Chandigarh

StateCommission

CC/232/2016

Colonel M.S. Rekhi - Complainant(s)

Versus

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

In Person

29 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	232 of 2016
Date of Institution	:	24.05.2016
Date of Decision	:	29.08.2016

 

1. Colonel M.S. Rekhi son of S.Iqbal Singh Rekhi, aged 51 years.
2. Mrs.Kamal Rekhi, wife of Colonel M.S. Rekhi, aged 46 years.

(Earlier residing at C/o HQ-37, Infantry Brigade, C/o 56 APO).

Now residing at House No.3102, Sector 28D, Chandigarh.

……Complainants

VERSUS

1. DLF Homes Panchkula Pvt. Ltd., having its registered office at 12^th Floor, DLF Gateway Tower, DLF City, Phase 3, NH-8, Gurgaon – 122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/Representative.
2. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh, through its Managing Director/Director/ Authorized Signatory/Representative.

              ....Opposite Parties

Argued by:

Mrs. Kamal Rekhi, complainant No.2 in person and on behalf of complainant No.1.

Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

Complaint case No.	:	243 of 2016
Date of Institution	:	30.05.2016
Date of Decision	:	29.08.2016

 

1. Brig. (Retd.) Rakesh Kant Sharma S/o Late Sh. J. R. Sharma, aged about 57 years, Village & Post Office Dhaliara, District Kangra (HP).

2^nd Address: H.No.209, Army Flats MDC, Sector 4, Panchkula.

……Complainant

VERSUS

1. M/s DLF Homes Panchkula Private Limited through its Managing Director/Director, SCO No.190-191-192, Sector 8-C, Chandigarh.
2.  M/s DLF Homes Panchkula through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.
3. M/s DLF Homes India Limited through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.

              ....Opposite Parties

Argued by:

Ms. Anil Sharma, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

Complaint case No.	:	313 of 2016
Date of Institution	:	04.07.2016
Date of Decision	:	29.08.2016

 

1. Anil Sharma S/o Kewal Krishan Sharma,
2. Kanchan Sharma W/o Anil Sharma,

Both resident of G-902, Nilamber Bellisimo, Vasna Bhayli Road, Vadodara, Gujarat.

……Complainants

VERSUS

1. DLF HOMES PANCHKULA PVT. LTD., SCO No.190-191-192, Sector 8-C, Chandigarh – UT, Pin - 160009, through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing.
2. DLF HOMES PANCHKULA PVT. LTD., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.

 

SITE ADDRESS:

 

THE VALLEY, SECTOR 3, KALKA-PINJORE URBAN COMPLEX.

              ....Opposite Parties

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

 

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

MR. DEV RAJ, MEMBER.

               MRS. PADMA PANDEY, MEMBER.

 

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

PER DEV RAJ, MEMBER

                 By this order, we propose to dispose of, three consumer complaints, bearing no.232 of 2016 titled as Colonel M. S. Rekhi and another Vs. DLF Homes Panchkula Pvt. Ltd. and another, 243 of 2016 titled Brig. (Retd.) Rakesh Kant Sharma Vs. DLF Homes Panchkula Pvt. Ltd. and others and 313 of 2016 titled as Anil Sharma and another Vs. DLF Homes Panchkula Pvt. Ltd. and another. The issues involved in all the cases aforesaid, except minor variations, here and there, of law and facts are the same. Arguments were heard in common, in the above cases.

