Chandigarh

StateCommission

CC/7/2018

Col. Ranjan Gupta - Complainant(s)

Versus

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

Parveen Gupta, Adv.

28 May 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	7 of 2018
Date of Institution	:	08.01.2018
Date of Decision	:	28.05.2018

 

1. Col. Ranjan Gupta S/o Sh. Inderjit Gupta, HN-185/B, Generals Road, MHOW-453441 (MP).
2. Mrs. Meenakshi Gupta W/o Col. Ranjan Gupta, HN-185/B, Generals Road, MHOW-453441 (MP).

…….Complainants.

Versus

 

1. DLF Homes Panchkula Private Limited, (Through its Regional Director/General Manager), SCO 190-192, Sector 8-C, Madhya Marg, Chandigarh.
2. DLF Homes Panchkula Pvt. Ltd. (Through its Managing Director), Regd. Office DLF Gateway Tower, 2^nd Floor, DLF City, Phase-III, Gurgaon – 122002.

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

Argued by:

 

Sh. Parveen Gupta, Advocate for the complainants.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	18 of 2018
Date of Institution	:	12.01.2018
Date of Decision	:	28.05.2018

 

Jaswinder Kaur w/o Baltej Singh r/o 136, Blythwood Road, Seven Kings, I1ford, Essex, IG3, 85G United Kingdom, Through GPA Laxmi Kant Sharma son of Late Shri Jai Dev Sharma resident of 391/B2 Officers Colony, Bitna Road, Pinjore – 134102, District Panchkula.

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh U.T., Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

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

Argued by:

 

Sh. Vineet Chaudhary, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

Consumer Complaint	:	19 of 2018
Date of Institution	:	12.01.2018
Date of Decision	:	28.05.2018

 

Baltej Singh S/o Malkiat Singh R/o 185, Teviot Street, Poplar, London, E 146 PY, U.K., Through GPA Laxmi Kant Sharma son of Late Shri Jai Dev Sharma resident of 391/B2 Officers Colony, Bitna Road, Pinjore – 134102, District Panchkula.

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh U.T., Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

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

Argued by:

 

Sh. Vineet Chaudhary, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	20 of 2018
Date of Institution	:	12.01.2018
Date of Decision	:	28.05.2018

 

Gurnaib Singh Brar S/o Baltej Singh R/o 4 James Close Giden Park Romford, Essex, RMZ, United Kingdom, Through GPA Laxmi Kant Sharma son of Late Shri Jai Dev Sharma resident of 391/B2 Officers Colony, Bitna Road, Pinjore – 134102, District Panchkula.

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh U.T., Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

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

Argued by:

 

Sh. Vineet Chaudhary, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	85 of 2018
Date of Institution	:	23.02.2018
Date of Decision	:	28.05.2018

 

Murti Devi W/o Narinder Singh resident of Vikas Nagar, Near Geeta School, Jorasi Road, Samalkha, Panipat, Haryana.

 

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh U.T., Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

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

Argued by:

 

Sh. Naveen Sheokand, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	95 of 2018
Date of Institution	:	01.03.2018
Date of Decision	:	28.05.2018

 

Hakam Singh S/o Sh. Mihan Singh R/o House No.1220-Ground Floor, Sector-11, Panchkula (Haryana).

 

…….Complainant.

Versus

 

1. DLF Homes Panchkula Private Limited through its Managing Director/Director, SCO 190-191-192, Sector 8-C, Chandigarh.
2. DLF Homes Panchkula Pvt. Ltd., having its registered Office at 12^th Floor DLF Gateway Tower, DLF City, Phase-III, National Highway 8, Gurgaon, Haryana through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.
3. DLF Homes Panchkula Pvt. Ltd. through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.

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

Argued by:

 

Sh. Ammish Goel, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

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 aforesaid six consumer complaints bearing Nos.7, 18, 19, 20, 85 and 95 all of 2018.

2.           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, amount received, DLI etc. and further the date when possession was offered etc., which was taken on record.

3.         Arguments were heard in common. After hearing arguments on 21.05.2018, 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 six complaints could be disposed of, by passing one consolidated order.

