  exceeding first ninety (90) days after the due date @ 18% per annum.

25. The Applicant agrees that in case the Applicant opts for a loan arrangement with any financial institutions / banks, for the purchase of the Said Apartment, the conveyance of the Said Apartment in favour of the Applicant shall be executed only upon the Company receiving ‘No Objection Certificate’ from such financial institutions / banks.

27. The Applicant agrees that in case the Applicant is an NRI or non-resident/foreign national of Indian origin/foreign nationals/foreign companies then all remittances, acquisition/transfer of the Said Apartment, any refund, transfer of security etc. ,shall be made in accordance with the provisions of Foreign Exchange Management Act, 1999 or statutory enactments or amendments thereof and the rules and regulations of the Reserve Bank of India or any other applicable law and it shall be sole responsibility of non-resident/foreign national of Indian origin/foreign nationals/foreign companies to abide by the same. The Company accepts no responsibility in this regard.

28. The Applicant agree to inform the Company in writing any change in the mailing address mentioned in Application, failing which all letters by the Company shall be mailed to the address given in this Application deemed to have been received by the Applicant. In case of joint applicants communication sent to the first Applicant in this Application shall be deemed to  have been sent to all applicants.

29. The Company is not required to send reminders / notices to the Applicant in respect of the obligations of the Applicant as set out in this Application and / or the Agreement and the Applicant is required to comply with all obligations on its own.

12.    OP No.1 contends that despite their issuing First demand notice dated 23.10.2009 for Rs.8,81,250/- ( amount to be paid within 45 days of booking as per payment plan) 2^nd demand notice dated 09.12.2009 for Rs.9,78,750/- ( amount to be paid within 90 days of booking) and 3^rd demand notice dated 08.01.2010 for Rs.9,78,750/- ( amount to be paid within 120 days of booking and various reminders dated 16.11.2009, 01.12.2009, 21.12.2009, 04.01.2010, the Complainant did not pay total amount due of Rs.28,38,750/- leading to issuance of First cancellation letter dated 14.01.2010, vide which complainant was informed that an amount of Rs.13,33,125/- was forfeited by this time. Relevant portion of cancellation letter dated 14.01.2010 is reproduced below :

This is further to our letter (Final Notice) dated 21/12/2009 reminding and requesting you to remit us a sum of 981.250.00, which was outstanding for payment to reach us latest by 06/01/2010.   We have checked up our records and find that despite our communications. the last being dated 21/12/2009. as mentioned above, we have not yet received the overdue payments and we are now left with no other option but to cancel the allotment for non payment of our dues. In terms of clause no.21 of the terms and conditions of the application for allotment, the earnest money alongwith interest on delayed payment, and other amount non refundable in nature is forfeitabie in the above event and accordingly, a sum of Rs. 1,333,125.00, as per details below stands forfeited and the amounts received by us over and above the total forfeitabie amount if any as per the details given below is being refunded to you separately. In case, there is a lien of any Financial Institution, refund if any, shall be done after the confirmation of the amount from the Financial Institution.

With the above. all the original Receipts and stands cancelled and you do not have any lien or right, whatsoever, on the captioned property.

13.    However, it is seen that despite issuing a cancellation letter dated 14.01.2010 which has been reproduced above, OP No.1 on 15.01.2010 i.e. right on the next day issued a reminder for payment of Ist and 2^nd demand.  It is also noted that copy of the cancellation letter dated 14.01.2010 placed on record by OP No.1 itself alongwith their written reply does not bear the signatures of the authorised signatory of OP No.1, while the letter dated 15.01.2010 do bear the signatures of the authorised signatory of OP No.1.  Hence, it is doubtful whether such a cancellation letter dated 14.01.2010 was actually issued by OP No.1 as claimed.  Hence, the contention of complainant that he did not receive any such cancellation letter dated 14.01.2010 appears true. Reminder dated 15.01.2010 were followed by reminders dated 01.02.2010, 04.02.2010.  Thereafter,  OP No.1 issued 4^th demand note dated 08.02.2010 for Rs. 9,78,750/- ( amount to be paid within 150 days of booking as per payment plan), this was followed by reminder dated 16.02.2010 for payment of 1^st, 2^nd and 3^rd demand and reminder dated 03.03.2010 for payment of 1^st, 2^nd, 3^rd and 4^th demand.  Thereafter, OP No.1 issued 5^th demand notice dated 10.03.2010 for Rs. 9,78,750/- ( amount payable on commencement of construction / 6 months of booking, whichever is later).  OP No.1 contended that on account of non payment of dues as per various demand letters and reminders cited, OP No.1 issued 2^nd cancellation letter dated 11.03.2010 informing the complainant that an amount of Rs. 13,96,759/- was forfeitable and Complainant has paid only an amount of Rs.7,50,000/-  Extract of relevant portions of this letter is reproduced below :

We have checked up our records and find that despite our various communications, we have not yet received the overdue payments and we are now left with no other option but to cancel the allotment of the captioned property for non-payment of our dues. In terms of clause no. 21 of the Application for allotment. The Earnest Money along with Interest on Delayed Payment and other amounts non-refundable in nature is forfeitable in the above event, and accordingly, a sum of Rs. 13,96,759.00 as per details below stands forfeited and accordingly nothing stands refundable to you.:       

A. Total amount paid                           Rs.   7,.50.000,00

B.  Less 1) Earnest Money                  Rs.  13,05.000.00

 2) interest on Delayed              Rs.       91,759,00     

Rs.  13,96,759.00

  Balance refundable (A-B)                         Rs. Nil

Accordingly., you do not have any lien or right, whatsoever, on the captioned properly and you are requested to send us all the original Receipts/ Apartment Buyers Agreement which stands cancelled.

