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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:

PLACE : NEW DELHI
DATED: /03/2018
[PAWANSHREE AGRAWAL]
Advocate for the Complainant (s)
B-9, Sagar Apartments
6, Tilak Marg
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