Chandigarh

StateCommission

CC/805/2017

Madan Lal Kansal - Complainant(s)

Versus

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

Narender Yadav, Vineet Yadav, Adv.

14 Mar 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	805 of 2017
Date of Institution	:	21.11.2017
Date of Decision	:	14.03.2019

 

1. Madan Lal Kansal S/o Late Kaur Sain Kansal

2. Amit Kansal S/o Sh. Madan Lal Kansal

Both R/o C-109, Preet Vihar, Delhi – 110092.

 

                                             .........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.

Registered Office Address:

 

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

 

2. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana India.

3. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	806 of 2017
Date of Institution	:	21.11.2017
Date of Decision	:	14.03.2019

 

Rajeev Kumar Aggarwal S/o Sh. Subhash Chander Aggarwal R/o A.R. Empires Pvt. Ltd., SCO – 9, Universal Complex, Sector – 1, Parwanoo, Distt – Solan.

 

                                             .........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.

Registered Office Address:

 

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

 

2. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana India.

3. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

Consumer Complaint	:	807 of 2017
Date of Institution	:	21.11.2017
Date of Decision	:	14.03.2019

 

Parveen Kumar S/o Sh. Sukhdev Raj R/o A.R. Empires Pvt. Ltd., SCO – 9, Universal Complex, Sector – 1, Parwanoo, Distt – Solan.

 

                                             .........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.

Registered Office Address:

 

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

 

2. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana India.

3. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

Consumer Complaint	:	10 of 2018
Date of Institution	:	09.01.2018
Date of Decision	:	14.03.2019

 

Pankaj Bhardwaj S/o Sh. Ram Avtar Sharma, R/o E 3/18 – Second Floor, DLF Valley Panchkula, Sector – 3, Pinjore – Kalka Urban Complex.

 

                                             .........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.

Registered Office Address:

 

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

 

2. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana India.

3. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

Consumer Complaint	:	25 of 2018
Date of Institution	:	15.01.2018
Date of Decision	:	14.03.2019

 

 

1.  Narinder Jit Singh Gill S/o Mukhtiar Singh,

2.  Nirmal Deep Kaur Gill w/o Sh. Narinder jit Singh Gill,

 

Both R/o #65, Defence Colony, B Block, BRS Nagar, Ludhiana, Punjab.

 

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

 

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

Argued by:

 

Sh. Naveen Sheokand, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

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

 

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

                MRS. PADMA PANDEY, MEMBER.

                MR.  RAJESH  K.  ARYA, MEMBER

 

 

PER  RAJESH K. ARYA, MEMBER

            By this order, we propose to dispose of the aforesaid five consumer complaints bearing Nos.805 of 2017, 806 of 2017, 807 of 2017, 10 of 2018 and 25 of 2018.

2.         Arguments were heard in common. At the time of arguments on 04.02.2019, we were of the opinion that the facts and issues in law, involved in the above complaints, by and large, were the same, and therefore, the same could be disposed of, by passing one consolidated order.

3.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.805 of 2017, titled as ‘Madan Lal Kansal & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Ors.’

4.         In brief, the facts are that the complainants were allotted an independent flat bearing No.E-3/14 FF (First Floor), measuring 1751 sq. ft., in the project of the Opposite Parties, known as DLF Valley and an Independent Floor Buyers Agreement (Annexure C-2) was entered into between the parties on 07.01.2011. 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, failing which, the opposite parties were liable to pay Rs.10/- per sq. ft. per month on account of delay in possession. It was further stated that vide letter dated 14.01.2016 (Annexure C-3), the opposite parties offered possession of the unit, in question, and asked the complainants to deposit the amount of Rs.12,94,661.63, which the complainants deposited on 12.02.2016 and took possession on 26.08.2016 vide possession letter (Annexure C-4). The Sale Deed (Annexure C-5) was also executed on 26.08.2016 under protest i.e. after six months from the date of payment. The complainants wrote email dated 13.09.2016 (Annexure C-6) to the opposite parties followed by a letter dated 31.05.2017 (Annexure C-7), for the delay compensation but all in vain.

