Chandigarh

StateCommission

CC/54/2016

Hari Ram Dangra - Complainant(s)

Versus

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

K.S. Arya Adv.

25 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	54 of 2016
Date of Institution	:	11.02.2016
Date of Decision	:	25.07.2016

 

1. HARI RAM DANGRA S/o Sh. Fateh Singh
2. ARUN KUMAR S/o Sh.Hari Ram Dangra

Both Residents of House No-304, Group Housing Society -103,Sector-20,Panchkula, Haryana

                                         .........Complainants

 

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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

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

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	55 of 2016
Date of Institution	:	11.02.2016
Date of Decision	:	25.07.2016

 

1. Lt. Col. D. P.S. Yadav S/o Sh. Risal Singh Yadav,
2. Rachna Yadav W/o Lt. Col. D. P.S. Yadav,

Both residents of House No.493, Sector 8, Panchkula, Haryana.

…..Complainants.

 

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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

….Opposite Parties.

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	56 of 2016
Date of Institution	:	11.02.2016
Date of Decision	:	25.07.2016

 

Sh. Pankaj Garg S/o Sh. Ramesh Garg, resident of SCF 42, Sector 8, Panchkula, 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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex.

….Opposite Parties.

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

 

 

Consumer Complaint	:	69 of 2016
Date of Institution	:	25.02.2016
Date of Decision	:	25.07.2016

 

1. Sh. Arjun Singh Patial s/o Sh. Bishan Dass,
2. Bishan Dass S/o Sh. Munshi Ram,

Both residents of H.No.354-A, Sector 15, Panchkula.

 

…..Complainants.

 

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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

….Opposite Parties.

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	70 of 2016
Date of Institution	:	25.02.2016
Date of Decision	:	25.07.2016

 

1. Sh. Pramod Kumar Kashyap s/o Sh. Murli Dhar Kashyap,
2. Abhishek Kashyup S/o Sh. Parmod Kumar Kashyup,

   Both residents of H.Bo.214, Sector 22A, Chandigarh.

……Complainants.

 

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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

 

….Opposite Parties.

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

 

 

Consumer Complaint	:	71 of 2016
Date of Institution	:	25.02.2016
Date of Decision	:	25.07.2016

 

Lt. Col. Naveen Suri resident of H.No.162/4, Arun Khetrapal Enclave, Allenby Lines, Ambala Cantt., Haryana 133001.

…..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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

….Opposite Parties.

 

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainant.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

 

Consumer Complaint	:	72 of 2016
Date of Institution	:	25.02.2016
Date of Decision	:	25.07.2016

 

1. Abhay Dhall S/o Sh. Shil Kumar,
2. Neha Kapoor W/o Sh. Abhay Dhall,

Both residents of H.No.637, First Floor, Sector 10, Panchkula, Haryana.

……Complainants.

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 & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address:-

The Valley, Sector 3, Kalka-Pinjore Urban Complex

….Opposite Parties.

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	157 of 2016
Date of Institution	:	22.04.2016
Date of Decision	:	25.07.2016

 

1.  Neera Agarwal W/o Sh. Amar Nath Agarwal,

2. Ankur Agarwal S/o Sh. Amar Nath Agarwal,

Both residents of 113, SFS Flats, Shakti Apartments, Ashok Vihar, Phase – 3, Delhi – 110052.

 

…..Complainants.

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 & 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.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

Argued by:

 

Sh.  Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

PER DEV RAJ, MEMBER

            Vide this common order, we propose to dispose of eight complaints bearing No.54/2016, 55/2016, 56/2016, 69/2016, 70/2016, 71/2016, 72/2016 and 157/2016 referred to above. Since the facts involved in these complaints are almost identical, the facts are being culled from complaint case No.54 of 2016 titled as ‘Sh. Hari Ram Dangra & Another Vs. DLF Homes Panchkula Pvt. Ltd. & Another’.

2.         The facts, in brief, are that complainant no.1, is a retired employee and complainant No. 2 is working in Dubai and permanent resident of Panchkula, Haryana. The Opposite Parties developed a Residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. On the basis of advertisements/brochure, the complainants approached the Opposite Parties, who represented that the above project is one of the prestigious projects and promised to provide an independent floor with total area of 1550 sq. ft. The complainants booked a flat in DLF Valley Project on 27.09.2010 while availing the construction linked plan and paid an amount of Rs. 4,00,000/- on 27.09.2010 vide receipt RVL/CRB/00346/ 0910. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-3) on 24.12.2010 whereby independent floor No.E-3/2 FF (First Floor) with a parking number P-1F was allotted to the complainants.  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. Further as per Clause 15, if any delay happened beyond 24 months, then the Opposite Parties were to pay compensation @Rs.10/- per sq. feet per month of the saleable area for such delay. The complainants were assured that possession of the flat would be given within the stipulated period as the construction of the project was in full swing. Despite the commitments made in the Agreement, the Opposite parties failed to deliver the possession. The Opposite Parties also published an advertisement dated 13/01/2014 (Annexure C-4) wherein they again promised to handover possession in 2014 but failed to do so. The total price of the unit was fixed as Rs. 51,64,599.81/- for the saleable area of 1550 Sq. Feet.  The complainants till the filing of the present complaint had paid Rs.52,12,304.73 to the Opposite Parties.

