Chandigarh

StateCommission

CC/420/2016

Pankaj Gupta - Complainant(s)

Versus

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

Neeraj Gupta, Ankit Aggarwal, Adv.

16 Dec 2016

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	420 of 2016
Date of Institution	04.08.2016
Date of Decision	16.12.2016

 

 

1. Pankaj Gupta son of Sh. M. L. Gupta resident of 401/E-6, GH-79, Sector-20, Panchkula Haryana.
2. Mamta Gupta wife of Sh. Pankaj Gupta resident of 401/E-6, GH-79, Sector-20, Panchkula, Haryana.

                                                .…Complainants.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh, U.T., Pin-160009 through its Manager/Authorised 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/Officer-in-Charge/Director Sales and Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex, Pinjore.

3. LIC Housing Finance Ltd., SCO 2445-46, Sector 22-C, Chandigarh through its Area Manager.

                                          ….Opposite Parties.

Argued by:

 

Sh. Neeraj Gupta, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for Opposite Parties No.1 and 2.

 

 

Consumer Complaint  No.	421 of 2016
Date of Institution	04.08.2016
Date of Decision	16.12.2016

 

 

1. Puneet Kumar Kucheria son of Sh. Rohtash Kumar Kucheria R/o #402/E-6, GH-79, Sector-20, Panchkula (Haryana).
2. Rohtash Kumar Kucheria son of Sh. Mani Ram Kucheria R/o #402/E-6, GH-79, Sector-20, Panchkula (Haryana).

                                                .…Complainants.

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh, U.T., Pin-160009 through its Manager/Authorised 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/Officer-in-Charge/Director Sales and Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex, Pinjore.

3. Punjab National Bank, SCO 398, Sector 20, Panchkula through its Manager.

                                          ….Opposite Parties.

Argued by:

 

Sh. Neeraj Gupta, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for Opposite Parties No.1 and 2.

 

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

MR. DEV RAJ, MEMBER

            MRS. PADMA PANDEY, MEMBER.

              

PER DEV RAJ, MEMBER

             By this order, we propose to dispose of, following two consumer complaints:-

1	CC/420/2016	Sh. Pankaj Gupta & Anr.	Vs	DLF Homes Panchkula Pvt. Ltd. & Ors.
2	CC/421/2016	Sh. Puneet Kumar Kucheria & Anr.	Vs	DLF Homes Panchkula Pvt. Ltd. & Ors.

 

2.          After hearing arguments on 05.12.2016, the case was reserved for orders. The zimini order passed on 05.12.2016 reads as under:-

            “In this complaint, the complainants made a prayer for possession and in the alternative for refund of amount paid. When this complaint came up for hearing, on 04.08.2016 the following averment was noted :-

“At the time of arguments, Counsel for the complainants states that the complainants confine their prayer only qua delivery of possession. He states that the complainants are not pressing prayer qua refund.”

            Counsel for the complainants insisted that his prayer be entertained only qua delivery of possession.

         Today, he says that the complainants are not interested in possession, rather their alternative prayer, which is mentioned in the complaint as under be granted :-

“ALTERNATIVE PRAYER :- It is humbly prayed that if the above said prayer is not granted by the Commission, then in the alternative, the following directions may kindly be issued to the Opposite Party No.1 :

i.To direct Opposite Party No.1 to refund an amount of Rs.40,68,716/- (including the amount disbursed  by OP No.2 i.e. LIC Housing Finance Ltd.) alongwith interest @18% p.a. to the complainants from the date of deposit till its actual realization.

ii.To pay compensation of Rs.5,00,000/- on account of mental agony and harassment suffered by the complainants.

iii.To impose punitive damages of Rs.2,00,000/- upon the Opposite Party No.1.

iv.To pay the litigation expenses of Rs.55,000/- and also for payment of cost.”

          To the prayer made, no objection has been raised by Counsel for Opposite Parties No.1 and 2.

            We order accordingly.

          Counsel for both the parties state that the issues involved in law and on facts in both the Consumer Complaints bearing Nos.420 of 2016 and 421 of 2016, are virtually the same and both the complaints can be disposed of by passing a consolidated judgment.

         Arguments heard.

         Reserved for orders.”

             Accordingly, these two complaints are being disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.420 of 2016, titled as ‘Pankaj Gupta & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Ors.’