2.           Under above circumstances, to dictate order, facts are being culled from consumer complaint, bearing no.232 of 2016 titled as Colonel M. S. Rekhi and another Vs. DLF Homes Panchkula Pvt. Ltd. and another. In brief, the facts are that the complainants have a large family and their in-laws also wanted to stay with them, but due to paucity of living space, they are scattered in and around Chandigarh, and as such, felt deprived of living together, in a joint family, in the age of above 70’s.  Keeping in mind the above intricacies, and in order to settle down their family alongwith in-laws, at one place, the  complainants decided to purchase a residential flat/floor having four bedrooms at-least, in or around Chandigarh. With the purpose aforesaid, the complainants decided to purchase an independent floor in project, launched by the Opposite Parties, under the name and style of “DLF Valley” Panchkula. On booking of a residential independent floor, it was assured that complainant No.2, being an employee of the Opposite Parties, would get considerable discount under “Employees Housing Discount Policy 2009”. It was a condition precedent that for getting discount aforesaid, an employee was to work with the organization, regularly for a minimum period of three years. Being, allured by the rosy pictures; provision of various lavish facilities/amenities shown in the brochure Annexure C-1; the complainants moved an application dated 31.03.2010 Annexure C-2 to the opposite parties, for purchase of an independent floor exclusively for residential purpose.  Alongwith the application, they also paid an amount of Rs.6 lacs as booking amount/earnest money. Thereafter, vide allotment letter dated 03.04.2010 Annexure C-3, the  complainants were allotted independent floor bearing No.A1/50, First Floor, in the said project, measuring saleable area 2255 square feet & specific area 1949 square feet, @Rs.2050/- per square feet. The complainants opted for construction linked payment plan Annexure C-4, as per which, the total sale consideration of the said unit was fixed at Rs.54,29,120.69Ps., which included Basic Sale Price; External Development Charges (EDC); Infrastructure Development Charges (IDC); Interest Bearing Maintenance Security (IBMS); INT (interest) and service tax. Out of the total amount of Rs.54,29,120.69Ps., the complainants were entitled to get discount @30% on the basic sale price, under the “Employees Housing Discount Policy 2009”, subject to the condition that complainant no.2 provided her regular services for three years to the Company. As per the payment plan, by 02.08.2010 total amount of Rs.11,30,951/- (Rs.600000/- already paid (+) Rs.1,48,922.65Ps (+) Rs.3,82,028.79ps.) was required to be paid by the  complainants. Thereafter, the remaining amount towards the said unit was to be paid, as and when demanded by the opposite parties, as per the stage of construction of unit, mentioned in the payment plan. Further discount @5% on the basis sale price, was also granted to the complainants, towards defence quota/ scheme vide letter dated 17.05.2010 Annexure C-5. Vide document dated 26.05.2010 Annexure C-6 “Employees Housing Discount Policy 2009”, aforesaid was also honoured to the complainants. Against the total amount of Rs.11,30,951/-  to be paid by 02.08.2010, the complainants had paid an amount of Rs.11,48,022.50ps.. Complainant no.2 requested the opposite parties for executing the Agreement but they lingered on the matter, on one pretext or the other. By 03.11.2011, the complainants had made payment of Rs.17,98,022.50Ps., i.e. more than 41% of the sale price,  as is evident from the receipts Annexure C-7 (colly.). After much persuasion, Independent Floor Buyer’s Agreement Annexure C-8 was executed between the parties on 11.11.2010 at Chandigarh. Out of the total sale consideration of Rs.54,29,120.69Ps., discount @30% was given to the complainants, under “Employees Housing Discount Policy 2009”.

3.          As per Clause 11(a) of the Agreement, the opposite parties were liable to handover physical possession of the complete constructed unit to the complainants within a period of 24 months from the date of execution of that Agreement dated 11.11.2010 i.e. on or before 10.11.2012, subject to force majeure circumstances mentioned in the Agreement. As per demands raised, the complainants had paid Rs.23,46,716.50Ps. towards the said unit by 24.03.2012. However, surprisingly thereafter, the opposite parties stopped making demands of payment towards the said unit. On 12.4.2012, complainant no.2 resigned from the organization of the opposite parties, after serving for about 2 years and 3 months i.e. less than three years, therefore discount @30% on the basic sale price, already given to the complainants, was withdrawn by the Company. However, The opposite parties levied delayed payment interest @18% p.a., to the tune of Rs.52,842/- on the amount adjusted/recovered by them on 31.03.2012, which had already been honoured in the shape of discount, in two parts, on first two installments, towards 30% of the basic sale price. It was stated that customer ledger issued by the OPs would reveal that there was always an excess payment/balance in the account of the complainants. On 31.03.2012, when Rs.52,842/- was deducted towards delayed interest aforesaid, even on that date the account of the complainants was over-flooded with Rs.9,08,412.73Ps. It was stated that thus, the amount of discount aforesaid given on first two installments, was immediately recovered by the opposite parties, from the excess payment only, which had been kept in advance by the complainants, in their account. It was further stated that complainant no.2 visited the office of the opposite parties, with a request to waive of the said interest, as the same was illegally levied, but they refused to do so. According to the complainants, the act of levying interest of Rs.52,842/-, illegally and arbitrarily, amounted to unfair trade practice.

