
Meera Kanwar filed a consumer case on 22 Aug 2016 against OMAXE Ltd. in the StateCommission Consumer Court. The case no is CC/214/2016 and the judgment uploaded on 31 Aug 2016.
+STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
Consumer Complaint No. | 214 of 2016 |
Date of Institution | 17.05.2016 |
Date of Decision | 22.08.2016 |
.…Complainants.
Versus
…..Opposite Parties.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Sh. Abhimanyu Singh, Advocate for the complainants.
Sh. Ashim Aggarwal, Advocate for the Opposite Parties.
PER DEV RAJ, MEMBER
In brief, the facts of the case, are that the complainants booked one plot bearing No.OCE/P3/582, Property OCE/II/4/1061 E with the Opposite Parties and had continuously paid the installments as and when demanded. It was further stated that during the period, the complainants purchased one flat at Advocates Enclaves in Sector 49-A, Chandigarh and she was required to deposit the entire payment for the said flat on or before 31.03.2016. It was further stated that for the said purpose, the complainants surrendered the plot booked with the Opposite Parties and requested to return the whole deposited amount alongwith earnest money. It was further stated that the complainants, in all, paid an amount of Rs.28,74,500/- to the Opposite Parties since 2013. It was further stated that affidavit-cum-undertaking was also executed between the complainants and the Opposite Parties (Annexure C-2). It was further stated that before applying for cancellation, the Opposite Parties instructed the complainants to submit relevant documents as provided in their letter, which were supplied without any delay alongwith the application (Annexure C-5). It was further stated that the Opposite Parties are not refunding the deposited amount and delaying the same on one pretext or the other. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice.
2. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Parties, to refund Rs.28,74,500/- alongwith interest @18% per annum, from the date of filing the application of cancellation of plot and refund of money; pay adequate compensation for physical harassment and mental agony and pay Rs.50,000/- as litigation expenses.
3. The Opposite Parties, in their written statement, took up certain preliminary objections to the effect that the complainants do not fall within the ambit of definition of word “consumer” as defined under Section 2(1)(d) of 1986 Act as they have purchased the unit, in question, for commercial purpose/speculation and that due to existence of arbitration clause no.30 in the terms and conditions of allotment (Exhibit OP/2), this Commission has no jurisdiction to entertain the same.
4. On merits, it was admitted that the complainants booked plot bearing No.1061E. It was denied that installments were paid without any delay. It was also admitted that the complainants made a request for cancellation of the plot and requested for refund as per terms and conditions and never demanded the whole amount alongwith earnest money nor could same have been demanded as it was contrary to the agreed terms and conditions. It was further admitted that amount of Rs.28,74,500/- was received by the Opposite Parties. The factum of execution of affidavit-cum-undertaking was admitted by the Opposite Parties. It was further stated that allotment letter/agreement was forwarded to the complainants vide letter dated 11.11.2014 for signatures and returning the same back but they did not execute the Agreement till date. It was admitted that letter (Exhibit OP/5) was received from the complainants stating that they were not in a position to pay extra cost of PLC plot. It was further stated that thereafter a request was also received for change of plot to a non-PLC location. It was further stated that the Opposite Parties allotted a plot in exchange and a letter was received from the complainants stating that they wanted to exchange the plot with the new available plot bearing No.181O. It was further stated that as per Clause 9 of the terms and conditions of the application form (Exhibit OP/2), the Company shall treat 20% of the sale consideration amount as earnest money. It was further stated that as per Clause 10(ii), the balance amount would be refundable after the plot is allotted to some other intending allottee and after compliance of certain formalities by the allottees. It was further stated that Clause 10 also made it clear that refund would be given after deduction of earnest money together with interest on installments due but unpaid and interest on delayed payments. It was further stated that it was well within the knowledge of the complainants that refund would be processed after deduction of 20% earnest money. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainants, in support of their case, submitted affidavit of Mrs. Meera Kanwar (complainant No.1), by way of evidence, alongwith which, a number of documents were attached.
