Chandigarh

StateCommission

CC/784/2017

Brigadier Girish Gogia (Retd.) - Complainant(s)

Versus

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

Ashim Aggarwal, Adv.

28 Sep 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	784 of 2017
Date of Institution	:	07.11.2017
Date of Decision	:	28.09.2018

 

1.  Brigadier Girish Gogia (Retd.) S/o Sh. Chuni Lal Gogia R/o A-405, Meghadri Heights, Yapral, JJ Nagar (Post), Secunderabad – 500 087.

2.  Poonam Gogia W/o Brigadier Girish Gogia (Retd.) R/o A-405, Meghadri Heights, Yapral, JJ Nagar (Post), Secunderabad – 500 087.

 ……Complainants.

V e r s u s

1.  DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.

2^nd Address:

DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

2.  Mr. Rakesh Kerwell, Director, DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh.

3.  Mr. Manoj Talwar, Director, DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon.

4.  Director, Town & Country Planning Haryana, SCO 71-75, Sector-17C, Chandigarh – 160017.

….. Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

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

                MRS. PADMA PANDEY, MEMBER

Argued by:

 

Ms. Jasneet Kaur, Proxy for Sh. Ashim Aggarwal, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate, for opposite parties No.1 to 3.

 

PER PADMA PANDEY, MEMBER

            The facts, in brief, are that the complainants were allotted an independent flat bearing No.C-2/7-GF, measuring 1550 sq. ft., in the project of Opposite Parties No.1 to 3, known as DLF Valley vide allotment letter dated 15.03.2010 (Annexure C-1) and Independent Floor Buyers Agreement (Annexure C-2) was entered into between the parties on 17.11.2010. The total price of the unit was fixed at Rs.42,34,599.72. As per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement. It was further stated that possession of the unit was offered to the complainants on 19.10.2016 vide letter (Annexure C-4) whereby an amount of Rs.10,71,082/- and Rs.92,015/- towards Residents Welfare Society was required to be deposited by the complainants by 18.04.2017. It was stated that after issuance of final statement of account, opposite parties No.1 to 3, vide email dated 24.03.2017 (Annexure C-5 colly), after adjusting meager compensation of Rs.6,24,147/-, showed an amount of Rs.2,96,935/- & Rs.92,015/- due against the complainants. It was further stated that in lieu of above, the deed of settlement as a prerequisite for giving possession was not in conformity with the Buyer Agreement and therefore, illegal. The complainants vide email dated 15.05.2017 (Annexure C-6) rejected the deed of settlement and requested to rectify the deficiencies in the unit and handover possession at the earliest. It was further stated that the complainants have made the entire payment as demanded by the opposite parties vide offer of possession letter.

2.           Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of opposite parties No.1 to 3, the complainants, in their complaint, have sought physical possession of the flat, complete in all respects, as per terms and conditions of the agreement; execution of sale deed, compensation by way of interest @15% p.a. on the deposited amount after expiry of three years from date of allotment till date of handing over of possession; compensation of Rs.5 Lakhs for deficiency in service, unfair trade practice, mental harassment and loss suffered; Rs.55,000/- towards litigation expenses etc. 

3.           Opposite Parties No.1 to 3, in their preliminary submissions in the written statement stated that offer of possession was sent to the complainants on 19.10.2016 but the complainants were not taking possession. It was further stated that the complainants filed the instant complaint in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that exit option was offered by Opposite Parties No.1 to 3 vide letter dated 02.04.2013 when construction was stayed by the Court. It was further stated that complainants are backing out from the executed contract. It was further stated that the complainants had full knowledge about the terms of Agreement dated 17.11.2010 executed between the parties. It was further stated that after receipt of occupation certificate, offer of possession was sent to the complainants on 19.10.2016. It was further stated that the complainants prayed for unfounded demands which were not as per executed terms of the Agreement. It was further stated that the project was cost escalation free, as the complainants shall get possession of the floor on the same price as committed at the time of allotment of the floor through allotment letter dated 15.03.2010. It was further stated that all the losses/cost, escalation on  many  count  like  building  material  cost, labor cost, land cost etc. have been borne by Opposite Parties No.1 to 3. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012, and after dismissal of the said litigation by Hon’ble Supreme Court on 12.12.2012, Opposite Parties No.1 to 3 vide letter dated 02.04.2013 offered an exit option to the complainants by accepting refund of entire amount paid till date with 9% interest but they refused to avail the said option and apart from opting to continue with the project, also consented to the extension of time.

4.           It was stated that occupation certificates have been received for all 1775 floors and offer of possession to 1707 customers has been sent. It was further stated that out of 1707 allottees, 953 allottees have already taken possession and 195 allottees have already got their conveyance deeds executed. It was further 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.

