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BEFORE THE STATE NATIONAL CONSUMER DISPUTE
REDRESSAL COMMISSION, NEW DELHI
COMPLAINT PETITION NO. OF 2016
IN THE MATTER OF:-
Mr. Shiv Prakash,
E-43, DLF City Phase –I,
Gurgaon 122001
Haryana …..Complainant
Versus
1. M/s DLF Home Developers Ltd.
Having his registered office at
DLF Centre, Sansad Marg, New Delhi – 110001
Through its Director Mr. Rajiv Singh and Mr. Trilok
Chand Goyal
2. M/s DLF New Gurgaon Home Developers Pvt. Ltd.
Having its registered Office
At 1-E, Jhandewalan Extension, New Delhi-110055
Through its director Mr.Satish Kumar Tyagi Director
And Mr. Nilesh Ramjiyani Director
…..Opp. Parties
REPLICATION ON BEHALF OF THE
COMPLAINANT TO THE REPLY FILED BY THE
OPPOSITE PARTIES
MOST RESPECTFULLY SHOWETH:
1. I, Shiv Prakash, S/o Late Sh. Nand Ram, aged about 78
Years, R/o E 4/3 DLF Phase-I, Gurgaon Haryana
(Presently at New Delhi) do hereby solemnly affirm and
state as under:
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2. That I am the Complainant in the aforesaid matter and
am conversant with the facts and circumstances of the
case and as such competent to swear this affidavit.
OBJECTIONS TO PRELIMINARY SUBMISSION
It is humbly submitted that the contentions taken in the
reply are wrong and denied unless specifically admitted
herein.
It is humbly submitted that the contents of Para 1 of reply
are wrong and denied to the extent that is within the
knowledge of the Complainant. The Complainant in the
complaint has specifically brought out instances and
established the deficiency in service on part of the Opposite
Parties. The contents of the Complaint are reiterated and
should be read in reply to the contents of the reply filed by
the Opposite Parties.
REPLY TO PRELIMINARY OBJECTIONS
1. That the contents of para I (a) are matter of record and
hence warrant no reply.
2. That the contents of para I (b) & (c) are wrong and
denied. It is denied that the Complainant has not
adhered to the terms of agreement or to the payment
schedule as alleged by the Opposite Parties. In view of
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the same the Complainant is entitled to delay
compensation and Timely Rebate Payment from the
Opposite Parties. The Opposite Parties have accepted
delayed payments with interest as and when tendered
on demand and thus the Complainant is entitled to
compensation at a rate proportionate to that which was
charged by the Opposite Parties.
3. That the contents of para II (a) & (b) are wrong and
denied. The complainant has taken the property for
residential purposes and has been using the property
as such. The Complainant falls under the definition of
consumer as envisaged under the Consumer Protection
Act and has filed the complaint in such capacity and is
entitled to reliefs as prayed for.
4. That the contents of para III (a), (c) & (d) are wrong
and denied. It is denied that the Complainant has not
adhered to the payment schedule and has breached the
terms of the Agreement. In contra, it is the Opposite
Parties who has not acted in consonance with the terms
of the contract and are thus liable to pay delay
compensation and Timely Rebate Payment to the
Complainant herein. The Complainant has made
payments as and when demand letters have been
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raised on him and the Opposite Parties have accepted
the same with interest.
5. That in reply to para III (b) it is submitted that the
case of Magan v. M/s Tapadiya Construction Limited
and Anr., RP No. 3889 of 2013 can be distinguished on
facts and is not applicable to the present case. It is not
the case wherein the Complainant has defaulted in
making payments but a case of deficiency in service
wherein the Opposite Parties have failed to deliver the
apartment within stipulated time and have also denied
paying Timely Rebate and Delay Compensation for no
fault on part of the Complainant taking advantage of
arbitrary, unreasonable and unconscionable terms and
conditions signed by the Complainant on behest of the
Opposite Parties.
6. That in reply to para IV (a) & (b) it is submitted that
the Complaint is well within limitation. As per clause 17
of the agreement, adjustment of any amount was to be
done by the complainant at the time of conveyancing
and even after repeated requests the same was not
done. Furthermore the deed of conveyance executed
between the parties and the letter dated 11.11.2014
sent by the Opposite Parties to the Complainant
enunciates that the conveyance deed do not finally
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settle the rights and claims of the Complainant and in
fact the said Conveyance deed has been made subject
to the final outcome of the judgment of Hon’ble
Supreme Court arising from Competition Commission of
India wherein it has been held by the Commission that
the terms and conditions of the Apartment Buyer’s
agreement are arbitrary, one sided, and unreasonable.
Thus, the Complaint filed by the Complainant is well
within limitation.
7. That the contents of para V are wrong and denied. It is
submitted that the Complainant has established the
factum of Deficiency in Service quite clearly in the
complaint and the contents therein should be read in
reply to this para under reply.