4.          It was further stated that complainant no.2 visited the site, in the end of April 2012, but was surprised to see that construction work had been put to halt. Opposite party no.1 sent letter dated 11.05.2012 Annexure C-10, intimating that construction activities have been stopped at the site, on account of stay granted by the Hon’ble Supreme Court of India, from 19.04.2012 in SLP No.21786-88/2010 in the matter of Ravinder Singh and others Vs. State of Haryana. Possession of the unit was not offered by the stipulated date i.e. 10.11.2012.

5.          It was further stated that instead of giving update on the status of the project, the opposite parties started making demands of further payment from February 2013. Complainant no.2 visited the site to see construction work but was surprised to see that it was going at a snail speed.  There were no basic amenities. Complainant no.2 again visited the office of the opposite parties, in May 2013, to know the exact date of delivery of possession, but to no avail. In response, the opposite parties vide letter dated 05.06.2013 Annexure C-11, intimated the complainants that stay granted by the Hon’ble Supreme Court of India, for construction activities at the site, from 19.04.2012 has been vacated vide order dated 12.12.2012, and on account of that reason, there had been delay in handing over possession. It was further informed vide the said letter that the opposite parties would make an effort to complete the construction with delay of 12 months, and, in case, the complainants are in disagreement to it,  the complainant could seek refund of their amount alongwith interest @9% p.a. Since the complainants were interested only in possession of the unit,  they continued making payments towards the said unit.

6.          It was further stated that the said extended period too, expired in December 2013, yet, possession of the unit was not even offered to the complainants. Complainant No.2 visited the office of the opposite parties in the year 2014 and requested them to complete the construction work, provide all basic amenities and deliver possession of the unit, but the same was not done, even by December 2014. On the other hand, by December 2014, as per demands raised by the opposite parties, the total amount of Rs.50,49,898.86Ps i.e. more than 92% of the total sale consideration of Rs.54,59,391.98Ps., had been received by them but possession of the unit was not even offered. The breakup of payment of amount of Rs.50,49,898.86Ps made by the complainants as given in Para 18 of the complaint is as under:-

S.No.	Receipt date	Receipt No.	Amount paid
1	02.04.2010	00004/410	600000.00
2	01.06.2010	00002/610	165347.00
3	06.07.2010	00090/710	382675.50
4	23.11.2010	00175/1110	200000.00
5	02.08.2011	00017/811	200000.00
6	26.08.2011	00120/811	100000.00
7	03.11.2011	00006/1111	150000.00
8	14.12.2011	00149/1211	100000.00
9	27.02.2012	00550/0212	100000.00
10	28.02.2012	00565/212	100000.00
11	17.03.2012	00948/312	200000.00
12	24.03.2012	01348/312	48694.00
13	08.10.2013	00243/1013	64357.00
14	17.01.2014	00158/114	521304.00
15	05.02.2014	00049/214	533355.93
17	01.03.2014	00010/314	527809.74
18	27.10.2014	00794/1014	67827.24
19	27.10.2014	00796/1014	11200.00
20	19.07.2014	00095/714	533278.00
21	10.02.2014	44741	5387.00
22	03.02.2014	44005	5213.00
23	04.03.2014	45035	5332.00
24	20.07.2014	41633	5387.00
25	03.05.2016	EPR	207773.55
26	17.05.2010	5% DISCOUNT	214957.90
	TOTAL PAID BY COMPLAINANTS		5049898.86

 

Thereafter, complainant no.2 made regular visits to the office of the opposite parties but to no avail. Possession of the unit was not offered to the complainants even by December 2015 i.e. after three years of the stipulated date.