5.         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 pay interest @15% p.a. for delay in handing over of the possession till the date of delivery of possession; pay compensation of Rs.5,00,000/- on account of mental agony and physical harassment besides Rs.40,000/- as cost of litigation.

6.         The Opposite Parties, in their preliminary submissions in the written statement stated that on receipt of occupation certificate on 10.07.2015, offer of possession was sent to the complainants on 14.01.2016. It was further stated that immediately upon payment of the dues, the complainants were handed over the possession of the unit and conveyance deed was also executed on 26.08.2016. It was further stated that the complainants filed the instant complaint in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that exit option was given by the Opposite Parties vide letter dated 01.02.2013 when construction was stayed by the Court. It was further stated that complainants are backing out from the executed contract. It was further stated that the complainants had full knowledge about the terms of Agreement dated 07.01.2011 executed between the parties. It was further stated that the complainants prayed for unfounded demands which were not as per executed terms of the Agreement. It was further stated that the project was cost escalation free, as the complainants shall get possession of the floor on the same price as committed at the time of allotment of the floor through allotment letter dated 10.03.2010. It was further stated that all the losses/cost, escalation on  many  count  like  building  material  cost, labor cost, land cost etc. have been borne by the Opposite Parties. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012, and after dismissal of the said litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Parties vide letter dated 01.02.2013 (Annexure R-4) offered an exit option to the complainants by accepting refund of entire amount paid till date with 9% interest but they refused to avail the said option and apart from opting to continue with the project, also consented to the extension of time.

7.         It was stated that occupation certificates have been received for all 1775 floors and possession has been offered to 1742 customers. It was further stated that out of 1775 allottees, 953 allottees have already taken possession and 195 allottees have already got their conveyance deeds executed. It was further stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company, namely, Jones Lang Lasalle.

8.         In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainants are not  consumers as the floor, in question, was purchased by them for investment purposes and earning profits. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 06.04.2010 to 23.07.2010 and from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 11 of the preliminary objections, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 01.02.2013, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance.

9.         On merits, the factum of allotment of the unit, in question, to the complainants, execution of the Independent Floor Buyer’s Agreement on 07.01.2011, offer of possession of the unit, in question, to the complainants on 14.01.2016 and taking over of the same by the complainants on 26.08.2016 and execution of Sale Deed on 26.08.2016 itself has been admitted. It was stated that there was DLI of Rs.154.05 levied against the account of the complainants for delay. It was denied that the conveyance and sale deed were executed by the complainants under protest. It was further stated that the complainants on their own free will executed the conveyance deed. It was further stated that the complainants were neither forced nor were influenced by the opposite parties to sign the said deed. It was denied that the complainants requested the opposite parties to grant compensation on delayed possession. It was stated that cheque bearing No.001173 dated 06.03.2017 in the sum of Rs.4,00,002.37 was handed over to the complainants as compensation on account of delay, which was duly accepted by them without any protest. It was further stated that the said compensation on account of delay was as per terms and conditions of the Floor Buyers Agreement and thus, the complainants are not entitled to any relief whatsoever. It was further stated that the complainants have no cause of action for filing this complaint as Conveyance/Sale Deed has already been executed. 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.

10.       The parties led evidence in support of their cases.

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

12.           Before going into the merits of the case, we would like to deal with the preliminary objections raised by the opposite parties in their written statement.

