JUSTICE SUDIP AHLUWALIA, MEMBER

IA/5864/2021 and  IA/5865/2021

         These are two applications have been filed on behalf of the Opposite Parties seeking dismissal of both complaints on the ground that the same are barred by limitation.

2.      The Complainants happen to be very senior bureaucrats in the Government of India who have since retired.  The Complainant in CC No. 818 of 2020, who is a lady, appears to be closely related to the Complainant in CC No. 789 of 2020, since both of them share the same address as mentioned in the Memo of Parties in either case, as also their surnames. The complaints were filed seeking virtually identical reliefs against the same Opposite Parties from whom they had purchased two separate Apartments, which were delivered to them long after the original dates for possession had passed, on account of which they had ostensibly suffered monetarily, and therefore sought interest on the delayed possession from the scheduled date of delivery of possession which was in the year 2012, till the date on which the same was actually delivered i.e. 17.5.2019.  Besides, they also sought some more ancillary reliefs.  Since the matter in issue in both the complaints is virtually identical so the details pertaining to the background which would

be relevant for an effective adjudication are taken from CC No. 789 of 2020, being the lead case.

3.      The Opposite Parties had launched a housing project in Moti Nagar area in New Delhi knows as “DLF Capital Green Phase-II (DLF CG II)”.  The Complainants applied for allotment of their respective flats in the said Project on 6.10.2009. The Opposite Parties allegedly forwarded a pre-printed Agreement for Sale dated 20.8.2008 which according to the Complainants, contained one-sided, arbitrary, unfair  and illegal terms and conditions. The possession in any case was to be delivered in the year 2012. In that year on 19.7.2012, the Opposite Parties sent a communication claiming delay on account of Force Majeure and offered refund of the entire sum of money deposited with them alongwith interest @ 9% p.a. The Complainants, however, declined to accept such offer.  Ultimately, the possession was offered on 23.5.2017, but actually delivered more than two years later on 17.5.2019. Further, there were certain deficiencies in the matter of construction of Apartments in the concerned Project and the Complainants also stood to lose monetarily as Stamp Duty on the date of actual registration of the Sale Deeds would become substantially increased on account of difference in the circle rate as was in existence in  the year 2012, and  the date on  which  the registration would actually

be effected after 2019.  So, the Complainants filed their complaints seeking the following reliefs –

CC/789/2020

         a) Admit, hear and allow this complaint;

b) Direct the OPs to execute a registered sale deed in favour of the complainant;

c) Direct the OPs to reimburse additional stamp duty amount i.e. difference of circle rate prescribed by the Government as on 31.03,2012 and circle rate on the date of execution of registration of sale deed;

d) Direct competent authority as it may deem fit, to report effects of earthquake on the building keeping in view lesser open area between two towers;

e) Direct the OPs to take remedial safety measures as it may deem fit to this Hon’ble Commission;

f) Direct the OPs to delete the conditions referred to in para 6 of this complaint, more particularly condition No. 11C, 14, 20 and 39 of the agreement to sell; alternatively this Hon’ble Commission may be pleased to quash above said conditions contained in the Apartment Buyer’s Agreement;

g) Direct OPs  to  pay  interest  at  the  rate  of 18% on a sum of Rs. 1,10,90,722/- per annum from 01.10.2012 till 17.05.2019;

h) Declare that the parking charges of Rs. 4,50,000/- charged by OPs from the complainant violates the law laid down by the Hon’ble Supreme Court in the case of Nehalchand Supra and therefore illegal consequently direct the OPs to refund the same with interest @ 18% p.a;

i) Direct the OPs to pay compensation of Rs. 2 lakhs for having attempted to extort the complainant by illegally retaining his property to coerce him to withdraw his complaint;

j) Direct the OPs to earmark parking slots available in the basement by making a draw amongst all the members or by any other equitable process;

k) Award cost of litigation that may be quantified at 2 lakhs Rupees;

l) Grant such other and further reliefs as it may deem fit in the interest of justice.

