Chandigarh

StateCommission

CC/56/2017

Brig. Ranjit Singh - Complainant(s)

Versus

DLF Homes Panchkula Pvt. Ltd. - Opp.Party(s)

Sudhir Kathpalia,Adv.

04 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	56 of 2017
Date of Institution	:	18.01.2017
Date of Decision	:	04.08.2017

 

 

Brig. Ranjit Singh, 34, Maitri Apartments, A/3, Paschim Vihar, New Delhi, India.

 

                                            .........Complainant.

                                 Versus

 

 

DLF Homes Panchkula Private Ltd., SCO No.190-191-192, Sector 8-C Chandigarh–160009 through its Managing Director.

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

Argued by:

 

Sh. Raghav Kapoor, Advocate, Proxy for Sh. Saurabh Gautam, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Party.

 

 

Consumer Complaint	:	88 of 2017
Date of Institution	:	27.01.2017
Date of Decision	:	04.08.2017

 

Lt. Col. Narender Singh S/o Sh. Sukhbir Singh R/o 795, ASC BN (AM), N Area, Near Airport, Chandigarh.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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.

 

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

 

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	129 of 2017
Date of Institution	:	13.02.2017
Date of Decision	:	04.08.2017

 

Col. Harmohinder Singh S/o Sh. Balvinder Singh R/o 65 A/L, Model Town, Yamuna Nagar.

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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.

 

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

 

 

Consumer Complaint	:	174 of 2017
Date of Institution	:	27.02.2017
Date of Decision	:	04.08.2017

 

Col. Rajendra Kumar Swain S/o Late Sh. Govind Swan, at present residing at P-72/C, Shankar Vihar, Delhi Cantt., Delhi – 110010.

                                            .........Complainant.

                                 Versus

 

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

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

Argued by:

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Party.

 

Consumer Complaint	:	187 of 2017
Date of Institution	:	02.03.2017
Date of Decision	:	04.08.2017

 

Radha Krishan S/o Gurdial Singh R/o House No.96, Amravati Enclave, Panchkula.

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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. Naveen Sheokand, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	188 of 2017
Date of Institution	:	02.03.2017
Date of Decision	:	04.08.2017

 

Sudesh Goyal W/o Parmod Kumar Goyal, resident of House No.1722, Sector-7, Urban Estate, Karnal, Haryana.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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. Naveen Sheokand, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	222 of 2017
Date of Institution	:	16.03.2017
Date of Decision	:	04.08.2017

 

Bhagwant Singh S/o Sh. Shamsher Singh, H.No.BX-815, K.C. Road, Barnala, Punjab.

 

                                            .........Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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.

 

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

 

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	223 of 2017
Date of Institution	:	16.03.2017
Date of Decision	:	04.08.2017

 

Col. Rajesh Kumar Jindal S/o Sh. Om Parkash Jindal, R/o H.No.3835/1, Sector 47-D, Chandigarh – 160047.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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.

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

 

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	224 of 2017
Date of Institution	:	16.03.2017
Date of Decision	:	04.08.2017

 

1. Col. Jaideep Bali S/o Lt. Col. Kuldeep Chander Bali,
2. Pratibha Bali W/o Col. Jaideep Bali,

Both R/o H.No.5180, Urban Estate, Phase-2, Patiala, Punjab.

 

                                            .........Complainants.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – UT., Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. 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.

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

Consumer Complaint	:	238 of 2017
Date of Institution	:	21.03.2017
Date of Decision	:	04.08.2017

 

Amit Kumar Gupta son of Amrit Lal Gupta, 3056, Gupta Nursing Home, 2-A, Power House Road, Bathinda, District Bathinda.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., S.C.O. 190-192, Sector 8-C, Chandigarh, through its authorized signatory.
2. DLF Homes Panchkula Pvt. Ltd., having its registered office at 12^th Floor, DLF Gateway Tower, DLF City, Phase 3, NH-8, Gurgaon through its authorized representative.

 

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

Argued by:

 

Sh. Mukand Gupta, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates 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 10 consumer complaints bearing Nos.56, 88, 129, 174, 187, 188, 222, 223, 224 and 238 all of 2017.

             At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price and amount received etc. and further the date when possession was offered etc., which is taken on record. It was stated by the Counsel that the facts given in the chart were correct, as per their record.