8. That in reply to para VII (a) & (b) it is submitted that it
is wrong to say that there is no Deficiency of Service or
Unfair Trade Practice as alleged by the Complainant.
The issues involved in the present complaint are within
the ambit of Consumer Protection Act and has to be
decided by this Hon’ble Court. It is wrong to say that
the relief claimed by the complainant cannot be sought
under the Consumer Protection Act. The reliefs claimed
by the Complainant are within the scope and ambit of
this Hon’ble Commission. The exploitation of dominant
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position is writ large and has been succinctly noticed by
the Competition Commission of India while analyzing
the same agreement has held the clauses of the
agreement to be one sided, arbitrary, and dehors the
law of contract.
9. That in reply to para VIII it is submitted that the
Hon’ble Supreme Court has categorically held in the
case of Skypak Couriers Ltd. vs. Tata Chemicals Ltd.
reported in (2000) 5 SCC 294, that the existence of an
arbitration Clause will not be a bar to the
entertainment of a complaint by a forum under the
Consumer Protection Act, 1986 since the remedy
provided under the law is in addition to the provisions
of any other law for the time being in force. This was
reiterated in National Seeds Corporation Ltd. v. M.
Madhusudhan Reddy (2012) 2 SCC 506, and Rosedale
Developers Pvt. Ltd. v. Aghore Bhattacharya (2015)1
WBLR (SC) 385. The Hon’ble National Consumer
Disputes Redressal Commission has in the matter of
Aftab Singh and Ors. v. Emaar MGF Land Limited &
Ors. III 2017 CPJ 270 (NC) has held that an Arbitration
Clause in Agreements between the Complainants and
the Builder cannot circumscribe the jurisdiction of a
Consumer Fora, notwithstanding the amendments
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made to Section 8 of the Arbitration Act. Thus in view
of the fact that there is a situation of deficiency of
service on part of the Opposite Parties, presence of an
arbitration clause is no bar to a Consumer Complaint
under the Consumer Protection Act.
10. That the contents of para IX are wrong and denied. It
is submitted that contents of para 28 of the complaint
be read in reply to the para under reply. The Opposite
Parties accepted the payments with hefty interests on
the same and as such cannot claim that the cause of
action never arose on account of their default.
OBJECTIONS TO REPLY ON MERITS:
1. That the contents of para 1 are a matter of record and
hence warrant no reply.
2. That the contents of para 2 warrant no reply for want
of knowledge.
3. That the contents of para 3 are wrong and denied. The
Complainant has made timely payment and has made
payments as and when demanded by the Opposite
Parties. On account of any delay, the Opposite Parties
have accepted the same with interest for delay and are
thus liable pay compensation at the same rate on delay
in delivery of possession.
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4. That the contents of para 4-5 warrant no reply.
5. That the contents of para 6 and 7 are wrong and
denied. It is pertinent to mention herein that the
Opposite Parties want to wriggle out of their
responsibilities by framing one sided agreement plans
with dotted lines, which the consumer has no option
but to sign. It is also submitted that no failure has
occurred on part of the Complainant as alleged or at
all. It is also pertinent to mention herein that
intentionally delaying delivery in the guise of force
majure should not be allowed. The Opposite Parties
have already been declared to be in a dominant
position and their conduct has been held as arbitrary
and unreasonable by the Hon’ble Competition
Commission and Competition Appellate Tribunal. The
Complainant had no option but to sign on the already
framed agreement which are unreasonably one sided
and favour the Opposite Parties.
6. That the contents of para 8 are wrong and denied. It is
specifically denied that the period of delivery of
possession was not reduced from 36 months to 30
months whereas in the same para under reply the
Opposite Parties have in contradiction to their
statement admitted that period was changed to 3 years
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from date of booking in place of 3 years from date of
agreement. At the cost of repetition the Complainant
again submits that the Complainant has paid interest
on all the delayed payments and as such should also
pay interest at the same rate for delay in delivery of
possession.
7. That the contents of para 9, 16 are admitted to the
extent that they are matter of record. The Complainant
obtained possession of the apartment keeping in mind
that during the time of execution of sale deed
compensation for delay along with timely rebate
payment shall be given to the Complainant but the
same was not done by the Opposite Parties and thus
the Complainant has filed the present Complaint,
aggrieved by the actions of the Opposite Parties.
Further any relief claimed will not get foreclosed merely
because a sale deed has been executed as the same
only represents that claim of the opposite party has
been satisfied which will infer right on the complainant
to get the sale deed executed and does not conclude
the right of the complainant arising under the
Apartment Buyer Agreement.
8. That the contents of para 10-15, 22, 25 are wrong and
denied. The said Clause 8 cited by the Opposite Parties
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makes it clear that demand notices are to be raised by
the Opposite Parties. The contents of para 10 of the
Complaint be read in reply to the contents of the para
under reply. At the cost of repetition it is submitted
that the Opposite Parties have taken interests for
delayed payments and as such should pay
compensation for delay in giving possession.