CC/818/2020

         a) Admit, hear and allow this complaint;

b) Direct the OPs to execute a registered sale deed in favour of the complainant;

c) Direct the OPs to reimburse additional stamp duty amount i.e. difference of circle rate prescribed by the Government as on 31.03,2012 and circle rate on the date of execution of registration of sale deed;

d) Direct competent authority as it may deem fit, to report effects of earthquake on the building keeping in view lesser open area between two towers;

e) Direct the OPs to take remedial safety measures as it may deem fit to this Hon’ble Commission;

f) Direct the OPs to delete the conditions referred to in para 6 of the complaint, more particularly condition No. 11C, 14, 20 and 39 of the agreement to sell; alternatively the Hon’ble Commission may be pleased to quash above said conditions contained in the Apartment Buyer’s Agreement;

g) Direct OPs  to  pay  interest  at  the  rate  of 18% on a sum of Rs. 1,10,90,250/- per annum from 01.10.2012 till 17.05.2019;

h) Declare that the parking charges of Rs. 9,00,000/- charged by OPs from the complainant violates the law laid down by the Hon’ble Supreme Court in the case of Nehalchand Supra and therefore illegal consequently direct the OPs to refund the same with interest @ 18% p.a;

i) Direct the OPs to pay compensation of Rs. 2 lakhs for having attempted to extort the complainant by illegally retaining his property to coerce him to withdraw his complaint;

j) Direct the OPs to earmark parking slots available in the basement by making a draw amongst all the members or by any other equitable process;

k) Award cost of litigation that may be quantified at 2 lakhs Rupees;

l) Grant such other and further reliefs as it may deem fit in the interest of justice.

4.      The Opposite Parties entered appearance in the case and contested the same by filing their replies denying the material allegations made by the Complainants.  In addition, the Opposite Parties filed the instant IA Nos. 5864 and 5865 of 2021 seeking dismissal of the Complaints on the ground that the same were barred by limitation in as much as the possession was offered to the Complainants on 23.3.2017, on account of which the litigation period of two years would expire on 23.3.2019.  But both complaints were filed more than one year after that date on 17.7.2020.

5.      On the other hand, contention of the Complainants is that the actual offer of possession was  on 17.5.2019 in  terms of the possession

letter issued by the Opposite parties on that date.  Hence according to the Complainants, such possession letter was a “new offer of possession”, while the earlier letter dated 23.3.2017 according to them was merely a “forwarding letter of the Statement of Accounts” as on that date.

6.      Reliance of the applicants/Opposite Parties is on certain decisions of the Hon’ble Supreme Court as also this Commission concerning the claims of other purchasers/ allottees in the same Project i.e. “DLF Capital Green Phase-II (DLF CG II)”, Moti Nagar, New Delhi.  Certain decisions have been relied upon by the applicants in support of this contention, which are being referred to in the succeeding paragraphs. 

7.      In “DLF Home Developers Ltd.  Vs. Capital Greens Flat Buyers Association etc., 2020 SCC OnLine SC 1125” , the Hon’ble Apex Court had partially allowed the Civil Appeal Nos. 3864 to 3899 of 2020, filed on behalf of the present Opposite Parties against an order of this Commission, the relevant part of which was as under:-

“(i)    The OP is entitled to the additional demand on account of increase in the super area of the apartments.

(ii)     The OP is not entitled to car parking charges.

(iii)    The OP is not entitled to club charges.

(iv)    The allottees shall be entitled to early payment rebate and timely payment rebate, wherever they have complied with the terms on which the said rebates were offered by the developer or wherever the benefit of the said rebates was extended to them, either by the developer itself or by this Commission.

(v)     The OP shall pay compensation in the form of simple interest @ 7% per annum from the expected date for delivery of possession till the date on which the possession was actually offered to the allottees.  In case of subsequent purchasers, the period expected for the delivery of possession will be computed from the date of purchase by them.        

          If the possession was delayed solely on account of the allottee having not executed the Indemnity-cum-Undertaking, prescribed by the OP, the compensation in the form of simple interest @ 7% per annum shall be payable with effect from the expected date for delivery of possession till the date on which the consumer complaint by/on behalf of such an allottee was instituted.  The compensation shall be paid within a period of three months from today.” 

(vi)    The car parking charges and club charges wherever already paid to the developer shall be refunded to the concerned allottee within three months from today, failing which the said charges shall carry interest  9% per annum from the date of this order, till the date of refund.

(vii)   The conveyance deed in favour of the allottees shall be executed within three months from today, subject to payment of outstanding dues, if any, payable by the allottees to the developer, in terms of this order and the requisite stamp duty and registration charges….”

8.      The Apex Court decided the Appeal by relying upon its own previous decision in “Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., Civil Appeal Nos. 6239 of 2019 with No. 6303 of 2019,  (2020) 16 SCC 512”,  which was mentioned in Para 4 of the judgment.  In addition, the Appeals were consequently allowed in part with the following directions:-

“10.   Insofar as the parking and club charges are concerned, in view of the decision of the court in Wing Commander Arifur Rahman Khan (supra), the direction of the NCDRC in that regard shall stand set aside.

11.    Accordingly, we allow the appeals in part to the following extent;

(i)      The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and

(ii)     The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.”

