Chandigarh

DF-II

CC/906/2021

Pankaj Bhardwaj - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. SCO 190-191-192, Sector 8 C, Chandigarh UT. PIn 160009 through its man - Opp.Party(s)

Adv. Narender Yadav , Vineet Yadav.

28 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II U.T. CHANDIGARH

 

Consumer Complaint No.	:	906 of 2021
Date of Institution	:	13.12.2021
Date of Decision	:	28.02.2024

 

                                               

                                                         

Pankaj Bhardwaj s/o Sh.Ram Avtar Sharma, R/o E3/18, Second Floor, DLF Valley Panchkula, Sector 3, Pinjore Kalka Urban Complex.

        ...  Complainant

Versus

1]     DLF Home Panchkula Pvt. Ltd., SCO 190-191-192, Sector - 8 C, Chandigarh - UT. Pin – 160009 through its Manager/ Authorized Signatory/ Officer-in-charge/ Directors.

Regd. Office Address:-

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/ Directors.

2]     Director General, Department of Town and Country Planning Haryana, Plot No.3, Madhya Marg, Chandigarh 160018.

 

…. Opposite Parties

 

BEFORE: MR.AMRINDER SINGH SIDHU,      PRESIDENT

              MR.B.M.SHARMA                        MEMBER

 

PRESENT:-       Sh.Narender Yadav, Counsel for the complainant/respondent

Ms.Tanika Goyal & Sh.Kunal Dawar, Advocates - Counsel for OP No.1/Applicant.

OP No.2 exparte.

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.), LLM, PRESIDENT

1]               By this common order, we propose to dispose off four connected consumer complaints i.e. present consumer complaint and three other consumer Complaints, detailed below, as well as miscellaneous applications filed therein for dismissal of the complaint on the ground of limitation and misc. application for adjourning the complaint sin die, having common questions of law & facts:-

 

1	2	3		4	5
Sr. No.	C.C. No.	Complainant’s Name	Vs.	Opposite Party(s)  Name	Date of Filing
	906/2021	Pankaj Bhardwaj	Vs.	DLF Homes Panchkula Pvt. Ltd. & Anr.	13.12.2021
	907/2021	Avinash Chander Mehta	Vs.	DLF Homes Panchkula Pvt. Ltd. & Anr.	13.12.2021
	908/2021	Arun Kumar Gupta	Vs.	DLF Homes Panchkula Pvt. Ltd. & Anr.	13.12.2021
	914/2021	Lt.Col.Vishal Mahajan & Anr.	Vs.	DLF Homes Panchkula Pvt. Ltd. & Anr.	13.12.2021

 

2]             The facts are gathered from C.C.No.906 of 2021 – Pankaj Bhardwaj Vs. DLF Homes Panchkula Pvt. Ltd., & Anr.

 

3]             The complainant has filed the present complaint pleading that he was allotted an Independent Floor bearing No.E-3/18 Second Floor (measuring 1550 sq. ft.), in the project of the OP No.1 namely “The Valley” situated in Sector 3, Kalka Pinjore Urban Complex.  It is stated that OP No.1 vide letter dated 14.01.2016 offered the physical possession of the said unit having occupation certificate.  It is also stated that the complainant was shocked on receipt of letter dated 14.1.2016 (Ann.C-2) for offer of the possession whereby he was informed that the final area of the unit increased in area of 200 sq. ft. and asked to deposit an amount Rs.3,70,000/- and when the OP No.1 was enquired about it, it assured that the demand is made as per occupation certificate. Accordingly, the complainant, after making all payments as demanded, took the possession of the Unit in question on 11.07.2016 (Ann.C-2).

