DLF Homes Panchkula Private Limited & Others V/S Mrs. Shelly Garg - Consumer Court Case

Chandigarh

StateCommission

CC/573/2016

Mrs. Shelly Garg - Complainant(s)

Versus

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

Suman Jain Adv. & Shubham Jain Adv.

13 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	573 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Mrs. Shelly Garg wife of Shri Ajay Garg, resident of House No.588, Sector 6, Panchkula.

.........Complainant.

Versus

DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8-C, Chandigarh through its authorized representative.
DLF Homes Panchkula Private Limited, Office at 12^th Floor, DLF City, Phase – 3, National Highway-8, Gurgaon through its authorized representative.

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

Argued by:

Sh. Shubham Jain, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	574 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Mr. Col. Surinder Singh son of Shri Bawa Ujagar Singh resident of House No.1163 (First Floor), Sector – 7, Panchkula.
Mrs. Neena Bhalla wife of Mr. Col. Surinder Singh resident of House No.1163 (First Floor), Sector – 7, Panchkula.

.........Complainants

Versus

DLF Homes Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.
DLF Homes Panchkula Private Limited, Regd. Office at 12^th Floor, DLF City, Phase-3, National Highway-8, Gurgaon through its authorized representative.

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

Argued by:

Sh. Shubham Jain, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	577 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Wing Commander Vishal Khanna S/o Dr. Pran Nath Khanna R/o K-20, First Floor, Lajpat Nagar III, New Delhi – 110024.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	578 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Gurwinder Bhatia W/o Tej Paul Bhatia, R/o Cypress Street Animal Hospital, 1893, Cornwall Ave, Vancover B.C., V6J 1C6, Canada.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	579 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Tej Paul Singh Bhatia, S/o L. S. Rajinder Singh Bhatia R/o Cypress Street Animal Hospital, 1893, Cornwall Ave, Vancover B.C., V6J 1C6, Canada.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	580 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Neelam Kaushal W/o Col. K. K. Kaushal,
Col. K. K. Kaushal S/o Sh. Bisan Das,

Both R/o Flat No.104, Block – E, GH-79, Sandeep Vihar, Sector 20, Panchkula.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	583 of 2016
Date of Institution	:	14.09.2016
Date of Decision	:	13.12.2016

Mrs. Renu Bala wife of Sh. Sushil Kumar Jain, aged about 47 years, GHS-91, Flat No.205, Sector-20, Panchkula, Haryana.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/ Representative.
DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector – 8 C, Chandigarh – 160009 through its Managing Director/Director/Authorized Signatory/ Representative.

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

Argued by:

Sh. Roshan Lal Goyal, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	593 of 2016
Date of Institution	:	15.09.2016
Date of Decision	:	13.12.2016

Sushila Devi w/o Sh. Kitab Singh, H.No.505, Sector 7-B, Chandigarh.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its Managing Director.

..........Opposite Party.

Argued by:

Sh. Gaurav Bhardwaj, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Party.

Consumer Complaint	:	594 of 2016
Date of Institution	:	15.09.2016
Date of Decision	:	13.12.2016

Bhal Singh S/o Sh. Ishwar Singh R/o Flat No.603, 6^th Floor, G.H.S. No.3, The Himalaya Employees Group Housing Society, Sector-23, Panchkula 134109.
Mukta Chaudhary W/o Bhal Singh R/o Flat No.603, 6^th Floor, G.H.S. No.3, The Himalayan Employees Group Housing Society, Sector-23, Panchkula – 134109.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its Managing Director.

..........Opposite Party

Argued by:

Sh. Gaurav Bhardwaj, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Party.

Consumer Complaint	:	537 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	13.12.2016

Jagmohan Mehra S/o Late Sh. Panna Lal Mehra, R/o H.No.300, Sector – 2, Panchkula.