4.         In brief, the facts of the case, are that being allured by the false promises of Opposite Party No.1, the complainants booked an independent floor No.DVF-E3/21-GF (Ground Floor) in the project of Opposite Party No.1, namely, ‘DLF Valley, Panchkula’, having saleable ara of 1550 sq. ft. by depositing Rs.4 Lacs as booking amount on 01.03.2010. The said flat was allotted to the complainants vide allotment letter dated 10.03.2010 (Annexure C-2) and the complainants opted for 2 years construction linked payment plan. Opposite Party No.1 was to complete construction of the flat, in question, within 24 months from the date of allotment and the complainants were to pay an amount of Rs.43,12,100/- including EDC/IDC, PLC etc. towards the flat in question. An additional discount of 5% on basic sales price was to be adjusted at the time of payment of 9th installment. The basic sale price of the unit, in question was Rs.33,87,524.99; PLC Rs.2,16,224.99; EDC/IDC Rs.3,34,428/- and Rs.2,96,422.02 as interest on above components. The total sale consideration of Rs.42,34,600/- was required to be paid by the complainants towards the flat, in question. An Independent Floor Buyer’s Agreement was executed between the complainants and Opposite Party No.1 on 26.11.2010 (Annexure C-8).

5.         It was further stated that as per Clause 11(a) of the Agreement, possession of the unit, in question, was to be offered by Opposite Party No.1 within 24 months from the date of execution of the said Agreement i.e. by 25.11.2012. It was further stated that  no construction work had been carried out by Opposite Party No.1 for a long period of time and on the other hand, Opposite Party No.1 had been unnecessarily demanding payments/installments from the complainants. It was further stated that as per Clause 15 of the Agreement, the complainants were entitled to compensation @Rs.10/- per sq. ft. of the saleable area per month for the period of delay beyond 24 months. It was further stated that as per Clause 1.2 of the Agreement, the total price was escalation free and as per Clause 8, time was the essence of the contract. It was further stated that the complainants also took loan of Rs.25,00,000/- from Opposite Party No.3 vide sanction letter dated 29.04.2011 (Annexure C-9) and the flat, in question, was mortgaged with Opposite Party No.3. It was further stated that the complainants paid all the nine installments up-till July 2015 and they were given discount/adjustment of Rs.1,93,700/-, being 5%, in the accounts. It was stated in Para 22 of the complaint that the complainants paid total amount of Rs.40,68,716/- to Opposite Party No.1, against the total sale consideration of Rs.43,12,100/-.

6.         It was further stated that vide letter dated 14.01.2016 (Annexure C-36), Opposite Party No.1 offered possession and also increased the area of the unit, in question, by 201 sq. ft. and raised additional demand of Rs.5,02,500/- for said increase.  It was further stated that EDC was also increased from Rs.2,96,949/- to Rs.4,06,844/-. It was further stated that the complainants vide email dated 29.01.2016 (Annexure C-37) protested against the increase of saleable area by 201 sq. ft. but to no avail. It was further stated that a vague reply through email dated 02.02.2016 (Annexure C-38) was sent by Opposite Party No.1 to the complainants. It was further stated that the complainants visited the allotted floor at site and on comparing the original floor plan with the area in the revised floor plan, found that there was no increase in area inside the house as per original plan supplied to them. It was stated that only the length and width of the balconies were increased and that too without increase in the area of the plot. It was further stated that the complainants are allottees of ground floor and the rear lawn area has been decreased, which was for exclusive use of the complainants and excluded from computation of saleable area. It was further stated that the area of rear open balconies outside the room has been increased at the cost of open space, likewise in the front also, the open balcony area has been increased and there is no increase in the size of the rooms and balconies are not covered in the FAR.

7.         It was further stated that compensation amount @Rs.10/- per sq. ft. per month is due to the complainants w.e.f. 25.11.2012. Thereafter, exhaustive correspondence was exchanged between the complainants and Opposite Party No.1 for redressing the grievances of the complainants but to no avail. The complainants have also challenged the demands on account of increased EDC, electricity, water and sewerage charges, service tax etc.  It was further stated that Oppostie Party No.1 is liable to hand over physical possession of the flat and get registered the conveyance deed in favour of the complainants as soon as possible without charging any extra cost or alternatively refund the deposited amount of Rs.40,68,716/- alongwith damages @18% p.a. w.e.f. the date of booking till its actual realization.  