4.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.7 of 2018, titled as ‘Col. Ranjan Gupta & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’.

5.         In brief, the facts are that the Opposite Parties issued brochures/leaflets/pamphlets in the year 2010 inviting applications for the booking of independent floors in their project ‘DLF Valley, Panchkula’, possession whereof was promised to be given in two years from the date of formal allotment with all facilities like ATM, Club House, Pool side café, Tennis Court, Billiards Court, 24 hours running water and electricity supply etc. It was further stated that the complainant paid booking amount of Rs.4 Lacs vide receipt dated 30.03.2010 and he was allotted independent floor No.DVF-D6/20-GF#217 in the said project, total cost whereof was Rs.37,98,999.75. Independent Floor Buyer’s Agreement was executed on 03.01.2011 (Annexure C-2). It was further stated that 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 i.e. up-to 03.01.2013. The complainants also took housing loan of Rs.20 Lacs from Army Group Insurance Fund, New Delhi (AGIF) and Tripartite Agreement was signed on 17.02.2012 (Annexure C-3). Vide letter dated 30.12.2013, the complainant requested the opposite parties to supply payment schedule for various installments as it takes time to get the installment released from AGIF. Request made was followed by letters dated 11.10.2014, 17.02.2014, 08.05.2014 and emails dated 29.01.2017 and 06.07.2017 (Annexure C-5 colly.) but till date, no reply has been received. The complainants up-till 09.10.2017 paid an amount of Rs.41,69,860.51 to the opposite parties as per detail given in Para 9 of the complaint. It was further stated that after payment of huge amount, possession of the unit was nowhere in picture.

6.         It was further stated that offer of possession letter dated 29.10.2016 was sent to the complainants on 11.07.2017 i.e. after a delay of 8 months and 13 days, whereby the price of the unit, in question, was increased from 37.99 Lacs to Rs.43.66 Lacs (Annexure C-7). It was further stated that as per statement of account dated 11.07.2017 received, the penal interest of Rs.55,068.86 has been shown as recoverable from the complainants, which is totally illegal, as no schedule for payment of the installments has been given till date despite various letters/emails. It was further stated that the complainants are entitled to get compensation in the form of penal interest @12% p.a. for the delay in handing over the possession of the unit, in question. It was further stated that a legal notice dated 18.11.2017 (Annexure C-11) was sent by courier to the opposite parties claiming the aforesaid interest and also compensation for mental harassment but no reply has been received till date.

7.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over possession of the unit, in question, complete in all respects, immediately and to get the ownership papers like conveyance deed etc. registered in the name of the complainants on payment of the usual charges plus the balance amount but after adjustment of the relief as allowed by this Commission; pay penal interest @12% p.a. on the amount paid for the extended committed date of possession i.e. to pay the same by 10^th of every month, till the possession of the flat is handed over to the complainants; pay compensation of Rs.3,00,000/- for unearned premium, harassment and mental agony; Rs.50,000/- as litigation expenses; and grant any other relief which this Commission deems fit.

8.         The Opposite Parties, in their preliminary submissions in the written statement stated that complaint has been filed in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that as per FSA, an amount of Rs.10,28,943.49 was outstanding, which was not paid till October, 2017 blaming the opposite parties for delay, which was not justified at all. It was further stated that complainants are backing out from the executed contract. It was further stated that on receipt of occupation certificate, possession was offered to the complainants on 29.10.2016. It was further stated that the complainants had full knowledge about the terms of Agreement dated 03.01.2011 executed between the parties. It was further stated that the project is cost escalation free and the complainants are getting benefit of cost escalation on account of construction material/labour land holding cost and also of price appreciation of the floor of more than 20 Lacs. It was further stated that the complainants prayed for unfounded demands, which were not as per executed terms of the Agreement and thus, the Opposite Parties have prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. 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. It was further stated that after dismissal of the said litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Parties vide letter dated 05.06.2013 (Annexure R-3) offered an exit option to the complainants by accepting the refund of their entire amount paid till date with 9% interest but they refused to avail the said exit option and consented to the extension of time. 