We have now released the properly for further sale.

14.    It is to be noted that this cancellation letter dated 11.03.2010 contains no reference to earlier cancellation letter dated 14.01.2010.  Thereafter, Complainant seems to have made a request dated 25.05.2010 for restoration, promising to pay all the dues till date by 30.05.2010.  Extract of this letter is reproduced below :

          Ref:CGT-066 Capital Greens Ph-II

Dear Sir,

I have the above property with you.  I further state that I have applied for a loan with ICICI.  I understand that case is under cancellation.  I wish to restore the case.  You are requested to issue NOC.  I will clear all dues till date by 30.05.2010.  I am aware I am not eligible for TPR. 

15.    Then on 25.05.2010, OP No.1 wrote to OP No.2 Bank informing them that OP No.1 have noted Bank’s lien.  Extract of this letter is reproduced below :

We confirm that Mr. Mukesh Dilawrl S/o Mr. Tirath Ram Dilawri, resident of "M-15/40, DLF City, Phase-II, Gurgaon, Haryana" have booked the captioned property In our 'DLF Capital Greens-II' Project at Shivaji Marg, New Delhi under the "Instalment Plan".

The party has paid Rs. 7,50,000/- so far to the company. The above party has Informed that he/she has approached you for a housing loan to enable him/her to make the payments to DLF Retail Developers Limited. We confirm the following:-

a) We have noted the lien of ICICI Bank Limited on the captioned property allotted to the party.

b) The Sale deed for the said Apartment and Parkings as and when executed shall be sent directly to ICICI Bank Limited by the Company as and when it is registered under intimation to the party.

We assure you that the said Apartment after conveyancing will not be subject to any encumbrance, charge or liability of any kind whatsoever and that the entire property would be free and marketable. We have a clear, legal and marketable title to the land and every part thereof on which property Is to be constructed.

We have no objection to your giving loan to the above buyer/s and his/her/their mortgaging the said Apartment to you by way of security for the repayment, notwithstanding anything to the contrary contained in the said agreement.

As already agreed by the party, in the event of cancellation of the allotment of the Apartment by the Company for whatsoever reasons, the Company shall refund all amounts received over and above the earnest money and other dues, which are forfeitable, as per the terms and conditions of the Agreement, directly to you and thereafter you shall release their lien on the above said Apartment.

16.    A perusal of this letter shows that OP no.1 has impliedly allowed the request of complainant dated 25.05.2010 and decided not to act upon this cancellation letter dated 11.03.2010.  This is evident even from the letter dated 01.06.2010 vide which OP No.1 have accepted payment from the complainant, acknowledging the receipt of Rs.27,58,637/- on 29.05.2010, Rs.8,10,037/- on 31.05.2010 and Rs.6,00,000/- on 21.05.2010 ( total Rs. 41,68,674/-) and informed the Complainant that a sum of Rs.8,95,000/- was still outstanding. Extract of this letter is reproduced below :

Reg : ( Cancelled) Apartment no. CGT 066 ‘CAPITAL GREENS PHASE-II”

Dear Sir/Madam

This has reference to your letter dated 25.5,2010 requesting for restoration of the above cancelled apartment.

Along with the same you have deposited a cheque for Rs 2758637 Cheque no 224799 dated 29.5.2010, cheque for 810037/- chq no 224826 dated 31.5.2010 and cheque no 403954 for Rs 600000/ dated 21.5.2010.

 This is to inform you that as a sum of Rs 8.95.000 is still due in your account. The same has been informed to you several times over the phone but there is no response from your side.

 You are requested to remit the above amount immediately to enable us to process the case further, without the above due we shall not be able to process your case further.

Please also note that further delay will attract interest "in terms of the agreement".

17.    Hence, with the issuance of this letter and receiving further payments, the issue of cancellation vide letter dated 11.03.2010 stood closed. 

18.    OP No.1 issued an email reminder dated 02.06.2010 and 07.06.2010 to the complainant for remitting the balance of Rs.8,79,720/-. On 10.06.2010 and 11.06.2010, complainant wrote emails to OP No.1, which are reproduced below :

Email dated 10.06.2010

Dear Ramakrishnan,

Hope you doing well, as you know we live In the US we were not aware that we were allotted a residential property with the DLF green.  The only time we realised we have been allotted something with them is, when we received a email stating that we have some tickets available we picked up. Now if we did not get a letter stating that we have been allotted a Property how are we liable to the non payment.