8.         It was further stated that the aforesaid acts of Opposite Parties No.1 & 2, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to Opposite Parties No.1 and 2, to handover physical possession of the unit, in question, to the complainants; get registered the sale deed; pay compensation as per Clause 15 of the Agreement @Rs.10/- per sq. ft. per month; pay compensation  by way of interst @12% p.a. on the deposited amount; pay Rs.5 Lacs as compensation on account of mental agony and physical harassment; pay Rs.55,000/- as cost of litigation or in alternative direct Opposite Party No.1 to refund Rs.40,68,716/- (including the amount disbursed by Opposite Party No.3 – LIC Housing Finance Ltd.) alongwith interest @18% p.a. from the date of deposit till its actual realization, pay Rs.5,00,000/- as compensation for mental agony and harassment, impose punitive damages of Rs.2,00,000/- upon Opposite Party No.1 and pay litigation expenses of Rs.55,000/-.

9.         Opposite Parties No.1 & 2, in their preliminary submissions in the written statement submitted that after receipt of occupation certificate, the possession of the unit, in question, has already been offered to the complainants on 14.01.2016 (Annexure R/1). It was further stated that the complainants had full knowledge about the executed terms of the Agreement dated 26.11.2010. It was further stated that construction of the project got delayed due to stay on construction activity by the 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.        Opposite Parties No.1 & 2, under the caption “PRESENT STATUS OF THE PROJECT”, have stated that occupation certificate(s) of 1320 units had already been received and offer of possession to the allottees has already been started. 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. Further, under the caption “FACTS OF THE CASE”, stated that the complainants booked the flat No.DVF E-3/21 Ground Floor measuring 1550 sq. ft. through application form for allotment dated 01.03.2010. It was further stated that the complainants entered into Floor Buyer’s Agreement with the answering Opposite Parties on 26.11.2010 and the price of the unit was Rs.43,12,100/- plus other taxes as applicable. It was further stated that the complainants did not deposit the total sale price and apart from the outstanding amount, there is a DLI of Rs.31,092.17 for the delay of 580 days.

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 complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission and that the complainants are not consumers as the floor, in question, was booked by them not for personal use but for investment purposes and earning profits. It was also stated that when the complainants were given the option to exit, they agreed to continue with allotment and delay and, as such, they voluntarily waived of their right to raise any grievance. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure condition, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service pans.

12.        In Sub Para (h) of Para 8, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively. 

13.        On merits, it was admitted that as per clause 11(a) of the Agreement, the possession of the allotted unit, was to be handed over to the complainants within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Parties No.1 & 2. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of Opposite Parties No.1 & 2. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was further stated that the complainants paid only an amount of Rs.40,68,717.56 and 5% discount of Rs.2,18,818.15 was given to the complainants. It was further stated that an exit offer vide letter dated 01.02.2013 (Annexure R-10) was given to the complainants, which clearly portrait the exit plan, to carry on with the project and give the answering Opposite Parties another year to complete the project or to get the refund of the amount deposited till date with 9% interest. However, the complainants showed interest in the project. It was further stated that as per Clause 43 of the Agreement, Opposite Parties No.1 & 2 were not liable or responsible for not performing any of their obligation or undertakings as provided in the Agreement, if such performance is prevented due to force majeure conditions. It was again reiterated that the complainants are in default of payment of Rs.31,092.17 on account of delay of 580 days. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties No.1 and 2 nor did they indulge into any unfair trade practice. The remaining averments, were denied, being wrong.

14.       The complainants filed rejoinder alongwith short affidavit of complainant No.1 in support thereof, wherein, they reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of Opposite Parties No.1 & 2.

15.        The complainants, in support of their case, submitted short affidavit of complainant No.1, by way of evidence, alongwith which, a number of documents were attached.