9.         In regard to present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received and possession to 1742 customers has been offered and more than 1000 allottees have already taken possession and more than 200 allottees have already got their conveyance deed executed. 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 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 consumers 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 the Opposite Parties 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 10 of the preliminary objections, it was further 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.

11.       On merits, it was stated that the opposite parties never promised to deliver possession within 2 years from the date of formal allotment. It was further stated that as per Clause 11(a) of the Agreement, the Company was to endeavor to complete the construction of the said project within 24 months (2 years) unless there was no delay due to a force majeure condition or due to reasons mentioned in Clauses 11(b) and 11(c) of the Agreement. The factum of execution of Independent Floor Buyer’s Agreement on 03.01.2011 has been admitted. It was further stated that the schedule of payment was provided to the complainants alongwith the allotment letter and the same was also part of the Agreement. It was stated that the total payment made is Rs.41,69,765.42 and not Rs.41,69,860.51. It was further stated that since the project got delayed for the reasons beyond the control of the opposite parties, the opposite parties cannot be made liable for the same, especially so, when vide letter dated 05.06.2013, the complainants were given an option to exit from the project by accepting their money with 9% interest. It was further stated that the complainant consented to continue with the project and refused to take back their money with 9% interest. It was further stated that reason for increase in price was properly explained in the offer of possession letter and the same was in consonance with the terms and conditions of the agreement. It was further stated that all queries raised by the complainants have been addressed. It was further stated that complainants have been visiting the office of the opposite parties and have demanded compensation for the delayed period for the reasons that the DLI charged is because of delay in disbursement of loan by AGIF. It was further stated that the opposite parties have already offered possession to the complainants but the same is not being taken by them and, as such, they are liable to pay holding charges to the opposite parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

12.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

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

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

15.       It is evident that vide allotment letter dated 07.04.2010 (Annexure C-1), the complainants were allotted Independent Floor No.DVF-D6/20-GF#217 in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between them and the Opposite Parties on 03.01.2011 [Annexure C-2]. The total price of the said independent floor, as depicted in the Agreement, was Rs.37,26,499.75, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.42,96,050.42 i.e. (Rs.41,69,765.42 + Rs.1,26,285.00) has actually been paid to the Opposite Parties, as mentioned in the Chart showing details of the property etc., in question, placed on record, under the signatures of the Counsel for the Opposite Parties, and as admitted at the time of arguments on 21.05.2018. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It may be stated here that in view of stay by Hon’ble Supreme Court, the Opposite Parties gave option on 05.06.2013 to the complainants to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession (Annexure R-3 at Page 55 of the written statement). It is a fact that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 (Annexures R-8 & R-9), which in turn, delayed the completion of the project. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Parties to the complainants vide letter dated 29.10.2016 vide offer of possession letter (Annexure C-7), which the complainants received on 11.07.2017 through email and the instant complaint has been filed on 08.01.2018.

16.        The Opposite Parties, 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 Parties failed to complete construction and deliver possession within stipulated period and extended one year period, they (Opposite Parties) are themselves responsible for delay and deficiency in service. Their prayer amounts to seeking amendment   of the terms and conditions of the Agreement and the same being devoid of merit, must fail, and the same stands rejected.

17.        The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 03.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party

 

rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexure R-6 & R-7), is not relevant.

18.        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 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.

            In view of the above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected.

19.       In regard to other preliminary objections raised by the Opposite Parties, in their written statement, as referred to in Para 10 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, at Page 56 of the written statement) was made by the complainants at Chandigarh address of the Opposite Parties 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 03.01.2011 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. The objection raised by the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Parties 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 the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Parties 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.”

 

            Undoubtedly, the complainants purchased the flat, in question, for their residential purposes as they have sought possession of the same.

            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 the Opposite Parties, in their written reply, being devoid of merit, is rejected.

20.        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 03.01.2011 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 Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the 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.

21.       The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012 (Annexures R-8 & R-9), 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 02.01.2014. No justification whatsoever for delay in offering possession beyond 02.01.2014 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 03.01.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, 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 Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 29.10.2016 (admittedly received on 11.07.2017), clearly, there is inordinate delay (around 3 years 6 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 the Opposite Party.