3.         Vide letter dated 22.10.2014 (Annexure C-5), the complainants were informed that the saleable area was revised from 1550 sq. ft. to 1740 sq. ft., which resulted in increase in cost by Rs.5,89,000/- and service tax Rs.18,200/-. The complainants agitated the above demand, by relying upon Clause 10 of the Agreement, as a result whereof, the said demand for increase of saleable area was revoked. Opposite Party No.1 vide letter dated 14.01.2016 (Annexure C-6) offered physical possession of the unit, in question, while admitting the fact of the receipt of the occupation certificate for the unit and complainants were asked to deposit Rs.17,51,924.48 within one month failing which, holding charges @Rs.10 per sq. feet per month were payable by the complainants, as per Clause 13 of the Agreement. Opposite Party No.1 vide letter dated 03.02.2016 for handing over the independent floor further asked the complainants to deposit an arbitrary demand on the following heads mentioned herein below.

Change in Area and PLC/Increase area Allotted Area 1550 sq. ft. Final Area As per builder 1740 sq. ft.	Rs. 6,26,200/-
Other Charges (Rs. 91.03 per sq. ft.)	Rs. 78,621/-
Electricity, Sewerage and water charges Proportionate cost of electricity expenditure @ Rs. 58.05 per sq. ft. incurred towards (i) creating infrastructure like HT Feeder, EHT – substation etc for bulk supply of electricity. (ii) proportionate cost of installation of equipments for procuring and supply electricity. (iii) proportionate share of all deposits and charges paid/payable by the Company to Authority. (iv) Sewer, Storm water Connection Charges (Refer clause No. 23 & point No. (ix) of definition of total Price of “Floor Buyers Agreement”) Electrical Meter and Connection charges to individual Floor/Unit Rs.30,497 Per Unit (refer to clause No. 23 & point No.(ix) of definition of Total Price of “Floor Buyers Agreement”)	Rs. 30,497/-
Contingent Deposit of VAT @ Rs. 14.55 per sq ft	Rs. 25,492/-
Club Charges Club Security Deposit	Rs. 15,000/- Rs. 20,000/-
Advocate Charges
TOTAL PAYABLE	Rs. 9,15,514/-

 

It was stated that the above demands were neither mentioned in schedule of payments nor these were part of the Agreement. As per the schedule of payment plan (Annexure C-7), the last installment due was i.e. Rs.2,89,153.80 + Registration Charges+ Club Charges+ Registration + Stamp Duty. Vide letter dated 14.01.2016 (Annexure C-6), the final area of the unit, was also increased by 202 sq. ft. (13%) and a demand of Rs.6,26,200/- was raised on this account, which was against the  norms set by the Haryana Govt. and in violation of building laws and National Building Code.

4.          It was further stated that the complainants were illegally asked to deposit other charges as per Clause 1.11 of the Agreement @Rs.91.03 per sq ft, i.e. Rs.1,59,485/-. It was further stated that the complainants are already paying the charges and taxes i.e., EDC, IDC, Service Tax, IBMS Charges, Quarter Advance CAM and all other taxes which are levied by the Govt./Competent Authority, but qua the other charges the Opposite Parties failed to give any explanation. It was further stated that the Opposite Parties are raising these demands to make the profit at the cost of hard earned money of the complainants.
5.          It was further stated that the Opposite Parties further demanded a proportionate cost of electricity expenditure @Rs.58.05/- per sq. ft. under four heads, totaling Rs.1,01,704/- which was completely illegal, there being no justification for claiming the same. The complainants were also not liable to pay for these demands for Electricity, water and Sewerage Charges as the IDC (Inter Development Charges) were already paid by the complainants @ Rs. 50/- per sq. ft. for Internal Development Work.
6.          It was further stated that the Opposite Parties under the sub-heading (B) of Heading (III) of Electricity, water and sewerage charges demanded Rs.30,497/- for installation of electric meter and connection charges, which was not mentioned in Agreement, which was completely against the Circular No.U-27/2011 dated 01.09.2011 (Annexure C-8) for General and Miscellaneous Charges issued by the Uttar Haryana Bijali Vitran Nigam. As per the said circular, the maximum cost for installation of a Electricity meter comes around Rs.9,000/-. It was further sated that the opposite Parties are unilaterally charging Rs.20,000/- for three phase electricity meter, which was very high as compared to charges of Uttar Haryana Bijli Vitran Nigam.
7.          The Opposite Parties further illegally demanded Rs.25,452/- for contingent deposit of VAT @Rs.14.55/- per sq. ft. which was not mentioned in Agreement and in schedule of payments.
8.          Further a demand of Rs 18,000/- in the name of advocate fees for registration of conveyance deed, was raised by the Opposite Parties, which was very high. It was further stated that the complainants were ready to pay all the justified Govt. charges for registration of conveyance deed but not the unilateral demand of Rs.18,000/-.
9.          It was further stated that neither the Opposite Parties have received any completion certificate from Haryana Country Town Planning Department till date nor any certificate from the Govt. Architect has been obtained.
10.        It was further stated that the other amenities/facilities, as promised, were not even ready for possession and the Opposite Parties were not in a position to give possession of floor, in question. It was further stated that  the Opposite Parties have not provided community hall, covered stilt parking, Yoga Centre, proper swimming pool, library, card/carrom room, pool/billiards room, and a clubhouse with modern facilities and several such facilities/amenities as was provided in brochure/website. It was further stated that the complainants are not liable to pay the club charges as till date, no club and community hall and other promised facilities are available in township. It was further stated that this delay in the grant of possession and raising illegal demands, has caused financial loss and grave mental agony and disturbance to the complainants.

