Chandigarh

StateCommission

CC/712/2017

Anand Mukund - Complainant(s)

Versus

DLF Homes Panchkula Private Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

17 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	712 of 2017
Date of Institution	:	29.09.2017
Date of Decision	:	17.05.2018

 

Anand Mukund w/o Late Sh. M. C. Pandey r/o Someshwari Neelyam, Aira Holmes Estate, Kusumpti, Shimla, Himachal Pradesh.

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C Chandigarh through its Directors, Sh. Surojit Basak and Sh. Rakesh Kerwell.

2. Surojit Basak, Director of DLF Homes Panchkula Pvt. Ltd., R/o 210-A, Hamilton Court, DLF City, DLF Phase – IV, Gurgaon 12002.

3. Rakesh Kerewell, Director of DLF Homes Panchkula Pvt. Ltd., R/o 1522, Sector 18-D, Chandigarh – 160018.

…….Opposite Parties.

Argued by:

 

Sh. Savinder Saingh Gill, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties.

 

Consumer Complaint	:	781 of 2017
Date of Institution	:	07.11.2017
Date of Decision	:	17.05.2018

 

Suresh Kumar, House No.2, Satff Quarter Jat College Campus Rohtak, (Haryana).

…….Complainants

Versus

 

1. DLF Homes Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh, U.T., Pin 160009 through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales and Marketing.

2. DLF Homes Panchkula Private Limited, Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Office-in-Charge/ Director Sales and Marketing.

..........Opposite Parties.

 

Argued by:

 

Sh. Sandeep Malik, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties.

 

 

Consumer Complaint	:	42 of 2018
Date of Institution	:	25.01.2018
Date of Decision	:	17.05.2018

 

1. Navneet s/o Ram Niranjan,

2. Anita Rani w/o Navneet,

Both are resident of 1036, First Floor, Sector 35B, Chandigarh.

…….Complainants.

Versus

 

1. DLF Homes Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh, U.T., Pin 160009 through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales and Marketing.

2. DLF Homes Panchkula Private Limited, Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Office-in-Charge/ Director Sales and Marketing.

..........Opposite Parties.

Argued by:

 

Sh. Sandeep Malik, Advocate for the complainants.

Sh. Arjun Sharma, Advocate for the Opposite Parties.

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

               

PER DEV RAJ, MEMBER

            By this order, we propose to dispose of aforesaid three consumer complaints bearing Nos.712 & 781 of 2017 and 42 of 2018.

2.           At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price, amount received, DLI etc. and further the date when possession was offered etc., which was taken on record.

3.         Arguments were heard in common. After hearing arguments on 09.05.2018, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid three complaints could be disposed of, by passing one consolidated order.

4.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.712 of 2017, titled as ‘Anand Mukund Vs. DLF Homes Panchkula Pvt. Ltd. & Ors.’.

5.         In brief, the facts are that as the complainant was willing to own a residential independent floor in Panchkula for her family and personal use, she purchased floor bearing No.DVF-E4/16-SF#217 measuring 1475 sq. ft. in the project of the opposite parties under the name and style of “DLF Valley, Panchkula”, which was allotted in her favour vide allotment letter dated 22.03.2010 (Annexure C-1). The total sale consideration of the said floor was Rs.32,11,345.75.

6.         An Independent Floor Buyer’s Agreement was executed between the parties on 07.01.2011 (Annexure    C-3) at Chandigarh, as per Clause 11(a) of which, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement i.e. by 06.01.2013. It was further stated that the complainant kept waiting for possession and uptil 25.02.2015, she, in all, deposited an amount of Rs.30,22,663.21, as per receipts (Annexure C-2 Colly).

7.         It was further stated that surprisingly, the opposite parties sent possession letter dated 08.06.2016 (Annexure C-4), wherein, a demand of Rs.9,70,747/- was raised arbitrarily by not incorporating the compensation for the delayed possession. It was further stated that the complainant on visiting the unit, in question, on 31.03.2016, found defects/snags and submitted a snag list dated 31.03.2016 to the opposite parties. The complainant again visited the unit on 20.09.2017 and found most of earlier defects to be persisting. She again submitted a snag list dated 20.09.2017 (Annexure C-6) to the opposite parties. The complainant also availed loan from ICICI Bank Ltd. for purchase of the said unit and permission to mortgage has been annexed as Annexure    C-7. The complainant wrote number of emails to the opposite parties raising the issues of delayed payment charges being arbitrarily imposed and compensation payable to her for delay in handing over of possession but to no avail.

