Delhi

West Delhi

CC/22/208

SAMIR SHARMA - Complainant(s)

Versus

DLF ESTATES - Opp.Party(s)

15 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTE REDRESSAL COMMISSION-WEST DISTRICT-III C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAKPURI, NEW DELHI.

 

CC No.   208/22

In re:-

Sameer Sharma

S/o Vinod Kumar

R/o – F-052, Phase 1,

DLF Capital Greens

Zakhira, Ramesh Nagar,

Rajouri Garden, West Delhi - 110015                                  …………Complainant

 

VERSUS

DLF Estates (Delhi) Private Limited

(Through M.D./CEO/Director/Authorized Representative)

1E, Jhandewalan Extension,

Naaz Cinema Complex, New Delhi – 110055.

 

Also At:

DLF Centre, Sansad Marg,

New Delhi – 110001.

                                                                                      ……………opposite party

                                                                            

Coram:                                                                             

1. SONICA MEHROTRA (PRESIDENT)
2. RICHA JINDAL (MEMBER)
3. ANIL KOUSHAL (MEMBER)

Date: 15/09/2022

ORDER PASSED BY:  MS RICHA JINDAL, Member

 

ORDER

1. That the complainant has filed a present complaint under section 12 of the CPA Act,1986 alleging deficiency service on the part of OPs and claims compensation. Brief facts of the complaint are as follows :

 

1. The Opposite Parties no. 1 is engaged in the trade of real estate in construction high rise residential as well as commercial complexes in Delhi NCR whereas OP 2-4 are the promoters/directors of opposite party no. 1 Company having directorial, controlling and supervisory powers.
2. The OP 1 had advertised with different means and channels about their upcoming Residential Project namely "DLF Capital Greens" at Shivaji Marg, New Delhi. The Complainant, interested in purchasing an apartment for his family &own residential purposes, was lured by the Opposite Parties to book a flat in the said Project by misleading advertisements and wrongful representation.

 

3. The Complainant purchased Flat No.- CGF052, Unit 2, Building F, 5th Floor in the afore-said Group Housing Project: "DLF Capital Greens", ShivajiMarg, New Delhi; from the Original allottee Mrs Pooja Jain w/o Mr Pankaj Jain resident of House No K- 16, Model Town-III, Delhi- 110009. Thereafter, in the month of March 2013, an endorsement in favour of the complainant was made by the opposite party No.1. Thus, the Complainant stepped into the shoes of Mrs Pooja Jain and all her rights, interests and claims in the flat stood completely and transferred in favour of the Complainant. The said transfer of rights and execution of Deed was always in the notice of the Opposite Party and it was duly admitted and accepted after payment of all the levies per-se and thereafter all the outstanding dues against the Demands raised by the Opposite Party time to time as per the Payment schedule were paid to the Opposite Party. The opposite party No. 1 at the time of endorsement in favour of the complainant had assured that though there was some delay in handing over the possession, all the formalities qua the formal transfer of possession are complete and very soon, they would offer the formal possession to the complainant.

 

4. The Original allottee Mrs Pooja Jain in April 2009, on the impressive projection of misleading advertisements and wrongful representation, had booked one residential 3BHK Flat and on Opposite Parties own projection to offer of handing-over the Possession of the said Flat within 36 months from the date of execution of Application Form.

 

5. That the Original allottee booked a residential 3BHK Flat with tentative Super area 1450 sq. ft. on payment of initial booking amount of Rs.5,00,000/- (RsFive Lakh Only) vide Cheque No.640919 dated-06.04.2009 drawn on State Bank of Patiala, New Colony Marg, New Delhi made to OP in the aforesaid Residential Group Housing Project "DLF Capital Greens" launched by the Opposite Party.

 

6. Thereafter Apartment Buyer Agreement dated-09.09.2009 was executed along with the Schedule of Payment with detailed Payment Schedule in respect of said residential Flat No. CGF052, Unit 2, Building F, 5th Floor, with super area 1450 sqft in the afore-said Group Housing Project: "DLF Capital Greens", ShivajiMarg, New Delhi against the total consideration amount of Rs.99,75,000/-(Rupees Ninety-Nine Lakh Seventy-Five Thousand Only).

 

7. The OP has received entire payments of the instalments as per the Schedule of Payment concerning the Flat by March, 2013. There has been no default in making payments against instalments as per the Apartment Buyer Agreement.