7.          Thereafter, statement of accounts/customer ledger dated 03.05.2016 Annexure C-12 was sent by the opposite parties. To the utter surprise of the complainants, despite receiving Rs.50,49,898.86ps.,  i.e. more than 92% of the total sale consideration of Rs.54,59,391.98Ps.,  still an amount of Rs.9,50,642.86ps was arbitrarily shown pending towards the complainants, towards various heads.  When possession of the unit was not offered to the complainants by 2.5.2016, they sent detailed email dated 03.05.2016 (Annexure C-13) to the opposite parties requesting them to deliver possession and also pay delayed compensation. However, no firm date was given by the opposite parties to deliver possession of the unit to the complainants. The complainants sent reminder vide email dated 07.05.2016 (Annexure C-14) but to no avail.

8.          It was further stated that recently on 15.05.2016, the complainants visited the site and were surprised to see that still the construction/development is being carried out at a snail speed as approach road has not been made available and all basic amenities mentioned in the brochure are still missing and major part of the project is as good as jungle. It was further stated that till date,  the opposite parties are not in a position to deliver legal physical possession of the unit, in question

9.           It was further stated that the aforesaid acts of the opposite parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the opposite parties to pay interest @18% p.a. on the deposited amount of Rs.50,49,898.86ps. for the period of delay i.e. from 10.11.2012 till actual delivery of possession of the unit; hand over actual and legal physical possession of fully constructed independent floor bearing No.A1/50, allotted in favour of the complainants in the said project, measuring saleable area 2255 square feet & specific area 1949 square feet, alongwith all the basic amenities referred to in the Brochure and agreement, after obtaining completion and occupation certificates, alongwith other necessary permissions from the Govt./Authorities concerned; get registered the conveyance and sale deed in respect of the unit in question, on payment of requisite charges by the complainants, directly to the Registering Authority; not to demand stamp duty charges and registration charges from the complainants, as the same are required to be paid by them, directly to the Registering Authority concerned;   refund the amount of delayed interest to the tune of Rs.52,842/- illegally and arbitrarily deducted by

opposite parties, alongwith suitable interest from 31.03.2012 till realization; withdraw the illegal demand shown in the customer ledger to the tune of Rs.9,50,642.86ps. and issue fresh demand in respect of Rs.56,000/- towards club membership charges and enhanced EDC only, if any, alongwith documentary evidence and that too at the time of intimation of possession; pay compensation in the sum of Rs.6 lacs, for causing mental agony, physical harassment, financial loss, to the complainants, and deficiency in service, negligence and adoption of unfair trade and cost of litigation to the tune of Rs.1 lac.

10.        The Opposite Parties, in their preliminary submissions in the written statement submitted that the project was cost escalation free as the complainants shall get the possession of the flat on the same price as committed by the Opposite Parties on 03.04.2010. It was further submitted that construction of the project got delayed due to stay on construction activity by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation. It was further submitted that after dismissal of litigation by the Hon’ble Supreme Court on 12.12.2012, the Opposite Parties offered exit option vide letter dated 05.06.2013 to the complainants for refunding the amount alongwith 9% interest but the complainants opted to continue with the project and consented for extension.

11.           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 and the complainants were            seeking complete amendment/modification/re-writing of the terms of the concluded binding inter-se          agreements and  this Commission lacked jurisdiction    to modify the clauses of the Agreement. It was           further  stated  that  this  Commission did not have  the

jurisdiction to consider the complaint and pass orders on the relief claimed. The other preliminary objection raised is that the complainants are not consumers as the floor, in question, was booked by them not for perusal use but for investment purposes and earning profits.