We have been a customer to DLF since a very long time.  We were part of the original DLF when they started in Gurgaon.  We have lived in DLF II for a very long time. Also we plan to been investing with your company going forward.

Would request you to please look into the matter and get this resolved so that a customer like us is not penalized for no mistake for ours.

Regards

Mukesh Dilwari

E mail dated 11.06.2010

Dear Ramakrishnan,

Hope you doing well, as you know we live In the US we were not aware that lie were allotted a residential property with the DLF green.  The only time we realised we have been allotted something with them is, when we received a email stating that we have some tickets available we picked up. Now if we did not get a letter stating that we have been allotted a Property how are we liable to the non payment.

We have been a customer to DLF since a very long time.  We were part of the original DLF when they started in Gurgaon.  We have lived in DLF II for a very long time. Also we plan to been investing with your company going forward.

Would request you to please look into the matter and get this resolved so that a customer like us is not penalized for no mistake for ours.

Regards

Mukesh Dilwari

19.    It is not clear as to how Complainant pleaded ignorance about allotment / non payment etc when on 25.05.2010, they made a request for restoration and submitted certain cheques towards payment on 21.05.2010, 29.05.2010 and 31.05.2010.  OP No.1 wrote an email to complainant on 14.06.2010 informing about the cancellation of unit due to non-payment of full outstanding amount. Extract of this letter is reproduced below :

Dear Sir,

Further to your application for a booking in Capital Greens Phase -II , We have allotted you an apartment CGI 66 , Please refer our allotment letter dated 9 Oct 2009 along with a detailed schedule of payment

In terms of the Schedule of payment we have been sending you the demand for due payment and further reminders and finally as we were not receiving payment in time from you , we had sent a cancellation letter. Please refer our letter dated 11.3.2010. In response to the same you visited our office and confirmed that you wish to restore the case and would make all the due payment with interest, the calculations were given to you, but unfortunately we have not deposited the due payments in complete. Please refer our letter dated 1.5.2010 , it was informed you that the cheques submitted by you i.e chq nos 224799,224826,403954 for a  total sum of RS 41,60,674/- were not covering the entire outstanding due and a sum of Rs 8,95,000/-was due as on 31.5.2010.  It was also mentioned that in terms of the agreement delayed payment attracts Interest and the Interest is accruing day by day , hence It was requested to make the difference amount Immediately. But Inspite of the communication we have not received the balance payment till date. In the given circumstances we shall not be In a position to restore your case , we are returning the cheques back to you. 

The property now stands cancelled as per the cancellation letter send to you on 11.3.2010.

The cheques are being couriered to you separately.

20.    Complainant showed its willingness to retain the unit vide email dated 16.06.2010, which is extracted below :

            Dear sir,

This would the third email that I am writing to you in regards to the property at DLF Greens. Mr. Ramakrishnan you have been very cooperative with us, I wish retain the relation with you. If you remember when I came to your office on the 27.5.2010 the calculation that you gave us did not include the Interest payment.

If you would have told me there was an outstanding balance in interest I would have made the payment there and also clarified the same with you. I wish to tell you no one at DLF objected to the fact that was making a partial payment of Rs.41,68,674/-. Sir, I hope you realize if I am making a payment of Rs.41,68,674/-, I can definitely make a payment of balance of the remaining interest, all I am trying to understand how did my balance reached such enormous amount. I do wish to retain the property hence forth I am writing you the emails. PI let me know how has my balance accrued to the sum.

21.    OP No.1 responded to the above stated mail of complainant vide its email dated 17.06.2010 giving another opportunity to the complainant to remit the dues immediately.  Extract of this email is reproduced below:

Dear Sir,

This has reference to your email dated 16.6.2010.

We draw your attention to the schedule of payment sent alongwith the allotment letter as per the same as on date 6 installments have become due i.e. we are at the stage of commencement of construction. We have sent demands and reminders for each installments, but we have never received the payment. Please refer our cancellation letter which clearly gives details of the amount overdue and the amount paid by and the balance along with the delayed interest. It is not accepted that you have are not aware of the details of overdues. The details are given under once again

Instalment amount overdue till date  Rs.47,96,250.00

Delayed Interest                               Rs. 2, 67, 424.00

Total over due                                   Rs.50,63,674.00

You have remitted Rs.41,68,674 balance 895000/- Please note in terms of the agreement delayed payments attracts interest and the interest keeps  accruing day by day on the outstanding amount.

If you wish to restore, your case, then we give you one last opportunity to remit the dues immediately failing which your apartment would stand cancelled as per the cancellation letter already sent to you. You may remit the payment through RTGS.

Regards

                     Ramakrishnan

22.    In pursuance to above, the Complainant on 29.06.2011 made a wire transfer of USD 19250 ( Rs.8,90,851/-) to OP No.1 which OP No.1 admits having received on 01.07.2010.  Hence, as on this date, all earlier pending dues got paid by complainant and issue of cancellation vide letter dated 11.03.2010 stood closed.