16.        Opposite Parties No.1 & 2, in support of their case, submitted the affidavit of Sh. Vinod Kumar, their Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 

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

18.        It is evident that the complainants were allotted Independent Floor No.DVF-E-3/21-GF in DLF Valley, Panchkula by Opposite Parties No.1 & 2 vide allotment letter dated 10.03.2010 (Annexure C-2) and Independent Floor Buyer’s Agreement was executed at Chandigarh on 26.11.2010 (Annexure C-8). The total price for the said independent floor, as depicted in the Agreement, was Rs.42,34,600/- and the complainants paid an amount of Rs.40,68,716/- to Opposite Parties No.1 & 2, receipt whereof has been admitted by Opposite Parties No.1 & 2 in Paras 5, 6 and 22 of their reply on merits. As per Clause 11(a) of the Agreement, Opposite Parties No.1 & 2 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 is also             on record that vide letter dated 01.02.2013 (Annexure R/10), they (Opposite Parties No.1 & 2) sought further time of 12 months, in addition to 24 months, to complete the construction  work. The complainants were also given the option to seek refund alongwith 9% interest vide letter dated 01.02.2013 (Annexure R/10) aforesaid. However, the complainants agreed to a further period of 12 months in handing over of possession. Admittedly, the possession of the unit, in question, was offered by Opposite Parties No.1 & 2 to the complainants on 14.01.2016 vide letter (Annexure C-36).

19.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 26.11.2010 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of Opposite Parties No.1 and 2 that Hon’ble Punjab & Haryana High Court had restrained the Opposite Parties from creating any third party rights, during the year 2010, is not relevant.

20.        The first objection raised by Counsel for Opposite Parties No.1 and 2 was that the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between the complainants and Opposite Parties No.1 & 2, purely to invoke jurisdiction of this Commission. It was further stated that the complainants were 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. It may be stated here, that the complainants hired the services of Opposite Parties No.1 & 2, 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 No.1 & 2, it was 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”

21.        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. Vs.  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 Vs. 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 Opposite Parties No.1 and 2 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 Opposite Parties No.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.  

22.        To defeat claim of the complainants, the next objection raised by Opposite Parties No.1 and 2 was that since the complainants had 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, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealer, 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 Opposite Parties No.1 and 2, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. 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 Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 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. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

23.        The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 and 2, in their written reply, therefore, being devoid of merit, is rejected.  

24.        Another objection raised by Opposite Parties No.1 & 2 is that the complainants when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and as such, they waived of their right to raise any grievance. This plea of Opposite Parties No.1 and 2 is not well based. While seeking option vide letter dated 01.02.2013 (Annexure R-10), the complainants were informed of delay and extension of one year was sought. One year extended period expired on 25.11.2013, whereas the possession was offered on 14.01.2016. Had Opposite Parties No.1 and 2 handed over possession before 25.11.2013, 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.   

25.        The next question, which falls for consideration, is, as to whether there was delay in offering possession, on account of which, the complainants are entitled to refund of the amount deposited by them with interest or not. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 26.11.2010, being relevant, are extracted hereunder:-

“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.”

 

No doubt, as per the afore-extracted clauses, Opposite Parties No.1 & 2 were to complete the construction of the floor, in question, within a period of 24 months from the date of execution of the Agreement dated 26.10.2010 i.e. by 25.10.2012. However, as admitted by Opposite Parties No.1 & 2, they failed to offer possession within the aforesaid stipulated period of 24 months and vide letter dated 01.02.2013 (Annexure R/10) informed the complainants that they (Opposite Parties No.1 & 2) would endeavor to complete the project subject to the delay of 12 months, which occurred due to stoppage of the work because of stay on construction activities. In this letter, Opposite Parties No.1 & 2 also informed the complainants that Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 passed by it (Supreme Court) not to undertake further construction  at the project land stood vacated. Opposite Parties No.1 & 2 also informed the complainants that in case the complainants did not agree to delay of 12 months, they (Opposite Parties No.1 & 2) would cancel the allotment and refund the amount deposited with 9% interest. Admittedly, there was no stay as on 12.12.2012 on construction activity. In fact, stay on construction activities was in force for a period of 8 months only. However, Opposite Parties No.1 & 2 failed to deliver possession of the floor, in question, complete in all respects, to the complainants even within the extended period of 12 months, which expired on 25.11.2013. Further, the argument of Opposite Parties No.1 and 2 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 26.11.2010 and before execution thereof, Opposite Parties No.1 and 2 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, approval for which was also received in due course of time, the initial time taken (more than 2 years) for seeking such approvals amounts to clear deficiency on the part of Opposite Parties No.1 and 2 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 Opposite Parties No.1 and 2. The possession, in the instant case was offered on 14.01.2016 vide letter (Annexure C-36) and the complainant was asked to make payment of the demand raised.