13.       In four complaints cases bearing No.805, 806 & 807 of 2017 and 10 of 2018, the Opposite Parties moved Miscellaneous Applications bearing No.106, 107, 105 & 225 of 2018 respectively under Order 1 Rule 10(2) of Code of Civil Procedure for striking off the names of       Opposite Parties No.2 & 3, namely, Sh. Rakesh Kerwell, Director & Sh. Ananta Raghuvanshi, Executive Director, Sales and Marketing, from the array of the parties. It has been stated in Para 4 of the application(s) that neither the complainant(s) have made any averment against Opposite Parties No.2 & 3, who are Directors in Opposite Party No.1 – Company nor made any prayer or claimed any relief against them. It has further been stated that even otherwise, the presence of Opposite Parties No.2 and 3 is not necessary to dispose of the complaints effectively. The plea raised is without any basis. A Company acts through its Directors. It has not been denied that Opposite Parties No.2 and 3 are not Directors of the Company and were not responsible for managing the affairs of the Company. The objection is, therefore, not tenable and the same stands rejected. Accordingly, the aforesaid applications stand disposed of.

14.       The next 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. The opposite parties have also filed miscellaneous applications bearing Nos.109, 112 & 110 of 2018 in CC Nos.805, 806 & 807 of 2017 under Sections 5 & 8 of Arbitration and Conciliation Act 1996 for referring the matters to Arbitration. It may be stated here that,        the larger Bench of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

            In view of above, the objection raised by the Opposite Parties, in this regard, being devoid of merit is rejected. Accordingly, miscellaneous applications bearing Nos.109, 112 & 110 of 2018 in CC Nos.805, 806 & 807 of 2017 under Sections 5 & 8 of Arbitration and Conciliation Act 1996 for referring the matter to Arbitration stand dismissed.

15.       In regard to other preliminary objections raised by the Opposite Parties, in its written statement, as referred to in Para 8 above, the following questions fall for consideration:-

(i)           Whether as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that this issue has already been dealt with in detail by this Commission in case titled “Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’, 2017 (3) CPJ 8, wherein in Para 21 and 22, this Commission held as under:-

“21. ……..It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Page 80 of written statement) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer's Agreement (Annexure C-2) was also executed between the parties on 03.02.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., v. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Fora. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines v. Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) : VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

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

              In the instant case also, application for allotment of Unit (Annexure R-5) was made by the complainants at Chandigarh address of the Opposite Party viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh and as admitted, Independent Floor Buyer’s Agreement was also executed between the parties on 07.01.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Parties is that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission and further the complainants were virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. This issue has also been dealt with by this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Paras 23 and 24, which read thus:-

“23.  …….It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines 'service' as under:-

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

 

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

 

            The objection, taken by the Opposite Parties, in its written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Parties is that since the complainants purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, they would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. Qua this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Para 25 held as under:-

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

"In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. v. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."

 

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

 

            The complainants has specifically averred in Para 1 of their complaint that they booked the unit, in question, for their own residential purpose. Their averment gets fortified from the fact that they have already taken the possession of the unit, in question, on 26.08.2016.

            In view of above, the complainants fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act and, as such, the objection raised by the Opposite Parties, in their written reply, being devoid of merit, is rejected.  

(iv)       It was argued by the Counsel for the Opposite Parties that the complainants, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, they waived of their right to raise any grievance. While dealing with this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), held in Para 26 as under:-

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

            In the instant case also, exit option was given to the complainants vide letter dated 01.02.2013 but possession was not delivered even within the extended one year period. Therefore, in the light of observation made by this Commission, as extracted above, the objection raised is not tenable.

16.       Admittedly, vide allotment letter dated 10.03.2010 (at Page 303 of the written statement), Sh. Madan Lal Kansal, complainant No.1 was allotted Independent Floor No.DVF-E3/14-FF-217 in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between the complainants and the Opposite Parties on 07.01.2011 (Annexure C-2). As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It is also on record that vide letter dated 01.02.2013 (Annexure R-4 at page 93 of the written statement), the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work. Vide aforesaid letter, option was also given to the complainants to seek refund alongwith 9% interest. It is a fact duly borne on record that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 (Annexures R-9 & R-10), which in turn, delayed the completion of the project. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Parties to the complainants on 14.01.2016 vide offer of possession letter (Annexure       C-3/R-2 colly.) by raising a demand of Rs.12,94,661.63. It is also the admitted case of both the parties that the complainants paid the aforesaid amount and took possession of the unit, in question, on 26.08.2016 vide Annexure C-4. Conveyance Deed (Annexure C-5) was also got executed on 26.08.2016 itself.