6. The Opposite Parties, in support of their case, submitted the affidavit of Sh. Dheeraj Sharma, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached.
7. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
8. It is evident on record that the complainants applied for Plot No.OCE/P3/582/Property No.OCE/II/ 4/1061E measuring 200 sq. yard in the project of the Opposite Parties and paid a sum of Rs.10 Lacs on 08.05.2013 (Annexure C-1). In all, they paid a sum of Rs.28,74,500/- during the period from 08.05.2013 till 06.09.2014. The total sale consideration of the unit, in question, has neither been disclosed by the complainants nor by the Opposite Parties. It is, however, evident from Annexure OP-4 which is letter dated 25.05.2015 that demand in the sum of Rs.6,05,859.85Ps alongwith Rs.1,03,388/- as interest was raised by the Opposite Parties. It, therefore, means that total sale consideration of the plot, in question, was Rs.34,80,359.85Ps (i.e. Rs.28,74,500.00 + Rs.6,05,859.00). The complainants did not pay the demand so raised. The case of the complainants is that they purchased one flat at Advocates Society in Sector 49, Chandigarh where they were required to deposit the entire payment for the purchased flat on or before 31.03.2016 and as such, they surrendered the above plot requesting the Opposite Parties to return the deposited money. It is also case of the complainants that when complainant No.1 vide letter dated 15.10.2015 (Annexure C-4), due to personal difficulty, applied for cancellation of plot and refund of money vide letter (Annexure C-4), Opposite Parties did not refund the amount deposited.
9. The first objection raised by the Opposite Parties was that the complainants, being investors, had purchased the plot, in question, for earning profits, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of a consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. It may be stated here that there is nothing, on the record to show, that the complainants are property dealers, and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Clearly the complainants needed a house to live in and when they got another option, they decided to seek refund. In the process, they were losers as the Opposite Parties were entitled to deduct some amount while refunding the deposited amount. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of 1986 Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.
10. The next objection raised is that in the face of existence of arbitration clause in the terms and conditions of allotment, to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-
“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”
In view of the above, and also in the face of ratio of judgments, referred to above, the argument raised by Counsel for the Opposite Parties, stands rejected.
11. The core question, which falls for consideration is, as to whether the complainants are entitled to refund and, if so, to what extent. As per Clause 9 of the terms and conditions (Exhibit OP/2), while seeking cancellation of the unit, in question, earnest money, which in the instant case is 20% of the price of the plot, is forfeitable. Clause 9 of the terms and conditions, relating to earnest money reads thus:-
“9. I/We hereby agree that in order to ensure/guarantee the fulfillment of all obligations including, payment of total sale consideration of the said Residential Plot in timely manner as per Payment plan opted by me/us as well as for all compliance of all terms and conditions as contained in this Application Form by me/us, the Company shall treat 20% of sale consideration amount as earnest money out of the amount(s) paid/payable by me/us for the said Residential Plot allotted to me/us.’