Disentitlement due to delayed payments was only
limited to timely rebate payment and not to delay
compensation.
9. That the contents of para 17 are wrong and denied. It
is submitted that the payment of taxes as stipulated
under Clause 2 is valid when the Opposite Parties act
without delay and the taxes are to be paid within the
period agreed to in the agreement. The burden of tax
on the Complainant is due to the default on part of the
Opposite Parties and thus should not be put on the
Complainant.
10. That the contents of para 18 are wrong and denied. It
is specifically denied that the order in Unitech v. Satish
Kumar Pandey Civil Appeal 6119 of 2015 has been
stayed. The Hon’ble Apex Court has disposed of the
said appeal in favour of the home buyers.
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11. That the contents of para 19 are wrong and denied. It
is submitted that the judgment in the case of Belaire
Owners Association v. DLF Ltd. Civil Appeal 1108 of
2014 has not been stayed, on the contrary the
Company was asked to deposit the entire amount of
penalty. Furthermore the pendency of any proceedings
does not vitiate the precedential value of the judgment.
12. That the contents of para 20 and 21 are wrong and
denied. The increase in super area has been done
unilaterally and without the approval of the
Complainant. The claim for the increase in area was
exorbitant. Also, the parking area forms part of the
common area and the Opposite Parties have unlawfully
sold the parking areas. It is also pertinent to note that
the issue is no more res integra as the same has been
settled by the order passed by this Hon’ble Forum in
the case of Developers Township Property Owners
Welfare Association v. Jaipraksh Associates
Limited (Consumer Case No. 1479/2015).
13. That the contents of para 23 are wrong and denied. To
avoid repetition it is submitted that the contents of the
Complaint be read in reply to the para under reply.
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14. That the contents of para 24, 26 are wrong and denied.
The amount claimed by the Complainant is for
deficiency in services on part of the Opposite Parties
and it is just and equitable for the Complainant to be
granted the reliefs prayed for in view of the fact that
the Opposite Parties have charged exorbitant amount
on delay of payment in installments and have also
acted in high handed and arbitrary manner against the
Complainant.
15. That the contents of para 27 are wrong and denied. It
is pertinent to mention herein that the increase in area
was unilateral. The agreement entered into between
the parties was one sided and the Complainant had no
option but to sign the agreement. The exorbitant price
charged for the increase in area is not permissible. The
Opposite Parties are liable to pay the amount as
charged for in the Complaint, which is not repeated
herein for the sake of brevity.
16. That the contents of para 28, 29 are wrong and denied.
The contents of para 28 of the Complaint should be
read in reply to this para.
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17. That the contents of para 30 are wrong and denied.
The contents of para 9 be read in reply to the
answering paragraph.
18. That the contents of para31 warrant no reply.
19. That in view of the aforesaid submissions the
Complainant humbly submits that the prayer made by
the Opposite Parties is liable to be rejected.
DEPONENT
VERIFICATION:
Verified at New Delhi on this the__ day of March, 2018.
I, the abovenamed deponent do hereby verify that the
contents of the above affidavit are true and correct, no part
of it is false and nothing material has been concealed
therefrom.
DEPONENT
COMPLAINANT
THROUGH COUNSEL
FILED BY:
[PAWANSHREE AGRAWAL]
Advocate for the Complainant (s)
B-9, Sagar Apartments
PLACE : NEW DELHI 6, Tilak Marg
DATED: /03/2018 New Delhi 110 001
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BEFORE THE STATE NATIONAL CONSUMER DISPUTE
REDRESSAL COMMISSION, NEW DELHI
COMPLAINT PETITION NO. OF 2016
IN THE MATTER OF:-
Mr. Shiv Prakash,
E-43, DLF City Phase –I,
Gurgaon 122001
Haryana …..Complainant
Versus
3. M/s DLF Home Developers Ltd.
Having his registered office at
DLF Centre, Sansad Marg, New Delhi – 110001
Through its Director Mr. Rajiv Singh and Mr. Trilok
Chand Goyal
4. M/s DLF New Gurgaon Home Developers Pvt. Ltd.
Having its registered Office
At 1-E, Jhandewalan Extension, New Delhi-110055
Through its director Mr.Satish Kumar Tyagi Director
And Mr. Nilesh Ramjiyani Director
…..Opp. Parties
REPLICATION ON BEHALF OF THE COMPLAINANT TO
THE REPLY FILED BY THE OPPOSITE PARTIES
(PAGES 1 TO 13)
FILED BY:
[PAWANSHREE AGRAWAL]
Advocate for the Complainant (s)
B-9, Sagar Apartments
PLACE : NEW DELHI 6, Tilak Marg
DATED:22/03/2018 New Delhi 110 001