17.        The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 07.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexures R-7 & R-8), is not relevant.

18.        The next question, that falls for consideration, is, as to whether, there was delay in offering/delivering possession of the flat, in question. According to Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 07.01.2011, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

19.       The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012, which in turn delayed the project. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 06.01.2014. No justification whatsoever for delay in offering possession beyond 06.01.2014 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 07.01.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 14.01.2016, clearly, there is inordinate delay (around 2 years 8 days) in offering possession of the unit, in question, to the complainants. Delay in offering possession to the complainants is an act of clear deficiency of the Opposite Parties.

20.       Counsel for the complainants argued that    taking over of possession of the unit in question and execution of Conveyance Deed/Sale Deed was under protest. To say so, he referred to possession taken document dated 26.08.2016 (Annexure C-4), wherein, while putting his signatures, complainant No.1 made a following note:-

“Recd. Possession of our flat without prejudice to our rights & contentions and payments of dues/compensation to us by DLF.”

 

Though the opposite parties in Para 16 of their written statement have specifically denied the protest, as alleged by the complainants, but they miserably failed to refute the said averment. It may also be stated here that the opposite parties have also placed on record copy of the possession taken letter at Page 196 alongwith their written statement, which also clearly reflects the protest raised by the complainants.

21.       To corroborate their case, Counsel for the complainants referred to email dated 21.07.2016 whereby, the complainants wrote to the opposite parties as under and also sought clarification qua compensation for delayed possession:-

“Further to my e-mail and my visit on 6^th July, 2016 at Panchkula site to check my apartment mentioned above, your engineer and another were informed of the various shortcomings and things that need to be done at the apartment, under intimation to me.

 

Once you confirm that the needful has been done, I can come, relook and we can proceed further.

 

Please note that as pointed out to you on the telephone, DLF is required to clarify on the following issues:-

 

1.  xxxxx

2.    As per the agreement signed between us, DLF is liable to pay compensation to the allottee on account of delayed possession which was to be handed over within 2 years.

 

In the account statement dated 14.1.2016 sent to me for final payment, I found that the compensation amount being given is showing as “Nil”. As discussed with you, please arrange for payment of the said compensation amount to me.

 

3.    xxxxx………”

22.       The opposite parties in reply to the above email of the complainants, on 02.08.2016 (Annexure C-6 colly.), informed as under:-

“As per request we are processing the Registration and Possession and will confirm the date for the same.

 

5% Govt. discount has already been credited in your account for Rs.1,58,875/- at the time of 9 demand raised.

 

Request for compensation is under consideration. Please be rest assured we will keep you updated on any further developments on the same…...”

 

23.       Not only this, thereafter, the complainants sent another email dated 13.09.2016 (Annexure C-6 colly.) to the opposite parties, which reads thus:-

“The registration was got done by me on the 26^th of august and possession of the apartment was also taken on the same date.

 

Pl arrange to send me the registration deed soonest as almost 2 weeks have passed and I have not heard from you on this.

 

I invited your urgent attention to the pending payment of compensation to me.

This should not be kept pending now.”

24.       Contents of above emails, when read together, make it crystal clear that it was the case of the complainants from the day one that no compensation was granted to them by the opposite parties on account of delayed possession, when admittedly, the possession of the unit, in question, was offered to them on 14.01.2016 i.e. after a delay of 2 years and 8 days, which they took on 26.08.2016 on account of shortcomings in construction etc.

25.       As such, the plea of the opposite parties that taking over of possession of the unit, in question and execution of Conveyance/Sale Deed was never protested by the complainants is baseless, not tenable and totally unsustainable.