26.        On receipt of letter dated 14.01.2016 (Annexure C-36) vide which possession was offered, asking the complainants to deposit the amount against demands raised therein, the complainants raised the issue regarding increase in saleable area, non-adjustment of compensation due to delayed possession, exact reasons and details of increase in EDC etc. vide email dated 29.01.2016 (Annexure C-37). Opposite Parties No.1 & 2 vide email (Annexure C-38) replied as under:-

“Reference the trail mail please find the below reply point wise.

Increase in Area

Please refer to Clause no.1.10 and 10 of builder buyer agreement for change in area. Below are the calculations.

BSP – 2350/Sq. Ft.

PLC – 150/Sq. Ft.

Total – 2500/Sq. Ft.

Increase in Area – 201 Sq. Ft.

Increased cost is 2500x201 which is Rs.502500/-

Non Adjustment of Compensation due to delayed Possession

For compensation kindly refer to clause No.15 of page No.17 which states that compensation is subject to the allottee not being in default under any terms of builder buyer agreement and there has been delay in payments (Not received on due date).

For Enhanced EDC kindly refer to clause no.1.13(a) of builder buyer agreement.”

27.        Annexures C-39 to C-52 are copies of emails exchanged between the complainants and Opposite Parties No.1 & 2. Perusal of emails (Annexures C-46 and C-47), extracted below, reveals that there was, in fact, delay in making payment of some installments:-

“Email dated 10.03.2016 (Annexure C-46)

 

Sir,

Sixth installment of Rs.434936/- was asked for by you for payment by 8 Apr 2012 (Rs.4,23,088 plus 11,848/- as service tax). LIC Housing Finance Ltd. was requested for the same and it appears erroneously loaning agency paid Rs.4,23,088/- only which was written in first line on demand letter. Hence 11,848/- was less paid by LIC HF Ltd. and not Rs.1,23,793.87/- as mentioned by you. No letter asking for shortfall of Rs.11,848/- was received and it was not in my knowledge. Hence it was oversight by LIC HF Ltd. for a very minor amount.

Please consider my case for grant of compensation due to delayed payment.

Regards”

“Email dated 11.03.2016 (Annexure C-47).

As per loan procedure, bank only disburses the installment amount and service tax is always paid by the customer.

A reminder was sent to you letter dated 11.04.2012 for amount of Rs.13,794.41.”

28.        No doubt, concern raised by the complainants in the aforesaid emails in regard to increase in area, waiving of increase in EDC does not seem to have been redressed but clearly there was delay in making payment of some of the installments on account of which, Opposite Parties No.1 & 2 did not adjust the delayed compensation relying upon Clause No.15 of the Agreement. It is also a fact that the complainants did not make payment towards any component of demand regarding which no dispute was raised by them. In case, the complainants were really interested in possession, they ought to have made payment of at least those components of demand regarding which, there was no dispute. At the same time, Opposite Parties No.1&2 were duty bound to satisfy the complainants in regard to increase in area and EDC when issue was raised within 30 days on receipt of possession letter. The complainants, however, did not contest increase in area on the basis of some cogent evidence. Technical expert’s report regarding increase in area was sought to be placed on record by the complainants by moving Miscellaneous Application, which came up for hearing on 05.12.2016 but since during arguments, Counsel for the complainants made a statement for refund of the deposited amount, the said application became infructuous and was disposed of accordingly.

29.        It is relevant to mention here that the complainants, in this complaint, had prayed for possession or in the alternative for refund of the deposited amount. At the time of hearing of the complaint, at the admission stage, Counsel for the complainants stated at bar that he confined his prayer for possession only. The possession in the instant case stood offered on 14.01.2016 (Annexure C-36). During arguments on 05.12.2016, Counsel for the complainants changed his earlier statement and stated that the complainants want to seek refund of the amount deposited by them with Opposite Parties No.1 & 2. The possession was offered in January 2016, complaint was filed on 02.08.2016. Neither the documentation nor the amount, which was demanded in the letter offering possession, was completed/ deposited. As stated above, correspondence qua certain components of demand(s) was exchanged between the complainants and Opposite Parties No.1 & 2 after offer of possession on 14.01.2016 up-till June, 2016. Opposite Parties No.1 & 2 in Para 10 in preliminary submissions of their written statement have prayed this Commission to allow forfeiture of earnest money. Had the possession been offered before the cut of date i.e. 25.11.2013, we would have accepted the contention of Opposite Parties No.1 & 2 but considering the fact that possession was offered after the period stipulated in the Agreement and the extended period, we are not taking it as a case of rescinding the contract. Furthermore, no reasons or circumstances, which were beyond the control of Opposite Parties No.1 & 2 for such delay beyond initial period of two years and one year extended period, have been explained. There is, thus, inordinate delay of around two years in offering possession of the allotted unit beyond the stipulated period of two years and extended one year period. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

 

             In view of above, the complainants are held entitled to refund of the amount.

