Chandigarh

DF-I

CC/450/2020

Shashank Dhawan - Complainant(s)

Versus

DLF Home Developers Ltd. - Opp.Party(s)

Salil Sabhlok

01 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                          

Consumer Complaint No.	:	CC/450/2020
Date of Institution	:	13.10.2020
Date of Decision	:	01/10/2024

 

1.    Shashank Dhawan s/o Mr. Hari Narian Dhawan, r/o 217 Old Birmingham Road, Marlbrook B601HL through his SPA Holder Sh. Rajiv Malik S/o Late Dev Raj Malik, R/o House No. 48, Sector 10-A, Chandigarh.

2.    Vidhu Malik w/o Mr. Shashank Dhawan, r/o 217 Old Birmingham Road, Marlbrook B601HL through her SPA Holder Sh. Rajiv Malik S/o Late Dev Raj Malik, R/o House No. 48, Sector 10-A, Chandigarh.

...Complainants

Versus

1.    DLF Home Developers Limited through its Managing Director, SCO 190-191-192, Sector 8-C, Chandigarh 160009.

2.    DLF Home Developers Limited through its Chief Executive Officer DLF Centre, Sansad Marg, New Delhi-110001.

3.    DLF Universal Limited through its Chief Executive Officer, DLF Shopping Mall, III Floor, Arjun Marg, DLF City Phase-I, Gurgaon 122002.

4.    JLL India through its Managing Director, Level 16, Tower C, Epitome Building, No. 5, DLF Cyber City Phase III, Gurgaon- 122002.

...Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Kannan Malik, Advocate for complainants
	:	Ms.Tanika Goyal & Sh.Ashish Pandey, Advocates for OPs No.1 to 3
		Sh.Manish Sachdeva, Adv. Proxy for Sh.Jatin Kumar, Adv. for OP No.4 (thr.VC)

Per Pawanjit Singh, President

1.        The present consumer complaint has been filed by complainants through their SPA Sh.Rajiv Malik against the opposite parties (hereinafter referred to as the ‘OPs’).  The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the complainants who are citizens of Britain desired to purchase a residential property in and around Chandigarh and during their search for a residential place in the year 2013, they came across an advertisement in the newspaper by OP Nos.1 to 3 (hereinafter referred to as the ‘builder OPs’) regarding their upcoming project known as "HYDE PARK ESTATE" in Mullanpur (New Chandigarh), Punjab (hereinafter referred to as the ‘subject project’). The complainants also visited the website of the builder OPs, where they provided a detailed map/drawing of the project (Annexure C-1). Accordingly, the complainants visited the office of the builder OPs at Chandigarh where they were given a T.V. presentation and shown the model of the project by builder OPs and were assured timely possession of the plot with all amenities, etc. The complainants booked a plot with builder OPs and were allotted with Property No.R3-B706 vide allotment letter dated 24.09.2013(Annexure C-2).  Thereafter, a Plot Buyer's Agreement (for short ‘PBA’) dated 13.12.2013 was also entered into between builder OPs and the complainants (Annexure C-3). As per the agreement, the complainants were allocated Plot No.706, Block-5, Pocket-R3 measuring 209.03 sq. mtrs. (250 sq. yards) for a basic sale price of Rs.88,00,163/-. In addition to it, the Preferential Location Charges (PLC) to the tune of Rs.7,00,041/- were also charged and in this manner, the total price of the plot was Rs.95,00,204/-. After applying cash discount and adding other charges for EDC, Club, IBMS and other deposits and charges, the total cost of the plot came to be Rs.94,65,990/- and the said fact is substantiated from the letter dated 29.06.2017 (Annexure C-4). The complainants have paid the whole amount and the details of payment (Annexure C-5) is reproduced as under:-