2.          Arguments were heard in common. At the time of arguments on 17.07.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid 10 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.56 of 2017, titled as ‘Brig. Ranjit Singh Vs. DLF Homes Panchkula Pvt. Ltd.’

4.          In brief, the facts are that the complainant, in good faith and assurance of the Opposite Party, booked an apartment in the project of the Opposite Party, namely, DLF Valley, Panchkula and as such, he was allotted an independent apartment bearing No.DVF E7/37 FF, in the said project vide allotment letter dated 07.04.2010 (Annexure C-3). An Independent Floor Buyer’s Agreement was executed between the parties on 13.12.2010 (Annexure C-4) after receipt of three installments i.e. approximately 30% of the value of the property by the Opposite Party. As per Clause 11(a) of the Agreement, the Opposite Party was to hand over possession of the floor within 24 months from the date of execution of the Agreement i.e. by 12.12.2012.

5.          It was further stated that in case of non-delivery of possession within the stipulated period, the Opposite Party was also liable to pay compensation @Rs.10/- per sq. ft. of the saleable area of the unit, in question, per month for such delayed period. It was further stated that the Opposite Party also published an advertisement in newspaper ‘Hindustan Times’ dated 13.01.2014 that possession would be handed over in 2014. The complainant visited the office of the Opposite Party to know the date of possession but no satisfactory answer was received. It was further stated that the construction quality is very poor and most of the promised services/ amenities/facilities are lacking. It was further stated that the complainant booked the flat for the specific purpose of using it as a home. It was further stated that on ground of justice and equity, in terms of Clause 39 of the Agreement, when the Opposite Party is charging interest @18% p.a. on the delayed payment(s) beyond 90 days after due date, the complainant is also entitled to the same rate of interest on the deposited amounts.

6.         It was further stated that the Opposite Party, issued possession letter dated 15.11.2016 (Annexure C-6) in a haphazard manner to get rid of its liabilities despite the fact there is no access to electricity, water, road etc. It was further stated that the Opposite Party unilaterally increased the area without obtaining consent of the complainant. It was further stated that the Opposite Party vide its letter dated 17.05.2010 was to give discount of 5% to the complainant in terms of its policy announced at the time of its First Phase Launch but the same was not included in the final statement. It was further stated that the complainant had also paid an amount of Rs.3,74,760/- vide cheque bearing No.200191 dated 01.09.2016, which has not been included in the final statement. It was further stated that after receipt of final demand notice, on visiting the site, the complainant was shocked to see that the unit, in question, was not complete and there was dust and left over work dumped at the unit; the electricity wiring was spread all over, the tiles were not properly fitted and even the medical facilities, Creche and the club house as promised in the brochure were not there.   

7.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Party, to hand over physical possession of the unit, in question, complete in all respects; pay interest @18% compounded quarterly on the amount deposited from the date of delay in handing over of possession after expiry of two years from the date of execution of Flat Buyer’s Agreement  till the date, possession is handed over; charge actual price of the flat and declare all other charges added to the cost beyond the agreement as null and void; award compensation of Rs.5,00,000/- on account of financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainant and Rs.75,000/- as litigation expenses.

8.          The Opposite Party, in its preliminary submissions in the written statement admitted that the complainant is original allottee and the disputed floor was allotted to him on 07.04.2010 and Floor Buyer’s Agreement was executed with the complainant on 13.12.2010. It was further stated that the complaint has been filed in total disregard to the terms of the Agreement. It was further stated that at this stage, the complainant is backing out from the executed contract. It was stated that the complainant had full knowledge about the executed terms of Floor Buyer’s Agreement dated 13.12.2010. It was further stated that occupation certificate was received on 19.07.2016 and offer of possession was sent on 15.11.2016. It was further stated that the complainant prayed for unfounded demands which were not as per executed terms of the Agreement and thus, the Opposite Party has prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. 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 Opposite Party, at the time of allotment of the floor on 07.04.2010. It was further stated that construction of the project got delayed due to the stay on construction as ordered by the Hon’ble High Court and thereafter by the Hon’ble Supreme Court of India due to third party litigation involving the acquisition proceedings of the land of litigants therein, in the year 2010 and 2012. 

9.          As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received. 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.

10.        In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement and that the complainant is not a consumer as he did not disclose the purpose for which the property was purchased. Another objection raised in the written statement is that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that Opposite Party could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) at page 29 of the written statement, it was stated that approvals 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. Apart from above objections, the territorial jurisdiction of this Commission to entertain and try the complaint has been challenged on the ground that since the property, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District, only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint. It was further stated that complainant has not approached this Commission with clean hands and now at a belated stage was attempting to wriggle out of his contractual obligation by filing the instant complaint.