11.       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 the physical and legal possession of unit, in question, complete in all respects, after obtaining due permission and occupation certificate, with all the promised facilities and amenities mentioned

 

in brochure/advertisement as soon as possible; pay compensation @Rs.10 per square feet of the saleable area for delaying the possession along with interest @24% per annum from 08.02.2011 (in fact 24.12.2010); withdraw/quash illegal demands/additional charges of Rs.9,15,514/-and subsequent/consequential taxes and interest levied on above mentioned amount/demand; direct the Chief Architect/Architect of Haryana Country Town Planning Department/other competent authority/recognised Institute or appoint a Court Commissioner to submit a calculation certificate of unit area qua increase/decrease in area after inspecting the flat by visiting the project site; to provide all basic and promised facilities/communities to the complainants within specified time, otherwise to compensate them after that specified time if, such basic and promised facilities mentioned in brochure/advertisement are not provided on a proportionate basis; to give the proper and legal possession of independent floor in question, after obtaining all due permissions and certificates including the Completion Certificate interalia from the concerned authorities; award compensation of Rs.15,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to the actions/omissions; pay Rs.70,000/- as litigation expenses; and grant any other relief which the Commission deems fit and proper under the facts and circumstances of the present case.

12.       The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the parties are bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement and 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. It was stated that the complainants are permanent residents of Panchkula and have not specifically stated any purpose for buying the property in Panchkula itself. It was further stated that complainant No.2 is working in Dubai and booked a property in Panchkula, solely for the purpose of profits. Apart from above objections, the Opposite Parties also moved an application under Section 8 of the Arbitration and Conciliation Act, 1996 for referring the matter to Arbitration.

13.       On merits, it was stated that the complainants applied for booking of an independent floor in DLF Valley Project vide application form dated 27.09.2010 and they were allotted independent floor No.E-3/2-FF vide allotment letter dated 5.10.2010 (Annexure OP-14). The factum of execution of Independent Apartment Buyer’s Agreement on 24.12.2010 between the parties was admitted. It was further stated that the Opposite Parties were bound by the terms of the Agreement to demand the outstanding amount from the complainants in order to offer physical possession of the flat, in question. It was further stated that the Opposite Parties vide demand notice dated 14.01.2016 offered possession of the floor, in question, to the complainants and requested them to remit the outstanding dues and to furnish documents in order to facilitate the execution of the conveyance deed. It was further stated that the complainants have paid an amount of Rs.52,12,304.73. It was further stated that the Opposite Parties only 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 further stated that as per Clause 43 of the Agreement, the Opposite Parties were not liable or responsible for not performing any of its obligation or undertakings as provided in the Agreement, if such performance is prevented due to force majeure  conditions. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of the Opposite Parties. It was further stated that complainants applied for allotment in September 2010 and 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. Further 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 an exit option vide letter dated 05.06.2013 (Annexure OP-8) was given to the complainants, informing them the reason for delay in construction and further gave them an option to avail refund alongwith simple interest @9%. However, the complainants did not avail refund and opted to carry on with the project and gave Opposite Parties another 12 months to complete the project.

14.       It was admitted that letter dated 22.10.2014 regarding increase in area to the extent of 190 sq. ft. was withdrawn by the Opposite Parties. It was further stated that against the demand of Rs.1,59,485/- raised strictly  in terms of Clause 1.11 of the Agreement, vide letter dated 14.01.2016 on account of other charges, the complainants had already paid Rs.80,864/- and only Rs.78,621/- remained to be paid.

15.       It was further stated that the demand of Rs.1,01,704/- in final statement on account of cost of electricity expenditure was in order to provide basic infrastructure like HT Feeder, EHT sub-station etc., as mentioned in Clause 23 of the Agreement.

16.       It was further stated that the demand of Rs.30,497/- made under electrical meter and electric charges, was again in terms of Clause 23 of the Agreement.

17.       It was admitted that vide letter dated 14.01.2016, a demand of Rs.25,452/- as contingent deposit of VAT @14.50 per sq. ft. and Rs.18,000/- as Advocate fee was raised in terms of Clause 3 of the letter alongwith final statement of account.

 

18.       It was further stated that the Opposite Parties have received the occupation certificate (Annexure OP-13) from the competent authority. It was further stated that the construction of all the facilities/amenities are on verge of completion and would be completed in coming days. 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.

19.       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.

20.       The complainants, in support of their case, submitted affidavit of Sh. Hari Ram Dangra (complainant No.1), by way of evidence, alongwith which, a number of documents were attached.

21.       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. 

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

23.       It is evident, on record, that the complainants were allotted a unit bearing number/independent floor No.E-3/2 FF (First Floor) with a parking number P-1F, measuring 1550 Sq. ft.,  in the Project of the Opposite Parties namely ‘DLF Valley, Pachkula”, total price whereof was Rs.51,69,599.81 i.e. Basic Sale Price Rs.44,68,649.98 + External Development Charges of Rs.3,34,427.93 + Rs.3,61,521.90 as interest on above components. The other charges as mentioned in Clause 1.4 of the Agreement were 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.  Independent Floor Buyers Agreement (Annexure C-3) was entered into between the parties on 24.12.2010. 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. It is also not disputed that vide letter dated 05.06.2013, the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work. The complainants agreed to the same.

24.       By moving separate miscellaneous applications in Complaint Cases bearing Nos.54, 55, 56, 69, 70, 71 and 72 all of 2016, the Opposite Parties took a specific objection that due to existence of arbitration clause in the Independent Floor Buyer’s Agreement(s), the matter be referred to the sole Arbitrator.