8.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to offer possession of the unit, in question, complete in all respects, with all basic facilities at the site, pay interest @18% p.a. on the deposited amount of Rs.30,22,663.21 for the period of delay in possession till offer of possession; pay compensation of Rs.5,00,000/- for deficiency in service, unfair trade practice and mental harassment suffered by the complainant; Rs.1,00,000/- as litigation expenses; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.

9.         The Opposite Parties, in their preliminary submissions in the written statement submitted that the complaint has become infructuous as offer of possession was sent to the complainant on 08.06.2016 but neither the complainant is taking possession nor paid the due amount as raised in FSA dated 08.06.2016. It was further stated that the floor, in question, was allotted to the complainant on 22.03.2010 and Buyer’s Agreement was executed between the parties on 07.01.2011. It was further stated that the complainant had full knowledge about the executed terms of Independent Floor Buyer’s Agreement dated 07.01.2011. It was further stated that occupation certificate was received on 13.01.2016 and possession was offered on 08.06.2016. It was further stated that instant complaint has been filed in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that the project was cost escalation free as the complainant has been getting benefit of cost escalation on account of construction material/labour cost & also price appreciation. It was further stated that construction of the project got delayed due to stay on construction, ordered by the Hon’ble High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012.

10.       In regard to present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received and possession to 1707 customers has been offered. It was further stated that 1000 allottees have already taken possession and 195 allottees have got their conveyance deed executed. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company, namely, Jones Lang Lasalle.

11.       In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. and is attempting to seek modification of the concluded Agreement duly executed between parties, in order to acquire benefits to which, she is not entitled to; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainant is not a consumer as the floor, in question, was purchased by her for investment purposes and earning profits. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55  in  the  Agreement,  all  disputes arising out of

the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 06.04.2010 to 23.07.2010 and from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 12 of the preliminary objections, it was further stated that approvals regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, were received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 15.04.2013, the complainant agreed to continue with allotment and delay and, as such, she (complainant) voluntarily waived of her right to raise any grievance.

12.       The Opposite Parties moved Miscellaneous Application bearing No.108 of 2018 under Sections 5 and 8 of Arbitration and Conciliation Act, 1996, for referring the matter to the sole arbitration, in complaint case bearing No.781 of 2017. The said application was disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.  

13.       On merits, it was stated that the price of the property as per SOP is Rs.35,50,439.08 plus service tax for 1475 sq. ft. It was further stated that due to increase in the area, the total price of the property was Rs.41,03,950.12 plus service tax for an area of 1695 sq. ft. It was further stated that till date, the complainant

has deposited a sum of Rs.39,65,366.21 and there is an outstanding amount of Rs.56,579.12 towards DLI for a delay of 928 days. It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant within 24 months from the date of signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that there was stay on construction in furtherance to the direction passed by Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010, which was vacated only on 12.12.2012. It was further stated that vide exit option dated 15.04.2013, the complainant was offered refund alongwith simple interest @9% but she agreed to continue with the allotment and further agreed to the delay in completing the construction. It was reiterated that that after receipt of occupation certificate on 13.01.2016, possession of the unit, in question, was offered on 08.06.2016. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

            The complainant filed rejoinder to the reply   filed by the Opposite Parties, wherein she reiterated all the averments, contained in the complaint and controverted those, contained in written version of the Opposite Parties.          