22.       While offering possession vide letter dated 29.10.2016 (received by the complainant on 11.07.2017), the Opposite Parties raised a demand of Rs.11,11,709.49 i.e. (Rs.10,28,943.49 + Rs.82,766.00), which included contingent deposit of Vat of Rs.22,916/-. It may be stated here that against the demand raised, the complainants have deposited total amount of Rs.42,96,050/-, which included Rs.1,26,285/, which was deposited on 17.05.2018, in  terms of order passed by this Commission on 04.04.2018. The fact is that the complainants did not deposit the complete payment. The requisite documents have also not been executed/submitted by the complainants to the Opposite Parties. The complainants are duty bound to deposit the balance amount and submit/execute the requisite documents. The Counsel for the opposite parties stated that possession is ready and complainants can take over the same.

23.         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, the Opposite Parties 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 03.01.2011 i.e. by 02.01.2014. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 29.10.2016, which letter the complainants received on 11.07.2017. There is, thus, inordinate delay of 3 years 6 months, even beyond the extended period, in offering possession on account of which, the complainants deserve to be compensated. It may be stated here that a 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.

 

24.         No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants 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.  

25.       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. 03.01.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 29.10.2016 (admittedly received on 11.07.2017), the complainants shall be entitled to compensation up-to plus 2 months from 11.07.2017 i.e. up-to 10.09.2017 (30 days for making payment + 30 days grace period). Since the complainants did not deposit the entire amount as demanded in the offer of possession letter, delay beyond two months, as above, is clearly attributable to them and not the Opposite Parties. 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 the Opposite Parties 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 is delivered.

26.       It may be stated here that during arguments, Counsel for the opposite parties stated that credit of an amount of Rs.2,00,000/- on account of compensation has been given to the complainants. Therefore, in case, any such credit of Rs.2,00,000/- on account of delay compensation has been given to the complainants, the same shall be deducted from the compensation amount arrived at by way of interest @12% for delay period.

27.       In the instant case, there is a DLI of Rs.81,660.91 against the complainants for not remitting the installments in time. The case of the complainants, as averred in Paras 8 & 10 of their complaint, is that have not been supplied the payment schedule till date, despite sending numerous letters/emails (Annexure C-5 colly.), the last having been sent on 06.07.2017. It was stated that in the absence of schedule for payment of installments, the Opposite Parties could not charge delayed interest and as such, the complainants are not entitled to pay penal interest of Rs.55,068.86 (now increased to Rs.81,660.91 as shown in the Chart).

28.       The above argument of the complainants cannot be accepted as they have themselves placed on record copy of allotment letter dated 07.04.2010 as Annexure A-1, alongwith which, Schedule of Payment and the Payment Plan have been duly annexed. Therefore, it cannot be said that they are not liable to pay the penal interest for delay in remitting the installments. Not only this, vide letter dated 07.10.2015 (at Page 141 of the written statement), the complainants were duly informed by the Opposite Parties that balance amount payable towards DLI was Rs.6,600.66, as the complainants had already paid an interest amount of Rs.60,234.32 against the total outstanding DLI of Rs.64,979.97. This fact has further been clarified in offer of possession letter dated 29.10.2016, wherein against total DLI of Rs.81,660.91, an amount of Rs.60,234.32 is shown to have been received and balance DLI was in the sum of Rs.21,426.56. The plea of the complainants, is not tenable and the same stands rejected. No deficiency can be attributed to the opposite parties on this count.

29.         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 the Opposite Party, 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.

            Delay in payment of installments partly contributes to delay in completion of the project. Therefore, the complainants are not entitled to same amount of compensation, which this Commission has been granting in cases of this project. In the facts and circumstances of the case, grant of compensation in the sum of Rs.1,00,000/-, would serve the ends of justice.