.........Complainant

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narendar Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	538 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	13.12.2016

Dr. R. K. Bansal S/o Late Sh. Gind Singh Bansal,
Raj Kumari Bansal W/o Dr. R. K. Bansal,

Both R/o H.No.456, Model Town, Phase-I, Bhatinda.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narendar Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	539 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	13.12.2016

Priyanka Dutta D/o Col. Sham Saroop Dutta,
Maj. Shrutika Dutta D/o Col. Sham Saroop Dutta,

Both R/o E-44, Amar Colony, Lajpat Nagar – 4, New Delhi – 110024.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narendar Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	540 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	13.12.2016

Manoj Kumar Chhura S/o Sh. Ram Murti Chhura,
Ritu Sabharwal W/o Manoj Kumar Chhura,

Both R/o B404, The Atlantic No.3, Montieth Road, Egmore, Chennai, Tamil Nadu – 600008.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narendar Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	541 of 2016
Date of Institution	:	02.09.2016
Date of Decision	:	13.12.2016

Col. Raj Kumar Sheoran S/o Sh. Jai Lal Singh,
Sangeeta Rani W/o Col. Raj Kumar Sheoran,

Both R/o Station HQ, Military Station, Sangrur, Punjab – 148001.

.........Complainants

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:

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

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

Argued by:

Sh. Narendar Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate and Sh. Parveen Jain, 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.

MRS. PADMA PANDEY, MEMBER.

PER DEV RAJ, MEMBER

By this order, we propose to dispose of the aforesaid 14 consumer complaints bearing Nos.573/2016, 574/2016, 577/2016, 578/2016, 579/2016, 580/2016, 583/2016, 593/2016, 594/2016, 537/2016, 538/2016, 539/2016, 540/2016 and 541/2016.

2. At the time of arguments, on 16.11.2016 and 21.11.2016 respectively, it was agreed between Counsel for the parties, that issues in law and facts involved in the above complaints, by and large, are the same, and therefore, these two set of bunches, totaling 14 (9+5) complaints can be disposed of, by passing one consolidated order.

3. Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.573 of 2016, titled as ‘Mrs. Shelly Garg Vs. DLF Homes Panchkula Private Limited and another.’

4. In brief, the facts are that the complainant booked an independent floor for her family and personal use in the project of the Opposite Parties under the name and style of “DLF Valley, Panchkula”, by paying Rs.6 Lacs as booking amount. She was allotted Floor No.DVF – A1/8-FF#217 (First Floor) having 2560 sq. ft. area in the said project on 03.04.2010 vide allotment letter (Annexure C-1 colly.). The complainant further paid Rs.6,45,705.56 and Rs.6,23,204.67 on 07.06.2010 and 10.08.2010 respectively vide receipts (Annexure C-2 colly.). An Independent Floor Buyer’s Agreement was executed between the parties on 22.03.2011 at Chandigarh (Annexure C-3 colly.). The price payable for the unit, in question, was fixed at Rs.70,70,720/- plus service tax, club charges etc. As per Clause 11(a) of the Agreement, possession of the unit, in question, was to be offered by the Opposite Parties within a period of 24 months from the date of execution of the Agreement, after completing interiors like flooring, OP fittings, white wash, kitchen fittings etc. The complainant kept making payments, as and when demanded by the Opposite Parties, in accordance with construction linked payment plan (Annexure C-4 colly.). It was further stated that on account of small delay(s) in paying due installment(s), the Opposite Parties charged interest @18% from the complainant. The complainant received letters dated 11.05.2012 and 05.06.2013 (Annexures C-5 and C-6 respectively), wherein the Opposite Parties informed that vide order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activity at the site and the same stood vacated vide order dated 12.12.2012. It was further stated that the stay remained operational only for 8 months. It was further stated that the Opposite Parties sought 12 months more time to complete the project in addition to 24 months but even after lapse of three years from the date of the Agreement, the Opposite Parties failed to deliver possession of the unit, in question, which was to be delivered on or before 22.03.2014 with complete interiors finishing, roads, sewerage, electricity, parking, club facilities, green space, internal commercial complex, proper approach road to the site and other basic amenities.

5. It was further stated that the complainant, till date, has deposited an amount of Rs.64,73,713/- alongwith interest with the Opposite Parties, which was her hard earned money, with lots of hope but Opposite Parties played with the emotions of the complainant.