26.       So far as the grievance of the complainants qua non-grant of compensation on account of delayed possession is concerned, it may be stated here that the opposite parties, in their email dated 02.08.2016, as extracted above, have categorically stated that the request of the complainants for compensation is under consideration. However, in letter dated 14.01.2016 (Annexure C-3), whereby possession of the unit, in question, was offered to the complainants, no compensation on account of delayed possession has been given to the complainants and it is showed as “0.00”. Admittedly, the opposite parties handed over a cheque bearing No.001173 dated 06.03.2017 for an amount of Rs.4,00,002.37 to the complainants towards compensation on account of delay vide letter dated 06.04.2017. On receipt of above compensation, the complainants vide their letter/legal notice dated 31.05.2017 (Annexure C-7), agitated their grievance qua compensation awarded, wherein, they, specifically stated, interalia, as under:-

“…….Your letter dated 6.4.2017 does not explain as to how the paltry sum of Rs.4,00,002.37 has been arrived at when a sum of Rs.16,08,922/- was found due and payable as against which, you have remitted a sum of Rs.4,00,002.37 leaving a balance sum of Rs.12,08,919/- payable……”

 

 

27.       With their above letter, the complainants also annexed statement showing the amount determined as due from the opposite parties. The complainants further stated in this letter that the complainants appropriated the aforesaid cheque for Rs.4,00,002.37 in part payment of the amount due from the opposite parties and look forward to receive the balance without any further loss of time.

28.       From the above emails/letters specially email dated 02.08.2016, it is established that by paying an amount of Rs.4,00,002.37 to the complainants vide cheque dated 06.03.2017, the opposite parties admitted their liability qua grant of compensation for delayed possession. Now they cannot turn round and say that the complainants accepted the compensation without raising any protest when from the very first day and also before taking over of possession, the complainants had been writing to the opposite parties for grant of compensation on account of delayed possession. Moreover, letter dated 31.05.2017 (Annexure C-7) refutes the claim of the opposite parties, whereby the complainants agitated the matter qua lesser grant of compensation and to pay the remaining due compensation.  

29.       In our considered opinion, the complainants are certainly entitled to grant of compensation on account of delayed possession.

30.       Now the question that arises for consideration, is, as to what amount of compensation for delayed possession, the complainants are entitled to and whether they were adequately compensated by the opposite parties by paying an amount of Rs.4,00,002.37 on that account uptil 06.03.2017. As already discussed above, the opposite parties have admitted their liability on this account by paying the aforesaid amount. As per the complainants, the amount granted is on the lesser side. Counsel for the complainants argued that in similar cases, this Commission has been awarding interest @12% p.a. (simple) on the deposited amount, for the delayed period in offering possession. Relying upon the calculation sheet annexed with letter dated 31.05.2017, wherein compensation @12% p.a. has been calculated, Counsel for the complainants argued that after adjusting Rs.4,00,002/- paid by the opposite parties, the complainants are entitled to Rs.12,08,919/-.  

31.       As already stated above, in the instant case, the Opposite Parties did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 07.01.2011 i.e. by 06.01.2014. There is, thus, inordinate delay of around 2 years 8 days, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 14.01.2016, which the complainants took on 26.08.2017. Clearly, there is delay in offering possession on account of which, the complainants deserve to be compensated.

32.       It may be stated here that the Hon’ble National Commission vide order dated 11.12.2017 while deciding a First Appeal No.127 of 2017, titled “DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Himanshu Arora & Anr.”, alongwith several other connected appeals, arising out of common order dated 22.12.2016 passed by this Commission, held in Paras 30 of its judgment held as under:-

“30.        It is clarified that in the cases of refund 9% interest shall be payable on the refund amount calculated from the dates of respective payments of installments till the date of refund and in the cases in which possession has been delivered with delay the 9% interest shall be payable on the respective amounts paid in installments from the dates of said payments till the date of delivery of possession.”