11.        The Opposite Party/Parties also moved miscellaneous applications under Sections 5 and 8 of Arbitration and Conciliation Act, 1996 in the following consumer complaints, for referring the matter to the sole arbitration:-

 

 

Sr. No.	Complaint Case No.	Miscellaneous Application No.
	56/2017	374/2017
	88/2017	350/2017
	129/2017	487/2017
	222/2017	529/2017
	223/2017	488/2017
	224/2017	530/2017
	238/2017	533/2017

 

 

The aforesaid applications were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.  

12.        On merits, it was stated that the complainant has been given Early Payment Rebate of Rs.2,53,706.66 and also change in the IDC to the tune of Rs.1419.59. It was further stated that the alleged delay in delivery of possession was due to the third party litigation, wherein an interim order was passed by Hon’ble High Court (Annexure R-4). It was admitted that the Opposite Party is engaged in developing and selling the housing project. It was stated that the complainant till the date of filing of written statement had paid Rs.33,33,135.81 including rebate etc. It was further stated that the Hon’ble High Court vide order dated 06.04.2010 passed in CWP no.6230 of 2010 restrained the Opposite Party to create any third party right. It was further stated that there was stay on construction in furtherance to the direction passed by Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010, which got vacated only on 12.12.2012. It was further stated that the complainant was given an exit option wherein he was offered refund with 9% interest on its deposits, however, he opted to continue with the project. It was further stated that the price of the unit as per the SOP was Rs.38,55,080.10 plus service tax for 1450 sq. ft., however, after occupancy certificate, due to increase in area, the total price of the property is Rs.43,37,135.94 plus service tax for an area of 1575 sq. ft. It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Party as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was reiterated that after receipt of occupancy certificate on 19.07.2016, possession was offered to the complainant on 15.11.2016. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

13.        The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

14.        The Opposite Party, in support of its case, submitted the affidavit of Sh. Shiv Kumar, its Authorized Signatory, by way of evidence, alongwith which, a number of documents were attached. 

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

16.        It is evident that the complainant was allotted Independent Floor No.DVF-E7/37-FF#217 in DLF Valley, Panchkula vide allotment letter dated 07.04.2010 (Annexure C-4) and Independent Floor Buyer’s Agreement was executed between him and the Opposite Party on 13.12.2010 (Annexure C-3). The total price of the said independent floor, as depicted in the Agreement, was Rs.35,08,999.69, besides other charges, securities, deposits and taxes etc. as specified in the Application/ Agreement. The complainant, in all, actually paid a sum of Rs.39,48,810.81 as mentioned in the Chart showing details of the property, in question, placed on        record, under the signatures of the Counsel for the Opposite Party, at the time of arguments on 17.07.2017. As per Clause 11(a) of the Agreement, the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. Though in Paras 5 to 7 of the written statement, on merits, it has been stated that exit option was given to the complainant to seek refund alongwith 9% interest, however, no such letter has been placed on record. It is, however, on record, that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, which in turn, delayed the completion of the project. The Opposite Party has claimed that this being a force majeure condition, it is entitled to benefit of delay of one year. The Opposite Party has stated that due to above force majeure condition, the possession got delayed. The possession of the unit, in question, has been offered by the Opposite Party to the complainant on 15.11.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint was filed on 18.01.2017. 

17.        As regards averment of the complainant regarding poor quality construction, no cogent evidence/expert evidence by way of report of an Engineer/Architect, to substantiate the allegation, has been brought in evidence.

18.        The Opposite Party, in preliminary submissions, has prayed to allow it 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. Since the Opposite Party failed to complete construction and deliver possession within stipulated period and extended one year period, it (Opposite Party) is itself responsible for delay and deficiency in service and its prayer for allowing it escalation cost of construction as well as land holding amounts to seeking amendment of the terms and conditions of the Agreement, being devoid of merit, must fail, and the same stands rejected.

19.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 13.12.2010 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 Party that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexures R-5 & R-6), is not relevant.

20.           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. It may be stated here that this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, 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 was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

“26.      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.”

33.        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. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. 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.

34.        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.”

 

             Same is the ratio of recent judgment passed by Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.

             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.