25.       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. This question qua arbitration has already been dealt with by this Commission recently in Consumer Complaint No.43 of 2016 titled Mr.Prabhujeev Singh Bajaj Vs. Emaar MGF Land Limited and others, decided on 29.06.2016. Relevant Paras 19 to 27 of the said order read thus:-

“19.            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.

                   To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

20.              It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

                   “8. Power to refer parties to arbitration where there is an                     arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

21.              Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon’ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

22.              In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

23.              Now it is to be seen, whether, after making amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, this Commission has no jurisdiction to entertain a consumer complaint.

                   As has been held by Hon’ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

24.              Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon’ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon’ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

25.              We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his entire life savings to get a unit, to have a roof over his head. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses. In the present case, the complainant is claiming refund of Rs.76,56,145/- alongwith interest, compensation and litigation costs, aggregate value whereof, if added may be near about Rs.1 crore. In that event, the complainant will be forced to pay an amount of Rs.1,68,750/-  towards his share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon’ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

26.              The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase a unit, in a housing project, launched by opposite parties no.1 and 2. However, his hopes were shattered, when despite making payment of entire amount towards price, he failed to get possession of a plots, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

27.              Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

                   In view of the above, the argument raised by Counsel for opposite parties no.1 and 2, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.”

 

In view of above position, the objection raised by the Opposite Parties, being devoid of merit, stands rejected. Accordingly, the miscellaneous application(s) under Section 8 of the Arbitration and Conciliation Act 1996 stands dismissed.

26.       An objection was raised by the Opposite Parties that since the complainants sought enforcement of the Agreement, consumer complaint was not maintainable. It has been submitted that such an Agreement is not open to discussion and a person who signs such an Agreement containing contractual terms is normally bound by such terms even though he did not read the same. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the apartment , 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 apartment, 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”

 

27.       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.’s case (supra),  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.’s case (supra). 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.

28.       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 is 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. Consumer Complaint No.137 of 2010, decided on 12.02.2015, 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,  Revision Petition No. 3861 of 2014, decided on 26.08.2015. 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.  

29.       The Opposite Parties while offering possession vide letter dated 14.1.2016 (Annexure C-6) raised demand of Rs.17,51,924.48 to be paid by the complainants within 30 days. The question, which falls for consideration is whether the demand so raised is justified. In the instant case viz. complaint No.54 of 2016, out of demand of Rs.17,51,924.48 raised by the Opposite Parties, the complainants have disputed the demand of Rs.9,15,514/-, details whereof are given in Para 14 of the complaint, terming the same to be not justified. The same reads thus: -

Particulars	Amount
Change in area and PLC/Increase area Allotted Area 1550 Sq. ft. Final area as per builder 1740 sq. ft.	Rs.6,26,200/-
Other charges (Rs.91.03 per sq. ft.)	Rs.78,621/-
Electricity, Sewerage and water charges A) proportionate cost of electricity expenditure @Rs.58.05 per sq. ft.	Rs.1,01,704/-
B) Electrical Meter and Connection charges to individual floor/unit	Rs.30,497/-
Contingent deposit of VAT @Rs.14.55 per sq. ft.	Rs.25,492/-
Club charges	Rs.15,000/-
Club security deposit	Rs.20,000/-
Advocate charges	Rs.18,000/-
Total payable	Rs.9,15,514/-

 

30.       However, during pendency of the complaint, it was stated by Counsel for the complainants, as is evident from zimini order dated 11.03.2016, that out of the demand raised by the Opposite Parties viz. Rs.17,51,924.48Ps, the complainants were ready to deposit the amount of Rs.8,36,410/-  with the Opposite Parties and accordingly, the complainants deposited/transferred an amount of Rs.8,36,410/- in the account of the Opposite Parties through RTGS  as is evident from zimini order dated 01.04.2016. Even the disputed amount of Rs.9,15,514/- has been deposited by the complainants with this Commission, as is evident from zimini order dated 24.05.2016. Thus, the entire amount towards the demand raised vide letter dated 14.01.2016 (Annexure C-6) stood deposited.

31.       Out of the above, the major amount is towards increase in area of independent floor. The complainants in Para 12 of the complaint have stated that saleable area was increased from 1550 sq. ft. to 1740 sq. ft., which resulted in increase in cost by Rs.5,89,000/- plus service tax of Rs.18,200/-. The complainants were duly informed of the same by the Opposite Party vide letter dated 22.10.2014 (Annexure C-5). The complainants were also duly informed about the increase while offering possession, vide letter dated 14.01.2016 (Annexure C-6), that the demand raised by the Opposite Parties, included Rs.6,26,200/- on account of change in area and PLC as per clauses No.1.10 for PLC and 10 for change in area as per Floor Buyer’s Agreement and a sum of Rs.4,12,428/- on account of stamp duty & registration charges. The Opposite Parties, in their written statement, have stated that the demand raised earlier was withdrawn and since there was increase in the saleable area, demand for the same was raised in the final statement of account dated 14.1.2016. In this regard, the Opposite Parties have relied upon Clause 10 of the Agreement, which envisaged that in case of any alteration, modification, resulting in increase/decrease more than 15% in the saleable area, any time prior to the grant of occupation certificate, the company was to intimate in writing to the allottee the proposed changes thereof and the resultant change if any in the total price of the floor to be paid by the allottee. The increase in area being less than 15%, prior consent  of the complainants was not required in view of provision in Clause 10 of the Agreement. The possession raising various demands including the demand for the increased area was sent to the complainants on 14.01.2016. The complainants have not disputed the same within the time stipulated from the dispatch of notice except making an averment to this respect in the complaint. The complainants could dispute the increase on the basis of cogent evidence by way of report/affidavit of an Engineer/Architect but nothing of that sort has been done. Therefore, the demand raised by the Opposite Parties to this effect, is legal and tenable. This point was also not pressed during arguments.