9.      However, in its subsequent decision in “DLF Home Developers Ltd. Vs. Dr. Shipra Tripathi & Anr., decided on 30.9.2022, the Apex Court in Para 8 of its judgment referred to the operative part of its decision in “DLF Home Developers Ltd.  Vs. Capital Greens Flat Buyers Association etc. (supra) and deviated slightly from the previous decision by observing inter alia –

“……Hence, the order of the NCDRC dated 3 January, 2020 stood modified only to the extent that compensation on account of delay in handing over possession was reduced from 7% to 6%. The direction that compensation would be payable from the expected date for delivery of possession until the date on which the possession was actually offered to the allottees, continued to operate even after this Court’s order modifying the NCDRC order dated 3 January, 2020.

9.      In the present case, the NCDRC relied on the decision of this Court in DLF Home Developers Ltd. (supra) and directed the appellant to pay interest at the rate of 6% per annum from 18 April 2012 till the offer of possession is made afresh on the sale price deposited by the respondents.  This part of the order of the NCDRC would require to be corrected since the liability to pay compensation would continue only so long as no offer of possession was made.  Since the NCDRC has recorded that the offer of possession was made on 31 August, 2016, the impugned order would stand modified to the extent that the payment of interest at 6% per annum would be for the period from 18 April 2012 till 31 August 2016.”

10.    In “Ram Singh Chauhan  Vs. M/s. DLF Universal Ltd.”  this Commission in allowing the Review Application filed by the Opposite Party, modified its earlier decision in CC No. 2168 of 2018 dated 30.12.2021 according to which it had directed inter alia -

“20.  Respectfully following the aforesaid decisions of the Hon’ble Supreme Court and the Co-ordinate Bench of this Commission, we are of the considered view that the Developer is entitled to the additional demand on account of increase in the Super Area of the Apartment and the Developer shall be liable to pay compensation in the form of simple interest @ 6% p.a. from the expected date of delivery of possession till having over the actual possession. This apart, the Developer shall pay a sum of Rs. 50,000/- to the Complainant towards the costs of litigation.”

Thereafter, in view of the fact that its previous order in “Capital Greens Flat Buyer Association & Ors. Vs. DLF Universal Ltd. & Anr.” (supra), the direction to pay the awarded compensation with interest “till handing over of the actual possession” was recalled and modified that such compensation with interest @ 6% p.a. would be payable “from the expected date of delivery of possession till the date of offer of possession i.e. 17.2.2017”.

11.    Such modification of the payment of compensation “till the date of offer of possession after the receipt of the Occupation Certificate” from “till the date of actual possession” was in the light of certain decisions of the Apex Court being –

(i)      Wg. Cdr. Arifur Rahman Khan  Vs. DLF Southern Homes Pvt. Ltd. (2020) 16 SCC 512;

(ii)     Ireo Grace Realtech Pvt. Ltd. Vs. Abhishek Khanna & Ors., 2021 SCC OnLine SC 14;

(iii)    DLF Home Panchkula Pvt. Ltd.  Vs. D.S. Dhanda & Ors., (2020) 16 SCC 318.

12.    This Commission has also held that “delay compensation in the event of non-delivery of possession of the booked Apartment is from the due date of possession till the date of offer of possession”.  The relevant decisions on this point are –

(i)      Parmod Kumar Madan & Ors.  V. DLF Ltd. 2021 SCC OnLine NCDRC          924;

(ii)     Nagen Chandra & Anr. Vs. Parsvnath Hessa Developers Ltd., Order dated 13.04.2022, CC/1283/2017.