21.        Another objection raised by the Opposite Party was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was stated that since the property, in question, is situated in District Panchkula, a part of cause of action arose at Panchkula. It may be stated here that according to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Annexure R-3) was made by the complainant at Chandigarh address of the Opposite Party viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Allotment letter dated 07.04.2010 (Annexure C-4) also bore the same address at the top, meaning thereby the allotment letter was also issued by the Kishangarh Address of the Opposite Party. Independent Floor Buyer’s Agreement was also executed between the parties on 13.12.2010 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

22.        In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

23.        The next objection raised by the Opposite Party was that the complainant has made 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 consider the present complaint. It may be stated here, that the complainant hired the services of the Opposite Party, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines ‘service’ as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

 

             From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he 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 Party and its deficiency in rendering service. It, therefore, cannot be said that the complainant is trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

24.        To defeat claim of the complainant, the next objection raised by the Opposite Party 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, he 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 her complaint in Para 16, the complainant has specifically stated that he booked the flat, in question, for the specific purpose of using it as home. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the 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 Party, in its written reply, therefore, being devoid of merit, is rejected.  

25.        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 13.12.2010 read 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 Party, it was 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 admitted that above fact of granting stay resulted into delay in construction at the site.

26.        In similar cases of this project, the Opposite Party has been taking benefit of one year on account of stay by Hon’ble Apex court from April 2012 to December 2012 but in the instant case, though it has been stated that exit option was given to the complainant to take refund alongwith interest @9% p.a. or continue with the allotment, but no such offer letter is available on record. The same is available on record in connected complaints. The Opposite Party has specifically pleaded that there was stay by the Hon’ble Apex court, which in turn delayed the project. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired in December 2013 on 12.12.2013. No justification whatsoever for delay in offering possession beyond 12.12.2013 has been explained by the Opposite Party. The argument of the Opposite party 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 its control, is not tenable.  The Independent Floor Buyer’s Agreement was executed on 13.12.2010 and before execution thereof, the Opposite Party 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, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Party 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 Party. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Party.

27.        It may be stated here that while offering possession vide letter dated 15.11.2016, the Opposite Party raised a demand of Rs.12,46,747.88 i.e. (Rs.11,63,681.88 + Rs.82,766.00). On 31.01.2017, it was stated by the Counsel for the complainant that immediately before issuance of aforesaid possession letter, the complainant had deposited an amount of Rs.3,74,760/- on 01.09.2016, however, the said amount has not been considered, while raising demand vide possession letter. Be that as it may, Counsel for the complainant stated that the complainant is ready to deposit the amount claimed minus demand of Rs.22,916/- raised towards contingent deposit of Vat and Rs.3,74,760/-, which already stood paid, within three weeks from 31.01.2017. On the other hand, on 31.01.2017 itself, Counsel for the Opposite Party stated that on deposit of aforesaid amount, within the period stipulated, possession would be delivered to the complainant within one month thereafter.

28.        As stated by Counsel for the parties, during arguments, the requisite amount, in terms of aforesaid order dated 31.01.2017 passed by this Commission, stood deposited on 21.02.2017 and physical possession of the unit, in question, was handed over to the complainant on 12.07.2017. The requisite documents have also been submitted by the complainant to the Opposite Party.

29.        The complainant in Para 22 of the complaint has averred that the Opposite Party vide its letter dated 17.05.2010 (Page 125-A) had also given a discount of 5% to him (complainant) in terms of its Policy announced at the time of its First Phase Launch but the same was not included in the final statement of account. Paras 1 & 2 of letter dated 17.05.2010, being relevant, are extracted hereunder:-

“This is in furtherance to the allotment letter already forwarded by the company. As per company policy announced at the time of our First Phase launch, an additional discount of 5% has been offered to government employees. This special 5% discount on the basic sale Price (Net of inaugural discount) of the unit is offered apart from the other offers/discounts as applicable to the scheme.

 

Eligibility for this scheme will have to be proved by the customer by providing necessary documents to support the claim that either of the First Applicant or the second Applicant is a Government employee. This discount will be made available to the allottee only after company is satisfied with the documents/title of the allottee. Your allotment has been provided this discount provisionally based on the documents received along with the booking, however, complete documents will have to be provided before the final allotment for us to credit this discount in your account.”