30.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.40,68,716/- is admitted to have been received by Opposite Parties No.1 & 2, from the complainants, part of which was paid by the complainants by raising loan from LIC Housing Finance Ltd. The said amount has been used by Opposite Parties No.1 & 2, for their own benefit. There is no dispute that for making delayed payments, Opposite Parties No.1 & 2 not only charged heavy rate of interest, for the period of delay in making payment of installments but in the instant case, despite specifically taking up the issue by the complainants, they (Opposite Parties No.1 & 2) declined to give compensation @Rs.10/- per sq. ft. for the period of delay.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In view of above, as stated above, the complainants are certainly entitled to get refund of the amount deposited by them, to the tune of Rs.40,68,716/-. Taking into consideration all the facts and circumstances of the case including inconsistency in the stand of complainants for seeking possession or refund, the complainants are held entitled to refund of the amount alongwith interest @11% p.a. from the respective dates of deposit.

31.        The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation under Section 14(d) of the Act or not. As admitted by Opposite Parties No.1 & 2, the construction at the site which was stayed by the Hon’ble Supreme Court of India vide order dated 19.04.2012, was vacated on 12.12.2012. The stay, thus, operated only for eight months but Opposite Party No.1 and 2 failed to deliver possession to the complainants even after the lapse of extended period of 12 months, on 26.11.2013. Admittedly, possession was offered by Opposite Parties No.1 & 2 on 14.01.2016 i.e. after delay of two years. On account of non-delivery of possession of the floor, in question, by Opposite Parties No.1 & 2, to the complainants, complete in all respects, within the stipulated period or the extended period, the complainants have certainly suffered physical harassment and mental agony on account of the acts of omission and commission of Opposite Parties No.1 & 2, for which, they need to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,00,000/-, if granted, would be just and adequate, to serve the ends of justice.            

32.        Similarly, in the connected complaint No.421 of 2016, the complainants have claimed refund of Rs.46,01,681/-, receipt of which was admitted by the Counsel for Opposite Parties No.1 & 2 in a signed sheet presented before this Commission at the time of arguments. Therefore, in this case, the complainants are entitled to refund of Rs.46,01,681/- alongwith interest @11% p.a. from the dates of respective deposits till actual realization, besides compensation of Rs.1,00,000/- on account of mental agony and physical harassment.

33.        No other point, was urged, by the Counsel for the parties.

34.         For the reasons, recorded above, both the complaints are partly accepted, with costs, against Opposite Parties No.1 & 2 (DLF Homes Panchkula Private Limited) and Opposite Parties No.1 & 2 are, jointly and severally, held liable and directed as under:-

(i)    To refund the amounts of Rs.40,68,716/- (in CC No.420/2016) and Rs.46,01,681/- (in CC No.421/2016), alongwith simple interest @11% per annum, to the respective complainant(s), from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, Opposite Parties No.1 & 2 shall pay the aforesaid amounts alongwith simple interest @14% per annum, instead of 11% per annum, from the date of default till actual payment;

(ii)   To pay an amount of Rs.1,00,000/- as compensation for mental agony and physical harassment, and Rs.35,000/- as litigation costs to the complainant(s), in each case, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, Opposite Parties No.1 & 2 shall pay the aforesaid amount alongwith simple interest @11% per annum from the date of filing the complaint till actual payment;

35.        Both the complaints stand dismissed against respective Opposite Party No.3 i.e. (LIC Housing Finance Limited in CC/420/2016 & Punjab National Bank in CC/421/2016) with no order as to costs.

36.        Since the complainants availed loan for making payment towards part price of the apartment(s), in question, it is made clear that LIC Housing Finance Limited (Opposite Party No.3 in CC/420/2016) and Punjab National Bank (Opposite Party No.3 in CC/421/2016) shall have the first charge on the amount(s) payable, to the extent, the same are due against the complainant(s).

37.        Certified copy of this order, be placed on the file of consumer complaint bearing Nos.421 of 2016.

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

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

Pronounced.

16.12.2016.

 [JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

[DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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