32.       However, in all fairness, the Opposite Parties should have raised the demand for stamp-duty and registration charges after delivering possession of the unit, in question. No doubt, possession of the unit, in question, has been delivered to the complainants but the sale deed is yet to be executed. In our opinion, once the amount on this account has been paid by the complainants, the Opposite Parties are duty bound to get the sale deed registered within a reasonable period of 2 to 2½ months. Therefore, in case the sale deed is not got executed within 2½ months from the date of deposit of stamp duty/registration charges by the complainants, for any delay beyond 2 ½ months, the Opposite Parties till the sale deed is executed, shall pay interest @12% per annum to the complainants on amount deposited towards stamp duty and registration charges.

33.       The other demands are on account of other charges i.e. Rs.78,621/- @Rs.91.03 per sq. ft, electricity and water charges @Rs.58.05 per sq. ft. to the tune of Rs.1,01,704/-; electrical meter and connection charges to the floor in the sum of Rs.30,497/- per unit, contingent deposit of VAT @Rs.14.55 per sq. ft.  in the sum of Rs.25,492/-; club charges in the sum of Rs.15,000/- and club security deposit in the sum of Rs.20,000/-. The Counsel for the Opposite Parties vehemently argued that all these charges are in accordance with terms and conditions of the Agreement only. It may be stated here that at internal page 6 of the Agreement, it was stipulated that the total price was to be calculated on the basis of saleable area of the floor in question, which did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement, for instance:-

1. IBMS.
2. Additional IDC/EDC, wealth tax, government rates, tax on land, fees or levies of all and any kind of whatever name called on the said project, and
3. Maintenance charges, additional PLC, property tax, municipal tax on the said independent floor, and 
4. Charges for any additional parking space(s) other than the parking space(s) which will be charged at the then prevailing rate and will be offered subject to availability, and
5. Stamp duty, registration and incidental charges as well as expenses for execution of the Agreement and conveyance deed (which are to be borne and paid by the allottee); and
6. Taxes; and
7. Club charges;
8. Power back up charges, as applicable; and
9. The proportionate cost of installation of equipments for procuring and supplying electricity, cost for electric and water meter as well as charges for water and electricity connection/consumption; and
10. Any other charges that may be payable by the allottee as per the other terms of the Agreement and such other charges as may be demanded by the Company. 

Besides, as per Clause 1.11 of the Buyer’s Agreement, the complainants agreed that in addition to total price, the complainants shall be liable to pay all taxes as stipulated therein.

34.       It is, thus, evident from the demand raised that major part is on account of increase in area of the unit, which the complainants are bound to pay in view of stipulation in Clause 10 of the Agreement and charges on account of stamp-duty and registration charges etc. For demand raised qua other items, which included certain amount on account of taxes/Vat etc., the Opposite Parties have given complete details. The Opposite Parties have even enclosed letter dated 20.11.2013 from the Chartered Accountants (Page 228 of the written statement), wherein total taxes, vat and service tax on works etc. have been worked out.

 

35.       Thus, in view of above, the demand raised is in accordance with terms and conditions of the Agreement. The demand for payment of Advocate charges in the sum of Rs.18,000/-, in our opinion, is arbitrary. The Opposite Parties also did not press the same. The complainants shall bear the actual expenses, which may be incurred. 

 

36.       Out of total demand of Rs.17,51,924.48, the complainants deposited/transferred an amount of Rs.8,36,410/- in the account of the Opposite Parties through RTGS and this amount of Rs.8,36,410/- also included a sum of Rs.4,12,428/- towards stamp duty and registration charges. A sum of Rs.9,15,514/- also stood deposited with this Commission as is evident from zimini order dated 24.05.2016 and possession of the unit, in question, has also been delivered to the complainants as is evident from order dated 23.05.2016 passed by the National Commission in  First Appeal No.511 of 2016 with IA No.4564 of 2016 alongwith other connected appeals with IAs.

 

37.       Further, in consumer  complaints Nos.69/2016, 70/2016 and 72/2016, miscellaneous applications No.181/2016, 180/2016 and 182/2016 respectively were moved by the counsel for the Opposite Parties that the total outstanding amount payable by the complainants as per the final statement of accounts in the aforesaid cases, was more and whereas the complainants were directed to pay lesser amount and the balance amount payable as per demand(s), was as under:-

Consumer complaint no./MA no.	Demand raised by OP(s).	Amount deposited by complainant in terms of zimini order dt. _____ in SCDRC.	Balance
MA/181/2016 in CC/69/2016	Rs.11,98,730.59 (Annexure C-6)	Rs.6,58,703/- on 02.06.2016	Rs.5,40,027.59
MA/180 of 2016 in CC/70/2016	Rs.11,54,328.62 (Annexure C-6)	Rs.6,12,280/-	Rs.5,42,048/-
MA/182/2016  in CC/72/2016	Rs.13,86,432.32 (Annexure C-7)	Rs.743,621/- on 04.06.2016	Rs.6,42,811.32

 

 

Since the demand raised is in accordance with terms and conditions of Buyer’s Agreement, the balance amount is payable by the complainants.