12.        On merits, it was admitted that the unit, in question, was purchased by the complainants from the Opposite Parties. It was stated that as per Clause 11(a) of the Agreement, the Opposite Parties endeavored to offer possession within 24 months as stipulated in the Agreement and also contemplated to complete the development work at the site. It was denied that the Opposite Parties lingered on the process of execution of the Independent Floor Buyer Agreement. It was stated that Writ Petition No.6230 was filed in Punjab and Haryana High Court, which vide its order dated 06.04.2010 restrained them from creating any third party right and also directed to ensure that the nature of land shall neither change nor any further construction activity was carried out. Subsequently, an appeal against order dated 06.04.2010 was filed before the Hon’ble Supreme Court and the order under challenge was stayed by the Hon’ble Apex Court on 23.07.2010. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was further stated that the Opposite Parties have already completed construction of 1300 independent floors and the occupation certificate of the same has been received from the competent authority and rest of the built-up units are nearing completion. It was further stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL). It was further stated that the Opposite Parties sought approval regarding revision in layout plan on 11.3.2013, which was received on 06.09.2013. It was further stated that the Opposite Parties further sought approval with respect to service plans from the concerned authorities vide letter dated 20.05.2013, which were received on 14.08.2014. It was further stated that the occupation certificate of the flat of the complainants was applied in July 2015 and possession of the floor, in question, would be delivered very soon. It was further stated that the construction of all the facilities/amenities are on verge of completion. 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.

13.        The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

14.        The complainants, in support of their case, submitted affidavit of Mrs. Kamal Rekhi, complainant No.2 (wife of complainant no.1), by way of evidence, alongwith which, a number of documents were attached.

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

16.        We have heard Mrs. Kamal Rekhi, complainant No.2 in person and Ms. Ekta Jhanji, Advocate, Counsel for the opposite parties, and have gone through the evidence, and record of the case, carefully. 

17.        It is evident, on record, that in lieu of application form dated 31.03.2010 (Annexure C-2), complainant No.2 was allotted Independent Floor No.DVF-A1-50-FF#217 in DLF Valley, Panchkula vide allotment letter dated 03.04.2010 (Ann. C-3) and they opted for 2 Years Construction  Linked  Payment  Plan.  5% discount on the basic sale price of the unit, in question, apart from other offers/discounts as applicable to the scheme vide letter dated 17.05.2010 (Annexure C-5) was also offered. Independent Floor Buyer’s Agreement dated 11.11.2010 (Annexure C-8) was executed between the complainants and the Opposite Parties at Chandigarh, as per which, the total price was Rs.52,13,559.69Ps i.e. Basic Sale Price Rs.42,99,157.45Ps. + External Development Charges of Rs.5,49,453.17 + Rs.3,64,949.07 as interest on above components. In addition to the total price and other charges mentioned in the Application/Agreement, Annexure-III to the Agreement, charges as mentioned in Clause 1.4 of the Agreement i.e. Membership Fee Rs.30,000/- for five years, Rs.6,000/- per annum as Annual Club Charges and Rs.20,000/- as refundable security deposit, were payable. Further, as per Clause 11(a), 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. There was stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, on account of which, the Opposite Parties sought extension of time for one year, to which, the complainants agreed. The option to get refund was not exercised by the complainants.

18.        An objection was raised by Counsel for the Opposite Parties that the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between the parties,                  purely to invoke jurisdiction of this Commission. It          was further stated that the complainants were            virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore,           this Commission did not have the jurisdiction to entertain and decide the complaint. It may be stated here, that the complainants hired the services of           the  Opposite  Parties,  for  purchasing  the  unit,  in                                                     

question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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”

 

19.        From the afore-extracted Section 2(1)(o) of 1986 Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 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. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

20.        To defeat claim of the complainants, the next objection raised by the Opposite Parties was that since the complainants had purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealers, 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. The complainants are seeking possession, which means that they purchased the same for their residence. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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 Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. 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.  