14.       The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.

15.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Shiv Kumar, its Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 

16.       We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

17.       It is evident that vide allotment letter dated 22.03.2010 (Annexure C-1), the complainant was allotted Independent Floor No.DVF-E4/16-SF#217 in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between her and the Opposite Parties on 07.01.2011 [Annexure C-3/R-4 (colly.)]. The total price of the said independent floor, as depicted in the Agreement, was Rs.30,70,949.75, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.39,65,366.21 has actually been paid to the Opposite Parties, as admitted in the written statement and as mentioned in the Chart showing details of the property etc., in question, placed on record, under the signatures of the Counsel for the Opposite Parties, at the time of arguments on 09.05.2018. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It may be stated here that in view of stay by Hon’ble Supreme Court, the Opposite Parties gave option on 15.04.2013 (at Page 198 of the written statement) to the complainant to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession. It is a fact that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 (Annexures R-7 & R-8), which in turn, delayed the completion of the project. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Parties to the complainant on 08.06.2016 vide offer of possession letter (Annexure C-4/R-1 colly.) and the instant complaint has been filed on 29.09.2017.

18.       The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 07.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexure R-5 & R-6), is not relevant.

19.             The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

            In view of the above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.

20.       In regard to other preliminary objections raised by the Opposite Parties, in their written statement, as referred to in Para 11 above, the following questions fall for consideration:-

(i)           Whether as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred? It may be stated here that this issue has already been dealt with in detail by this Commission in case titled “Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’, 2017 (3) CPJ 8, wherein in Para 21 and 22, this Commission held as under:-

“21. ……..It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Page 80 of written statement) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer's Agreement (Annexure C-2) was also executed between the parties on 03.02.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., v. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Fora. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines v. Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) : VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

22. In Cosmos Infra Engineering India Ltd. v. Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainants, to file the complaint. The submission of the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

              In the instant case also, application for allotment of Unit (Annexure R-3, at Page 77 of the written statement) was made by the complainant at Chandigarh address        of the Opposite Parties viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh and as admitted, Independent Floor Buyer’s Agreement was also executed between the parties on 07.01.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Parties is that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission and further the complainant was virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. This issue has also been dealt with by this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Paras 23 and 24, which read thus:-

“23.  …….It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines 'service' as under:-

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"

 

24. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. v. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board v. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a 'consumer', as stated above. In the instant case, the complainants are seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainants are trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

 

            The objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Parties is that since the complainant purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. Qua this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Para 25 held as under:-

“25.  ……….It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Rather, the complainants in their complaint, have clearly stated that they purchased the flat, in question, solely for residential purposes. Otherwise also, in a case titled as Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited v. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as "Aashish Oberai v. Emaar MGF Land Limited", Consumer Case No. 70 of 2015, decided on 14 Sept. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

"In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. v. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."

 

The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

 

            Undoubtedly, the complainant purchased the flat, in question, for her residential purposes as she has sought possession of the same.

            In view of above, the complainant falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act and as such, the objection raised by the Opposite Parties, in their written reply, being devoid of merit, is rejected.

(iv)       It was argued by the Counsel for the Opposite Party that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, she waived of her right to raise any grievance. While dealing with this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), held in Para 26 as under:-

“26……..This plea of the Opposite Parties is not well based. While seeking option vide letter dated 05.06.2013, the complainants were informed of delay and extension of one year was sought. One year extended period expired on 02.02.2014 whereas the possession was offered on 15.11.2016. Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 02.02.2014, position would have been different and in that situation, it would have been accepted that the complainants had waived of their right to raise grievance. The plea being devoid of merit is not tenable.”

            In this instant case also, exit option was given to the complainant vide letter dated 15.04.2013 (at page 198 of the written statement) but possession was not delivered even within the extended one year period. Therefore, in the light of observation made by this Commission, as extracted above, the objection raised is not tenable.

21.        The next question, that falls for consideration, is, as to whether, there is delay in offering/delivering possession of the flat, in question. Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 07.01.2011 read thus:-

“11(a) Schedule for possession of the said Independent Floor:-

 

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent  Floor  within  a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.

 

11(b) Delay due to reasons beyond the control of the company:-

 

If the possession of the Said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension……..”

 

As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainant was entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

22.       The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012 (Annexures R-7 & R-8), which in turn delayed the project. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 06.01.2014. No justification whatsoever for delay in offering possession beyond 06.01.2014 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond their control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 07.01.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 08.06.2016, clearly, there is inordinate delay (2 years 5 months) in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Parties.