38.       Details of basic facts viz. date of execution of Independent Floor Buyer’s Agreement(s); amount deposited by the complainant(s); demand raised by the Opposite Parties while offering possession; amount out of the demand raised deposited by the complainant(s) with this Commission or the Opposite Parties; and whether possession of the unit, in question, has been handed over to the complainant(s) or not; are given hereunder, in respect of connected seven complaint cases:-

 

	Sr. No.	Description/Details
	a)	Date of Independent Floor Buyer’s Agreement
	b)	Total Price of Unit as per Agreement exclusive of Taxes etc.
	c)	Amount deposited as per compliant.
	d)	Demand raised while offering possession.
	e)	Amount deposited with SCDRC/OP(s).
	f)	Whether possession handed over.
		Complaint No.55 of 2016
	a)	12.01.2011
	b)	Rs.37,69,599.72
	c)	Rs.38,50,442.60
	d)	Rs.13,28,865.68
	e)	Rs.7,31,350/- deposited with SCDRC (zimini order dated 24.05.2016). Rs.5,97,515/- deposited with Ops on 22.3.2016 (zimini order dated 01.04.2016).
	f)	Yes, as depicted from NCDRC order dated 23.05.2016.
		Complaint No.56 of 2016
	a)	08.02.2011
	b)	Rs.56,29,599.84
	c)	Rs.50,88,375.15
	d)	Rs.19,01,373.48
	e)	Rs.9,76,114 deposited with SCDRC. Rs.9,25,259.48 deposited with OPs (zimini order dated 01.04.2016).
	f)	Yes, as depicted from NCDRC order dated 23.05.2016.
		Complaint No.69 of 2016 alongwith MA/181/2016
	a)	20.01.2011
	b)	Rs.35,37,099.78
	c)	Rs.36,28,112.60
	d)	Rs.11,98,730.59
	e)	Rs.6,58,703/- deposited with SCDRC on  02.06.2016 (order dated 22.06.2016).
	f)	No
		Complaint No.70 of 2016 alongwith MA/180/2016
	a)	07.01.2011
	b)	Rs.35,37,099.99
	c)	Rs.36,34,11.34 as per Customer Ledger (Annexure C-2).
	d)	Rs.11,54,328.62, (Annexure C-6)
	e)	Rs.6,12,280/- deposited with SCDRC on 02.06.2016. (order dt. 22.06.2016).
	f)	No
		Complaint No.72 of 2016 alongwith MA/182/2016
	a)	20.12.2010
	b)	Rs.42,34,600/-
	c)	Rs.42,97,493.32 as per Customer Ledger (Annexure C-4).
	d)	Rs.13,86,432.32 (Annexure C-7)
	e)	Rs.7,43,621/- deposited with SCDRC on 03.06.2016. (order dated 22.06.2016)
	f)	No
		Complaint No.71 of 2016
	a)	01.09.2011
	b)	Rs.40,02,100/-
	c)	Rs.42,26,151/- (C-4)
	d)	Rs.14,35,140/- (C-7)
	e)	Rs.7,17,571.00 deposited with the OP on 02.04.2016.
	f)	No
		Complaint No.157 of 2016
	a)	28.07.2011
	b)	Rs.40,21,000/-
	c)	Full amount paid
	d)	Rs.15,13,623/-
	e)	Full amount paid to the Opposite Parties (zimini order dated 27.05.2016).
	f)	No

39.       The next question, which falls for consideration, is, as to whether the development/amenities were complete. The complainants in the complaint have submitted that same amenities were not complete but no cogent evidence to this effect was brought on record. The Opposite Parties, in their written statement, have stated that out of 1775 built-up units, they received occupation certificate only for 258 units and as on date, 86 units have been offered for possession to the owners. They have further stated that proper water connection and electricity supply was in place and full housekeeping maintenance services are being provided through leading multinational company. It was further stated that each facility shall be completed in the coming days. During arguments, the point regarding non-provision of certain amenities/facilities was not pressed.

40.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. In the instant case, i.e. complaint case No.54 of 2016, Independent Floor Buyer’s Agreement was executed on 24.12.2010. The Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of Agreement dated 24.12.2010 i.e. by 23.12.2012. However, as is evident from record, the Opposite Parties failed to offer possession within the stipulated period of 24 months. It is the case of the Opposite Parties that due to force majeure conditions, delay in completing the project partly accrued due to stoppage of work because of stay on construction activities by the Hon’ble Supreme Court of India. In support of their contention, the Opposite Parties placed, on record, copies of order of Hon’ble Supreme Court of India. The operative part of order dated 19.04.2012, inter-alia, reads thus:-

“With a view to avoid further complications in the matter, we direct the State of Haryana and its functionaries and also the impleaded respondents not to undertake further construction on the land which was acquired vide Notification dated 26.9.2007 read with the declaration dated 25.9.2008. This would mean that all the on going construction activities shall be stopped forthwith.”

 

Undisputedly, the Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 passed by it (Supreme Court) not to undertake further construction at the project land, stood vacated. On account of force majeure circumstances, referred to above, by giving them advantage of 12 months extended period, consent whereof, had been obtained from the complainants, vide letter dated 05.06.2013 (Annexure OP-8), the Opposite Parties were required to deliver possession on or before 24.12.2013 but not later than that, whereas the possession has been handed over in May 2016. No other plausible or convincing reason for delay in delivering the possession has been placed on record.