12. The Counsel for the Opposite Parties submitted that not only the Opposite Parties were entitled to forfeit 20% of the amount but the refund of the refundable amount could be given only after sale of the property in question. He also placed reliance on Housing Urban Development Authority and another Vs. Kewal Krishan Goel and others, AIR 1996 SC 1981 and contended that the earnest money to the tune of 20%, as stipulated in the terms and conditions, was forfeitable. A similar question arose before the Hon’ble National Commission in DLF Commercial Developers Limited Vs. Ravinder Zutshi, 2009 (4) C.P.J. 163. A complaint was filed before the District Forum alleging that the complainant had booked office space at DLF Galleria in 1998 and paid a sum of Rs.4,41,838/- against the total consideration of Rs.16,35,000/-. After paying the aforesaid two instalments, the complainant vide letter dated 18.5.99 requested the Opposite Party to cancel the allotment and refund the amount on account of some unavoidable circumstances. As a result of this, the Opposite Party refunded the amount of Rs.1,98,640/- on 23.2.2002. It was the case of the complainant that the balance amount of Rs.2,43,198/- was still to be refunded by the Opposite Party, to the complainant. The District Forum partly allowed the complaint and directed the Opposite Party to refund the amount after deducting 10% of the basic sale price, i.e. Rs.80,127/-, alongwith interest @12% from 1.8.99 till the date of realisation together with cost of Rs.5,000/-. Aggrieved by this order, an appeal was filed by the Opposite Party before the State Commission, which was dismissed. In Revision Petition, the Hon’ble National Commission, in Paras 5, 6 & 8, held as under:-
“5. We have very carefully gone through the provisions and find that as per terms of agreement the petitioner is correct in arguing that in the case of cancellation of space, he is entitled to forfeiture of earnest money, which is 10%. But our careful scrutiny of the terms reproduced above, does not help the case of the petitioner, to recover the interest on account of delayed/non-payment(s) of the instalments due at the time of refund. The learned Counsel for the petitioner wishes to rely upon this part of Clause 11, which is as under:-
“…..the firm may at its sole discretion waive the breach of agreement committed by the allottee in not making the payments at specified time but on the condition that the allottee shall pay interest @24% p.a. for the period of delay and such other penalties, the firm may impose.”
6. After careful consideration of the condition 11, part of which is extracted above, we are left in no doubt that the condition 11 would help the case of the petitioner only if the breach is waived. This is not the case here. It is very difficult for us to read the point relating to “payment of interest @24% p.a.” in isolation. It has to be read in continuation of the words appearing earlier to this point on payment of interest, which relates to breach of agreement. In this case, there is no request from the complainant to waive the breach of agreement. Our understanding of the clause is, that this would be applicable only in case, the complainant or the allottee make request for restoration of the property in question. This is not the case here.
7. xxxxxx
8. We have very carefully gone through the cited judgments and find that as far as the first judgment passed by the Hon’ble Supreme Court in the case of DLF Universal Ltd. v. Ekta Seth and Anr. is concerned, even though facts are different yet we find no difficulty in agreeing with the decision of the Hon’ble Supreme Court as far as the deduction of amount is concerned, which we are upholding. With regard to other cited judgments, we find that in the facts and circumstances of this case, they have no applicability.”
Further in DLF Ltd. Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014 decided by Hon’ble National Commission on 06.01.2015, it was held that in the absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount. The aforesaid observation of Hon’ble National Commission was recorded taking note of observations/decision of Hon’ble Supreme Court of India in Maula Bux Vs. Union of India, 1969 (2) SCC 544 and Shree Hanuman Cotton Mills & Ors. Vs. Tata Air Craft Ltd., 1969 (3) SCC 522 and Satish Batra Vs. Sudhir Rawal, (2013) 1 SCC 345. The Hon’ble National Commission in Paras 10 and 11 held as under:-
“10. In Maula Bux case (Supra), the Hon’ble Supreme Court took the following view with respect to forfeiture of the earnest money -
“5. Forfeiture of earnest money under a contract for sale of property-movable or immovable if the amount is reasonable, does not fall within s. 74. That has been decided in several cases: Kunwar Chiranjit Singh v. Hat Swarup (t); Roshan Lal v. The Delhi Cloth and General Mills Company Ltd., Delhi (2); Muhammad Habibullah v. Muhammad Shafi (3); Bishan Chand v. Radha Kishan Das(4); These cases are easily explained, for forfeiture of a reasonable amount paid as earnest money does not amount to imposing a penalty. But if forfeiture is of the nature of penalty, s. 74 applies”.
