Chandigarh

StateCommission

CC/17/2019

Dharamvir Singh Chopra - Complainant(s)

Versus

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

Anamika Mehar Adv.

18 Dec 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	17 of 2019
Date of Institution	:	18.01.2019
Date of Decision	:	18.12.2019

 

Dharamvir Singh Chopra s/o Banwari Lal R/o Assistant Director, Govt. Murrahbull Station, Hansi Road, Opp Police Line Bhiwani.

.……Complainant

V e r s u s

 

1^st Address DLF Homes, Panchkula Pvt. Ltd., SCO No.190-192, Sector 8-C, Chandigarh.

2^nd Address DLF Homes, Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon, Haryana

Sh.Rakesh Kerwell, Director of DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana.

…..Opposite parties

 

Present:-              Ms.Anamika Mehra, Advocate for the complainant.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

 

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Complaint case No.	:	43 of 2019
Date of Institution	:	25.02.2019
Date of Decision	:	18.12.2019

 

1. Sh.Mehndi Hasan S/o Sh.Mumtaj Ali, R/o Village Bhiura, Post Office Sakri, Tehsil Khalilabad, District Sant Kabir Nagar, Uttar Pradesh.
2. Sh.Samsul Hasan S/o Sh.Mumtaj Ali, R/o Village Bhiura, Post Office Sakri, Tehsil Khalilabad, District Sant Kabir Nagar, Uttar Pradesh.

.……Complainants

V e r s u s

1. DLF Homes Panchkula Pvt. Ltd., through its Managing Director/Director, SCO No.190-191-192, Sector 8-C, Chandigarh.
2. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at 12^th Floor, DLF Gateway Tower, DLF City, Phase-III, National Highway 8, Gurgaon, Haryana, through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales & Marketing
3. DLF Homes Panchkula Pvt. Ltd., through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.

…..Opposite parties

 

Present:-              Sh.Puneet Tuli, Advocate for the complainants.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

 

Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This Commission would like to decide the above captioned complaints with a common order - which shall be delivered in consumer complaint bearing no.17 of 2019 titled as Dharamvir Singh Chopra Vs. DLF Homes Panchkula Pvt. Ltd. and ors.

2.           Both the complaints have been filed by different persons asserting themselves to be the consumers under the provisions of Section 2 (1) (d) of the Act.  It has been specifically pleaded therein that the complainants are aggrieved of unfair trade practice, negligence and deficiency in rendering service at the hands of the opposite parties, as there has been an inordinate delay on their part in offering possession of their respective units, agreed to be purchased by them, in the project named “DLF Homes Panchkula”, Haryana, despite the fact that substantial amount stood paid by them to the opposite parties. In consumer complaint bearing no.43 of 2019 it has been pleaded that the flat therein was purchased by the complainants in resale on 18.02.2015 from original allottee.
3.           The details pertaining to the respective units in both the complaints with regard to the date of booking; execution of agreements; payments made;  date of offer of possession made etc. are given below:- 

         

S.N	Description	CC/17/2019	CC/43/2019
	Original allottee or Re-allottee	Original allottee	Re-allottee
	Date of transfer	NA	18.02.2015
	Booking date	17.07.2010	05.03.2010
	Cost after increase in area of flat	Rs.5395092.47 (as per FSA)	Rs.4716567.70  (as per FSA)
	Amount paid	Rs.37,75,510.02	Rs.3469124.60
	Date of execution of agreement	07.02.2011	19.11.2010
	Due date of possession	06.02.2013	17.02.2018 (three years from  18.02.2015) (reallottee)
	Possession offered on	28.02.2017	14.01.2016
	Possession taken over or not	Not taken over	Not taken over
	Delay in offering possession	4 years and 23 days	(No delay because it is reallottee case)

 