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. But the Complainants in the present case have resorted to a novel method to bring their claims within the statutory limitation period.  Their contention is that the letter dated 23.3.2017, which according to the Opposite Parties was the offer of possession made subsequent to receipt of the Occupancy Certificate was nothing more than a “forwarding letter of the Statement of Accounts” of the Complainants.  Their further contention is that the actual offer of possession ought to be treated as 17.5.2019 i.e. when the “possession letter” of that date was issued by the Opposite Parties.  Another interesting aspect of the matter is that the Indemnity-cum-Undertaking given by the Complainants by way of furnishing their Affidavits affirmed on 2.4.2019 and 5.4.2019 which have been placed on record by the Opposite Parties mentioned in Para 1 thereof that the same was in pursuance of the “Final Statement of Account dated 31.3.2019”.  It is noteworthy that this date of 31.3.2019 has been inserted in the blank space in the own handwriting of the Complainant(s), which would go to imply as if some second Statement of Accounts was issued by the Opposite Parties, which was subsequent and different from the one sent alongwith the offer of possession 23.3.2017, and thereby a “second offer of possession” was made on 31.3.2019.  The submission from the side of the Opposite Parties in this regard which was specifically made by Mr. Pinaki Mishra, Ld. Sr. Counsel on their behalf, is that the date of 31.3.2019, as inserted by hand in the Indemnity-cum-Undertaking, is a fictitious one since no subsequent Statement of Accounts of that date had ever been issued, much less sent to the Complainants. The Complainants are alleged to have either ‘inadvertently’ or ‘mischievously’ mentioned this date instead of 23.3.2017  on which date the Final Statement of Accounts was sent.  It is even more significant that no averment regarding any subsequent Statement of Accounts dated 31.3.2019, or of any “offer of possession” on the basis of which the Complainants purportedly deposited the demanded amounts had been made at all in the complaints, nor the date of 31.3.2019 has been mentioned anywhere in the Evidence by way of Affidavits of the Complainants, which have been carefully perused by us.  It is even more significant that when the submission was raised on behalf of the Opposite Parties on 19.7.2022 that the matter was barred by limitation as more than two years had lapsed since the offer of possession and submission of Final Statement of Accounts on 21.3.2017, none had appeared on behalf of the Complainants on account of which the matter deferred to 17.8.2022 on which date we directed the Opposite Parties to file the proper Bonds/Indemnity Certificate which had been signed by the Complainants.  The Opposite Parties complied with our direction by producing the aforesaid disputed copy of Indemnity-cum-Undertaking Bond on 11.11.2022.  Thereafter, without filing any formal application for discovery/direction upon the Opposite Parties to produce any document, a notice was directly issued to the Opposite Party’s Counsel on behalf of the Complainants asking them to produce, the demand by way of “Statement of Accounts dated 31.3.2019”, which was the date inserted in the Complainant’s own handwriting in the Indemnity-cum-Undertaking Affidavit.  The Opposite Parties nevertheless filed their reply to such notice of discovery in which, as already noted, it was mentioned that no such Statement of Accounts dated 31.3.2019 was actually issued, and it was also mentioned that insertion of such date by the Complainant’s manually in the blank space, was either ‘inadvertently’ or ‘mischievously’.  The Complainants then filed an Affidavit in Rejoinder dated 30.1.2023 in which it was not categorically stated that they stood by their claim that actually any fresh Statement of Accounts dated 31.3.2019 was delivered to them, but evasively sought to divert attention away from the said date which ex facie would appear to have been motivatedly inserted by then, by stating, “assuming that some mistake has occurred in the process of execution of Indemnity-cum-Undertaking.  As stated earlier, the Complainant is agreeable to ignore the said document namely Indemnity-cum-Undertaking”.

15.    Thus, having apparently become trapped by either ‘inadvertence’ or ‘mischief’, if any, leading to insertion of the date of 31.3.2019 by the Complainants in their Indemnity-cum-Undertaking Affidavits, they sought to deflect the attention from this aspect by stating that they were “agreeable to ignore the said document namely Indemnity-cum-Undertaking”.  But, if the said document is to be ignored then no document whatsoever remains on record to show that any subsequent Statement of Accounts or offer of possession was made on behalf of the Opposite Parties after March, 2017, and that would have the effect of palpably rendering the present complaints as time barred considering that the same were filed more than three years later on 17.7.2020.  The Complainants have nevertheless contended that the “Possession Letter” dated 17.5.2019 was issued long after the Indemnity-cum-Undertaking Affidavit in pursuance of the earlier offer of possession dating back to March, 2017 had already been sworn, and furnished by the Complainant on 5.4.2019.  There is no document whatsoever on record to show that at any stage the Complainants had raised any objections to any of the conditions mentioned in the offer of possession dated 23.3.2017 which were not acceptable to them, or which were raised with the Opposite Parties.  The claim that they omitted to add the condition regarding indemnifying the Opposite Parties from any legal action, which the Complainants did not include in their actual Indemnity-cum-Undertaking, was in consultation or with the consent of the Opposite Parties, and also the mere fact that the Opposite Parties had issued the Possession Letter in-spite of non-inclusion of this opportunity clause cannot ipso facto mean that they had explicitly permitted the Complainants to make any alterations in the detailed format of the Indemnity-cum-Undertaking running into several pages which was sent alongwith the original offer of possession, since after passage of more than two years, their natural and primary concern would have been to deliver possession after all the payments demanded in the Statement of Accounts were actually made.

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.

17.    The same are dismissed.    

18.    Pending application(s), if any, also stand disposed off.