It would thus be seen that only a ‘reasonable amount’ can be forfeited as earnest money in the event of default on the part of the purchaser and it is not permissible in law to forfeit any amount beyond a reasonable amount, unless it is shown that the person forfeiting the said amount had actually suffered loss to the extent of the amount forfeited by him. In our opinion, 20% of the sale price cannot be said to be a reasonable amount which the Petitioner Company could have forfeited on account of default on the part of the complainant unless it can show it had only suffered loss to the extent the amount was forfeited by it. In our opinion, in absence of evidence of actual loss, forfeiture of any amount exceeding 10% of the sale price cannot be said to be a reasonable amount.
11. It was contended by the learned Counsel for the Petitioner Company that since the complainant had specifically agreed to deliver 20% of the sale price as earnest money, the forfeiture to the extent of 20% of the sale price cannot be said to be unreasonable, the same being inconsonance with the terms agreed between the parties. This was also his contention that so long as the Petitioner Company was acting as per the terms and conditions agreed between the parties, it cannot be said to be deficient in rendering services to the complainant. We, however, find ourselves unable to accept the aforesaid contention, since, in our view, forfeiture of the amount which cannot be shown to be a reasonable amount would be contrary to the very concept of forfeiture of the earnest money. If we accept the aforesaid contention, an unreasonable person, in a given case may insert a clause in Buyers Agreement whereby say 50% or even 75% of the sale price is to be treated as earnest money and in the event of default on the part of the Buyer; he may seek to forfeit 50% of the sale price as earnest money. An Agreement for forfeiting more than 10% of the sale price, in our view, would be invalid since it would be contrary to the established legal principle that only a reasonable amount can be forfeited in the event of default on the part of the Buyer. In Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon’ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts.”
In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Paras 10 and 11 of its order, held that the Revision Petitioner was not entitled to charge interest as non-refundable amount on the subsequent installments in the wake of cancellation of plot. Paras 10 and 11 of the order read as under:-
“10. We have now to consider whether the forfeiture amount mentioned in the letter of cancellation under the head “earnest money” and “non-refundable advance” was justified or not. It has been stated in the said letter that a sum of Rs.15,57,781.25ps. was being forfeited as earnest money. In the plot-buyers’ agreement, however, this amount has been shown as Rs.14,85,747/-. It is to be seen, however, whether the OP DLF was within its rights to treat 15% of the total price as earnest money of the plot. In a case recently decided by this Bench in “DLF Limited vs. Bhagwanti Narula,” RP No. 3860 of 2014, decided on 06.01.2015, we have taken the view that an amount exceeding 10% of the total price of the property cannot be forfeited by the seller as earnest money being unreasonable, unless the OP can show that it had suffered loss to the extent the amount was forfeited by it. Applying the same principle in the present case as well, it is held that the OP DLF was competent to forfeit only 10% of the total amount of the plot in question as earnest money. Since the total value of the plot including Preferential Location Charges (PLC), is Rs.99,04,986.10ps. as already indicated, 10% of the earnest money comes out to be Rs.9,90,500/-
11. In so far as interest on delayed payments, stated to be non-refundable amount in the agreement is concerned, the OP deducted a sum of Rs.3,65,479.25ps in the cancellation letter. It is observed in this regard that the complainant made payments of a sum of Rs.12 lakh at the time of initial booking and then made two further payments in the last week of June 2011. Since no further payments were made, as per the terms and conditions of the allotment as contained in Para 65 of the plot-buyers’ agreement, the OP was well within its rights to initiate the process of cancellation of the plot after the first default in making payment of an instalment. In its own wisdom, if it decided not to do so immediately, it is not entitled to charge interest as non-refundable amount on the subsequent instalments in the wake of cancellation of plot. The letter of cancellation dated 23.05.2012 makes it clear that the plot-buyers’ agreement if executed, stood cancelled and the allottee shall not have any lien or right on the said property. It is held, therefore, that the OP cannot deduct a sum of Rs.3,65,479.25ps as non-refundable amount from the money deposited by the complainant.”