30.       In five connected complaints bearing Nos.18, 19, 20, 85 and 95 of 2018, the possession of the unit(s), in question, has only been offered and not delivered to the complainant(s). However, in complaint bearing No.85 of 2018, the complainant has sought refund of the deposited amount. The details of date of agreement, due date for possession, date on which possession offered, whether amount deposited after offer of possession and documents submitted etc., are given in the following table:-

	COMPLAINT NO.
Sr. No.		18/2018	19/2018	20/2018	95/2018	85/2018
1.	Date of Independent Floor Buyer’s Agreement.	15.03.2011	18.02.2011	02.02.2011	20.01.2011	09.02.2011 (2nd Allottee) 22.01.2013
2.	Amount paid as per Chart (Rs.).	42,69,944.13	38,19,948.16	30,69,944.13	48,63,055.05	54,02,848.00
3.	Due date for possession after 2 years plus 1 year extended period.	14.03.2014	17.02.2014	01.02.2014	19.01.2014	08.02.2014
4.	Date on which possession offered.	26.10.2016	29.10.2016	26.10.2016	31.05.2017	15.11.2016
5.	Whether amount deposited after offer of possession.	Not deposited	Not deposited	Not deposited	Yes on 24.10.2017	Not deposited
6.	Whether documents submitted after offer of possession.	Pending	Pending	Pending	Yes in  October 2017	Pending
7.	Date on which possession delivered.	-	-	-	-	-
8.	Date of Occupation Certificate.	02.05.2016 (R-2 Colly.)	02.05.2016 (R-2 Colly.)	02.05.2016 (R-2 Colly.)	12.01.2017 (R-2 Colly.)	02.09.2015 (R-1 Colly.)

 

 

31.       As is evident from details in the above table, in aforesaid five complaints, though possession of the unit(s), in question, has been offered but the same has not been delivered in any of the case. In complaint bearing No.85 of 2018, the complainant has sought refund of the deposited amount.

32.       It may also be stated here that neither the amounts towards the demands raised vide offer of possession letters have been deposited by the complainants in the aforesaid complaints nor the requisite documents have been executed/submitted, except in Complaint No.95 of 2018, in which, the amount demanded vide offer of possession letter dated 31.05.2017 was deposited on 24.10.2017 and the requisite documents were also submitted in October, 2017.

33.       In complaint bearing No.95 of 2018, the complainant submitted Snag List/Customer Observation to the Opposite Parties on 05.10.2017 (Annexure C-39, at Page 109-110 of the file), pointing out various snags. The Counsel for the Opposite Parties, stated that the snags/deficiencies will be removed, before delivering possession.

34.       It was stated and agreed by Counsel for the Opposite Parties 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.

35.       Therefore, in all the aforesaid complaints i.e. CC Nos.18, 19, 20 & 95 of 2018 (except Complaint bearing No.85 of 2018 wherein the complainant has sought refund of the amount deposited), the complainants are held entitled  to  compensation  @ 12%  p.a.  interest  on    the

 

deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession.

36.       Further after payment and submission of documents, in the event of failure of the Opposite Parties to deliver possession, within 30 days, for delay beyond 30 days, the complainant(s) shall be further entitled to interest @12% till actual physical possession is delivered.

37.        The complainant(s), in the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service. In complaints bearing Nos.18, 19 & 20 of 2018, the complainant(s) are held entitled to compensation in the sum of Rs.1,50,000/- in each case. However, in complaint bearing No.95 of 2018, there has been DLI in the sum of Rs.75,016.86 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, which this Commission has been granting in cases pertaining to this project. Grant of compensation in the sum of Rs.1,00,000/- in this case i.e. CC/95/2018, would serve the ends of justice.

38.        In complaint bearing No.85 of 2018, the complainant has sought refund of the deposited amount of Rs.54,02,848/-  alongwith interest @18% p.a. from the date of deposit till refund of the entire amount; compensation of 5 Lacs on account of causing financial risk, hardship, mental agony, harassment, emotional

disturbance caused and pay Rs.70,000/- as litigation expenses. However, at the time of admission, the complainant restricted the claim qua interest @11% p.a.

39.       In the Chart submitted by the Counsel for the Opposite Parties, during arguments, and as tabulated in the aforesaid table, receipt of above amount of Rs.54,02,848/- has been admitted by the Opposite Parties.