As per Clause 33 of the PBA (Annexure C-2), the possession of the plot was to be delivered in 24 months from the date of application or within any extended periods and in case of delay by the builder OPs in offering possession of the plot, the builder OPs shall pay compensation @ Rs.50/- per sq. meter per month to the allottee/buyer. Vide letter dated 10.09.2016 (Annexure C-6), the builder OPs informed the complainants that the due to change in the layout plan, the allotment of plot was changed and now the complainants have been allotted Plot No.R3-A907 (hereinafter referred to as the ‘subject plot’) in place of the earlier plot No.R3-B706. As the said change of allocation was made by the builder OPs without the consent of the complainants, therefore, the builder OPs are obliged to refund the PLC which was initially charged from the complainants. In December, 2017, the complainants received an e-mail requesting them to physically verify the subject plot along with the entire status of the project. As the complainants are residents of Britain, they appointed Mr. Rajiv Malik S/o Dev Raj Malik as their Special Power of Attorney Holder authorizing him to visit the spot and to verify the aforesaid facts.  When the SPA of the complainants visited the spot, he was shocked to see that there was no approach road from the main road to the subject plot  and only a katcha illegal way had been carved out and the SPA had refused to take possession of the plot by informing the builder OPs that unless proper approach road is not constructed, the complainants will not accept possession and the photographs of the approach road are Annexure C-7 (Colly.). Thereafter on 07.01.2018, the complainants sent an E-mail (Annexure C-8) to Ms. Anupama Bhatti, authorized representative of builder OPs, apprising her that the possession will not be accepted unless the approach road is constructed. The layout plan/Map of the project as supplied in the year 2018 (Annexure C-9) clearly shows that most part of the R-3 Pocket has not even been acquired by the builder OPs and there was no connectivity to R-3 pocket and the rest of the project. Later on, the complainants sent various E-mails to the builder OPs but with no positive response.  Thereafter, the complainants received a letter dated 29.06.2018 (Annexure C-10) from the builder OPs for registration of the conveyance deed of the subject plot with a demand of maintenance charges under the head of 'Interest Bearing Maintenance Security' to the tune of Rs.1,28,342/-.  As there was considerable delay in offering the possession, the builder OPs have wrongly asked for Maintenance Security by raising illegal demands especially when the possession has not been offered to the complainants till date nor the possession has been accepted by them. On 11.09.2019, the complainants received another e-mail (Annexure C-11) from OP No.4 seeking illegal maintenance charges without offering the possession of the subject plot to the complainants.  It is further alleged that there is violation of the agreement as the builder OPs had not handed over the possession to the complainant. A copy of the satellite view of the project of builder OPs from Google Earth is Annexure C-12.  Finally, the complainants served a legal notice dated 23.11.2019 (Annexure C-14) upon the OPs but with no result. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint seeking refund of the deposited amounts along with interest and compensation.

