Chandigarh

DF-I

CC/979/2022

ASHWANI KUMAR - Complainant(s)

Versus

DLF HOMES PANCHKULA PVT. LTD. - Opp.Party(s)

JAGJEET BENIWAL

05 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/979/2022
Date of Institution	:	15.12.2022
Date of Decision	:	5/11/2024

 

1.       Ashwani Kumar son of Late Sh. Jagdish Chand,

 

2.       Amit Kumar son of Sh. Ashwani Kumar,

 

3.       Aman Kumar son of Sh. Ashwani Kumar,

 

4.       Mrs. Usha Devi wife of Sh. Ashwani Kumar, All residents of DVF-B1/53, FF, The Valley DLF, Pinjore Kalka Urban Complex, Panchkula, Haryana. - 134102

...Complainants

Versus

1.       DLF Homes Panchkula Private Limited, SCO No. 190-191-192, Sector 8-C, Chandigarh UT-160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

2.       DLF Homes Panchkula Private Limited, 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

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Inderjeet Singh, Advocate Proxy for Sh. Jatinder Sharma, Advocate for complainants
	:	Ms Tanika Goyal, Advocate  OPs.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainants under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the “OPs”) for seeking directing to the OPs to pay interest on the deposited amount, to pay compensation @ ₹10/- per square feet of the saleable area for delaying the possession, to pay compensation etc.  The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that originally one Mrs.Vandana Mathuria and Sh.Vinay Kumar (hereinafter referred to as the “original allottees”) booked a flat in DLF Valley Project on 18.03.2010 and paid an amount of ₹4,00,000/-. Accordingly Flat bearing No.DVF-B1/53, First Floor (hereinafter referred to as the “subject flat”) was allotted to them vide allotment letter dated 23.03.2010 (Annexure C-1). Thereafter an agreement dated 12.01.2011 (Annexure C-2) was entered into between the parties and the total price of the subject flat was fixed at ₹37,69,599.72P for the saleable area of 1550 sq. feet.  Thereafter on 30.07.2018, the aforesaid original allottees agreed to  sell the subject flat to the complainants vide agreement (Annexure C-3) and accordingly the subject flat was transferred in the name of the complainants vide transfer letter dated 22.11.2018 (Annexure C-4).  The OPs had agreed to hand over the possession of the subject flat to the original allottes within two years after entering into the agreement dated 12.01.2011 (Annexure C-2). However, the possession of the subject flat was handed over to the purchasers vide possession certificate dated 23.11.2018 (Annexure C-5). In this manner, as the OPs could not deliver the subject flat to the purchasers within the stipulated period of two years and had handed over the same in the year 2018, the OPs are liable to pay interest as well as compensation in terms of the agreement dated 12.01.2011 (Annexure C-2) i.e. after two years of the agreement till handing over the possession of the subject flat to the purchasers. It is further alleged that even the OPs had illegally raised the demand of ₹4,42,200/- on account of increased area which was paid by them under pressure to get the possession and as such, the OPs are also liable to refund the said amount. The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts, jurisdiction and limitation. However it is admitted that the subject flat was initially allotted to original allottees and on receiving the occupation certificate on 19.07.2016, the possession of the subject flat was offered to them on 15.11.2016 vide offer of possession letter (Annexure OP-2 (Colly). It is also admitted that the subject flat was transferred by the original allottees to the complainants on 22.11.2018 (Annexure OP-3) and the possession of the same was taken by the complainants on 23.11.2018 (Annexure OP-4). It is further alleged that the original allottees entered into settlement with the OPs in July, 2018 and copy of the settlement agreement dated 10.07.2018 is Annexure OP-5. In this manner, as the claim with respect  to the delayed possession has already been settled between the original allottees and the OPs prior to the transfer of the subject flat by the original allottees in favour of the complainants, the present complaint is not maintainable and is liable to be dismissed. So far as the claim of the complainants that the OPs had wrongly charged ₹4,42,200/- on account of increased area is concerned, the claim of the complainants is not within limitation and the same is liable to be dismissed. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication, complainants reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their respective claims the parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject flat was originally allotted to Mrs.Vandana Mathuria and Sh.Vinay Kumar vide allotment letter dated 23.03.2010 (Annexure C-1) and the subject flat was also transferred in the name of the complainants in the record of the OPs vide transfer letter dated 22.11.2018 (Annexure C-4) and the possession of the subject flat was handed over to the complainants on 23.11.2018 vide possession certificate (Annexure C-5), the case is reduced to a narrow compass as it is to be determined if the complainants are entitled for compensation for delayed possession and refund of ₹4,42,200/- on account of increased area, as is the case of the complainants and if the complaint of the complainants being false and frivolous is liable to be dismissed, as is the defence of the OPs.
   2. As it is an admitted case of the parties that in fact the subject flat was originally allotted to the original allottees vide allotment letter dated 23.03.2010 (Annexure C-1) and the complainants are the subsequent purchasers in whose names the subject flat was transferred vide transfer letter dated 22.11.2018 (Annexure C-4) and they are seeking compensation for delayed possession whereas the defence of the OPs is that in fact as the compensation for the delayed possession has already been given to the original allottees vide Settlement Agreement dated 10.07.2018 (Annexure OP-5) which makes one thing clear that the entire case of the parties is revolving around the transfer letter dated 22.11.2018 and for that purpose the documentary evidence led by parties i.e. Annexure C-4 through which the subject flat was transferred in the name of the complainants by the original allottees, the possession certificate dated 23.11.2018 (Annexure C-5) as well as the Settlement Agreement dated 10.07.2018 (Annexure OP-5) are required  to be scanned carefully.
   3. Perusal of the transfer letter (Annexure C-4) clearly indicates the subject flat was transferred in the name of the complainants on 22.11.2018 and from that date, the complainants became the subsequent allottees/purchasers of the same. The possession certificate (Annexure C-5) further indicates that the possession of the subject flat was offered by the OPs to the complainants on 23.11.2018. The Settlement Agreement dated 10.07.2018 (Annexure OP-5) further indicates that in fact before sale as well as transfer of the subject flat by the original allottees in the name of the complainants, the original allottees had entered into settlement with the OPs with respect to all the disputes i.e. qua compensation for delayed possession etc. and the OPs had agreed to pay an amount of ₹6,07,766/- to the original allottees which had already been paid by the OPs to the original allottees on 10.07.2018 i.e. much prior to the purchase of the subject flat by the complainants from the original allottees and also before the transfer of the title in favour of the complainants which was admittedly transferred in their names on 22.11.2018 vide transfer letter dated 22.11.2018 (Annexure C-4). Once the matter has already been settled by the original allottees with the OPs and the present complainants have derived their title from the original allottees in the month of November, 2018 and prior to that the original allottees have already received the compensation for delayed possession etc. from the OPs, to our mind, the present complainants have no right to claim any compensation for the delayed possession for the period prior to the date on which they derived the title from the original allottees.
   4. The learned counsel for the OPs has also relied upon the judgment of the Hon’ble Supreme Court of India in the case titled as Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Vs. DLF Southern Homes Pvt. Ltd. In Civil Appeal No.6239 of 2019 wherein it has been held as under:-