 

               From the afore-extracted position, it transpires that eligibility for the scheme was to be proved by the complainant by providing necessary documents that the t applicant is a government employee and the discount  was to be made available to the allottee only after the company was satisfied with the document/title of the allottee.  This special 5% discount was on the basic sale price (Net of inaugural discount) of the unit. The basic sale price of the apartment, in question, as per final statement of account, being Rs.27,64,424.97, the amount of 5% discount works out to Rs.1,38,221/-. It may be stated here that as is evident from final statement of account as on 15.11.2016 (Annexure C-6), early payment rebate of Rs.2,53,707.66 is reflected in the final statement of account. Not only this, perusal of Annexure C-2 (colly.) reveals that early payment rebate in the sum of Rs.2,53,707.66 is duly credited in the account of the complainant. The complainant has not adduced any evidence that he submitted proof to the satisfaction of the Opposite Party, to the effect, that he was a government employee. Therefore, this special 5% discount for a government employee in the sum of Rs.1,38,221/- shall be payable by the Opposite Party to the complainant, only on furnishing proof by the complainant, to the effect that, he was a government employee.   

30.        As stated above, since the complainant has deposited the entire demand raised vide offer of possession letter dated 15.11.2016 minus contingent deposit of vat and possession of the unit, in question, stood delivered to him on 12.07.2017, his challenge to demands qua increase in area & contingent deposit of vat has become infructuous. It may be stated here that increase in area in the instant case is less than 15%, for which, no consent was required. Otherwise also, the issue qua legality of above demands raised, has already been settled by this Commission in Consumer Complaint bearing No.32 of 2017 titled Kavita Devi Vs. M/s DLF Homes Panchkula Pvt. Ltd. decided on 17.05.2017 alongwith which, 12 connected complaints were also decided. Except the demand on account of contingent deposit of vat, this Commission held the other demands raised to be legal and valid. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

31.          It was agreed by the counsel for the Opposite Party that demand raised on account of contingent deposit of Vat in the sum of Rs.22,916/- shall be payable by the complainant, as and when the same becomes payable by the Opposite Party to the Government.

32.         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 party did not deliver 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 13.12.2010 i.e. by 12.12.2013. There is, thus, inordinate delay of around 3 years, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Party on 15.11.2016. Clearly there is delay in offering possession on account of which, the complainant deserves to be compensated. The Hon’ble National Commission in the case of Shri Suman Nandi & Anr. Vs. M/s Unitech Limited & Anr., Complaint No.277 of 2013, decided on 17.12.2015, in Para 16 held as under:-

“16.       On perusal of the Buyer’s Agreement and the affidavits filed by the parties it is clear that the complainants had booked the subject apartments on the expressed promise extended by the opposite parties that subject to Force Majeure, the opposite parties would deliver the possession of the apartments complete in all respect within 30-36 months, as the case may be, of the execution of the Buyers Agreement and being influenced by the said promise the complainants entered into the contract. No doubt in the Buyer’s Agreement some scope for delay due to unavoidable circumstances was kept in mind for which clause 4.a. for compensating the complainants for delay was incorporated 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 complainants would be entitled to meagre compensation of Rs.5/- per sq. ft. per month which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view clause 4.a. was meant for computing compensation in case of a minor delay in delivery of possession.   If the argument of the opposite party is to be accepted, it would lead to 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 his other business venture at nominal interest of 2-3 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.”

 

The National Commission granted 12% interest as compensation from the date of default in delivery of possession.

             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 read 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.”

33.        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.  

34.        Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 13.12.2013 up-to + 2 months from the date of offer of possession. The possession having been offered on 15.11.2016, the complainant shall be entitled to compensation up-to plus 2 months from 15.11.2016 i.e. 14.01.2017 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above.

 

 

 

35.         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 him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Party, by the date promised in the Agreement and within one year extended period. The complainant has been adequately compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. The compensation in the sum of Rs.5 lacs claimed by the complainant is on the higher side. Grant of compensation in the sum of Rs.1,50,000/- would serve the ends of justice. Under these circumstances, the complainant is held entitled to compensation in the sum of Rs.1,50,000/-.

 

36.        Similarly, in two consumer complaint bearing No.88 & 129 both of 2017, particulars of which are given hereunder, possession of the unit(s), in question, stands delivered to the complainant(s), in terms of interim orders dated 31.01.2017 & 15.02.2017 respectively, passed by this Commission, after deposit of the amounts, towards demands raised vide offer of possession letters, minus the demand qua component of contingent deposit of vat. This was admitted by the Counsel for the parties during arguments.