6. 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 hand over the physical possession of unit, in question, complete in all respects; execute and get the sale deed registered in respect of the unit; pay interest calculated @18% per annum on the deposited amount from 22.03.2014 till date, possession is handed over to the complainant; pay compensation of Rs.5,00,000/- on account of mental agony and physical harassment caused to the complainant and Rs.1,00,000/- as litigation expenses.

7. The Opposite Parties, in their preliminary submissions in the written statement submitted that the complainant had full knowledge about the executed terms of the Agreement dated 22.03.2011. It was further stated that 31% cost escalation of the construction as well 47% of the land holding cost, totaling 76% of the sale price of the allotted floor be allowed. It was further stated that the project was cost escalation free as the complainant shall get the possession of the floor on the same price as committed by the Opposite Parties at the time of allotment of flat vide allotment letter dated 03.04.2010. 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. It was further submitted that after dismissal of litigation by the Hon’ble Supreme Court on 12.12.2012, the Opposite Parties gave an exit option vide letter dated 05.06.2013 (Annexure R/1A) to the complainant for refunding the amount alongwith 9% interest but the complainant opted to continue with the project and consented for extension.

8. The Opposite Parties have further stated that occupation certificate(s) of 1479 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 original allottee, namely, Ms. Loveleen Kaur booked the flat No.DVF A-1/8 - FF measuring 2560 sq. ft. through application form for allotment dated 03.04.2010. It was further stated that the complainant entered into Floor Buyer’s Agreement with the Opposite Parties on 22.03.2011 and the price of the unit was Rs.71,98,719.72 plus other taxes as applicable. It was further stated that the complainant did not deposit the total sale price and apart from the outstanding amount, there is a DLI of Rs.22,606.63 for the delay of 183 days and the complainant has deposited an amount of Rs.64,69,496.10 against the unit, in question.

9. 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; the complainant filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission. It was further stated that this Commission did not have the jurisdiction to consider the complaint and pass orders on the relief claimed. The other preliminary objections raised are that the complainant is not a consumer as the floor, in question, was booked by her not for personal use but for investment purposes and earning profits; by not opting for exit policy, complainant waived of her right to raise any grievance.

10. It was further stated in Para 8 of the preliminary objections that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of the Opposite Parties and the Opposite Parties acted in accordance with terms and conditions of the Agreement. It was stated that approval 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 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.

11. The Opposite Parties also moved miscellaneous applications under Section 8 of Arbitration and Conciliation Act, 1996 for referring the matter to the sole arbitration in connected consumer complaints bearing Nos.537/2016, 538/2016, 539/2016, 540/2016, 541/2016, 583/2016, 593/2016 and 594/2016.

12. On merits, it was stated that possession of the unit, in question, was to be offered within 24 months (2 years) as stipulated in the Agreement unless there was delay due to a force majeure condition or due to reasons mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that as per Clause 43 of the Agreement, the Opposite Parties 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 further stated that with reference to exit option, since the complainant consented to continue with the allotment and further agreed to the delay in completing the construction, therefore, she voluntarily waived her right to raise any grievance at this stage. It was further stated that the construction is almost complete and possession is being delivered. It was further stated that the construction of the project is of utmost superior level and the Opposite Parties have hired the services of International and National Companies to complete the project. It was further stated that the construction of all the facilities/amenities as promised by the Opposite Parties would be provided to the buyers. It was again reiterated that 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. 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.

13. The complainant did not file any rejoinder in the instant case.

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, their Authorised 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, on record, that the complainant was allotted an Independent Floor No.DVF-A1/8-FF#217 in “DLF Valley, Panchkula” and Independent Floor Buyer’s Agreement dated 22.03.2011 (Annexure C-3) was executed between the complainant and the Opposite Parties at Chandigarh, as per which, the total price was Rs.70,70,720/- i.e. Basic Sale Price Rs.48,80,639.97 + Preferential Location Charges (PLC) of Rs.10,71,359.96 + External Development Charges of Rs.6,23,769.51 + Rs.4,94,950.28 as interest on above components. In addition to the total price and other charges mentioned in the Application/Agreement, Annexure-III to the Agreement, charges as mentioned in Clause 1.4 of the Agreement i.e. Membership Fee Rs.30,000/- for five years, Rs.6,000/- per annum as Annual Club Charges and Rs.20,000/- as refundable security deposit and charges/ taxes as per Clause 1.11, 1.12, 1.14 and 1.15, 1.16, 10 etc., were payable. Further, as per Clause 11(a), 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. There was stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, on account of which, the Opposite Parties sought extension of time for one year vide letter dated 05.06.2013 (Annexure R/1A), to which, the complainant agreed. The option to get refund was not exercised by the complainant.