 

            Against the aforesaid order of Hon’ble National Commission, DLF Homes Panchkula Pvt. Ltd. filed Civil Appeal No.11097 of 2018 alongwith connected civil appeals, before the Hon’ble Supreme Court of India, which were disposed of by the Hon’ble Apex Court vide order dated 19.11.2018. The Hon’ble Apex Court in its judgment in Para 9 held as under:-

“9.   In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the order passed by the SCDRC.”

 

33.        No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the 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.  

34.       Thus, keeping in view the facts and circumstances of the case and position stated above, the complainants are held entitled to grant of compensation in the form of simple interest @9% p.a. on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 07.01.2014 up-to the date of offer of possession i.e. 14.01.2016. The complainants are, thus, held entitled to compensation by granting interest @9% p.a. (simple) on the deposited amount for the delay period as above.

35.       Since the opposite parties have compensated the complainants to the extent of Rs.4,00,002.37 up-to 06.03.2017, on account of delay compensation, the said amount shall be deducted from the compensation amount arrived at by way of interest @9% p.a. for delay period.

36.       It is pertinent to mention here that on 08.10.2018, Counsel for the complainants made a contention, as recorded in order dated 08.10.2018, that in many other cases, after getting the sale deed executed, having similar terms and conditions, the opposite parties have paid compensation to the owners therein qua the delay caused in giving the possession. This Commission directed Sh. Shiv Kumar, Advisor (Legal) of the opposite parties to place on record an affidavit of the responsible officer showing whether the aforesaid fact is correct or not. In compliance to the said directions, the opposite parties, on 04.02.2019, during the course of arguments, filed affidavit of one Manish Verma S/o Shri S. C. Verma, R/o B-704, Mona Greens, VIP Road, Zirakpur, Punjab, working with the opposite parties, wherein, in Para 3 of the affidavit, it was deposed as under:-

“3.   That I have perused the records maintained by the Company in its normal course of business which are audited internally and externally. Upon perusal of the said our records, it is submitted that the Company has, in terms of the aforesaid legal provisions, in none of the cases, agreed/decided/approved to give any compensation after execution of sale deed in favour of the allottee of the project in question. Wherever the Company has, in terms of any compromise/settlement, given any compensation/rebate, the said terms have been agreed between the parties before execution of the sale deed.”

 

37.       First of all, said Manish Verma has simply stated that he is working with the opposite parties but he did not disclose, as to in which capacity he has filed this affidavit. Even he did not choose to mention his designation in the affidavit. Further the opposite parties, in the affidavit filed, in a very vague manner, on one hand stated that the Company in none of the cases agreed/decided/approved to give any compensation after execution of sale deed, whereas on the other hand, it was stated that wherever the Company has, in terms of any compromise/settlement, given any compensation/rebate, the said terms have been agreed between the parties before execution of the sale deed. Affidavit filed in Court in terms of Commission order is ambiguous and does not categorically deny that they have not paid delay compensation in such like cases. It is not clear. It may also be stated here that the opposite parties were specifically directed to furnish detail of such like cases but they very cleverly, in the affidavit, answered the query raised and such a latent ambiguous plea ought to be interpreted against the party entering it. Therefore, an adverse inference is drawn against the opposite parties.

38.       The opposite parties, in Para 12 of their written statement, have also raised a specific objection that once possession is delivered and sale deed already executed, the present complaint is infructuous. During arguments, it was also so said by the Counsel for the opposite parties. Counsel for the opposite parties referred to contents of Conveyance Deed at Page 3 (running Page 91 of the complaint file), wherein it was stated as under:-

 

“……..No oral or written representations or statements shall be considered to be part of this Conveyance Deed and this Conveyance Deed is self contained and complete in itself in all respects.