41.      No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.10/- per sq. ft. of saleable area (Clause 18 of the Application Form (Annexure OP-2) at Page 64 of written statement), which is much less than the bank rate for loan or fixed deposit. 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 1986 Act.

42.       It may be stated here that in case titled 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.”

43.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 24.12.2013, till delivery of possession of the unit, would meet the ends of justice.

44.       In case of Complaint No.71 of 2016 titled Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd., Counsel for the Opposite Parties submitted that unit, in question, was transferred in the name of the complainant from the previous allottee vide letter dated 27.03.2015 (Annexure C-3). The Opposite Parties alongwith their written statement have annexed an undertaking furnished by the complainant, duly notarized, Paras 3 and 4 of which, read as under:-

“3.   I undertakes that I have seen verified examined all the documents and agreements, receipts, correspondence, forms concerning the Independent Floor and has also seen the physical position of the Independent Floor in DLF Valley Panchkula Village Bhagwanpur, Near Surajpur, Tehsil – Kalka project and after being satisfied from the same executing this undertaking.

 

4.    I undertake that I am not entitled for any compensation/claims on account of delay possession of the said Independent Floro as agreed upon with the First Allottee and all the relevant paras in this regard in the Application form/Independent Floor buyer’s Agreement become null and void.

 

 

45.       The Counsel for the Opposite Parties argued that in the aforesaid undertaking, the complainant undertook that he was not entitled to compensation/claim on account of delay possession of the said independent floor and he was bound by the same.

 

46.       Perusal of contents of the aforesaid undertaking, however, reveal as if the unit was ready for possession, whereas, the fact is otherwise and the possession was offered only on 14.01.2016 (Annexure C-6). The complainant in that case apparently furnished the undertaking under the impression that possession of the unit, in question, would be handed over to him immediately. Such an undertaking by no stretch of imagination would mean that complainant was not entitled to compensation for delay after the date of undertaking. Therefore, from the date of undertaking/date when unit was transferred in his name i.e. 27.03.2015, till possession is handed over to the complainant, he (complainant) is entitled to compensation by way of interest @12% per annum on the deposited amount.

47.       Similarly, in Consumer Complaint bearing No.72 of 2016, the complainants furnished more or less a similar undertaking dated 30.09.2014, duly notarized, wherein they undertook that they were not entitled for any compensation/claim on account of delayed possession as agreed upon with the first allottee. The unit, in question, was transferred in the name of the complainants vide letter dated 14.10.2014 (Annexure C-3). In this case, therefore, the complainants are entitled to compensation by way of interest @12% p.a. on the deposited amount from the date of undertaking/transfer till possession is handed over.

48.       In Consumer Complaint No.157 of 2016, the Opposite Parties while offering possession vide letter dated 14.01.2016 raised demand in the sum of Rs.15,13,623.10Ps, which included delayed interest in the sum of Rs.1,08,364.29Ps. The entire amount viz. Rs.15,13,623.10Ps stands deposited by the complainants with the Opposite Parties as is evident from zimini order dated 27.05.2016. The complainants have also stated in Para 9 of their replication that they have paid the amount demanded vide letter dated 14.01.2016, during the period from 15.02.2016 to 17.02.2016 through RTGS/NEFT but still the possession was not offered.

49.               It was also stated that all dues at the time of transfer of unit including delayed interest were cleared as is evident from Annexure R-12 annexed by the Opposite Parties alongwith their reply and as such the demand raised (Rs.1,08,364.29Ps) was not justified. Thus, the Opposite Parties were not only deficient for delay in delivering possession despite entire payment by the complainants on 15.02.2016 to 17.02.2016 but were also deficient in raising demand of Rs.1,08,364.29Ps towards delayed interest when all the dues were cleared by the complainants before transfer of the unit, in question, in their favour. The fact that all the dues were cleared is evident from Annexure R-12 annexed by the Opposite Parties with their written statement, perusal of which, reveals that only a meager amount of Rs.78.73Ps was due. Therefore, the complainants are entitled to refund of Rs.1,08,364.29Ps deposited by them, which amount was included in the demand raised by the Opposite Parties vide letter dated 14.01.2016.

50.            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, by not delivering physical possession of the unit to them, by the opposite parties, by the promised date in the Agreement i.e. by 23.12.2012, plus one year period on account of stay by Hon’ble Supreme Court of India. Thus, the Opposite Parties were duty bound to deliver possession by 23.12.2013. The possession of unit, in question, was offered to the complainants on 14.01.2016 and they were put in possession in May 2016. The complainants, therefore,  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.15 Lacs claimed by the complainants is exaggerated and on the higher side. For delay in delivering possession beyond the stipulated period, the complainants have been granted interest @12% per annum till delivery of possession. The complainants, in our considered opinion, have been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. The price of unit was escalation free. They (complainants) will also get the benefit of escalation in the price of unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, 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/-.

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

52.      For the reasons recorded above, all the complaints are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No.54/2015, 55/2016 and 56/2016:-

 

            In these complaints, the entire amount towards the demand(s) raised by the Opposite Parties while offering possession, stands deposited by the complainants, partly with the Opposite Parties and partly in this Commission. The possession of the unit(s), in question, has also been delivered to the complainant(s).