18. It has been categorically stated by the Opposite Parties in Para 7 on merits in their written statement that they have hired the services of international and national companies in order to complete the project and construction of all the facilities/amenities as promised would be provided to the buyers. As regards specific allegation of complainant(s), raised in some of the complaints that construction quality was very poor and most of the promised services/amenities/facilities were lacking, no cogent evidence by way of report of an Engineer/Architect in support of this allegation(s) of the complainant, has been brought on record. In the absence of cogent evidence, such a bald assertion cannot be given any cognizance. These points were also not pressed during arguments.

19. The Opposite Parties in preliminary submissions have prayed to allow them 31% cost escalation of construction as well as 47% of the land holding cost, totaling 76% of the sale price. There is a clear and specific stipulation in Clause 1.2 of the Agreement that price of the unit is escalation free. The Opposite Parties failed to complete construction and deliver possession within stipulated period and extended one year period. They are themselves responsible for delay and deficiency in service and their prayer for allowing them escalation cost is not only unfair but it also amounts to seeking amendment of the terms and conditions of the Agreement. The plea, being devoid of merit, must fail, and the same stands rejected.

20. Since the Independent Floor Buyer’s Agreement was executed between the parties on 22.03.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Parties 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.

21. 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. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.339 of 2016 titled ‘Sandeep Goyal Vs. M/s Puma Realtors Private Limited’ decided on 07.10.2016. Paras 13 to 20 of the said order, inter-alia, being relevant, are extracted hereunder:-

“13. The next 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.

To decide above said question, it is necessary to reproduce the provisions of Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

14. Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

15. In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

16. Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

17. We will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case, some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

18. We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act, a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

19. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainant has spent his entire life earnings to purchase the unit, in the said project, launched by the opposite party, in the manner explained above. He is now running behind the opposite party to get his amount, legally due to be paid to him, as it failed to deliver possession of the unit, even till date. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

20. Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra. In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986. [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

In view of the above, the plea taken by the opposite party, that 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, being devoid of merit, is rejected.”

22. In view of the above, the objection raised by Counsel for the Opposite Parties that 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, being devoid of merit, is rejected. Accordingly, all the miscellaneous application(s) under Section 8 of the Arbitration and Conciliation Act 1996 stand dismissed.

23. Another objection raised by the Opposite Parties was that the complainant filed this complaint leveling 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. It was further stated that 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 entertain and decide the complaint. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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 1986 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 1986 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, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by her, as she falls within the definition of a consumer, as stated above. In the instant case, the complainant is 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 complainant is trying to rewrite/modify the terms of the agreement.

25. To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant 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, she 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 complainant is a property dealer, and is 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. The complainant, who is original allottee, is seeking possession, which means that she purchased the same for her residence. She has specifically stated that she booked the unit, in question, for her personal use and other family members. 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 complainant, 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.”

The complainant, thus, falls 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.

26. Another objection taken by the Opposite Parties is that the complainant did not exercise the option to get refund, offered to her vide letter dated 05.06.2013 (Annexure R-1/A) and by not opting for the exit policy, waived of her right to raise grievance. This plea of the Opposite Parties is not well based. While seeking option vide letter dated 05.06.2013, the complainant was informed of delay and extension of one year was sought, or one year extended period expired on 21.03.2014 and still the possession has not been offered. Had the Opposite Parties handed over possession before 21.03.2014, position would have been different and in that situation, it would have been accepted that the complainant had waived off her right to raise grievance. The plea being devoid of merit is not tenable.