4.           By stating that the aforesaid act and conduct of the opposite parties,  in not offering possession of the respective units by the promised date, despite the fact that substantial amount had been received by them, amount to deficiency in providing service and adoption of unfair trade practice, these complaints have been filed by the complainants seeking directions to the opposite parties to pay compensation by way of interest on the deposited amount for the period of delay; compensation for mental agony and physical harassment; litigation expenses etc.  
5.           Their claim has been contested by the opposite parties, in both the complaints, on almost similar grounds, inter alia, that the dispute being of a contractual nature, consumer complaints were not maintainable and as such cannot be adjudicated by this Commission and rather the Civil Court has jurisdiction to decide the same; that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain these consumer complaints; that none of the complainants falls within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction: that possession was offered to them way back, after completing the construction and development work, on receipt of occupation certificates from the competent Authority but they failed to take over the same on making remaining payment legally demanded from them; they are liable to pay holding charges; that they were defaulters in making payment as such they are not entitled to any relief; delay in construction work took place on account of delay in granting approvals by the Competent Authorities; that since application seeking permission to file joint complaint has not been moved by the complainants in complaint no.43 of 2019 as such the same is liable to be dismissed on this count; and that in this complaint (CC/43/2019) since the complainants have given undertaking at the time of transfer of flat in their favour that they will not claim any compensation for the period of delay, as such, now they cannot be allowed to take contrary steps.
6.           On merits, booking of the units; execution of agreements between the parties; sale of flats in the manner referred to in the complaints; payments made by the complainants against their respective units; offer of possession made to them, as shown in the table extracted above are not disputed. However, it has been commonly pleaded in the replies  filed that construction at the project site could not be completed within the promised time, on account of stay granted on construction activities by the Hon`ble Supreme Court of India between 19.04.2012 upto 12.12.2012; consent had been sought from the complainants for extension of one year time from the promised date, to handover possession or in the alternative it was left open to them to get refund of the amount deposited by them, alongwith interest but that option was not exercised by the complainants. Common prayer in the reply to each complaint has been made to dismiss the same.
7.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
8.           We have heard the contesting parties and have carefully gone through record of the cases, very carefully.
9.           First we will like to pass order in consumer complaint bearing no.43 of 2019. The moot question which needs to be decided in this complaint, is, as to whether, the complainants are entitled to compensation for delay, if any, in offering possession of the flat to them by the opposite parties or not? In this complaint, admittedly, the complainants are re-allottees and the flat in question stood transferred in their favour vide endorsement dated 18.02.2015 (Annexure C-2). There is also no dispute that possession of the flat in question was offered by the opposite parties, to the complainants vide letter dated 14.01.2016, alongwith which statement of accounts depicting the remaining payable amount has also been attached. It is significant to mention here that we have gone through the record of the case and found that at the time of purchase of flat by the complainants in resale, they have forgiven their right of availing compensation for the period of delay, if any, in offer of possession of the unit, by giving following undertaking to the opposite parties on 13.02.2015:-

“We undertakes that I are not entitled for any compensation/claims on account of delay possession on the said Independent Floor as agreed upon with the First Allottee and all the relevant paras in this regard in the Application form/Independent Floor buyer’s Agreement become null and void.”

 The complainants did not dispute the contents of the said undertaking. However, this fact has been concealed by them from this Commission, as nothing has been mentioned about the same, in their complaint. Once, the complainants have forgiven their right to avail compensation for the period of delay, if any, in offering possession of the flat, now they cannot wriggle out of the same. They have infact concealed this fact from this Commission. In the case of Vijay Syal and Anr vs State of Punjab And Ors. in Appeal (Civil) No. 812 of 2002 decided on 22.05.2003, the Hon’ble Supreme Court has held as under:

"...... In order to sustain and maintain sanctity and solemnity of the proceedings in law courts it is necessary that parties should not make false or knowingly, inaccurate statements or misrepresentation and/or should not conceal material facts with a design to gain some advantage or benefit at the hands of the court, when a court is considered as a place where truth and justice are the solemn pursuits. If any party attempts to pollute such a place by adopting recourse to make misrepresentation and is concealing material facts it does so at its risk and cost. Such party must be ready to take consequences that follow on account of its own making. At times lenient or liberal or generous treatment by courts in dealing with such matters are either mistaken or lightly taken instead of learning proper lesson. Hence there is a compelling need to take serious view in such matters to ensure expected purity and grace in the administration of justice......."

As such, it is held that in view of undertaking referred to above, the complainants in consumer complaint bearing no.43 of 2019 are not entitled to get any relief, towards compensation for delayed period or any other compensation for mental agony, harassment etc. however, they are at liberty to take possession of the flat in question, on making payment of remaining amount due, from the opposite parties.