5.           In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainants have 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; that the complainants are not  consumer as the floor, in question, was purchased by them for investment purposes and earning profits. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement 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 Parties No.1 to 3 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 06.04.2010 to 23.07.2010 and from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 9 of the preliminary objections, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 02.04.2013, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance.

6.           On merits, while admitting the factum of allotment of the unit, in question, to the complainants and execution of the Independent Floor Buyer’s Agreement on 17.11.2010, it was stated that the price of the property as per Schedule of Payment (SOP) is Rs.43,12,099.72 plus service tax for 1550 sq. ft. It was denied that the price of the unit, in question, was Rs.42,34,599.72. It was further stated that due to increase in the area, the total price of the property was Rs.53,14,452.10 plus service tax for an area of 1751 sq. ft.

7.           It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainants within 24 months from the date of signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Party as mentioned in Clauses 11(b) and 11(c) of the Agreement. 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 reiterated that offer of possession letter dated 19.10.2016 was sent to the complainants and the demand raised was in accordance with the terms and conditions of the Agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 3 nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

8.           Since the main reliefs qua possession, delayed compensation, litigation costs etc. have been sought against Opposite Parties No.1 to 3, therefore, notice to Opposite Party No.4 was not issued.

9.           The parties led evidence in support of their case.

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

11.         First, we will deal with an objection, raised by Opposite Parties No.1 to 3, that in the face of existence of provision 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.

12.         It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), 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), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

13.         In view of above, the objection raised by Opposite Parties No.1 to 3, in this regard, being devoid of merit is rejected. Accordingly, Miscellaneous Application bearing No.36 of 2018 moved by Opposite Parties No.1 to 3 under Sections 5 & 8 of Arbitration and Conciliation Act, 1996 for referring the matter to Arbitration also stands dismissed.

14.         In regard to other preliminary objections raised by Opposite Parties No.1 to 3, in their written statement, as referred to in Para 5 above, the following questions fall for consideration:-

(i)           Whether 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 may be stated here that this issue has already been dealt with in detail by this Commission in case titled “Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’, 2017 (3) CPJ 8, wherein in Para 21 and 22, this Commission held as under:-

“21. ……..It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, 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 (Page 80 of written statement) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer's Agreement (Annexure C-2) was also executed between the parties on 03.02.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, 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., v. 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 Fora. 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 complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines v. 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. v. Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others v. 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 complainants 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 the complainants, to file the complaint. The submission of the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

              In the instant case also, application for allotment of Unit (Annexure R-4) was made by the complainants at Chandigarh address of Opposite Parties No.1 to 3 viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh and as admitted, Independent Floor Buyer’s Agreement was also executed between the parties on 17.11.2010 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by Opposite Parties No.1 to 3, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by Opposite Partis No.1 to 3 is that the complainants have 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 and further the complainants were virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. This issue has also been dealt with by this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Paras 23 and 24, which read thus:-

“23.  …….It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties, they were 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"

 

24. 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. v. 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 v. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a 'consumer', as stated above. In the instant case, the complainants are seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainants are trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

 

            The objection, taken by Opposite Parties No.1 to 3, in their written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by Opposite Parties No.1 to 3 is that since the complainants purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. Qua this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Para 25 held as under:-

“25.  ……….It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Rather, the complainants in their complaint, have clearly stated that they purchased the flat, in question, solely for residential purposes. Otherwise also, in a case titled as Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited v. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as "Aashish Oberai v. Emaar MGF Land Limited", Consumer Case No. 70 of 2015, decided on 14 Sept. 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. v. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."

 

The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

 

            The complainants have specifically averred in Para 1 of their complaint that they booked the unit, in question, with desirous of owning a residential accommodation for family use and occupation near Chandigarh. Their averment gets fortified from the fact that they sought possession of the unit, in question.

            In view of above, the complainants fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act and, as such, the objection raised by Opposite Parties No.1 to 3, in their written reply, being devoid of merit, is rejected.  

(iv)       It was argued by the Counsel for Opposite Parties No.1 to 3 that the complainants, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, they waived of their right to raise any grievance. While dealing with this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), held in Para 26 as under:-

“26……..This plea of the Opposite Parties is not well based. While seeking option vide letter dated 05.06.2013, the complainants were informed of delay and extension of one year was sought. One year extended period expired on 02.02.2014 whereas the possession was offered on 15.11.2016. Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 02.02.2014, position would have been different and in that situation, it would have been accepted that the complainants had waived of their right to raise grievance. The plea being devoid of merit is not tenable.”

            In this instant case also, exit option was given to the complainants vide letter dated 02.04.2013 but possession was not delivered even within the extended one year period. Therefore, in the light of observation made by this Commission, as extracted above, the objection raised is not tenable.

15.         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 17.11.2010 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 Opposite Parties No.1 to 3, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were 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.