23.    6^th demand notice dated 02.07.2010 was issued by OP No.1 for Rs. 9,78,750/- to be paid by 16.07.2010 ( amount to be paid on start of foundation work / 9 months of booking, whichever is later, as per payment plan).  According to OP no.1, this amount as per Construction Linked Plan ( CLP) was due by 30.06.2010.  This was followed by reminder dated 19.07.2010, 02.08.2010 and final notice dated 23.08.2010. Extract of final notice dated 23.08.2010 is reproduced below:

Reg: Property No. CGT066/PT1029#210 in DLF CAPITAL GREENS PHASE-ll.

 Dear Sir/Madam,

A  sum of Rs. 978,750.00 is outstanding for remittance, as per details below:

We informed you and have also reminded you about the outstanding payments vide our above communications.

 Despite all the above communications, we have not received the payments due  and with this communication,  we would like to serve upon you the 'Final Notice' requesting you once again to remit us a sum of Rs 978.750-00 to reach positively by 07/09/2010 failing which, we shall be compelled to take action in terms of clause no. 21 of the Application for allotment. Relevant portion of which reads as under:-

The Applicant agrees that the company shall be entitled to forfeit the earnest money along with the non refundable amount in case of non fulfilment / breach of the terms and conditions of the application. The amount if any paid over and above the earnest money refundable amounts would be refunded to the applicant by the company only after realizing such amounts from resale of the said apartment but without any interest or compensation of whatsoever nature."

You will kindly appreciate that it has never been our intention to cancel the allotment but the circumstances as above have compelled us now to serve upon you this 'Final Notice' for remittance and we hope, you will ensure that the overdue remittances of Rs 978.750.00 reaches us positively by 07/09/2010 to avoid the incidence of such actions as mentioned above.

As you are already aware, delayed payments are subject to charge of interest in terms of the Agreement and after we have received the due payments, we shall inform you about the penalties/interest amounts involved.

24.    Thereafter, on 30.08.2010, OP no.1 sent a reminder to Complainant for agreement, which is extracted below :

Sub.: Property No.CGT066/PH029#2I0 in "DJ F DLF Capital Greens, Phase - II "Delhi

This has reference to the provisional allotment of the captioned property in your favour vide our receipt dated 30 Sep 2009

As you are aware we have already forwarded a set of Buyer’s Agreement and have also requested you to kindly sign and return all the copies back to us. We find that you have still not returned to us the agreement copies duly signed and executed by you.  Your attention is invited to the notes on the application form, wherein it has clearly been mentioned that the allotment done shall be provisional. The Buyer’s Agreement is to be returned within 30 days from the date of its despatch by the Company.  You will kindly appreciate that the above period has already expired.

We would once again request you to kindly take immediate action to sign at all the prescribed places ( also by the joint applicants, if any) get it witnessed and return to us immediately as the allotment shall be provisional till such time we receive this Agreement.

In case you have misplaced the Agreements, kindly let us know so that a duplicate set of Agreements could  be sent to you so that the Agreements could be executed at the earliest.

          However, this reminder does not state as to when was the set of buyer’s agreement earlier sent by OP No.1 to the Complainant.

25.    On 14.09.2010, OP no.1 sent a cancellation letter stating the forfeitable amount of Rs.16,61,053/- and balance refundable as Rs.38,85,196/-.  This notice is extracted below :

CANCELLATION LETTER

Further to our letter (Final Notice) dated 23/08/2010 reminding and requesting you to remit us a sum of 9,78,750.00, which was outstanding for payment to reach us latest by 07/06/2010

We checked up our records and find that despite our communications, the last being dated 23/06/2010, as mentioned we have not yet received the overdue payments and we are now left with no other option but to cancel the allotment for payment of our dues. In terms of clause no.21 of the terms and conditions of the application for allotment, the earnest money alongwith interest on delayed payment, and other amount, non refundable in nature is forfeitable in the above event and accordingly a sum of Rs. 1,661,053.15, as per details below stands forfeited and the amounts received by us over and above forfeitable amount if any as per the details given below is being refunded to you separately. In case, there is a lien of financial institution, refund if any, shall be done after the confirmation of the amount from the Financial Institution.

          Total Amount paid                     Rs.5,546,250.00

          Earnest Money                         Rs.1,305,000.00

          Processing Fee                         Rs.                .00  

          Interest on delayed payments    Rs.   356,053.15

          Interest on instalments              Rs.              0.00

          Brokerage Paid                         Rs.              0.00

          Incentive Paid                           Rs.              0.00

          Forfeitable amount           Rs.1,661,053.15

          Refundable (A-B)                      Rs.3,885,196.85

          Above, all the original receipts and stands cancelled and you do not have any lien, whatsoever on the captioned property.