10.           There is another reason, as to why, the complainants in consumer complaint no.43 of 2019 are not entitled to any compensation. The flat in question was transferred in favour of the complainants only on 18.02.2015 and possession thereof was offered to them by the opposite parties on 14.01.2016. The question, as to what extent and for which period, the allottees in transfer cases, are entitled to get compensation for the period of delay in offering possession of the units, has been set at rest by the Hon’ble Supreme Court  of India in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. Etc. and DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal, Etc., II (2019) CPJ 117 (SC), wherein it has been held that  in the cases, where the original allottee has transferred the flat, compensation @ 9 per cent per annum for the period of delay is payable to the re-allottee from the date of expiry of three years from the agreement or from the date of transfer, whichever is later  Relevant part of the said order of the Hon’ble Apex Court is reproduced hereunder:

HANDING OVER DELAYED POSSESSION

“19.    Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant.  Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i)        To send a copy of the occupation certificate to the Complainants along with offer of possession.  The Appellant shall also direct the Jones Lang LaSalle – the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii)       It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.

iii)      Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v)       Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs.50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc.  The complainant shall not be entitled to any other amount over and above the amount mentioned above.

 vi)      In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later……..”

 

Thus, even if we go by the above principle of law, the complainants are not held entitled to any compensation, as the original allottee had transferred flat in their favour on 08.02.2015, which date is beyond the period of three years, from the date of agreement (19.11.2010) i.e. 19.11.2013. Possession of flat in question was offered on 14.01.2016 i.e. within a period of around say one year, and, as such, in that case also, the complainants are not held entitled to any compensation. Had the flat in question been transferred in favour of the complainants before 19.11.2013 and had they not given the undertaking aforesaid to the opposite parties, only in those circumstances, it would have been held that the complainants are entitled to compensation for the period of delay. In this view of the matter also, the complainants have no case in their favour.  Furthermore, though, in this complaint (CC No.43 of 2019), it has been submitted by the complainants that the said offer of possession made vide letter dated 14.01.2016 was a paper one, as there was no development at the project site, at the relevant time, yet, not even an iota of evidence has been placed on record to prove that after receiving offer of possession letter dated 14.01.2016, the complainants ever approached the opposite parties challenging the same stating that the said offer of possession is a paper one. Mere bald assertion to say that the said offer of possession was not a genuine one, as there was no development at the project site, has no significant value in the eyes of law, as far as the present case is concerned. It is therefore held that the consumer complaint bearing no.43 of 2019 filed by the complainants is dismissed with no order as to costs.

11.           Now coming to consumer complaint bearing no.17 of 2019, it may be stated here that from the pleadings of parties and other material available on the record, following points have emerged for consideration in this case: -
    1. Whether in the face of existence of arbitration clause in the agreement, jurisdiction of this Commission is barred?
    2. Whether this Commission has pecuniary and territorial jurisdiction to entertain the complaint?
    3. Whether the complainant falls under the definition of consumer?
    4. Whether the complainant could be termed as defaulter?
    5. Whether the complainant is entitled to any compensation for delay in delivery of possession of the unit purchased by him and if yes, from which date and to what extent?

 

12.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the agreement, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the complainant 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. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard stands rejected.
13.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the unit in question; plus other reliefs claimed in this complaint are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
14.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that Sub-section 2 of Section 17 of the Act envisages that person aggrieved have remedy to file a complaint before a State Commission within the limits of whose jurisdiction:-

“(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

 

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

 

(c) the cause of action, wholly or in part, arises”.

 

In the instant case, perusal of number of documents placed on record reveal that the same have been issued by the opposite parties from their Chandigarh Office. Even the Agreement in respect of the unit in question, containing detailed terms and conditions, has been executed at Chandigarh Office of the Company, meaning thereby  that the opposite parties were actually and voluntarily residing and carrying on their business, from their  branch office at Chandigarh and personally work for gain here at. As such, objection taken in this regard is rejected. 