27. 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 22.03.2011 [Annexure R-3 (Colly.)], reads 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 an admitted fact, that by making reference to above fact of granting stay, which resulted into delay in construction at the site, consent of the complainants was sought, vide letter dated 05.06.2013 (Annexure C-6), to complete construction within further 12 months. Option was also given to the complainant, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment(s) thereafter and as admitted by Opposite Parties in Para 12.a of their reply, the complainant has made payments in the sum of Rs.64,69,496.10. Reading of written statement makes it very clear, that still no firm date to hand over possession of the unit has been given. Taking into account 12 months extension, the Opposite Parties were required to deliver possession on or before 21.03.2014, but not later than that. During arguments, it was stated by counsel for the Opposite Parties that permission for occupation of the unit, in question, has recently been received on 20.10.2016. Despite averment of the Opposite Parties that construction of the independent floor was almost complete, possession of the unit, in question, was neither offered by the date of filing the instant complaint nor till date, though payment of around 90% of the sale consideration stood made by the complainant. By making a misleading statement, that possession of the unit, was to be delivered within maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 21.03.2014, and by not abiding by the commitment, made by the Opposite Parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice. 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 22.03.2011 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, approval for which was also received in due course of time, the initial time taken (almost 2 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. Further, in the reply, nothing has been said as regards receipt of occupation certificate though during arguments, it was stated that the same had been received on 20.10.2016. Even by taking into account one year extended period, the Opposite Parties were bound to deliver possession by 21.03.2014. Clearly, there is inordinate delay of more than two years and nine months beyond initial stipulated period of 2 years and 1 year extended period in offering possession of the unit, in question to the complainant.

28. 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 have not delivered 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 22.03.2011 i.e. by 21.03.2014. 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. If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 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.

29. Recently 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 reads 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.

(3) No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

30. Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, and position stated above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.

31. 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 promised date in the Agreement or latest by 21.04.2014 i.e. within the extended period. The complainant purchased the unit, with the hope that she will have a house to live in. The possession of unit, in question, has not been offered to the complainant, till date, what to speak of delivery thereof. The compensation in the sum of Rs.5 Lacs claimed by the complainant is on the higher side. The complainant has been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. There is DLI of Rs.22,606/- in the instant case. Under these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

32. Details of date of execution of Independent Floor Buyer’s Agreement(s); whether complainant(s) are original allottees; due date for possession after one year extended period and date of receiving Occupation Certificate; are given hereunder, in respect of following four connected complaint cases:-

TABLE - A

1	2	3	4	5	6
Sr. No.	Complaint Case No.	Date of independent Floor Buyer’s Agreement.	Whether original allottee?	Due date for possession after one year extended period	Alleged date of receiving Occupation Certificate. (Annexure R-1)
	580/2016	02.12.2010	Yes	01.12.2013	19.07.2016
	593/2016	11.02.2011	2^nd Allottee (24.04.2012)	10.02.2014	09.09.2016
	538/2016	17.02.2011	Yes	16.02.2014	Not received
	539/2016	20.01.2011	Yes	19.01.2014	02.05.2016

33. In complaints No.580/2016, 593/2016 and 539/2016, except CC/538/2016, the occupation certificate(s) of the unit(s), in question, have been obtained by the Opposite Parties on the respective dates mentioned under Column 6 in the above table. However, in complaint No.538/2016, it was stated in the written statement that the same has been applied for but yet not been received. In consumer complaint no.593 of 2016, there has been DLI in the sum of Rs.48,552/-. In these four complaints, possession of the unit(s) in question, has not been offered/delivered by the Opposite Parties to the complainant(s). Therefore, in view of observations made in the preceding paras, the complainant(s), in these cases, are entitled to possession of the unit(s), in question, complete in all respects on payment of amount due, 12% interest on the deposited amount for the delayed period beyond three years till possession is handed over, compensation in the sum of Rs.1,50,000/- and litigation cost to the tune of Rs.35,000/- in each of the above complaints, except consumer complaint bearing Nos.593 of 2016 wherein the DLI is Rs.48,552/-. In this complaint, grant of compensation in the sum of Rs.1,25,000/- shall meet the ends of justice. The complainant is accordingly held entitled to compensation in the sum of Rs.1,25,000/-.