26.    On 08.11.2010, OP no.1 wrote to OP No.2 Bank informing that unit in question has been cancelled due to non payment of dues and a cheque of Rs.41,48,471/- was enclosed towards full and final refund on cancellation of the unit.  This letter is extracted below :

To

ICICI Bank Ltd,

S-26, 3^rd Floor

Green Park Extension

Uphar Cinema Complex

New Delhi 110016

Reg:  Apartment no CGT 066 (cancelled)-Capital Greens Phase 11 Allotted in the name of Mr. Mukesh Dilawri.

Dear Sir.

The above property has been cancelled (vide cancellation letter 14/09/2010) due to non payment of dues as per the schedule of payment / as demanded by the Co.

Further to your cancellation letter as above , kindly find enclosed our cheque no 761229 for a sum of Rs 41.48.471.00 drawn on ICICI Bank being full and final refund on cancellation of the captioned property.

Thanking you,

Yours faithfully

For DLF Universal Ltd.

Ramakrishnan

27.    Thereafter, on 25.03.2011, OP No.1 sold the unit in question to a 3^rd party.

28.    On 23.09.2011.  OP No.1 received a cheque for Rs.65 lacs from the complainant.  Extract of acknowledgment of cheque is reproduced  below:

                                         DLF LTD.

 ACKNOWLEDGEMENT OF CHEQUE/DRAFT

This is to acknowledge receipt of Cheque No.771828 dated 23.09.11 for Rs.6500000/- drawn on Kotak Mahindra Bank from Mukesh Dilawri to be credited to the account of property No.CGT-066 in DLF City/Dilshad Extn II/Ankur Vihar/Model (Faridabad).

 You may also note that this is merely an acknowledgement of the above document (the cheque/draft/pay order) based on information furnished by you and this does not entitle you to claim ownership/title to the above said property unless and otherwise you are the confirmed owner of the property, as per the company's record and our merely acknowledging the cheque does not entitle you to any ownership/title to the property since payments can be accepted from any person including any third parties also.

29.    Vide email dated 24.09.2011 and 29.09.2011, OP no.1 informed the complainant over email that the unit in question is already cancelled and cannot be restored.  These mails are extracted below :

Mail dated 24.09.2011 

We draw your attention to the allotment letter dated 9.10.2009 sent to you along with the schedule of payment. You will appreciate that Instalment serial no. 2 to 5 were time bound , the due dates were specifically mentioned and you were expected to make the payment even without any demand, but in spite of that all these payments were paid by you after several reminder, followed by Final Notice. Payments in terms of the schedule of payment/as demanded by the company, from time to time is the essence of this allotment. We regret to state that the payments from your side has always been erratic for reason best known to you. Further to payment of booking amount in Sept 2009 , we never received any payment till May 2010 inspite of reminders, final notices etc . It was only after cancellation of the apartment on 11 of March 2010 you responded and requested for restoration , as a special cases we considered your request and restored the above apartment , and at the time of restoration you were again appraised about the future due payments and you promised that it will be remitted in time and on the same condition we restored your apartment but again the next demand due on 16/7/2010 was not remitted by you inspite of demands, reminders and a final notice was sent to you on 23.8.2010 followed by a cancellation letter dated 14.9.2010. We have never received an communication from you clearly mentioning change of address with a proof attached , you have referred your email date 11.6.2010 where you have just referred that “We live In the US " a general mall referring that you live in US does not suffice as -per communication towards change of address. We have already informed to you during your recent visit to our office that that apartment has already been cancelled due to non payment of dues , and the final refund cheques towards full and final settlement after forfeiture of earnest money in terms of the agreement, have already been sent to ICICI bank as there was a lien in favour of the Bank. We wish to Inform you that the cancellation cannot be restored at this stage.

          Mail dated 29.09.2011

Dear Sir.

This is In continuation to the mail below, As you are aware that that apartment is already cancelled due to non payment of dues and the same cannot be restored at this stage. In spite of the same you have sent a DD for Rs 65,00,000/" vide no 771828 We once again Inform you that the apartment cannot be restored at this stage and therefore you are requested to confirm the address where we can send this draft back to you, kindly revert back Immediately,.

Regards Ramakrishnan

30.    Vide letter dated 20.10.2011, OP no.1 sent the pay order of Rs.65.00 lacs to the complainant at his USA address.  This letter is reproduced below :

To

Mr. Mukesh Dilawri 703 313 0371

 6829 Rolling Road Springfield

 VA 22152 (USA)

Reg: Cancelled Apartment NO CGT 066 Capital Greens, Phase-II

Dear Sir,

This has reference to our cancellation letter dated 14.09.2010 .

Further to the above we have exchanged several emails wherein we have clearly informed you that the property cannot be restored kindly refer our last two emails dated 24 09.20T1 and 29.09.2011'.

We are therefore enclosing herewiith you pay order no 771828 for Rs 65,00,000/- dated 22.09.2011.

As we have communicated to you earlier , we reiterate once again , that above property is already cancelled and therefore the above payment cannot be accepted We also wish to inform you that the above payment is in the wrong favouring

Thanking you

Yours faithfully

For DLF Universal Ltd.