2. OPs No.1 to 3 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, jurisdiction, arbitration clause, limitation, cause of action, concealment of facts and that the complainants are not consumers as per the provisions of the Consumer Protection Act.  On merits, it was admitted that the subject plot was allotted to the complainants and Plot Buyer's Agreement was also executed between the parties. It was also alleged that the offer of possession letter was sent to the complainants on 29.06.2017 and they had taken the possession on 06.01.2018 (Annexure R-1). It is further alleged that due to change in layout plan, the allotment was changed to the subject plot with the consent of the complainants. It is further alleged that as the complainants have purchased the subject plot for commercial purposes, therefore, they are not consumers under the Act. It is further alleged that the complainants were requested to come forward for the execution of the sale deed but they did not turn up despite repeated requests of the builder OPs. It is further alleged that after taking offer of possession of the subject plot, there is no provision in the PBA to meet out the illegal demands of the complainants which have been made in the present complaint. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
3. In its separate written version, OP No.4 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, locus standi and non-joinder of necessary parties as the society of OP No.4 has not been impleaded as a party. On merits, all the allegations made against it for raising the demand for maintenance charges on account of maintenance services were provided to all the allottees including the complainants have been denied. The cause of action set up by the complainants is denied.  The consumer complaint is sought to be contested.
4. In separate replications, the complainants reiterated the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2.        In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3.        We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that initially the plot No.R3-B706 was allotted to the complainants on receipt of the entire payment of Rs.94,65,990/- and on obtaining the approval of the lay out plan, the subject plot bearing No.R3-A907 was allotted to the complainants in lieu of the old plot as is also evident from the letter dated 10.09.2016 (Annexure C-6) and thereafter on obtaining the partial completion certificate, the builder OPs offered the possession of the subject plot, as is also evident from the letter dated 29.06.2017 (Annexure C-10),  the case is reduced to a narrow compass as it is to be determined if the possession of the subject plot was not delivered to the complainants due to non-availability of the approach road to the subject plot and the complainants are entitled to refund of the entire amount paid to the builder OPs along with interest and compensation, as is the case of the complainant, or if the possession of the subject plot was delivered/handed over to the complainants through their SPA Sh.Rajiv Malik on 06.01.2018 and there is no deficiency in service or unfair trade practice on the part of builder OPs and the complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the builder OPs.
   2. The learned counsel for the complainant submitted that as it stands prove on record that the approach road to the subject plot is still kutcha one and the possession of the subject plot has not been delivered to the complainants till date by the builder OPs despite of the fact that they had agreed to hand over the possession of the subject plot within the stipulated period, the aforesaid act of the builder OPs amounts to deficiency in service and unfair trade practice on their part and the complainants are entitled to the reliefs as prayed for.
   3. On the other hand, the learned Counsel for the builder OPs submitted that as it stands proved on record that the possession of the subject plot was delivered to the complainants on 06.01.2018, which was acknowledged by the SPA of the complainants, the complaint of the complainants being false and frivolous is liable to be dismissed.   There is force in the submission of the learned Counsel for the builder OPs as the perusal of the possession certificate dated 06.01.2018 (Annexure R-1) clearly indicates that the possession of the subject plot was handed over by Sh.Arnav Sood, Representative of builder OPs and was taken over by Sh.Rajiv Malik, admittedly SPA of the complainants on 06.01.2018. Moreover, the possession certificate dated 06.01.2018 (Annexure R-1) further makes it clear that the SPA of the complainants had acknowledged the existence of the road  and entrance along with provision for sewer/storm/water/electrical connection to the subject plot and the same is reproduced as under:-

4. Thus, one thing is clear on record that in fact the complainants have concealed the material facts from this Commission by not disclosing about the taking over possession of the subject plot by them through their SPA from builder OPs on 06.01.2018. Moreover, the offer of possession letter dated 29.06.2017 (Annexure C-10) further indicates that the builder OPs had requested the complainants through the said letter to remit the balance amount and to take possession of the subject plot and also to come forward for the execution of the sale deed on submission of certain documents and after taking possession of the subject plot on 06.01.2018 (Annexure R-1), the complainants had sent another e-mail dated 07.01.2018 (Annexure C-8) raising the issue of non-availability of the approach road  without disclosing about the fact that the possession had already taken over on 06.01.2018 by the complainants through their SPA, making further clear that the complainants have concealed the material facts from this Commission about taking over the possession of the subject plot and opted to file the present complaint against the OPs.
5. The learned Counsel for the builder OPs further submitted that as it stands proved on record that the complainants have already taken possession of the subject plot on 06.01.2018 and they have filed the present complaint on 13.10.2020 i.e. after 2 years and 9 months and, therefore, the complaint of the complainants is barred by limitation. On the other hand, the learned Counsel for the complainants submitted that the complainants have continuous cause of action since the builder OPs have failed to provide the approach road and as such the complaint is within limitation. There is no force in the submission of the learned Counsel for the complainants as the complainants who have already taken over the possession of the subject plot on 06.01.2018 and now have been seeking refund of the entire paid amount along with interest from the date of its payment after 2 years and 9 months of the taking over the possession of the subject plot, the complaint of the complainants is barred by limitation.
6. The Hon’ble National Commission, in similar circumstances, in the case of Avtar Singh Chauhan vs. DLF Home Developers Ltd. & Anr., CC/789/2020 decided on 2.3.2023, has held that limitation period would start from ‘the date of offer of possession’ and compensation for delayed delivery of possession would be tenable till the date of offer of possession after receiving the occupation certificate and not till ‘the date of delivery of possession’. Relevant portion of the said order is reproduced below for ready reference:-