21.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to delivery of possession of the unit. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 11.11.2010 (Annexure C-8), being relevant, are extracted hereunder:-

“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, it was liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. As regards stay order dated 06.04.2010 passed by the Hon’ble Punjab and Haryana Court, the same remained operative only upto 23.07.2010, as the stay on construction activities was restored by the Hon’ble Supreme Court. This stay is not relevant as the Buyer’s Agreement was executed on 11.11.2010, when there was no stay. It is, however, 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. Even by that time, limit to provide possession to the complainant had not yet expired. It is also an admitted fact, that by making reference to above, fact of granting stay, which resulted into  delay in construction at the site, consent of the complainant was sought, vide letter dated 05.06.2013, to complete construction within further 12 months. Option was also given to the complainants, to seek refund of his amount deposited, alongwith simple interest @9% P.A. The complainants exercised former option and continued to make payment(s) thereafter and by the time, the complaint was filed, they had paid an amount of Rs.50,49,898.86 (more than 92% of the sale consideration), towards basic sale price and other charges. Reading of written statement makes it very clear, that still no firm date to hand over possession of the unit has been given. Taking into account 12 months extension, Opposite Parties were required to deliver possession on or before 12.11.2013, but not later than that. However, it is an admitted fact that possession of the unit, in question, has not been offered, even by the date of filing the instant complaint, or even till date, despite the fact that more than 92% of the sale consideration has been paid by the complainants, apparently for want of completion of amenities at the site. No doubt, the Opposite Parties averred in their written version, that the occupation certificate of the flat of the complainants was applied in July 2015 and possession of the floor, in question, would be delivered very soon and all the facilities/amenities are on verge of completion, however, they failed to place, on record, any cogent and convincing evidence, that construction of the unit is going to be complete in the near future and also that development in area is in progress. By making a misleading statement, that possession of the unit, was to be delivered within the maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 12.11.2013, and by not abiding by the commitment, made, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. Even during arguments, no firm date, by which the possession would be handed over was given. 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 11.11.2010 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, approval for which was also received in due course of time, the initial time taken for seeking such approvals amounts to clear deficiency on the part of the Opposite Party and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. The complainants are certainly entitled to compensation for delay in possession beyond three years and physical possession of the unit, in question.

25.         The next question, that falls for consideration, is, as to at what rate the complainants are entitled to compensation, 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 have not delivered 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 11.11.2010 i.e. by 12.11.2013. 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.  If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 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. Recently in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

 

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.

22.        The next question which falls for consideration, is, as to whether the Opposite Parties were legally justified in deducting delayed interest to the tune of Rs.52,842/-. It may be stated here that it is not the case of the Opposite Parties that the amount on which they levied delayed interest was demanded from the complainants after sending demand letters followed by reminders but they (complainants) miserably failed to do so. However, on the other hand, it is an admitted case that an amount of Rs.12,50,000/- was lying excess in the account of the complainants maintained by the Opposite Parties and when complainant No.2 left the services of the Opposite Parties, they adjusted the amount in dispute whereupon the Opposite Parties illegally levied the delayed interest. It is significant to add here that perusal of documents on record reveals that there was no delay on the part of the complainants to remit any of the installments. Rather they paid the installments in time as and when demands were raised.

23.        Thus, the complainants paid an amount of Rs.12,50,000/-, without there being any demand from the Opposite Parties, during the period from 23.11.2010 to 14.03.2012. Therefore, when there was an advance credit lying with the Opposite Parties, the question of there being any default on the part of the complainants in paying any installment(s) against the sale consideration of the unit, in question, did not arise at all. Had there been any delay in remitting any amount by the complainants after 14.03.2012, the same would have been condoned as sufficient amount in terms of early payments, was lying at their credit. In view of above, the complainants are entitled to refund of Rs.52,842/- alongwith interest @12% per annum, from the date, it was deducted by the Opposite Parties, till actual payment.