 

 

 

TABLE-I

 

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered.	Date on which possession taken	Whether amount deposited after offer of possession	Whether documents submitted	DLI if any (Rs.)
1.	88/2017	22.12.2010   (Undertaking dated 31.03.2015)   (Transferred on 22.05.2015)	21.12.2013	26.10.2016	28.03.2017	Yes on 28.02.2017 in terms of this Commission order dated 31.01.2017	Yes	Rs.62,874.69
2.	129/2017	07.04.2011	06.04.2014	26.10.2016	13.04.2017	Yes on 27.02.2017 in terms of this Commission’s order dated 15.02.2017	Yes	Rs.37,734.30

 

37.        In the chart submitted by Counsel for the Opposite Parties, it was clearly stated by counsel for the Opposite Parties, that in the aforesaid two complaints, possession of the unit(s), in question, stood delivered to the complainant(s) on 28.03.2017 & 13.04.2017 respectively, after receipt of amount towards the demand raised vide offer of possession letters minus contingent deposit of vat.

38.        Therefore, in complaint bearing Nos.129 of 2017, the complainants are held entitled to compensation @12% p.a. interest for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession. However, in Complaint No.88/2017, the complainant, being second allottee, furnished an undertaking on 31.03.2015 (Page 205 of the written statement) not to claim compensation on account of delayed possession. The unit was transferred in his favour on 22.05.2015 vide letter (Annexure C-2). In view of ratio of judgment of this Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainant is held entitled to compensation w.e.f. 22.05.2015.

39.        The complainant(s) are also entitled to compensation for mental agony, harassment and deficiency in rendering service.

40.        In Consumer Complaint bearing No.129 of 2017, the complainants are held entitled to compensation in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and deficiency in service.

41.        However, in Consumer Complaint bearing No.88 of 2017, there has been DLI in the sum of Rs.62,874.69, against the complainant. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant, in this case, is not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/-, would serve the ends of justice.

42.        In following five complaints bearing No.174, 187, 222, 223 and 224 all of 2017, particulars of which are indicated in Table-II below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-

TABLE-II

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered	Whether amount deposited after offer of possession.	Whether documents submitted	DLI (Rs.)
A.	B.	C.	D.	E.	F	G	H
1.	174/2017	05.05.2011	04.05.2014	26.10.2016	Yes on 29.04.2017 & 22.05.2017	Pending	Rs.88,415.87
2.	187/2017	17.01.2011   (Transfer Endst. Dt.25.03.2014)   (Undertaking dated 10.03.2014 at Page 265 of W/S)	16.01.2014	15.10.2016	Yes on 24.04.2017	Pending	Rs.3,49,965.00
3.	222/2017	20.01.2011	19.01.2014	08.06.2016	Not deposited	Pending	Rs.53,319.78
4.	223/2017	03.12.2010	02.12.2013	14.01.2016	Not deposited	Pending	Rs.46,859.24
5.	224/2017	09.02.2011	08.02.2014	10.10.2016	Yes on 10.12.2016 & 21.12.2016	Pending	Rs.46,631.21

 

43.        In aforesaid complaint cases, except complaints bearing Nos.222 & 223 both of 2017, no demand qua stamp duty and registration charges was raised         while offering possession. However, in complaints bearing Nos.222 & 223 both of 2017, demand towards stamp duty and registration charges to the tune of Rs.3,21,428/- & Rs.2,89,328/- respectively was raised in the offer of possession letter dated 08.06.2016 & 14.01.2016 respectively.

44.        As per offer of possession letter(s) placed, on record, in complaint cases Nos.174, 187 & 224 all of 2017, six months’ time was given to the complainant(s) to complete the formalities and for making the payment, which has already lapsed. Neither payment was made nor documents submitted.

45.          It may be stated here that the sale deed is to be executed after delivery of possession. Therefore, the actual expenditure for registration of sale deed besides stamp duty and registration charges, shall be borne by the complainant(s) at the time of registration/execution of sale deed.

46.        Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates, Counsel for the Opposite Parties, on instructions, stated that contingent Vat deposit need not be deposited at this stage, subject to furnishing of an affidavit by the complainant(s) to make the payment as and when demanded by the Government. It was also stated that the complainants, in these cases, can pay the stamp duty and registration charges and incidental expenses at the time of execution of sale deed.