 

8. That under the Apartment Buyer Agreement dated 09.09.2009, it was specifically and categorically assured by the Opposite Party that OPs as per clause 11(a) thereof will hand over the said residential Unit within 36 months of execution of the Application Form dated-14.04.2009, meaning thereby, the OP was obligated to handover the said Unit along with all required amenities and facilities which are fairly necessitated and promised under the said Brochure/Booking Form/ Letter of Allotment/ Apartment Buyer Agreement; by 14.04.2012.

 

1. Vide a letter dated 01.09.2016, the complainant was informed that the occupation certificate was in the process of being obtained and further that there is an increase in the area of the flat to an extent of 14.40 sq. meters and therefore the price of the flat was increased. Thereafter the payment as demanded by the opposite party was paid by the complainant.

 

10. That the complainant repeatedly approached the Opposite Parties personally and requested them to have a professional approach and the completion/possession be done promptly. But apart from frivolous assurances, nothing constructive was yielded out, causing lots of immense mental agony, physical harassment & financial loss to the Complainant.

 

11. However, after immense the complaint and other flat buyers and after a substantial delay of almost 4 yearswithout assigning any cogent reason on behalf of the Opposite Partyfor the delay in handing over the possession of the said flat. The Opposite Party sent a letter of possession dated 01.09.2016 to take possession of the flat.

 

• The complainant had accepted the possession of the unit without prejudice to his rights and reserved his remedies for claiming compensation. The opposite party had not offered and had not expressed any desire to compensate the complainant for the delayed possession.

 

13. As already stated, after a total delay of 4 years, the complainantwas offeredpossession of the flat in the year 2016.The complainant had expressed his protest for the delay in handling the possession of the flat.

 

• The Complainant in the meanwhile was assured and comforted that some of the allottees/resident Association has already approached the NCDRC seeking compensation for the delay, and whatever would be the final decision; the same shall be acceptable to the OP and the complainant would be automatically compensated in terms of the decision if the Hon'ble Court decides the matter in favour of the allottees. The complainant, therefore, once again believed the representations and assurances of the OP that once the decision of the NCDRC will come, it would applyto all. The Hon'ble NCDRC decided the matter and the said decision of the NCDRC were assailed before the Hon'ble Supreme Court of India. The OP parroted its claims that whatever the Hon'ble Court would decide the OP would be bound by that. The complainant had no reason to disbelieve. The Hon'ble Supreme Court vide its decision dated 14.12.2020 decided the matter in favour of the allottees and directed the OP, inter alia, to pay the compensation on account of delay in handing over the possession of the Flat to the Flat Buyers @ 6% per annum.

 

• After the aforesaid decision of the Hon’ble Supreme Court of India, the complainant has been requesting the OP, to compensate the complainant as per the decision of the Hon’ble Supreme Court. The OP despite various requests has failed/ignored/neglected to do so. Hence giving a cause of action to the complainant for the present complaint.

 

16. The faith of the complainant over the opposite parties has completely shattered.The Opposite Parties have acted arbitrarily and unilaterally. The misdeeds and omissions on the part of Opposite Parties are self-evident and without any fair, just and rational justification, it is opposed to public policy, equity and fair play and is not sustainable in the eyes of law. The complainant is the aggrieved party and is entitled to relief under Section 35 of the Consumer Protection Act 2019.

 

17. That it is settled law and in the catena of judgements, Hon’ble courts have opined that the allottee of a real estate property is legally entitled to compensation for delay beyond the reasonable cause.
18. That the complainant had suffered due to negligence and deficiency in service of the opposite parties. The complainant also suffered great mental stress, tension, hardship, pain and agony due to delay and deficiency on the part of opposite parties, as the Opposite parties failed to perform their contractual liability against the buyers as per the Apartment Buyer Agreement. The opposite parties are jointly and/or severally liable to pay compensation of Rs. 20,00,000/- for the illegal, unlawful acts, gross negligence and deficiency in services.

1. After going through the material placed on record, without going into merits,it reveals that the main question involved in the present complaint is whether the present Complaint is barred by limitation under section 24 A of the Consumer Protection Act, 1986. The only aspect for consideration before us is whether the Complainant is barred by a limitation or not.

 

4.  

 

HON'BLE SUPREME COURT in the case titled “Hewlett Packard India Ltd. Vs Shri Ramachander Gehlot” in CA No. 7107/2003 decided on 16.02.2004 held that

 

"The issue of maintainability has to be decided before admitting or hearing the matter on merit.”