24.         The next question, which falls for consideration, is, as to whether, the amount of Rs.9,50,642.86Ps shown due by the Opposite Parties in the Customer Ledger (Annexure C-12) is correct or not. This statement (Annexure C-12) was supplied by the opposite parties on the request of complainants as stated by the complainants in para 21 of the complaint. In the customer ledger, the amount received from the complainants, has been shown to be Rs.57,22,780.20 and the balance amount of  Rs.9,50,642.86 is shown payable by the complainants. On the other hand, the complainants very bonafidely have stated in Para 18 of their complaint that they paid an amount of Rs.50,49,898.86 (including 5% discount) and not Rs.57,22,780.20. Effectively, the complainants paid a sum of Rs.48,34,940.40Ps. excluding discount of 5% in the sum of Rs.2,14,957.90ps. Clearly, an excess amount of Rs.6,72,881.34 has been shown to have been received in excess from the complainants, which as per version of the complainants is not correct. When the statement of account/customer ledger is in itself defective, the balance amount of Rs.9,50,642.86 shown due against the complainants, cannot be accepted to be correct.

25.        The Opposite Parties utterly failed to explain and justify, as to how, the amount of Rs.9,50,642.86. was due against the complainants. As per construction linked payment plan Annexure C-4, attached with the allotment letter, the total price of the unit in question, including BSP, EDC, IDC, MSE and INT, was as under:-

HEAD	DESCRIPTION	COMP. RATE	DUE AMOUNT	SERVICE TAX
BSP	Basic Sale Price	1906.50	4299157.49	95037.00
EDC	External Dev. Charges	216.69	488635.89	0.00
IDC	Infrastructure Dev. Charges	26.97	60817.28	0.00
MSE	Maintenance Security	50.00	112750.00	0.00
INT	Interest		364949.07	7774.00
			5326309.69	102811.00
	TOTAL			54,29,120.69

 

Undisputedly, the complainants paid an amount of Rs.50,49,898.86. Therefore, only an amount of Rs.3,78,221.83 i.e. (Rs.54,28,120.69 (-) minus Rs.50,49,898.86], becomes due against the complainants, which they are liable to pay on        the basis of demand as and when raised.               Apart from this amount of Rs.3,78,221.83,                 the complainants are also required to pay charges        in terms of Clause 1.4, Taxes in terms of            Clause 1.11  and  other  charges,  in accordance with

the terms and conditions of the Application/Agreement and also  the registration and stamp duty charges at the time of registration of the unit, in question.

26.         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 Parties, by the promised date in the Agreement or latest by 12.11.2013 i.e. within the extended period. The complainants purchased the unit, with the hope that they will have a house to live in. The possession of unit, in question, has not been offered to the complainants, till date, what to speak of delivery thereof. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The compensation in the sum of Rs.6 Lacs claimed by the complainants is on the higher side. The complainants have been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

27.        Details of basic facts viz. date of execution of Independent Floor Buyer’s Agreement(s); total price of the unit as per agreement exclusive of other charges and taxes etc.; amount deposited as per complaint and whether possession offered; are given hereunder, in respect of connected two complaint cases:-

 

Sr. No.	Description/ Details	Complaint No.243  of 2016  Brig. (Retd.) Rakesh Kant Sharma & Anr. Vs. DLF Homes Pachkula Pvt. Ltd. & Ors.	Complaint No.313 of 2016  Anil Sharma & Anr. Vs. DLF Homes Pachkula Pvt. Ltd. & Anr.
a)	Date of Independent Floor Buyer’s Agreement	30.12.2010	22.02.2011(*)
b)	Total Price of Unit as per Agreement exclusive of Taxes etc.	Rs.42,34,599.72	Rs.56,29,599.84
c)	Amount deposited as per compliant.	Rs.34,04,708/-	Rs.52,03,816/-
d)	Whether possession offered.	No.	No.

 

 

(*) Agreement executed with earlier allottee, namely Ms. Arvinder Kaur and Plot was transferred in the name of the complainant(s) vide transfer letter dated 07.03.2013. 