47.        In three complaints bearing Nos.174, 187 & 224 all of 2017, (except complaints bearing Nos.222 & 223 both of 2017), amount(s), demand(s) whereof were raised vide offer of possession letters, minus contingent deposit of vat, stood deposited by the complainant(s). However, the requisite documents have not been submitted by the complainant(s).

48.        In Complaint Cases No.223 of 2017, the complainant has pointed out a number of snags in the allotted unit vide Customer Observation sheet dated 21.03.2016 (Annexure C-4).

49.        In Complaint Case No.223 & 224 both of 2017, it was stated by Counsel for the Opposite Parties that reminders were sent to the complainants on 30.06.2017 & 26.06.2017 respectively to take possession.

50.        The Counsel for the Opposite Parties stated that the snags/deficiencies, if any, will be removed, before delivering possession.

51.        Therefore, in complaints bearing Nos.174, 222, 223 & 224 all of 2017, particulars of which are given in Table-II, the complainants are held entitled to compensation by way of grant of 12% interest, for the delayed period, (after two years + one year extended period) up-to the date of offer of possession plus 2 months (30 days for making payment + 30 days grace period).

52.        If after deposit of amount minus contingent deposit of vat and stamp duty & registration charges (in CC Nos.222 & 223 both of 2017) and submission of requisite documents possession is not delivered, for delay beyond 30 days, the complainants shall be further entitled to compensation by way of interest @12% p.a. on the deposited amount.

53.        However, the complainant (Radha Krishan) in Complaint No.187 of 2017, being second allottee, furnished an undertaking on 10.03.2014 (Page 265 of the written statement) not to claim compensation on account of delay possession. The unit was transferred in his favour on 25.03.2014 vide endorsement at Page 63 of the complaint (Annexure C-4). In view of ratio of judgment of this Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainant is entitled to compensation @12% p.a. w.e.f. 25.03.2014.

54.        The complainant(s) in the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service.

53.        In all these complaints bearing Nos.174, 187, 222, 223 & 224 all of 2017, there has been DLI in the sum of Rs.88,415.87, Rs.3,49,965/-, Rs.53,319.78, Rs.46,859.24  & Rs.46,631.21 respectively, against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant(s), in these cases, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/- (in CC Nos.174, 222, 223 & 224 all of 2017) and Rs.1,00,000/- (in CC No.187 of 2017), would serve the ends of justice.

54.          In two consumer complaint bearing No.188 and 238 both of 2017, particulars whereof are indicated below, the complainants have sought refund of the deposited amount:-

Table-III

Sr. No.	Particulars	Complaint No.
		188/2017	238/2017
1.	Amount deposited. (Rs.)	Rs.49,25,461.00	Rs.60,07,980.00
2.	Date of Agreement.	01.04.2011	11.01.2011
3.	Due date for offering possession after 2 years plus 1 year extended period.	31.03.2014	10.01.2014
4.	Whether possession offered	Not offered	Yes on 15.11.2016
5.	Delay in offer of possession	3 Years 4 Months	2 Years 10 Months
6.	Whether first allottee	Yes	2nd Allottee (15.01.2014) (Page 182 of W/S)
7.	DLI	Rs.19,05,851.67	Rs.1,29,279.00

 

55.        In the Chart submitted by the Counsel for the Opposite Parties, during arguments, receipt of the amount as shown against the Column ‘Amount deposited (Rs.)’ at Sr. No.1 in the table, has been admitted.

56.        In complaint No.238 of 2017, as is evident from record of this complaint, the Independent Floor Buyer’s Agreements were executed on 11.01.2011. 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. The possession of the unit, in question, has been offered on 15.11.2016. In this case, three years period for handing over possession expired on 10.01.2014 from the date of the Agreement, which was executed on 11.01.2011. 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. 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, the complainant, in this complaint, is held entitled to refund of the amounts alongwith interest @15% per annum. Since the unit, in question, was transferred in favour of the complainant on 15.01.2014, in the light of ratio of judgment in case titled ‘Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors.’, Complaint Case No.147 of 2016 decided by this Commission on 22.08.2016, the complainant is held entitled to interest @15% per annum, w.e.f. 16.01.2014 onwards in respect of amounts deposited up-to 15.01.2014 and interest @15% per annum on the amounts deposited thereafter from 16.01.2014 from the respective dates of deposits. The complainant is also entitled to compensation of Rs.1,50,000/-.   