                It is pleaded that the complainant received the occupation certificate dated 10.07.2015 which shows the area 125.658 sq.mt. (1550 sq. ft.) and not the increased area as claimed by the OP No.1 as 162.50 sq. mtr. (1750 sq. ft.) in offer of possession letter (Ann.C-2) whereby the complainant was informed that the final area of the unit is increased in area of 18.57 sq. mt. (200 sq. ft.) and informed to deposit the amount for increased area. It is also pleaded that the OP No.1 contrary to the occupation certificate issued by the competent authority, had increased the saleable area according to its whims and fancies and wrongly charged the complainant on the pretext of increased area.  It is further pleaded that the OP No.1 has the occupation certificate only for 1550 sq. ft. whereas it offered the possession of the flat measuring 1750 sq. ft. It is submitted that the complainant had filed the Consumer Complaint No.10/2018 before the Hon'ble State Consumer Disputes Redressal Commission, Chandigarh for delayed compensation which was allowed vide order dated 14.3.2019 and the appeal preferred by the OP No.1 vide F.A.No.780/2019 before the Hon'ble National Commission but the matter was got compromised between the parties. Therefore, the present complaint has been filed by the complainant seeking directions to the OPs to refund the additional charged amount of Rs.3,70,000/- for the increased area along with interest from the date of deposit i.e. 19.02.2016 till realization as well as for compensation and litigation expenses. 

 

4]             After notice of the complaint, the OP No.1 has put in appearance and filed written version stating that the complaint is barred by limitation being filed after two year from the date of cause of action.  It is stated that the Unit in question was allotted to the complainant on 14.1.2011 (Ann.OP-2); the Occupation Certificate was received on 10.07.2015 and the possession was offered to the complainant on 14.01.2016 and the possession was taken by the complainant on 11.07.2016 (Ann.OP-3 Colly.). It is stated that the complainant had filed Consumer Complaint No.10/2018 before the Hon'ble State Consumer Disputes Redressal Commission, Chandigarh claiming compensation for delayed possession which was decided on 14.3.2019 and then an appeal was preferred against it vide FA No.780/2019 before the Hon'ble National Commission and thereafter, in view of amicable settlement between the parties, the complainant was released an amount of Rs.5,50,000/- as full and final settlement of the claim vide order dated 12.12.2019 (Ann.OP-4). The complainant got the conveyance deed done in his favour on 11.7.2016 (Ann.OP-5). It is submitted that the complainant has to claim the complete relief available at the time of filing of the complaint and if any portion is left, he cannot file another complaint for left over portion.  It is also submitted that “covered area” used in Occupation Certificate is different from “saleable area” in as much as it does not include balconies, staircase, ledges and the proportionate share of common areas etc. and the Sale price of the unit is based on Saleable Area defined in Buyer’s Agreement.  It is submitted that the increase in area is actually attached/forms part of the Floor allotted to the complainant and he is in possession and using the same.  It is pleaded that to clarify the change or increase in area, Audit Report and Certification of the final saleable area of individual floors in the DLF Home Panchkula Project has been obtained (Ann.OP-8) from Statutory Body i.e. School of Planning & Architecture, New Delhi on 7.6.2017 (an institution under the Ministry of Human Resources Development, Government of India).  It is also pleaded that the controversy with regard to the instant project was put to rest by the Hon’ble Supreme Court by way of judgment dated 10.5.2019 in Civil Appeal Nos.4910-4941/2019 and Civil Appeal Nos.4942-4945 of 2019 titled as DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda (2019) SCC Online SC 689. Denying all other allegations, the OP No.1 lastly prayed for dismissal of the complaint with costs.

 

5]             The OP No.2 did not turn up despite service of notice, hence it was proceeded exparte vide order dated 06.07.2022.

 

6]             The ld.Counsel for the OP No.1 has also moved Misc. Application for dismissal of the complaint on the ground of Limitation under Section 69 of The Consumer Protection Act, 2019 as well as Misc.Application for adjourning the complaint sin die.  Both these applications have been opposed by the ld.Counsel for the complainant and prayed for dismissal of these applications. 

 

7]             Replication has also been filed by the complainant thereby controverting to the assertions of the OP No.1 made in its written version.

 

8]             Parties led evidence by way of affidavits and documents.

 

9]             We have heard the learned Counsel for the contesting parties and gone through the entire record including misc. applications.  

 

10]           We deem it proper to first deal with the Limitation point, as raised by the OP No.1 in its written version as well as through misc. application, referred to above. 

 

11]           It is observed that the possession of the unit in question has admittedly been offered on 14.01.2016 by the OP No.1 to the complainant(s) and therefore, the cause of action, if any, would start from the said date.

 

12]           As per Section 69 of The Consumer Protection Act, 2019, which is reproduced hereunder, the limitation for filing the complaint is 2 years from the date of cause of action:-

“69.   (1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

 

                Thus, the limitation to file the present complaint was expired on 13.01.2018, whereas it has been filed on 13.12.2021 i.e. after a delay of more than 3 ½ years, which is clearly barred by limitation.