 

AND WHEREAS the construction of the Said Independent Floor has been completed and the Vendee(s) has been put in possession of the Said Independent Floor. The Vendee(s) is fully satisfied and has no claim of any nature whatsoever and the Vendee(s) confirms that the Saleable Area (defined hereinafter) of the Said Independent Floor is approximately 162.67 Sqmt (1751 Sqft).”

 

39.       It was argued that since the Conveyance/Sale Deed was executed on 26.08.2016, the complainants waived off their rights for claiming further compensation on account of delayed possession under Doctrine of Waiver.

40.       As already discussed in the preceding paras of the judgment, the complainants prior to taking over the possession of the unit, in question and execution of sale deed on 26.08.2016, have been agitating the issue qua grant of compensation for delayed possession and also subsequent to execution of the sale deed, the same was reiterated vide letter/legal notice dated 31.05.2017. Not only this, after execution of sale deed on 26.08.2016, by paying an amount of Rs.4,00,002.37 to the complainants much later in March 2017, the opposite parties admitted their liability qua grant of compensation for delayed possession. It is continuing cause of action and now at this stage, the opposite parties cannot be heard to say, in the garb of aforesaid clauses or the objection raised in their written statement that the complaint is not maintainable or execution of the Conveyance Deed/Sale Deed debars the complainants to file a consumer complaint.

41.       In support of their contention, Counsel for the opposite parties cited “B.V.V.Ramesh Kumar & Anr. Vs. M. Lakshmana Rao Kanapaka Vizianagaram Andhra Pradesh”, 2016 (3) C.P.R. 436, wherein, scheme offered in the brochure by the petitioner as also the sale agreement was a composite package, which offered 200 sq. yards of land as also 40 manziam plants, which would mature after six years, during which period, the petitioner would develop the plants by bearing the expenses on labour, water, fertilizers etc. However, even after the passage of six years, the said plants, as promised, were not available in the plot of land. The respondent/complainant alleged unfair trade practice and deficiency in service. The District Forum dismissed the complaint. State Commission allowed the appeal and directed the respondents No.1 & 2 to pay Rs.1,20,000/- with interest @9% p.a. from the date of filing the complaint till payment plus Rs.2,000/- as costs. Lastly, finding no jurisdictional or legal error, the Hon’ble National Commission dismissed the revision. In our opinion, the facts involved in B.V.V. Ramesh Kumar & Anr.’s case (supra), are of no help to the opposite parties being distinguishable on facts.

42.       In the next judgment relied upon by the Counsel for the opposite parties in the case of “Jeevan Bima Nagar Flat Owners Welfare Association Vs. Life Insurance Corporation of India and Ors.” 2013 (1) C.P.J. 498, there were defects in construction, which were not rectified. Plots were handed over to flat owners on “as is where is basis”. Compensation was claimed by the flat owners association alleging deficiency in services. Period of seventeen years elapsed. Local Commissioner was appointed. The Hon’ble National Commission held that those who have repaired flats of their own and have made unauthorized construction cannot be treated at par with other particulars in absence of evidence of money incurred by them. However, the builder was directed to remove the defects and deficiencies in respect of each flat on getting report of President of the Welfare Association. Directions regarding construction of Entrance Gates, Office Complex and Community Hall were also issued. The Hon’ble National Commission directed the opposite parties to pay over all compensation and litigation charges. The facts of the case relied upon are distinguishable and as such are of no help to the opposite parties. In Para 53 of the judgment, the Hon’ble National Commission stated that the first sale deed was executed on 15.09.1994 and possession was given in March, 1994 to third week of September, 1994 and further no objection was raised at the time of taking of possession. However, as discussed in the preceding part of the judgment, the opposite parties have admitted their liability by paying part of compensation for the period of delay in offering possession. Further in the instant case, the complainants have taken possession of the unit, in question, under protest and claimed compensation for the delayed period.