15.           As far as objection taken to the effect that the complainant did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainant has purchased the unit in question to indulge in ‘purchase and sale of flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainant is a consumer as defined under Section 2(1)(d) of the Act.
16.           There is no dispute that the complainant booked the unit in question in the aforesaid project of the opposite parties. It is also an admitted fact that possession of the unit was not offered to the complainant within the committed period as mentioned in the agreement dated 07.02.2011 i.e. within a period of 24 months from the date of execution thereof. The opposite parties have specifically pleaded that delay in completing construction took place on account of grant of stay by the Hon’ble Supreme Court of India, on construction activities in the area between 19.04.2012 up-to 12.12.2012. It may be stated here that earlier also, in number of consumer cases filed by similar located allottees like Harjinder Kaur Vs. DLF Homes Panchkula Pvt. Ltd. and anr. Consumer complaint no.611 of 2016; Smt. Roma Sangwan Vs. M/s DLF Homes Panchkula Pvt. Ltd, consumer complaint No.553 of 2016, decided on 09.01.2017 a similar plea with regard to stay aforesaid, in respect of the same project had been taken by the opposite parties before this Commission and also before the Hon’ble National Commission in Appeal(s), which was considered and the opposite parties were given benefit of one year of extended period, from the actual date of offer of possession mentioned in the agreement(s).
17.           In this view of the matter, in the present case also, if two years period stipulated in the agreement and one year extended period therefrom, on account of stay aforesaid is taken into consideration, it is found that the said period i.e. 24 months plus one year (total 3 years) had already expired, but possession was still not offered and was offered after delay, as explained below in the tabulated format:-

 

CC No.	Agreement date	Possession date (24 months from agreement)	Possession date after adding one year extended period	Possession offered on	Delay even after including extended period of one year
17/2019	07.02.2011	06.02.2013	06.02.2014	28.02.2017	3 years and 23 days

 

                   From the perusal of afore-extracted table, it transpires that despite the fact that the opposite parties availed the benefit of one year of extended period, over and above the period committed in the agreement for completing construction of the unit, even then they failed to offer possession thereof and there had been further delay as reflected in the table above, for which no cogent and convincing justification has been given by the opposite parties. As such, the opposite parties are deficient on this score.

                   However, the plea taken by the opposite parties, to the effect that further delay in handing over possession of the units took place on account of delay in receiving statutory approvals from the competent authorities, is not tenable. It is settled law that the builder is required to obtain all the approvals/sanctions before launching the project and selling units therein. In this case, it has been an admitted fact that permissions/approvals for revision in layout plans and service plans in respect of the project in question were obtained by the opposite parties only on 11.03.2013 and 20.05.2013, whereas, on the other hand, the units were sold in the years 2010-2011. This act of the opposite parties amounts to deficiency in rendering service and also adoption of unfair trade practice, out of which they cannot claim any immunity. The complainant was thus caused mental agony, harassment and financial loss at the hands of the opposite parties, as he was deprived of his house and also the amount paid by him was utilized by the opposite parties without providing him anything for a long period.

18.           The next question which arises for consideration is, as to whether the complainant is entitled to any compensation for delay in offering possession of the unit in question and if yes, from which date and to what extent? In this regard, it is submitted that we have find that the controversy regarding handing over delayed possession, in respect of this project for similar located allottees, has already been set at rest by the Hon’ble Supreme Court  of India in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda case (supra), wherein interest @ 9% per cent per annum on the amount deposited, for the period of delay (plus two months from the date of offer of possession) and also lumpsum compensation including litigation cost to the tune of Rs.50,000/- was granted. Relevant part of the said order of the Hon’ble Apex Court is reproduced hereunder:

HANDING OVER DELAYED POSSESSION

“19.    Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant.  Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i)        To send a copy of the occupation certificate to the Complainants along with offer of possession.  The Appellant shall also direct the Jones Lang LaSalle – the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii)       It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.

iii)      Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v)       Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs.50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc.  The complainant shall not be entitled to any other amount over and above the amount mentioned above.

 vi)      In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later……..”