 

57.        It may be stated here that in Complaint No.188 of 2017, there has been huge DLI of Rs.19,05,851.67 against the complainant, the last payment having been made on 30.11.2013. Thereafter, nothing was paid by the complainant and as such, huge DLI of Rs.19,05,851.67 is there against him. The complainant is held entitled to refund alongwith 15% interest. Since, the default on the part of the complainant in making payment(s) of installments(s) is writ large and as he did not adhere to the payment plan, therefore, he is not entitled to any compensation on account of physical harassment and mental agony.

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

59.        For the reasons recorded above, all the complaints bearing Nos.56, 88, 129, 174, 187, 188, 222, 223, 224 and 238 all of 2017 are partly accepted, with costs, in the following manner:-

 

 

Consumer Complaints bearing No:

 

56, 88 and 129 both of 2017

 

             In Complaint No.88 of 2017, the unit, in question, was transferred in the name of the complainant on 22.05.2015 and the complainant has also given an undertaking not to claim compensation for the delayed period

             In the above complaint cases, possession of the unit(s) stood delivered to the complainant(s).

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

(i)	Execute and get registered the sale deed in respect of the unit(s), in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), with effect from 13.12.2013, 22.05.2017 & 07.04.2014 respectively till 14.01.2017, 25.12.2016 & 25.12.2016 respectively, 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.              For failure of Opposite Parties to deliver possession within 30 days from the date of making payment by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount, till the date possession was delivered, shall be payable within 45 days and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iii)	Pay compensation in the sum of Rs.1,50,000/- [in CC Nos.56 & 129 both of 2017] & Rs.1,25,000/- [in CC No.88 of 2017], on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, in each case, 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 till realization.

Consumer Complaints bearing No:

 

174, 222, 223 and 224 all of 2017

 

             In complaints bearing No.174 & 224 both of 2017, the Opposite Parties have offered possession in October 2016, (except complaints bearing Nos.222 and 223 both of 2017, in which possession was offered on 08.06.2016 and 14.01.2016 respectively). The Opposite Parties shall hand over possession after removing the snags, if any, within 30 days.

             The Opposite Party (ies), 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), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, 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 05.05.2014, 20.01.2014, 03.12.2013 & 09.02.2014 respectively up-till two months from the date of offer of possession i.e. up-to 25.12.2016, 07.08.2016, 13.03.2016 & 09.12.2016  respectively, 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.              For failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,25,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, in each case, 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.

Consumer Complaints bearing No:

187 of 2017

 

             In this complaint, the Opposite Parties have offered possession in October 2016. Unit, in question, was transferred in favour of the complainant on 25.03.2014. He (complainant) also gave an undertaking dated 10.03.2014 not to claim any compensation for the delayed period. The Opposite Parties shall hand over possession after removing the snags, if any, within 30 days.

 

             The Opposite Parties, in this case, are, jointly and severally, directed as under:-

(i)	To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, to the complainant, after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, is made/documents are completed  by the complainant.
(ii)	Execute and get registered the sale deed in respect of the unit, in question, within one month from the date of handing over of possession to the complainant. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, with effect from 25.03.2014 up-till two months from the date of offer of possession i.e. up-to 14.12.2016, 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.              For failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,00,000/-, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, 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) at the time of execution of sale deed(s).

             As regards the amount of contingent Vat deposit, the complainant(s) shall furnish an affidavit to make the payment as and when demanded by the Government. The complainant(s) shall deposit amount of contingent vat within three weeks from the date 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.

Consumer Complaint bearing No:

188 of 2017.

 

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

1.   To refund the amounts of Rs.49,25,461/- alongwith simple interest @15% per annum, to the complainant, 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;
2.   To pay an amount of 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 Complaint bearing No:

238 of 2017.

 

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

1.   To refund the amounts of Rs.60,07,980/- alongwith simple interest @15% per annum, to the complainant, with effect from 15.01.2014 for the amount(s) paid uptil 15.01.2014 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 15.01.2014 onwards, within a period of 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;
2.   Pay compensation in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount(s) alongwith simple interest @15% per annum from the date of filing the complaint till actual payment.

60.       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 payable, to the extent, the same is due against the complainant(s).

61.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.88, 129, 174, 187, 188, 222, 223, 224 and 238 all of 2017.

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

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

Pronounced.

04.08.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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