23.       It may be stated here that while offering possession vide letter dated 08.06.2016, the Opposite Parties raised a demand of Rs.12,48,081.00 i.e. (Rs.9,70,747.00 + Rs.90,806.00 towards Valley Residents Welfare Society + Rs.1,86,528 as stamp duty & registration charges), which included contingent deposit of Vat of Rs.25,142/-. It may be stated here that during arguments, it was conceded by Counsel for the Opposite Parties that the complainant has paid the amount, demand whereof was raised vide offer of possession letter, except the demands towards Valley Residents Welfare Society and Stamp Duty & Registration charges, in the month of October 2017. The fact is that the complainant did not deposit the complete payment. As admitted during arguments, the requisite documents have also not been executed/submitted by the complainant to the Opposite Parties. The complainant has stated that there were snags in the unit, in question. The Counsel for the Opposite Parties, stated that the snags/deficiencies, if any, will be removed, before delivering possession.

24.       It was stated and agreed by Counsel for the Opposite Parties that the stamp duty and registration charges would be payable by the complainant at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainant.

25.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 07.01.2011 i.e. by 06.01.2014. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 08.06.2016. There is, thus, inordinate delay of around 2 years 5 months, even beyond the extended period. Clearly there is delay in offering possession on account of which, the complainant deserves to be compensated. It may be stated here that a two Judges Bench of Hon’ble National Commission in the case of Shri Suman Nandi & Anr. Vs. M/s Unitech Limited & Anr., Complaint No.277 of 2013, decided on 17.12.2015, where there was delay in delivering possession, in Para 16 held as under:-

“16.       On perusal of the Buyer’s Agreement and the affidavits filed by the parties it is clear that the complainants had booked the subject apartments on the expressed promise extended by the opposite parties that subject to Force Majeure, the opposite parties would deliver the possession of the apartments complete in all respect within 30-36 months, as the case may be, of the execution of the Buyers Agreement and being influenced by the said promise the complainants entered into the contract. No doubt in the Buyer’s Agreement some scope for delay due to unavoidable circumstances was kept in mind for which clause 4.a. for compensating the complainants for delay was incorporated but it does not mean that the intention was that even in the event of inordinate delay in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.5/- per sq. ft. per month which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view clause 4.a. was meant for computing compensation in case of a minor delay in delivery of possession.   If the argument of the opposite party is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder who might utilize the consideration amount meant to finance the project by the buyer for his other business venture at nominal interest of 2-3 per cent as against much higher bank lending rates.  This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.”

 

The National Commission granted 12% interest as compensation from the date of default in delivery of possession.

            Also in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order read thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated  in  the  Buyers  Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

 

26.         No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.10/- per sq. ft. per month, which is much less than the bank rate for loan or fixed deposit.  Therefore, in our considered view, Clauses 11(a) and 15 were meant for computing compensation, in case of a minor delay in delivery of possession.  

27.       Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 07.01.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 08.06.2016, the complainant shall

be entitled to compensation up-to plus 2 months from 08.06.2016 i.e. 07.08.2016 (30 days for making payment + 30 days grace period). Since the complainant did not deposit the entire amount as demanded in the offer of possession letter and also did not execute the documents, delay beyond two months, as above, is clearly attributable to her and not the Opposite Parties. The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. In the event of failure of the Opposite Parties to deliver possession within 30 days after deposit of due payment and submission of documents by the complainant, for delay beyond 30 days, the complainant shall be further entitled to interest @12% p.a. on the deposited amount till possession, after removing snags, is delivered.

28.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her, for inordinate delay in delivering physical possession of the unit to her, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainant has been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. Grant of compensation in the sum of Rs.1,50,000/- in this case would serve the ends of justice.