Further, recently the Hon’ble National Commission in case titled Shri Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd., Consumer Complaint No.482 of 2014 decided on 04.07.2016, in Para 13, held as under :-
“13. The case of the opposite party is that as per Clause 2(f) of the Buyers’ Agreement, extracted hereinabove, 15% of the total sale price constitutes the Earnest Money which they were entitled to forfeit. However, it has been held by this Commission in DLF Ltd., Vs. Bhagwanti Narula, Revision Petition No.3860 of 2014, decided on 06.1.2015, that an amount exceeding 10% of the total price of the property cannot be forfeited as Earnest Money unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it. Applying the principle laid down in the above referred decision of this Commission, the opposite party could have forfeited only a sum of Rs.12,77,475/- from the amount paid to it by the complainant. The balance amount of Rs.71,97,275/- (84,74,750/- - 12,77,475/-) was required to be refunded to the complainant, which the opposite party has failed to do.”
The aforesaid judgments clearly lay down that not more than 10% of the earnest money can be forfeited.
In so far as Housing Urban Development Authority and another Vs. Kewal Krishan Goel and others’s cases (supra) is concerned, the same being distinguishable on facts, is of no help to the Opposite Parties.
13. In view of the law laid down in the judgments, referred to above, in all fairness, the Opposite Parties ought to have refunded the amount to the complainants within a month from the receipt of such request. It, therefore, means that when the complainants expressed their inability on 15.10.2015 that they were not in a position to make further payments, the agreement stood rescinded. By not refunding the deposited amount after deducting 10% of sale consideration, they (Opposite Parties) were deficient in rendering service. The complainants needed the deposited amount due to their personal difficulty but the Opposite Parties by retaining and utilizing the hard earned money of the complainants indulged into unfair trade practice. In terms of above settled proposition of law, the complainants are entitled to refund of an amount of Rs.25,26,464/- i.e. [Rs.28,74,500.00 (-) minus Rs.3,48,036.00 i.e. 10% of Rs.34,80,360.00]. The Opposite Parties ought to have refunded this amount of Rs.25,26,464/- to the complainants by cancelling the allotment at once, firstly when the complainants defaulted in making payment of installment, demand for which was raised vide letter dated 25.05.2015, and secondly, when the complainants requested for cancellation and sought refund of the deposited amount. By not refunding the aforesaid amount of Rs.25,26,464/-, the Opposite Parties indulged into unfair trade practice and the same also definitely amounted to deficiency, in rendering service, on its part. The complainants are, thus, entitled to refund of a sum of Rs.25,26,464/- alongwith interest @12% per annum from 15.11.2015 i.e. one month after 15.10.2015 when application for cancellation of the unit, in question, was made by the complainants (at Page 31 of the file).
14. Since the complainants themselves, due to their personal difficulties, rescinded the terms and conditions of allotment, by moving an application for cancellation of allotment and sought refund by not paying the due installments, we are not awarding any separate compensation to the complainants.
15. No other point, was urged, by the Counsel for the parties.
16. For the reasons recorded above, the complaint, is partly accepted with costs. The Opposite Parties are, jointly and severally, held liable and directed as under :-
(i) | to refund the amount of Rs.25,26,464/-, to the complainants, alongwith interest @12% per annum (simple), w.e.f. 15.11.2015. |
(ii) | to pay Rs.50,000/- to the complainants as cost of litigation. |
(iii) | The amounts mentioned, in Clauses (i) and (ii) above, shall be paid, by the Opposite Parties to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, they shall pay penal interest @15% per annum, on the amount mentioned in Clause (i) above w.e.f. 15.11.2015 till realization and interest @12% per annum on the amount mentioned in Clause (ii) above from the date of filing the complaint i.e. 17.05.2016 till realization. |
17. Certified Copies of this order be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
August 22, 2016.
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
(DEV RAJ)
MEMBER
(PADMA PANDEY)
MEMBER
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