34. In the following six complaints bearing No.540/2016, 541/2016, 574/2016, 577/2016, 583/2016 and 594/2016, (particulars of which are indicated in Table-B below), at the time of arguments, it was informed by the Counsel for the Opposite Parties and admitted by the Counsel for the complainant(s), that possession of the unit(s) has been offered by the Opposite Parties:-

TABLE - B

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Whether original allottee?	Date on which possession offered.	Date of receiving Occupation Certificate. (Annexure R-1)
1.	540/2016	07.01.2011	Yes	29.10.2016	02.05.2016
2.	541/2016	26.12.2011	Yes	15.11.2016	20.04.2016
3.	574/2016	16.11.2010	Yes	15.11.2016	02..09..2016
4.	577/2016	27.12.2010	Yes	10.10.2016	15.04.2016
5.	583/2016	03.12.2010	Yes	10.10.2016	18.03.2016
6.	594/2016	20.12.2010	Second Allottee (14.05.2013)	26.10.2016	19.07.2016

35. In the above six complaint cases, as indicated above, it was stated at bar that, during pendency of these complaints, offer of possession has been made during October 2016 and November 2016, subject to furnishing of affidavits/documents and making the balance payment. In the offer of possession, six months’ time has been given to complete the formalities and make the payment without delayed interest. Ms. Ekta Jhanji, Advocate, Counsel for the Opposite Parties, on getting instructions from the Opposite Parties stated that in case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months and as and when amount is deposited and other necessary documents are submitted, within 15 days thereafter, possession will be handed over to him/her. She further states that the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. In cases relating to this project, earlier the Opposite Parties, at the time of offering possession, were also raising demand on account of stamp duty and registration charges but now while offering possession, no demand on account of stamp duty and registration charges has been raised.

36. The Counsel for the parties were further in agreement that stamp duty and registration charges shall be payable at the time of execution of the sale deed of the unit, in question, after possession is handed over; charges on account of advocate fee etc. would not be payable by the complainant(s), but incidental expenses, which may be incurred at the time of registration of sale deed, shall be borne by the complainant(s). Thus, at this stage, the complainants are held liable to pay the demand raised minus contingent vat, advocate charges etc. Previously, while offering possession, the Opposite Parties were giving only 30 days’ time to deposit the amount towards demand raised in the letter offering possession but since now the Opposite Parties have, as a goodwill gesture, granted six months’ time to complete the formalities and deposit the amount towards demand raised, coupled with the fact that there would be no holding charges during this period, the ends of justice would be served if the complainants are granted compensation by way of grant of 12% interest for the delayed period up-to date of offer of possession plus 2 months. [For instance, in complaint No.577/2016, possession was offered on 10.10.2016. Normally, the Opposite Parties give 30 days to complete the documents and for making payment. Six months’ time, as against 30 days, has been given in complaint cases indicated in Table-B for making payment, as a goodwill gesture by the Opposite Parties. For the benefit/concession extended to the complainants, it would be unfair if we penalize the Opposite Parties by granting 12% interest for six months period concession given to the complainant(s). In our opinion, it would be fair and justified if the complainants are allowed compensation up-to 10.12.2016 (i.e. 30 days from the date of offer of possession + 30 days grace period).] The complainants are held entitled to interest @12% for the delayed period, compensation of Rs.1,50,000/- and litigation cost of Rs.35,000/- in each of the above complaints, except consumer complaints bearing Nos.583 of 2016 wherein the DLI is Rs.47,764/-, in which, the complainant(s) are held entitled to compensation in the sum of Rs.1,25,000/-.