 Ramakrishnan

Sr Manager Customer Services

31.    On 21.05.2010 OP No.2 informed OP No.1 that Complainant has been sanctioned housing loan of Rs.50.00 lacs for the said unit and permission to mortgage the same was sought from OP no.1.  OP no.1 wrote to OP no.2 on 25.05.2010 that their lien has been noted.  On 02.06.2010, OP No.2 wrote to complainant that bank does not fund the delayed interest due to OP No.1.  On 08.11.2010, OP No.1 wrote to OP no.2 that unit has been cancelled and enclosed a cheque of Rs.41,48,471/- towards full and final refund on cancellation of the unit.  OP No.1 wrote an email ( date not mentioned ) to OP no.2 informing that unit in question stood cancelled and on amount of Rs.41,48,471/- has already been refunded vide letter dated 08.11.2010. On 28.11.2011, OP no.2 wrote an email to OP No.1 informing that they have not received any cheque.  This email is extracted below :

Mukesh Diiawri

To:  

Forwarded message

From Pooja Kaushwaha

<Pooja.kaushwaha@icicibank.com

Date : Mon, Nov 28, 2011 at 7.29 AM

Subject : Re ( Fwd : Re: Request Confirmation for the Courier receipt on 12^th Nov 2010)

To : CV RAMAKRISHNAN <  

Cc : Mukesh Dilawri <mukeshdilawri@gmail.com, Pankaj Khandelwar / MPARG/BANK/DLI <pankaj.khandelwal@

Dear Ramakrishnan

 As confirmed you earlier also. The cheque has not been received by IClCI we have checked our records even with the courier.

 So to avoid any further delay kindly issue the new cheque as per your process. 

Regards

Pooja

OP no.1 replied to above stated email on 28.11.2011 as follows :

From: CV RAMAKRISHNAN Sent: Monday, November 28, 2011 5:49 PM

To: Cc: KAPOOR, DEEPAK

Subject: Reg: Cancelled unit CGT 066

Dear Madam,

We have confirmed from our bank the cheque has not been debited into our account, kindly check at your end, may be the same is lying with your staff as STALE".

But we have a confirmation for delivery of the same at your bank, it has been already sent to Mr. Dilawri.

32.    On 12.03.2013, complainant received a letter from OP no.2  Bank that they had now got Rs.41,48,471/- out of which they were treating as financed amount of Rs.35,82,462/-.  The excess amount of Rs.5,66,009/-, they would refund the balance after taking out interest and penal interest.  OP No.2 as per written synopsis filed by them submitted that they have received the amount disbursed to OP no.1 on 25.03.2013 and the status of the loan is closed.

33.    Thereafter, the Complaint was filed on 29.03.2012.

34.    From the foregoing, following important issues arise for consideration:

(i).     Was OP No.1 justified in issuing ( final ) cancellation letter dated 14.09.2010 and forfeiting an amount of Rs.16,61,053/-.

(ii).     If the balance refundable as per said cancellation letter dated 14.09.2010 was shown as Rs.38,85,196/-, why did  OP No.1 pay an amount of Rs.41,48,471/-. Was it part of some settlement between OP no.1 and 2 with a view to get lien of OP No.2 removed  to enable OP No.1 to sell the unit to a 3^rd party.  Was OP No.1 justified in refunding the amount to OP No.2 directly rather than to the complainant as per cancellation letter dated 14.09.2010.

(iii).    Cheque of Rs.41,48,471/- was sent by OP no.1 to OP No.2 on 08.11.2010 for the first time as per OP No.1’s claim. However, this cheque was not received by OP No.2 till 25.03.2013.  However, on getting this amount / cheque for Rs.41,48,471/- again from OP No.1 even after a gap of more than 2 years, they never charged any extra interest / penal either  from Complainant or from OP and closed the loan account.  This shows some sort of settlement arrived at between OP No.1 and OP no.2 with a view to get the lien of OP No.2 removed  which has not been placed on record either by OP No.1 or OP no.2.

(iv).   Has OP No.1 placed any cogent and reliable evidence to show as to when the agreement was sent for the first time to the complainant.

(v)     Has Complainant placed on record any evidence in support of his contention that from 2010 to 2013 Complainant had to continue to pay EMIs to the Bank ( OP No.2) and that he paid about Rs.10.00 lacs to OP No.2 Bank by way of EMIs and he has been put to loss.

35.    It is to be noted that except for first four instalments ( excluding the amount paid on booking) ( to be paid within 45 days, 90 days, 120 days and 150 days of booking), rest were all linked to a particular stage of construction.  Hence while issuing demand notice for any instalment beyond the first four, it was incumbent upon OP No.1 to ensure that the particular milestone has been achieved.  However, a bare perusal of 5^th and 6^th demand notice ( linked to milestone of commencement of construction / 6 months from booking ( whichever is later) and start of foundation work / 9 months from booking ( whichever is later) shows that there is not even a mention in these two demand notices that these stages / milestones have been achieved by OP No.1.  These two notices are reproduced below :

Notice dated 10.03.2010

Date 10/03/2010

DEMAND NOTICE

DLFF/0274/210/CGT066/PT1029#210 Customer code

Customer Code  M05166 ( UNQ/210/001564

 Customer Name  Mr. MUKESH DILAWRI

Customer Address M05166 M 15/40,

DLF CITY PHASE-lI. GURGAONHARYANA INDIA

Reg: Property No. CGT066/PT1029#210 in DLF CAPITAL GREENS PHASE-II,

 Dear Sir/Madam,

In terms of 'Schedule of payments' for the captioned property, a sum of INR 978.750.00 is due for payment on 30/03/2010. You may kindly remit the same to reach us by this date.