16.       Opposite Parties No.1 to 3 have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012, 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 on 16.11.2013. No justification whatsoever for delay in offering possession beyond 16.11.2013 has been explained by Opposite Parties No.1 to 3. The argument of Opposite Parties No.1 to 3 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 17.11.2010 and before execution thereof, Opposite Parties No.1 to 3 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 Opposite Parties No.1 to 3 and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to Opposite Parties No.1 to 3. Possession of the unit, in question, having been offered vide offer of possession letter dated 19.10.2016, clearly, there is inordinate delay (two years eleven months) in offering possession of the unit, in question, to the complainants. Delay in offering possession to the complainants is an act of clear deficiency of Opposite Parties No.1 to 3.

17.       It may be stated here during arguments, Counsel for the parties were in agreement that on 28.08.2018, possession of the unit, in question, was handed over to the complainants and some snags were indicated in writing. Ms. Ekta Jhanji, Advocate, Counsel for opposite parties No.1 to 3 stated that those snags were removed and she also showed us photographs. To the statement made, no serious objection was raised by the Counsel for the complainants. Hence, the issue qua handing over of possession stands settled.

18.       It may be stated here that vide Final Statement of Account (at Pages 66 to 68), the total cost of the unit, in question, was shown as Rs.50,18,030.25 + Rs.92,015.00 towards IBMS & CAM charges and an amount of Rs.10,71,082.00 is shown as due for payment besides aforesaid amount of Rs.92,015.00.

19.       Ms. Ekta Jhanji, Advocate, Counsel for opposite parties No.1 to 3 stated at the bar that as on today, no amount is payable by the complainants to opposite parties No.1 to 3. It was stated that up-to 30.05.2017, the entire amount claimed by opposite parties No.1 to 3 was deposited and the requisite documents were signed on 31.05.2017.

20.       It may be stated here that the complainants have challenged the demand raised on account of increase in the area in the offer of possession letter. In the instant case, the increase in the area is less than 15%, for which, no consent was required. Otherwise also, the issue qua legality of demands raised, including that of increase in area, 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. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

21.         The next question, that falls for consideration, is, as to whether, the complainants are 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, Opposite Parties No.1 to 3 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 17.11.2010 i.e. by 16.11.2013. There is, thus, inordinate delay of around two years eleven months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by Opposite Parties No.1 to 3 on 19.10.2016. Clearly there is delay in offering possession on account of which, the complainants deserves to be compensated. It may be stated here that two Judges Bench of 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, where there was delay in delivering possession, 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.

            Also 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.

 

              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 complainants 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.  

22.       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 complainants are 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. 17.11.2013 up-to + 2 months from the date of offer of possession. The possession having been offered on 19.10.2016, the complainants shall be entitled to compensation up-to plus 2 months from 19.10.2016 i.e. 18.12.2016 (30 days for making payment + 30 days grace period). The complainants are, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. In the event of failure of Opposite Parties No.1 to 3 to deliver possession within 30 days after deposit of due payment and submission of documents by the complainants, for delay beyond 30 days, the complainants shall be further entitled to interest @12% p.a. on the deposited amount till possession was delivered.

23.       It was stated and agreed by Ms. Ekta Jhanji, Advocate, Counsel for opposite parties No.1 to 3 that the stamp duty and registration charges would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainants. It was also agreed that Advocate Charges, if any, shall not be payable by the complainants.

24.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by Opposite Parties No.1 to 3, by the date promised in the Agreement and within one year extended period. The complainants have been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. Grant of compensation in the sum of Rs.1,25,000/- on account of mental agony and physical harassment suffered by the complainants would serve the ends of justice.

25.       No other point, was urged/pressed, by the Counsel for the parties, in all the cases.

26.      For the reasons recorded above, the complaint is partly accepted, with costs. Opposite Parties No.1 to 3, jointly and severally, are directed as under:-

(i)	Execute and get registered the sale deed in respect of the unit, in question, within one month 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 complainants.
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainants, with effect from 17.11.2013 up-till 18.12.2016 [w.e.f. 17.11.2013 in respect of deposits made up-to 17.11.2013 and from respective dates of deposits in respect of amount(s) paid after 17.11.2013], 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.             Since the possession stands delivered, the compensation amount shall be calculated for the period of delay as per direction (ii) above and shall be paid to the complainants within 45 days from the date of receipt of certified copy of this order, failing which, the amount so calculated/arrived at, shall start getting 9% interest, after expiry of 45 days, till payment is made.
(iii)	Pay compensation in the sum of Rs.1,25,000/-, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, as litigation costs, to the complainants, 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.

27.       As agreed between the parties, the Advocate Charges shall not be charged by Opposite Parties No.1 to 3. The actual expenditure for registration of Sale Deed besides Stamp duty and Registration charges, shall, however, be borne by the complainants.

28.       However, complaint stands dismissed against Opposite Party No.4, with no order as to cost.

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

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

Pronounced.

28.09.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(PADMA PANDEY)

MEMBER

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