37. In three complaints bearing Nos.537 of 2016, 578 of 2016 and 579 of 2016 (as indicated in Table ‘C’ below), the complainants have sought refund of the deposited amounts. Details of amount(s); date of Agreement; due date for offering possession; whether possession offered; delay in offering possession and whether the complainant(s) are first allottee; are given hereunder:-

TABLE – C

Sr. No.	Description/ Details	Complaint Case No.
		537/2016	578/2016	579/2016
1.	Amount deposited. (Rs.)	42,24,3255.00(*)	73,93,430.00(*)	38,11,629.92/ 36,35,710.00(**)
2.	Date of Agreement.	13.12.2010	03.02.2012	07.04.2011
3.	Due date for offering possession.	12.12.2013	02.02.2015	06.04.2014
4.	Whether possession offered	26.10.2016	29.10.2016	15.10.2016
5.	Delay in offer of possession	2 Years 11 Months	1 Year 8 Months	2 Years 6 Months
6.	Whether first allottee	Second Allottee (20.03.2012)	Yes	Yes
7.	DLI	31,652.00	79,713.00	21,309.00

(*) In these two cases i.e.537/2016 & 578/2016, during arguments, the counsel for the Opposite Parties admitted the receipt of the amounts as shown against the Column ‘Amount deposited (Rs.)’ at Sr. No.1 in the table.

(**) In complaint No.579/2016, the complaint has claimed refund of Rs.38,11,629.92 whereas the Opposite Parties have admitted receipt of Rs.36,35,710.00. The complainant did not place on record receipts of deposits made, whereas the Opposite Parties have annexed with their written statement some of the receipts. In the absence of complete record of receipts on file, the complainant is entitled to refund of Rs.36,35,710.00 or the amount actually paid.

38. As is evident from record of these three complaints, the Independent Floor Buyer’s Agreements were executed on 13.12.2010, 03.02.2012 and 07.04.2011. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 24 months from the date of execution of the agreement unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, 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 the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In these cases, 24 months period plus the extended period of 12 months from the date of execution of the agreements expired on 12.12.2013, 02.02.2015 and 06.04.2014 respectively. However, the possession of the unit, in question, has been offered during the pendency of the complaints on 26.10.2016, 29.10.2016 and 15.10.2016 respectively. No reason or circumstances, which were beyond the control of the Opposite Parties for such delay beyond initial period of two years and one year extended period, have been explained. There is, thus, inordinate delay in offering possession of the allotted unit(s). 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.”

Therefore, these complaints the complainant(s) are held entitled to refund of the amounts alongwith interest @15% per annum. In complaints bearing Nos.578/2016 and 579/2016, the complainants entitled to refund of the amounts alongwith interest @15% per annum from the dates of respective deposits, besides compensation for physical harassment and mental agony in the sum of Rs.2,00,000/- each (except Complaint No.578/2016), and litigation costs in the sum of Rs.35,000/- each. In Complaint No.578/2016, there is DLI of Rs.79,713/- and delay in offering possession vis-à-vis two other complaints is less. Therefore, in this complaint, the complainant is held entitled to compensation of Rs.1,50,000/-.

However in complaint bearing No.537/2016, the complainant is a second allottee, as he purchased the unit, in question, from Sh. Surendra Singh. The agreement was initially executed with the original allottee i.e. sh. Surendra Singh on 13.12.2010. The said unit was then transferred in favour of the complainant on 20.03.2012 (Annexure C-3). Now it is to be seen as to whether the complainant is entitled to interest on the deposited amount(s) from the dates of respective deposits. This issue came up for consideration before this Commission in Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors., Complaint Case No.147 of 2016 decided on 22.08.2016. In that case, this Commission granted interest to the complainant from the date of endorsement of the unit as he was subsequent purchaser of the unit. On the basis of ratio of judgment in Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors. (supra), on the amounts paid by the previous allottee to the Opposite Parties, the complainant shall be entitled to interest @15% per annum (simple) from the date when the payment of the said amount was made by the complainant to the original allottee/date of endorsement and for the remaining amount paid by him (complainant) to the Opposite Parties, the complainant shall be entitled to refund alongwith the same rate of interest i.e. 15% per annum (simple) from the respective dates of deposits. In this case, the complainant is also held entitled to compensation for physical harassment and mental agony in the sum of Rs.2,00,000/- and litigation costs in the sum of Rs.35,000/-.