A sum of Rs.3.909,258.38 is outstanding on account of previous balance (including Delayed Interest. If any) towards installment dues and this may also be remitted to us

Total payable:                 4,888,008.38

Notice dated 02.07.2010

Date 02/07/2010

DEMAND NOTICE

 DLFF/0274/210/CGT066/PT1029#210 Customer code

Customer Code  M05166 ( UNQ/210/001564

 Customer Name  Mr. MUKESH DILAWRI

Customer Address M05166 M 15/40,

DLF CITY PHASE-lI. GURGAONHARYANA INDIA

 Reg: Property No. CGT066/PT1029#210 in DLF CAPITAL GREENS PHASE-II,

 Dear Sir/Madam,

In terms of the 'Schedule of payments' for the captioned property, a sum of INR 978,750.00 is  due for payment on 16/07/2010. You may kindly remit the same to reach us by this date.

36.    Hence, OP No.1 is not justified in issuing these 5^th and 6^th stage demand notices without not only informing the complainant that the relevant milestone has been achieved, but also to place on record reliable evidences to show that such stages / milestone were indeed achieved.  Hence, if the amounts demanded in these two demand notices have not been paid by the complainant, OP no.1 cannot treat it a case of non-payment / violation of terms and conditions of the application form entitling the OP No.1 to forfeit any earnest money.  It is the case of the complainant that till the filing of the complaint in March 2012, according to the website of OP no.1, stage of construction in relation to Tower-1, Phase II in the month of February 2012 had reached the stage of about 3^rd floor.  It is also the case of the complainant that OP no.1 neither issued any formal letter nor sent any buyer’s agreement for signatures.  OP No.1 has not placed on record any reliable evidence to show as to when the copy of buyer’s agreement was sent to complainant for the first time.  Hence, we see some merit in in these contentions of the complainant.  It is the case of the Complainant that cancellation was effected vide communication dated 14.09.2010 by which date even sanction of building plan has not been received.  OP no.1 has itself filed on record sanction letter 20.10.2011 by which building plan for Tower No.2 had been sanctioned.  Therefore, no construction linked demand could have arisen on any date prior to 20.10.2011.  We see some merit in the contentions of the complainant as regards 5^th and 6^th demand notices are concerned.  Of-course first four demands were linked to a time frame from the booking and not to any stage of construction.  Hence, we are of the considered view that OP no.1 was not justified  in issuing  cancellation letter dated 14.09.2010 on account of non payment of an amount of Rs.9,78,750/- ( the 6^th demand notice) as till 01.07.2010, all dues stood paid as per OP No.1’s admitted case ( including the 5^th demand notice) when complainant made wire transfer of USD 19250 ( Rs.8,90,851/-) to OP No.1 on 29.06.2010, which was the pending dues as per OP No.1’s own communication.

37.    As OP No.2 bank did not receive the amount of Rs.41,48,471/- from OP No.1 till 12.03.2013, hence they could not have released the lien over the unit till this date.  OP No.1 admits having sold the unit in question to the third party on 23.03.2011.  hence, we see merit in the contention of the complainant that sale of unit by OP No.1 to 3^rd party without getting lien of OP No.2 removed constitutes an illegality under the Tripartite Agreement and this constitutes a deficiency in service / unfair trade practice on the part of OP no.1. 

38.    The contention that complainant is not a consumer as he has purchased the unit for commercial/investment  purposes is rejected as no such evidence has been adduced by the OP(s) in this regard.  It has been observed by this Commission in various cases in Kavita Ahuja Vs Shipra Estates Ltd, CC 137 of 2010, decided on 12.02.2015, Santosh Johri Vs M/s Unitech Ltd, CC 429 of 2014 and connected Cases, decided on 08.06.2015, Aloke Anand Vs M/s Ireo Grace Pvt Ltd & Others, CC no 1277 of 2017 decided on 01.11.2021) that purchase of a house can only be for a commercial purpose if the purchaser is engaged in the business of purchasing and selling houses or plots on a regular basis, solely with a view to make profit by way of sale of such houses, if the house is purchased purely as an investment and the purchaser is not undertaking the trading of houses on regular basis, then it would be difficult to say that he had purchased it for commercial purpose. The contention of the OP(s) that the parties are bound by the agreement is also not acceptable  Plea of the OP(s) for Arbitration as per conditions in the Agreement is also not accepted as the remedies under the Consumer Protection Act were in addition to the remedies available under special statue.