 

 

28.        In the aforesaid two Complaints No.243/2016 and 313/2016, possession of the unit(s) in question, has also not been offered/delivered by the Opposite Parties to the complainant(s). Further in complaint No.313/2016, the Opposite Parties in para 6 of the preliminary submissions in their written statement have stated that the occupation certificate (Annexure-R/1) has already been received by them from the competent authority on 19.07.2016 and action to offer possession of the floor, in question, is in process. As stated in the note appended to the table in the preceding paragraph no.27, the Agreement was executed with earlier allottee, namely Ms. Arvinder Kaur on 22.02.2011 and Plot was transferred in the name of the complainant(s) vide transfer letter dated 07.03.2013, though transfer documents were received by the Opposite Parties on 24.02.2012. In this case, no extension in time for handing over possession of the unit, in question, beyond 24 months, was sought by the Opposite Parties. The plea of the Opposite Parties is that the plot could not be transferred as there was stay of Hon’ble Apex Court. We accept the plea of the Opposite Parties and give them benefit for further one year approximately, during which period, the case of transfer of the unit, in question, in favour of the complainants, was put on hold because             of stay by the Hon’ble Apex Court. Therefore, possession was to be delivered by the Opposite Parties by 23.02.2014 i.e. (24 months + 12 months). Therefore, in view of the observations made in the preceding paras, the complainant(s), in these cases, are also entitled to possession of the unit(s) in question, complete in all respects, plus other reliefs, to which the complainants in consumer complaint No.232 of 2016 are held entitled to.

29.        No other point, was urged, by the Counsel for the parties.

30.         For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are held liable and directed as under:-

Consumer complaint, bearing no.232 of 2016 titled as Col. M. S. Rekhi & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. and another:-

 

1. To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, to the complainants, within a period of three months, from the date of receipt of a certified copy of this order, on payment of legally due amount and other charges and taxes etc., by the complainants.  
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty, by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 12.11.2013 (promised date in view of the extension sought vide letter dated 05.06.2013 i.e. 12 months after the stipulated date as per Agreement), till 31.08.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.09.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15 % p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To refund an amount of Rs.52,842/- to the complainants alongwith interest @12% per annum from the date it was deducted by the Opposite Parties, within a period of 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @15% p.a., from the date of filing the complaint till realization.
6. To pay compensation, in the sum of Rs.1,50,000/-, (Rupees One lac and fifty thousand), on account of mental agony and physical harassment, caused to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
7. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

Consumer complaint, bearing no.243 of 2016 titled as Brig. (Retd.) Rakesh Kant Sharma & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. and others:-

 

1.    To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, to the complainant, within a period of three months, from the date of receipt of a certified copy of this order, on payment of legally due amount and other charges and taxes etc., by the complainants.  
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty, by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 31.12.2013 (promised date in view of the extension sought vide letter dated 05.06.2013 i.e. 12 months after the stipulated date as per Agreement), till 31.08.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.09.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15 % p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1.50 lacs, (Rupees One lac and fifty thousand), on account of mental agony and physical harassment, caused to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

Consumer complaint, bearing no.313 of 2016 titled as Anil Sharma & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. and another:-

 

1.    To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, to the complainants, within a period of three months, from the date of receipt of a certified copy of this order, on payment of legally due amount and other charges and taxes etc., by the complainants.  
2. To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty, by the complainants.
3. To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 23.02.2014, till 31.08.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
4. To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.09.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15 % p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5. To pay compensation, in the sum of Rs.1.50 lacs, (Rupees One lac and fifty thousand), on account of mental agony and physical harassment, caused to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6. To pay cost of litigation, to the tune of Rs.50,000/- to the complainants, within 45 days from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

31.        Certified copy of this order, be placed on the file of consumer complaints bearing nos.243 of 2016 and 313 of 2016.

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

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

Pronounced.

29.08.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

         MEMBER

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