“13.   On an overall consideration of the ratio in all the decisions referred to above, it becomes crystal clear that any claim on account of delayed possession would be tenable only till the date of ‘offer of possession’, but of course, after the Occupancy Certificate has been received by the Builder/Developer.  There is no entitlement of an allottee for such compensation "till the date of delivery of possession" as the Builder's liability ends once he makes the offer of possession. Further, as we have already seen, some orders which had directed that such delayed compensation was payable till the date of actual possession, were themselves modified not only by the Hon'ble Apex Court, but also by the Principal Bench of this Commission, and the compensation was found payable only "till the date of offer of possession" after having received the Occupancy Certificate.  This would mean that the cause of action qua the Complainants would commence from the date of offer of possession and not from any subsequent date such as that of the actual delivery of possession.  It is also to be noted that the objection on the ground of limitation bar did not arise in any of the aforesaid decisions.

14.    But in the present case, a specific objection in this regard has been raised.  It is undeniable that in the present case, the Occupancy Certificate was received by the Opposite Party on 21.2.2017, and only after that the offer of possession was made to the Complainants on 23.3.2017.  Consequently, the period of limitation starting from the latter date would end on 23.3.2019.  Any Complaint filed after that date would per se be beyond limitation…….xxxxxx

16.    For the aforesaid reasons, we are of the considered view that the present Complaints are manifestly barred by limitation, since the same were filed more than three years after the offer of possession was made to the Complainants in the month of March, 2017.”

7. Further, the Hon’ble National Commission in its latest order passed in DLF Homes Panchkula Pvt. Ltd. vs. Satish Goyal & Anr., FA/303/2021 decided on 07.10.2023 has held that State Commission erred in not considering the fact of limitation and further there was no application for condonation of delay and still the State Commission proceeded to adjudicate the matter without addressing the fundamental issue of delay. Relevant portion of said order is reproduced as under:-

"16.  The complaint was barred by limitation before the State Commission. The State Commission also erred in not considering the fact that there was no application for condonation of delay and proceeded to adjudicate in the matter without addressing the fundamental issue of delay."

8. Not only this, even our own Hon’ble State Commission, U.T., Chandigarh in R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., CC No.79 of 2019 decided on 12.07.2019 has held as under :-

“8.     Even though, no cause of action had accrued in favour of the complainant to file the instant complaint as there was no grievance of his put forth at the time of taking over the possession, still if we exclude two years limitation period to file the complaint from the date of offer of possession, the complaint is barred by limitation as there is a delay of five months in filing the same. In our opinion, the complaint deserves outright dismissal as the same is hopelessly time barred. The complaint deserves dismissal as the same does not assign any reason or ground for inordinate deliberate delay in filing the complaint after lapse of five months and even no application has been filed for condoning the unexplained, deliberate, hopeless delay in filing the complaint.

9. The Hon'ble Apex Court in Civil Appeal No.2067 of 2002 - State Bank of India Vs. B.S. Agricultural Industries (I) (AIR 2009 SC 2210), wherein the Complaint was dismissed as time-barred, has observed as under :-

"Consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.”

10. In view of the aforesaid discussion, it is safe to hold that there is no deficiency in service and unfair trade practice on the part of the builder OPs, rather it is the complainants who have concealed the material facts from this Commission and as such the complaint is not maintainable being time barred also and the same deserves dismissal.

4.        In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5.        Pending miscellaneous application(s), if any, also stands disposed off.
6.        Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/10/2024			Sd/- [Pawanjit Singh] President
			Sd/-
			[Surjeet Kaur] Member
			Sd/-
			[Suresh Kumar Sardana] Member