39. No other point, was urged, by the Counsel for the parties, in all the cases.

40. For the reasons recorded above, all the complaints bearing Nos. 573/2016, 574/2016, 577/2016, 578/2016, 579/2016, 580/2016, 583/2016, 593/2016, 594/2016, 537/2016, 538/2016, 539/2016, 540/2016 and 541/2016 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

573/2016, 538/2016, 539/2016, 580/2016, and 593/2016.

The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are jointly and severally, held liable and directed as under:-

(i)	To hand over physical possession of the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), within four months from the date of receipt of a certified copy of this order, on payment of the amount(s), by the complainant(s) due against them.
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), from 22.03.2014, 2.12.2013, 11.02.2014, 17.02.2014 and 20.01.2014 respectively in respect of above five complaints, till 31.12.2016, 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, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amounts, to the complainant(s) w.e.f. 01.01.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till payment is made.
(v)	Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service [In CC No.593/2016 – Rs.1,25,000/-], and Rs.35,000/- 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.

Consumer Complaints bearing No:

540/2016, 541/2016, 574/2016, 577/2016, 583/2016 and 594/2016.

In these six cases, the Opposite Parties have offered possession during the pendency of the complaints but, as already stated above, copies of offer of possession letters were not placed on record. In case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the demand raised, except the demands raised towards, contingent VAT deposit and Advocate charges, and as and when, amount is deposited and other necessary documents are submitted, possession will be handed over to complainant(s).

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

(i)	To hand over physical possession of the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), within a period of 30 days, from the date balance payment is made/documents are completed by the complainant(s).
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 07.01.2014, 26.12.2014, 16.11.2013, 27.12.2013, 03.12.2013 and 20.12.2013 respectively uptil two months from the date of offer of possession i.e. up-to 28.12.2016, 14.01.2017, 14.01.2017, 09.12.2016, 09.12.2016 and 25.12.2016 respectively or up-to the date on which possession is actually handed over, whichever is earlier, 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, till realization.
(iv)	Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service, [In CC No.583/2016 - Rs.1,25,000/-] and Rs.35,000/- 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 shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

In all these complaints, 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).

As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposited contingent vat within three weeks when the same is paid by Opposite Parties to the

Government and the complainant(s) are informed of this fact. Delay beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

Since the demand(s) raised have, by and large, been held to be justified, in cases wherever, there is delay in making payment towards demand raised beyond two months, period taken beyond two months shall be excluded for the purpose of payment of 12% interest compensation on delayed period.

Consumer Complaints bearing No:

537/2016

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

(i) To refund the amount of Rs.42,24,255.00 alongwith interest @15% per annum (simple) to the complainant i.e. on the amount paid by the original allottee to the Opposite Parties, interest will accrue from the date when the payment of the said amount was made by the complainant to the original allottee/date of endorsement whereas on the remaining amount paid by the complainant to the Opposite Parties, interest will accrue 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, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

(ii) To pay an amount of Rs.2,00,000/- as compensation for mental agony and physical harassment and Rs.35,000/- as litigation costs to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

Consumer Complaints bearing No:

578/2016 and 579/2016

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

(i) To refund the amounts of Rs.73,93,430.00 (in CC/578/2016) and Rs.36,35,710.00 or the amount actually paid (in CC/579/2016), alongwith simple interest @15% 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, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

(ii) To pay an amount of Rs.2,00,000/- as compensation for mental agony and physical harassment [In CC No.578/2016 – Rs.1,50,000/-], and Rs.35,000/- as litigation costs to the complainant(s), within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

41. However, it is made clear that in case, the complainant(s) have availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).

42. Certified copy of this order, be placed on the file of consumer complaints bearing Nos. 574/2016, 577/2016, 578/2016, 579/2016, 580/2016, 583/2016, 593/2016, 594/2016, 537/2016, 538/2016, 539/2016, 540/2016 and 541/2016.

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

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

Pronounced.

13.12.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

(DEV RAJ)

MEMBER

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/573/2016

Mrs. Shelly Garg - Complainant(s)

Versus

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

Suman Jain Adv. & Shubham Jain Adv.

13 Dec 2016

ORDER

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Highly recommended!

5.0 (615)

Bhanu Pratap

Highly recommended!

Experties

Phone Number

7982270319