 

8.  in FIRST APPEAL NO. 337 OF 2017 in a case titled “KOSHY VARGHESE THAVALATHI HOUSE, MELE VETTIPURAM, PATHANAMTHITTA Versus HDFC BANK LTD. & 2 ORS.” Held that

 

“It is settled law that the question in which law point is involved can be decided at any stage of the proceedings of the case.

In view of the above, the present Appeal as also the Complaint filed by the Appellant/Complainant before the State Commission is dismissed as being not maintainable with no order as to cost.”

 

5. Perusal of record shows that the complainant failed to prove on record that at the time of taking over the possession of the flat in the year 2016,the complainant accepted possession under protest or without prejudice to his rights for delayed possession raised any demand for compensation against delay in handing over the possession, still if we accept the averments of the complainant for argument sake that he was waiting for the fate of the court proceedings going on between the parties rather even after the Hon’ble supreme court order on 14/12/2020, the complainant did not file any document to prove that if herein a party in two sets of flat buyers who had moved interlocutory applications for entering into arguments with OPs but straightway knocked the door of this Commission. Hence in the absence of any proof, the complainant failed to show any cause of action in his favour and against the OP.

 

6. Hon’ble National Consumer Disputes Redressal Commission in M/S M.L.SpinnersPvt. Ltd. vs United India Insurance Company decided on 16 December, 2013vide REVISION PETITION  NO. 2668 OF 2013 held that

 

“Once the petitioner has received the amount unconditionally and has also got the cheque encashed, under these circumstances, petitioner cease to be a Consumer as per Consumer Protection Act, 1986 (for short, Act). The privity of contract or relationship of consumer and service provider between the parties if any, came to an end the moment the petitioner accepted the refund unconditionally and also got the cheque encashed.

 

7. In our opinion mere pleadings without any corroborating evidence cannot take the shape of proof. The complaint was like a recovery suit claiming damages from the date of denial of compensation for delay in handing over the possession, which is not maintainable because the complainant did not raise any protest or demand at the time of taking possession of the flat which was accepted by the complainant towards full and final settlement and compensation was not a part of the contract. Even if we accept the averments made by the complainant then also admittedly complainant failed to explain why he did not file any document on record to prove that even after the order of Hon’ble Supreme court, the complainant did not ask for compensation, in these circumstances the claim of the complainant stands dismissed being an after thought. The complainant has misused the process of the Consumer Protection Act. Thus, it is not a fit case where the complainant can be allowed to agitate his issue against OPs.

 

8. It is well settled that an offer may be accepted by conduct. But conduct would only amount to acceptance if it is clear that the offeree did the act with the intention (actual or apparent) of accepting the offer. The decisions which we have noticed above also proceed on this principle. Each case must rest on its facts. The courts must examine the evidence to find out whether in the facts and circumstances of the case the conduct of the offeree was such as amounted to an unequivocal acceptance of the offer made. If the fact of the case discloses that there was no reservation in signifying acceptance by conduct, it must follow that the offer has been accepted by the conduct. On the other hand, if the evidence discloses that the offeree had reservations in accepting the offer, his conduct may not amount to acceptance of the offer in terms of Section 8 of the Contract Act. In the present case, there is nothing on record to show that the complainant was compelled by the respondent at any stage to settle the claim at a lesser amount than the claim made by it. There is also not an iota of evidence on record to show that any official of the respondent compelled the petitioner to settle the claim at a lesser amount.

 

9. Reference in this regard is made to the case cited as United India Insurance Vs. Ajmer Singh Cotton & General Mills &Ors. 1999 (2) CPC 601 (SC), wherein the Hon’ble Supreme Court has held ;

“Insurance claim full and final settlement where the claim has been accepted without any objection, full and final settlement of the claim was made by the insurer, the claimant cannot be allowed any further relief.”

10. While deciding similar controversy, in Bhagwati Prasad Pawan Kumar Vs Union of India (2006) 5 Supreme Court Cases 311, Apex Court has observed that ;

“The protest and non-acceptance must be conveyed before the cheques are enchased. If the cheques are enchased without protest, then it must be held that the offer stood unequivocally accepted. An offeree cannot be permitted to change his mind after the unequivocal acceptance of the offer.”

11.  The complainant being inadvertently time barred & an after thought.
12.  Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
13.  File be consigned to record room.

 

14.  Announced on 15.09.2022.

 

 

 

 

 

Richa Jindal                              Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                     (Member)                               (President)