“37. However, the cases of the eleven purchasers who entered into specific settlement deeds with the developers have to be segregated. In the case of these eleven persons, we are of the view that it would be appropriate if their cases are excluded from the purview of the present order. These eleven flat purchasers having entered into specific deeds of settlement, it would be only appropriate and proper if they are held down to the terms of the bargain. We are not inclined to accept the contention of the learned counsel of the appellants, Mr. Prashant Bhushan, that the settlement deeds were executed under coercion or undue influence since no specific material has been produced on record to demonstrate the same.”

 

5. The second claim of the complainants is that the OPs have wrongly charged ₹4,42,200/- on account of increased area. The said claim is also resisted by the OPs on the ground that the complaint filed by the complainants is barred by limitation. The perusal of the possession certificate (Annexure C-5) clearly indicates that the subject flat was given to the complainants on 23.11.2018 by referring the total saleable area of the subject flat as 1751.00 sq.ft. i.e. more than the original saleable area and the complainants had accepted the said possession vide handing over certificate dated 23.11.2018 annexed with the possession certificate whereas the present complaint has been filed on 15.12.2022. Hence, the complaint of the complainants is barred by limitation being not filed within the limitation period.
6. In the light of Section 69 of the Act, one thing is clear on record that the District Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen except where the complainant satisfied the commission that he/she had sufficient cause for not filing the complaint within such period and the delay in filing the consumer complaint can be condoned.
7. In the case in hand, as it stands proved on record the complainants had accepted the possession of the subject flat vide handing over certificate dated 23.11.2018 annexed with the possession certificate (Annexure OP-4) and the present complaint has been filed by the complainants on 15.12.2022, it is, thus, safe to hold that the consumer complaint of the complainant is patently barred by limitation.
8. The Hon’ble National Commission, in similar circumstances, in the case of Avtar Singh Chauhan vs. DLF Home Developers Ltd. & Anr., CC/789/2020 decided on 2.3.2023, has held that 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 portion of the said order is reproduced below for ready reference :-

“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.”

 

9. Further, the Hon’ble National Commission in its latest order passed in DLF Homes Panchkula Pvt. Ltd. vs. Satish Goyal & Anr., FA/303/2021 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 portion of the said order 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."

10. Not only this, even our own Hon’ble State Commission, U.T., Chandigarh in R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., CC No.79 of 2019 decided on 12.07.2019 has held as under :-

“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.

11. The Hon'ble Apex Court 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 as under :-

"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.”

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Pending miscellaneous application(s), if any, also stands disposed off.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 5/11/2024			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member

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