29.       In two other connected complaints bearing Nos.781 of 2017 and 42 of 2018, the possession of the unit(s), in question, has been delivered to the complainant(s). The details of date of agreement, due date for possession, date on which possession offered, delay compensation if credited, whether amount deposited after offer of possession and documents submitted etc., are given in the following table:-

	COMPLAINT NO.
Sr. No.		781/2017	42/2018
1.	Date of Independent Floor Buyer’s Agreement.	14.12.2010   (4th Allotee) 04.10.2016 (Transfer letter at Page 179 of written statement)     (Undertaking given) 08.09.2016 (Page 210 of written statement)	13.12.2010
2.	Amount paid as per Chart (Rs.).	44,32,876.62	35,38,523.58
3.	Due date for possession after 2 years plus 1 year extended period.	13.12.2013	12.12.2013
4.	Date on which possession offered.	05.10.2016 (Received on 27.06.2017)	15.11.2016
5.	Delay compensation if credited.	-	Rs.5,61,919.00
6.	Whether amount deposited after offer of possession.	Yes in July 2017	Yes, on 10.05.2017
7.	Whether documents submitted after offer of possession.	Yes	Yes
8.	Date on which possession delivered.	10.10.2017	26.04.2018
9.	Date of Occupation Certificate.	05.09.2016 (R-1 Colly.)	19.07.2016 (R-2 Colly.)

 

30.       As stated above, in the aforesaid complaints, possession of the unit(s), in question, has been delivered by the Opposite Parties to the complainant(s) on 10.10.2017 and 26.04.2018 respectively, after making payments towards demands raised vide offer of possession letters and submitting the requisite documents.

31.       In complaint bearing No.42 of 2018, the complainants submitted Snag List/Customer Observation to the Opposite Parties on 16.12.2017 (Annexure C-9), pointing out various snags, which, as alleged by the complainants have not been rectified. The Counsel for the Opposite Parties, stated that the snags/deficiencies will be removed.

32.       It was stated and agreed by Counsel for the Opposite Parties that the stamp duty and registration charges would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainants.

33.       Therefore, in complaint bearing No.42 of 2018, the complainants are held entitled to compensation @12% p.a. interest on the deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession.

34.       Further after payment and submission of documents, in the event of failure of the Opposite Parties to deliver possession, within 30 days, for delay beyond 30 days, the complainant(s) shall be further entitled to interest @12% till actual physical possession is/was delivered.

35.       In complaint bearing No.42 of 2018, an amount of Rs.5,61,919/- on account of delay compensation, credit for which has already been given, shall be deducted from the compensation amount arrived at by way of interest @12% for delay period.

36.        However, in complaint bearing No.781 of 2017, the complainant (Sh. Suresh Kumar) is fourth allottee as

the unit, in question, was transferred in his favour on 04.10.2016 (at page 179 of the written statement). The complainant gave an undertaking dated 08.09.2016 (at Page 210 of the written statement) for not claiming any compensation on account of delay possession. Relevant Paras 3 & 4 of the said undertaking read thus:-

“3.   I undertakes that I/We has seen verified examined all the documents and agreements, receipts, correspondence, forms concerning the independent Floor and has also seen the physical position of the Independent Floor/Flat/Plot/Villas in DLF Valley Panchkula in residential colony Panchkula Haryana project and after being satisfied from the same executing this undertaking.

 

4. I undertake that the I/We am not entitled for any compensation/claims on account of delay possession of the said independent Floor/Flat/Plot/Villas as agreed upon with the First Allottee and all the relevant paras in this regard in the Application form/independent Floor buyer’s Agreement/Floor/Flat/Plot/Villas become null and void.”

 

 

 

 

37.       The complainant has alleged that Paras 4A and 6, in the aforesaid undertaking, were added subsequently by the opposite parties.

38.       It may be stated here that contents of Paras 3 and 4 of the undertaking have not been disputed by the complainant and undertaking was admittedly given by the complainant. It may also be stated here that in case of ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, decided by this Commission, alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainant, on the basis of Paras 3 and 4 of the similar undertaking, in that case, was held entitled to compensation from the date of undertaking/transfer of the unit. In view of ratio of aforesaid judgment and without going into the merits, whether Paras 4A & 6 were subsequently added or not, the complainant in the instant case, is held entitled to compensation @12% p.a. (simple) interest w.e.f. 04.10.2016 (date of transfer) up-to + 2 months from the date of offer of possession i.e. up-to 26.08.2017. However, no benefit has been given to the opposite parties on account of Paras 4A & 6 of the undertaking. In view of above and also the facts being distinguishable, the judgments in the cases of Reliance India Mobile Ltd. Vs. Hari Chand Gupta, 2006 (3) CPJ 73  and Vidya Devi Warehouse Vs. Mahendra Singh Yadav, 2001 (2) CPJ 148, relied by Counsel for the opposite parties are of no help.  