39.    In view of the foregoing, we hold that considering that booking was under a construction liked plan, where instalments from 5^th onwards i.e. excluding the booking amount and four instalments payable from 45 days of booking to 150 days of booking, were linked to  milestone of construction, 5^th instalment was commencement of construction, 6^th with start of foundation work, 7^th with laying of ground floor slab, 8^th laying of 4^th floor slab …. and so on, hence action of OP No.1 in demanding 5^th and 6^th instalments on 10.03.2010 and 02.07.2010 without achieving respective milestone was not correct and non payment of these instalments cannot be construed as violation of terms and conditions of the booking letter.  Hence, OP No.1 was not entitled to forfeit any amount.  It is an admitted fact by the OP that they received the permission to commence excavation on 12.02.2010 and received approval of the building plan on 20.10.2011  only.  Hence they could not have demanded 5^th and 6^th instalments prior to that date and any default on the part of the complainant towards payment of these instalments will not amount to violation of terms and conditions of the booking letter.  As already stated, issues relating to 1^st cancellation letter dated 14.01.2010 ( issuance of which itself is doubtful as elaborated in the preceding paras) and 2^nd cancellation letter dated 11.03.2010 stood closed  with acceptance of upto date payments through wire transfer dated 29.06.2010 for USD 19250 ( Rs.8,90,851/-) which was received by OP No.1. Moreover, action of OP no.1 in selling the unit in question to 3^rd party on 25.03.2011 without even getting lien of OP No.2 Bank removed and without the bank finally got the amount of Rs.41,48,471/- from OP no.1 by this date was not correct.  However, considering the entire facts and circumstances of the case and the fact that OP no.1 has already sold the unit in question to 3^rd party on 25.03.2011 i.e. more than 13 years back, at this stage it does not appear possible to order possession of the unit in question.  At the same time, prayer of the complainant for allotting an exactly comparable flat at the same price also does not seem possible.  Hence, the only relief which can be granted to the complainant is refund of the principal amount without any forfeiture by OP No.1 with reasonable amount of compensation.  Hence, complaint is party allowed with following reliefs:

i.        OP No.1 shall refund the entire amount of Rs.58,09,525/- to the complainant alongwith compensation in the form of interest @ 9% p.a. w.e.f date of each deposit till the date of payment.  Interest on the total amount paid i.e. Rs.58,09,525/- shall be calculated @ 9% p.a. from the date of each deposit till 25.03.2013 (i.e. the date when OP No.2 received an amount of Rs.41,48, 471/- from OP No.1 and this amount remained with OP No.1 till this date.) W.e.f. 26.03.2013, interest @ 9% shall be calculated on balance amount  i.e. Rs. 16,61,054/- till the date of payment of balance amount to the complainant.  

ii.       From the total amount payable by OP No.1 so calculated ( i.e. Principal amount of Rs.58,09,525/-/- + Interest on Rs.58,09,525/-/- @ 9% p.a. from the date of each deposit till 25.03.2013 + interest on Rs. 16,61,054/-  from 26.03.2013 till the date of payment to the complainant,  an amount of Rs.41,48,471/- already   paid   by   OP No.1  to  OP   No.2 ( Bank) shall be deducted and balance amount shall be paid to the complainant within 45 days of this order, failing which amount payable at the end of 45 days to the complainant shall carry interest @ 12% p.a.  The principal amount refundable in this para is subject to verification of actual amount paid by the complainant based on records.

iii.      Considering that complainant has been contesting this case for more than 10 years now, OP No.1 shall pay litigation cost of Rs.1.00 lacs to the complainant within 45 days of this order failing which this amount will also carry interest @ 12% p.a.

iv.      Although conduct of OP No.2 Bank in terms of entering into settlement with OP No.1 without the knowledge of the complainant and accepting the amount from OP no.1 in full and final settlement is not found to be in order, considering that against loan of Rs.35.00 lacs sanctioned / disbursed by OP No.2 to the complainant, they have already settled all his liabilities and closed the account on receiving of Rs.41,48,471/- from the complainant and complainant has not placed on record any definite evidence of depositing any additional amount in his loan account since disbursal of Rs.35.00 lacs , at this stage we do not intend fixing any liability on OP No.2 except for a notional compensation amount of Rs.25000/- to be paid to the complainant within 45 days of this order on account of their conduct stated in the preceding paras.   We also hold that OP No.2 was very much a proper and necessary party in the present case and their request for deletion was not justified. 

v.       As name of OP No.1 was changed  to DLF Universal Ltd. and now it is further changed  to DLF Home Developers Ltd.,  hence liability of OP No.1 shall vest in the present entity i.e. DLF Home Developers Ltd. as well as earlier entity, till the decree is fully satisfied.

40.    The pending IAs, in the Consumer Complaint, if any, also stand disposed off.

...............…………………..………..

                   (A.P. SAHI, J)

PRESIDENT

...............…………………..………..

                   (DR. INDER JIT SINGH)

                                                                                                                                                                                                                                                                                                        MEMBER

Annexure-A