40.       As is evident from record of the above complaint, the complainant, namely, Mrs. Murti Devi, is a subsequent allottee as the unit, in question, was purchased by her from the original allottee Sh. Rajesh Kumar, which was then transferred in her name vide letter dated 22.01.2013 (at Page 199 of the written statement). Independent Floor Buyer’s Agreement was executed between the original allottee and the Opposite Parties on 09.02.2011. As per Clause 11(a), (b) & (c) of the Agreement, 24 months period plus the extended period of 12 months (on account of stay by the Hon’ble Supreme Court from 19.04.2012 till 12.12.2012) from the date of execution of the agreement expired on 08.02.2014. Possession was offered on 15.11.2016. There has been, thus, inordinate delay in offering possession. 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, wherein, there was inordinate delay, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. 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  complainant 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. Further 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 amount alongwith interest @11% per annum. Since the unit, in question, was transferred in favour of the complainant on 22.01.2013, 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 @11% per annum, w.e.f. 22.01.2013 in respect of amounts deposited up-to 22.01.2013 and interest @11% per annum on the amounts deposited thereafter from 22.01.2013 onwards from the respective dates of deposits.

41.       As regards compensation for mental agony, harassment etc., it may be stated here that in the instant case, as is apparent from Final Statement of Account annexed with offer of possession letter dated 15.11.2016, there is a huge DLI in the sum of Rs.1,39,214.69, on account of delayed payments by the complainant. Delay in payment of installments partly contributes to delay in completion of the project. Therefore, the complainant is not entitled to same amount of compensation, which this Commission has been granting in cases of this project. In the facts and circumstances of the case, grant of compensation in the sum of Rs.75,000/-, would serve the ends of justice.

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

43.      For the reasons recorded above, all the complaints bearing Nos.7, 18, 19, 20, 85 and 95 all of 2018 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

7, 18, 19, 20 and 95 of 2018

 

44.       In these complaints, possession of the unit(s), in question, was offered to the complainant(s) in the months of October & November 2016 and May 2017. The amount(s) towards the demand raised vide offer of possession letters have been deposited only in complaints   bearing Nos.7 of 2018 & 95 of 2018. However, some amount still remains due in CC/7/2018. The requisite documents have been submitted by the complainant only in CC/95/2018 and the same are due to be executed/submitted in remaining complaints. Admittedly, possession of the unit(s), in question, has not yet been delivered to the complainant(s). The Opposite Parties shall hand over possession within 30 days after removing the snags, if any, after deposit of amount, wherever due and submission of documents by the complainant(s).

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

(i)	To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, is made and documents, are submitted.
(ii)	Execute and get registered the sale deed(s) 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 03.01.2014, 15.03.2014, 18.02.2014, 02.02.2014 & 20.01.2014  respectively up-till two months from the date of offer of possession i.e. up-to 10.09.2017, 25.12.2016, 28.12.2016, 25.10.2016 & 30.07.2017, [w.e.f. due date(s) of possession in respect of deposits made up-to the said due date and from respective dates of deposits in respect of amount(s) paid after the said due date],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 i.e. after expiry of 45 days period, till realization.             Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), 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., from the date of default till payment is made.
(iv)	Pay compensation in the sum of Rs.1,00,000/- each (in CC/7/2018 & CC/95/2018), Rs.1,50,000/- each (in CC/18/2017, CC/19/2017 & CC/20/2018), on account of mental agony, physical harassment and deficiency in service and litigation costs  of Rs.35,000/-, 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.

 

45.       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).

Consumer Complaint bearing No:

85 of 2018.

 

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

1.   To refund the amount of Rs.54,02,848/- alongwith simple interest @11% per annum, to the complainant, with effect from 22.01.2013 for the amount(s) paid uptil 22.01.2013 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 22.01.2013 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 @13% per annum, instead of 11% per annum, from the date of default i.e. after expiry of 45 days period, till actual payment;
2.   To pay an amount of Rs.75,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @13% per annum, from the date of filing the complaint till actual payment.

47.         However, it is made clear that in case, the complainant has 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.

48.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.18, 19, 20, 85 & 95 of 2018.

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

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

Pronounced.

28.05.2018.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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