39.        The complaint in complaint bearing No.781 of 2017 is a subsequent allottee, the unit having been transferred in his name on 04.10.2016. The complainant was well aware that he was not entitled to any compensation for the delay, which had already taken place. The possession letter dated 05.10.2016 was received by him on 27.06.2017, which meant that there was delay of around 8 months only from the date the unit was transferred in his name. It is also a fact that the complainant was aware of the delay, which had already taken place up-till October 2016. In view of this, the complainant is held entitled to compensation in the sum of Rs.1,00,000/- on account of mental agony, physical harassment, deficiency in service and unfair trade practice. In complaint bearing No.42 of 2018, the complainant is held entitled to compensation of Rs.1,50,000/-.

40.       No other point, was urged/pressed, by the Counsel for the parties, in all the cases.

41.      For the reasons recorded above, all the complaints bearing Nos.712 & 781 of 2017and 42 of 2018 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

712 of 2018

 

42.       In this complaint, possession of the unit, in question, was offered to the complainant in the month of June 2016. The amount towards the demand raised vide offer of possession letter has been deposited by the complainant except amount towards Valley Residents Welfare Society and Stamp Duty & Registration Charges. The requisite documents have also not been submitted by the complainant. It was agreed by Counsel for the opposite parties that the stamp duty & registration charges could be paid by the complainant at the time of registration. Admittedly, possession of the unit, in question, has not yet been delivered to the complainant. The Opposite Parties shall hand over possession within 30 days after removing the snags, if any, after deposit of the due amount and submission of documents by the complainant.

            The Opposite Parties, in this case, are, jointly and severally, held liable and directed as under:-

(i)	To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, to the complainant, after removing the snags, within a period of 45 days, from the date balance payment, is made and documents, are submitted.
(ii)	Execute and get registered the sale deed in respect of the unit, in question, within one month from the date of handing over of possession to the complainant. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, with effect from 07.01.2014 up-till two months from the date of offer of possession i.e. up-to 07.08.2016, [w.e.f. 07.01.2014 in respect of deposits made up-to 07.01.2014and from respective dates of deposits in respect of amount(s) paid after 07.01.2014], within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default i.e. after expiry of 45 days period, till realization.             Further for failure of Opposite Parties to deliver possession within 30 days from the date of making balance payment/submission of documents by the complainant, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a., instead of 12% p.a., from the date of default till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and litigation costs  of Rs.35,000/-, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Consumer Complaint bearing No: 781 of 2017 & 42 of 2018

 

43.       In these cases, possession of the unit(s), in question, stands delivered to the complainant(s) on 10.10.2017 and 26.04.2018 respectively.

            The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

(i)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amounts, to the complainant(s), with effect from 04.10.2016 (date of transfer of unit) & 13.12.2013 till 26.08.2017 & 14.01.2017 respectively [w.e.f. 04.10.2016 and 13.12.2013 respectively in respect of deposits made up-to the said due date(s) and from respective dates of deposits in respect of amount(s) paid thereafter], within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default i.e. after expiry of 45 days period, till realization.       (Since the Opposite Parties have given a credit of Rs.5,61,919/- in CC No.42  of 2018, on account of delay compensation, this amount shall be reduced/deducted from the compensation amount arrived at by way of interest @12% on the deposited amount for the delay period).
(iii)	Pay compensation in the sum of Rs.1,00,000/- in CC/781/2017 and Rs.1,50,000/- in CC/42/2018, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, in each case, as litigation costs, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount(s) shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

44.       As agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

45.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.781 of 2017 and 42 of 2018.

46.       Certified copies of this order be sent to the parties, free of charge.

47.       The file be consigned to Record Room, after completion.

Pronounced.

17.05.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

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