 

19.           It has been noted that, thereafter, in similar cases where the facts are almost identical to the present case are being adjudicated by the Hon’ble National Commission, keeping in the mind the law laid down in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda’s case (supra) i.e. grant of interest @9% p.a. on the deposited for the period of delay (plus two months from the date of offer possession) and lumpsum compensation including cost of litigation to the tune of Rs.50,000/-.  As such, this Commission is of the view that if the present case (CC No.17 of 2019) being of similar facts is also decided in accordance with the law laid down in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda’s case (supra), that will meet the ends of justice.
20.           In consumer complaint no.17 of 2019, it has been vehemently contended by Counsel for the complainant that possession of the flat in question was not offered to the complainant by the date of filing this complaint. Whereas, on the other hand, Legal Advisor of the opposite parties, by placing reliance on offer of possession letter dated 28.02.2017, vehemently contended that possession was offered to the complainant but he failed to take over the same.  The contention raised by the Legal Advisor of the opposite parties and also submission made by the opposite parties in their written reply, was not rebutted by the complainant, by way of filing rejoinder. Had possession been not offered to the complainant vide letter dated 28.02.2017, it was open to him, to file rejoinder controverting the said contention but he did no prefer to do so, meaning thereby that he has nothing to say in the matter. As such, contention raised by Counsel for the complainant in this regard, stands rejected.  
21.           Furthermore, in no way, the opposite parties can wriggle out of their deficiencies by saying that delay took place on account of the reason that the complainant defaulted in making payment. In our considered opinion, the complainant cannot be said to be defaulter, in the face of settled law that the allottees of units/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site. This view is supported by the judgment of the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein, it was held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Plea taken by the opposite parties in this regard is rejected.
22.            At the same time, in the present case, neither physical possession of the unit in question had been handed over to the complainant, by the date when this complaint was filed; nor compensation for the period of delay in offering possession of the unit has been paid to him; nor sale deed in respect thereof has been got executed. The complainant has also paid huge amount as mentioned above, and the cause of action is continuing one, as such, it cannot be said that the complaint filed is barred by limitation. Our this view is supported by the observation made by the Hon’ble National Commission in M/s. Gokul Properties Vs. . Sri. Pradip Kumar Bagchi & Ors., First Appeal No. 1885 of 2017, decided on 28 Mar 2019, wherein it was held that in the cases where sale deed has not been executed, there is a continuing cause of action in favour of the allottees to file consumer complaint. Relevant part of the said order reads as under:-

“Having regard to the fact that the Complainant has paid part consideration to the Appellant/Developer towards the subject flat and also no steps were initiated by the Appellant/Developer if indeed the possession was taken by the Complainant by force, we are of the considered view that the cause of action is a continuing one and cannot be said to be barred by limitation as the Sale Deed was still not executed.”

23.           As far as objection taken by the opposite parties to the effect that this Commission has no jurisdiction to entertain this complaint, being the dispute of contractual nature and the matter needs to be relegated to the civil court, it may be stated here that it is a simple case of non-delivery of possession of the unit to the complainant by the opposite parties by the promised date, referred to above; and also nonpayment of compensation for the period of delay, thereby causing financial loss, mental agony and harassment to the complainant. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held by the Hon’ble Supreme Court 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 Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, this complaint involves the consumer dispute and the same is maintainable before this Commission. Objection taken in this regard is rejected.
24.           For the reasons recorded above, consumer complaint bearing no.17 of 2019 is partly accepted with costs. The opposite parties, jointly and severally, are directed:-
    1. To hand over actual physical possession of the flat in question to the complainant, complete in all respects, within a period of 21 days, from the date of receipt of a certified copy of this order, on receipt of legally due amount from the complainant, strictly as per the agreement including the stamp duty charges.
    2. To execute and get registered the sale deed of the unit in favour of the complainant within a period of two months from the date of handing over possession as ordered in clause (i) above. However, it is made clear that the opposite parties shall not demand any holding charges from the complainant.
    3. To pay compensation by way of interest @9% p.a., on the entire deposited amount to the complainant, from 06.02.2014 to 28.04.2017 (two months from the date of offer being 28.02.2017) within a period of one month from the date of receipt of a certified copy of this order, failing which the said amount shall carry penal interest @12% p.a. from the date of passing of this order, till payment is made.
    4. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum to the tune of Rs.50,000/-, to the complainant, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount of Rs.50,000/-, shall carry interest @12% p.a. from the date of passing of this order till realization.
25.           Consumer complaint bearing no.43 of 2019 is dismissed with no order as to cost.
26.           Certified copies of this order be sent to the parties, free of charge and one copy thereof be placed in connected case file.
27.           The files be consigned to Record Room after completion.

Pronounced.

18.12.2019

Sd/-

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.