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

           

(i)	To pay compensation by way of interest @12% per annum on the deposited amount(s) to the complainant(s) [In complaints No.54/2016, 55/2016 & 56/2016] from 24.12.2013, 12.01.2014 & 08.02.2014 respectively i.e. 12 months after the stipulated date as per  Independent Floor Buyer’s Agreements dated 24.12.2010, 12.01.2011 & 08.02.2011  respectively] till delivery of possession, (which in the instant cases, stands delivered); within a period of 45 days, failing which, the said amount(s) shall carry penal interest @15% p.a., instead of 12% p.a., from the date of filing the complaint till realization.
(ii)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of receipt of a certified copy of the order.
(iii)	Pay compensation in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), to the complainant(s), on account of mental agony and physical harassment to him/them,  within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.
(iv)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

           The amount(s) deposited with this Commission, in these three complaints, in the sum of Rs.9,15,541/-, Rs.7,31,350/- and Rs.9,76,114/- respectively alongwith interest accrued thereon, after verification of the amount(s), so deposited, by the office, shall be released to the Opposite Parties, on moving separate application(s).

Consumer Complaints bearing No.69/2015 and 70/2016:-

 

            In these complaints, amount has been deposited partly with this Commission  (Rs.6,58,703/- in complaint No.69 of 2016) and Rs.6,12,280/- in complaint No.70 of 2016) and the balance amount(s) as indicated in Para 37 is yet to be deposited. The complainants shall make payment of Rs.5,40,027.59Ps and Rs.5,42,048/- respectively to the Opposite Parties, within 15 days from the receipt of copies of this order.

            The Opposite Parties 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), within a period of 30 days, from the date, balance payment is made by the complainants.
(ii)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date the possession is handed over.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), from 20.01.2014, and 07.01.2014 respectively till 31.07.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount(s), due to the complainant(s)  w.e.f. 01.08.2016, 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.
(v)	Pay compensation in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), to the complainant(s), on account of mental agony and physical harassment to him/them,  within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.
(vi)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

           After the possession is delivered, the Opposite Parties can get the amounts deposited with this Commission, in these two complaints, in the sum of Rs.6,58,703/- and Rs.6,12,280/- respectively released alongwith interest accrued thereon, by moving separate application(s).

Consumer Complaint bearing No.157 of 2016.

           In this complaint, the entire amount towards demand raised vide letter dated 14.01.2016 stands deposited by the complainants on 15.02.2016 to 17.02.2016 as is evident from zimini order dated 27.05.2016.

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

           

(i)	To hand over physical possession of  the unit, allotted in favour of the complainant, complete in all respects, to the complainant(s), within a period of 30 days, from the receipt of certified copy of the order.
(ii)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date the possession is handed over.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 28.07.2014  till 31.07.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount(s), due to the complainant(s)  w.e.f. 01.08.2016, 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.
(v)	Refund Rs.1,08,364.29Ps to the complainants on account of delayed interest alongwith interest @12% p.a. from the date of deposit, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of filing the complaint till realization.
(vi)	Pay compensation in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), to the complainant(s), on account of mental agony and physical harassment to him/them,  within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.
(vii)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Consumer Complaints bearing No.71/2015 and 72/2016:-

 

            In these complaints, amount by the complainants, against the demand raised, has been deposited partly. While in complaint No.71 of 2016, the complainants have deposited an amount of Rs.7,17,571/- with the Opposite Parties on 02.04.2016, the complainants in complaint No.72 of 2016 deposited a sum of Rs.7,43,621/- in this Commission. The balance amount(s) against the demand raised vide letters dated 14.1.2016 (Annexure C-7) and 03.02.2016 (Annexure C-7) respectively, shall be deposited by the complainants with the Opposite Parties within 15 days from the date of receipt of a certified copy of the order.

            The Opposite Parties 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), within a period of 30 days, from the date  balance payment is made by the complainant(s).
(ii)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date the possession is handed over.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), from the date(s) the undertaking(s), were given, till 31.07.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a. instead of 12% p.a., from the date of default, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount(s), due to the complainant(s)  w.e.f. 01.08.2016, 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.
(v)	Pay compensation in the sum of Rs.1,50,000/- (Rupees One Lac Fifty Thousand only), to the complainant(s), on account of mental agony and physical harassment to him/them,  within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.
(vi)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

 

            After the possession is delivered, the Opposite Parties can get the amount deposited with this Commission, in complaint bearing No.72/2016, in the sum of Rs.7,43,621/- alongwith interest accrued thereon, released by moving separate application.

53.       In all these complaint cases, the amount(s) towards demand(s) raised were to be deposited within 30 days from the date, the demands were so raised. It may be stated here that wherever, there was delay in depositing the amount(s) beyond two months (30 days + 30 days grace period), the period taken in depositing the aforesaid amount beyond two months shall be excluded for the purpose of grant of interest @12% p.a. for the delay period.

54.       Wherever, there is delay in executing the sale deed, beyond 2 ½ months from the date amount for the same (registration and stamp duty charges) was deposited by the complainants, the complainant(s) shall be entitled to interest @12% p.a. for the period of delay beyond 2½ months. Further, in case, the Opposite Parties fail to get the sale deed(s) registered within the stipulated period of one month from the date of receipt of certified copy of this order, interest on the deposited amount beyond 2½ months period shall be payable @15% p.a. instead of 12% p.a. till Sale Deed is executed.

55.       In all these eight complaints, the Advocate Charges in the sum of Rs.18,000/- shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) shall, however, be borne by the complainants.

56.       Certified copy of this order, be placed on the file of connected cases, mentioned above.

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

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

Pronounced.

July  25, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

 [DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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