 

13]           In similar circumstances, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in CC/789/2020 titled as Avtar Singh Chauhan vs. DLF Home Developers Ltd. & Anr., decided on 02.03.2023 has held that the limitation period would start from ‘the date of offer of possession’ and compensation for delayed delivery of possession would be tenable till the date of offer of possession after receiving the occupation certificate and not till ‘the date of delivery of possession’. The relevant extract of said judgment is reproduced as under:-

 

“13.   On an overall consideration of the ratio in all the decisions referred to above, it becomes crystal clear that any claim on account of delayed possession would be tenable only till the date of ‘offer of possession’, but of course, after the Occupancy Certificate has been received by the Builder/Developer.  There is no entitlement of an allottee for such compensation "till the date of delivery of possession" as the Builder's liability ends once he makes the offer of possession. Further, as we have already seen, some orders which had directed that such delayed compensation was payable till the date of actual possession, were themselves modified not only by the Hon'ble Apex Court, but also by the Principal Bench of this Commission, and the compensation was found payable only "till the date of offer of possession" after having received the Occupancy Certificate.  This would mean that the cause of action qua the Complainants would commence from the date of offer of possession and not from any subsequent date such as that of the actual delivery of possession.  It is also to be noted that the objection on the ground of limitation bar did not arise in any of the aforesaid decisions.

14.    But in the present case, a specific objection in this regard has been raised.  It is undeniable that in the present case, the Occupancy Certificate was received by the Opposite Party on 21.2.2017, and only after that the offer of possession was made to the Complainants on 23.3.2017.  Consequently, the period of limitation starting from the latter date would end on 23.3.2019.  Any Complaint filed after that date would per se be beyond limitation…….xxxxxx

16.    For the aforesaid reasons, we are of the considered view that the present Complaints are manifestly barred by limitation, since the same were filed more than three years after the offer of possession was made to the Complainants in the month of March, 2017.”

 

14]           In the recent judgment, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, passed in FA/303/2021 titled DLF Homes Panchkula Pvt. Ltd. vs. Satish Goyal & Anr., decided on 07.10.2023 has held that State Commission erred in not considering the fact of limitation and further there was no application for condonation of delay and still the State Commission proceeded to adjudicate the matter without addressing the fundamental issue of delay. The relevant extract of said judgment is reproduced as under:-

"16.  The complaint was barred by limitation before the State Commission. The State Commission also erred in not considering the fact that there was no application for condonation of delay and proceeded to adjudicate in the matter without addressing the fundamental issue of delay."

 

15]           The Hon’ble State Consumer Disputes Redressal Commission, U.T., Chandigarh in CC No.79 of 2019 titled as R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., decided on 12.07.2019 has held that:-

8.     Even though, no cause of action had accrued in favour of the complainant to file the instant complaint as there was no grievance of his put forth at the time of taking over the possession, still if we exclude two years limitation period to file the complaint from the date of offer of possession, the complaint is barred by limitation as there is a delay of five months in filing the same. In our opinion, the complaint deserves outright dismissal as the same is hopelessly time barred. The complaint deserves dismissal as the same does not assign any reason or ground for inordinate deliberate delay in filing the complaint after lapse of five months and even no application has been filed for condoning the unexplained, deliberate, hopeless delay in filing the complaint.

 

16]           The Hon'ble Supreme Court of India in Civil Appeal No. 2067 of 2002 - State Bank of India Vs. B.S. Agricultural Industries (I) (AIR 2009 SC 2210) wherein the Complaint was dismissed as time-barred, has observed that:-

"Consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.”

 

17]           Taking into consideration the above discussion, findings and settled position of law, the Misc. Applications filed by OP No.1, in the present complaint and other connected complaints mentioned above, for dismissal of the complaint on the ground of Limitation stands allowed.  Consequently, the present complaint as well as other connected complaints, mentioned above, stands dismissed being barred by limitation and the Misc. Applications filed therein for adjourning the complaints in die, stands dismissed being infructuous.

18]           Pending application(s) if any, stands disposed of accordingly.

                The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules & Act accordingly. After compliance file be consigned to record room.       

Announced

28.02.2024                                                     

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

 

Sd/-

(B.M.SHARMA)

MEMBER