ROHIT THAKUR Vs. DLF UNIVERSAL LIMITED

JUDGEMENT

(1.) This consumer complaint under Sec. 21 of the Consumer Protection Act, 1986 (in short, the 'Act') alleges deficiency in service and unfair trade practice in not offering possession of a plot booked by the respondents by the opposite party and seeking refund of the money deposited towards the consideration with compensation and other costs.

(2.) The facts, according to the complainant, are that he had applied for a residential plot in the opposite party's project 'DLF Hyde Park Estate' at Mullanpur, Garibdass, District SAS Nagar, Mohali, Punjab and was allotted a plot admeasuring 281 sq yds (235 sq m) @ Rs.35,200.00 per sq yd for a sale consideration of Rs.99,01,499.00 excluding EDC and maintenance and security. After discount, the consideration was fixed at Rs.95,36,954.41. Plot no. HPE-R3-B612 was allotted on 4/3/2013 and a sum of Rs.89,17,563.00 was paid in 4 instalments between 20/2/2013 and 31/10/2013. As per Plot Buyer's Agreement (PBA) executed on 23/9/2013, possession was to be handed over within 24 months as per clause 33, i.e., by 26/2/2015. The opposite party failed to hand over possession by this date. On 10/9/2014 the opposite party changed the allotment of the plot to R-3-A308 without intimation of change by the opposite party as required under clause 32 which was not agreed to by the complainant. Opposite party thereafter offered another plot measuring 57.45 sq yds more than the original allotment which the complainant agreed to accept subject to not being charged any Preferential Location Cost (PLC) since the change was necessitated by the opposite party and was not at his instance. Consequently, plot no. R2-H216 measuring 350 sq yds (292.64 sq m) was offered with an additional cost of Rs.25,47,275.55 which was also not acceptable to the complainant. On 20/6/2017 the complainant requested for refund of the money deposited as no possession had been offered even after 2 years from the promised date of possession. As no response has been received and the refund not been done, the complainants are before this Commission praying for refund of Rs.89,17,563.00 with interest @ 18% p.a. along with compensation of Rs.25,00,000.00 on account of harassment and stress and Rs.2,50,000.00 towards litigation expenses.

(3.) Upon notice, the complaint was resisted by way of a reply by the opposite party denying the averments and stating that the complaint was not maintainable since the project was under successful implementation and that basic infrastructure of roads, sewerage, drinking water and electricity had been provided and a Partial Occupation Certificate had been received on 10/9/2014 indicating development of a minimum of 25 acres with mandatory clearances in place. Preliminary objections were taken that (i) sale of plot of land did not fall within the purview of the Act as held by Hon'ble Supreme Court in Ganesh Lal Vs. Shyam in C.A. No. 331/2007 dtd. 26/9/2013, 2014 (3) CTC 526; (ii) complainants had suppressed material facts that possession was offered on 29/6/2017 after completing development of the project and that they were defaulters in abiding by the terms and conditions of the PBA; (iii) this Commission lacks jurisdiction to adjudicate in the complaint as the parties are bound by the PBA which cannot be altered at this stage; (iv) the complainants were not 'consumers' under the Act as the plot was booked for investment purpose since they have a permanent residence in Chandigarh; (v) there was no commitment to offer possession within 24 months but was only to be 'endeavoured' to be handed over as per clause 33 subject to force majeure conditions in clauses 36 and 37; (vi) time was not of the essence and actually stood enlarged since the complainant failed to invoke clause 38 of the PBA; (vii) the complainant failed to avail the remedy of seeking refund under clause 33 by terminating the Agreement; (viii) the complainant as a party-in-breach cannot insist that the non-defaulting party perform its obligations under the PBA; (ix) timely payment of instalments was the essence of the PBA which the complainant failed to adhere to despite reminders on 3 occasions by 2, 3 and 243 days and therefore breached the PBA; (x) the PBA needs to be implemented in full and not selectively and parties are bound by its terms as held by the Supreme Court in Bharti Knitting Co. Vs. DHL Worldwide Courier, (1996) 4 SCC 704 and Secretary, Bhubaneshwar Development Authority Vs. Susanta Kumar Mishra, (2009) 4 SCC 684; (xi) there was no cause of action and as per clause 71 of the PBA disputes were to be settled through arbitration or through a Civil Court; (xii) the complaint was stated to be barred by limitation as it was filed on 8/1/2018 whereas the PBA was signed in 2013 and hence was filed much after the 2 years prescribed.