43.       On the other hand, to refute the objection raised by the opposite parties, Counsel for the complainants placed reliance on ‘Lt. Gen. Depinder Singh Ahuja Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’, Consumer Complaint No.636 of 2017, decided by this Commission on 08.02.2018 in a bunch of cases, wherein the sale deed qua the unit, in question, had already been executed on 28.06.2017 and the complaint was filed subsequently. The complainant, in that case, was awarded compensation @12% p.a. for delayed besides other reliefs i.e. compensation for mental agony and physical harassment, litigation costs etc. DLF Homes Panchkula Pvt. Ltd. filed First Appeal bearing No.423 of 2018 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, which has been admitted on 28.03.2018 only on limited issue regarding quantum of interest payable by the opposite parties.

44.       Further in view of ratio laid down in the case of Pranav Mittal Vs. M/s Dynamic Infra developers (P) Ltd. & Ors., 2017 (1) C.P.R. 653, relied upon by the Counsel for the complainants, the contention of the opposite parties that complainants are ceased to be consumers once possession is offered and sale deed is executed, is not sustainable. Relevant Para No.10 of the aforesaid judgment is extracted below:-

“10.      It is observed from the aforementioned letter dated 05.05.2014, that the possession would be given within 12 to 14 months from the date of the sale deed. Sale deeds were executed on 27.05.2014. It is the main case of the Complainants that the premises could not be occupied since the very basic amenities were not complete.  There is a specific pleading in para 10 of the Complaint that the Complainant was constrained to issue a legal notice, dated 28.02.2016, demanding completion of the works and handing over of the possession of the subject property within 30 days of receipt of the legal notice. The State Commission has not addressed itself to this aspect.  The finding of the State Commission that once the sale deed is executed and possession is offered, the purchaser ceases to be a "Consumer" is contrary to what has been laid down by this commission in Yash Pal Marwaha versus Pushpa Builders Ltd. & Anr., II (2006) CPJ 259(NC).”

 

45.       Further by placing reliance on ‘Yashpal Marwaha Vs. Pushpa Builders Ltd. and Anr.’, 2006 (2) C.P.J. 259, Counsel for the complainants argued that cause of action in this case is a continuing one as the same arose to the complainants firstly on the date of offer of possession & execution of Conveyance Deed/Sale Deed on 26.08.2016 and secondly when the opposite parties admitted their deficiency in service by compensating the complainants to the extent of Rs.4,00,002.37 towards delayed possession. As already stated above, we have accepted this contention of the complainants and as such, are of the opinion, that the complaint is maintainable, cause of action being continuing in nature. Accordingly, contention raised by the opposite parties that after execution of sale deed, the complainants waived of their right, is not sustainable in the eyes of law.

46.       We also did not find any merit in the argument raised by the opposite parties that the conduct of the complainants while signing the Conveyance Deed constituted a waiver of their claim and failed to pass the criteria laid down under doctrine of waiver through various judgments. In support of their case, the complainants relied upon ‘P. Dasa Muni Reddy Vs. P. Appa Rao, 1974 AIR (SC) 2089, wherein the Hon’ble Supreme Court of India held in Para 13 as under:-

“13.     Abandonment of right is much more than mere waiver, acquies- cence or laches. The decision of the High Court in the present case is that the appellant has waived the right to evict the respondent. Waiver is an intentional relinquishment of a known right or advantage, benefit, claim or privilege which except for such waiver the party would have enjoyed. Waiver can also be a voluntary surrender of a right. The Doctrine of waiver has been applied in cases where landlords claimed forfeiture of lease or tenancy because of breach of some condition in the contract of tenancy. The doctrine which the courts of law will recognise is a rule of judicial policy that a person will not be allowed to take inconsistent positions to gain advantage through the aid of courts. Waiver sometimes partakes of the nature of an election. Waiver is consensual in nature. It implies a meeting of the minds. It is a matter of mutual intention. The doctrine does not depend on misrepresentation. Waiver actually requires two parties, one party waiving and another receiving the benefit of waiver. There can be waiver so intended by one party and so understood by the other. The essential element of waiver is that there must be a voluntary and intentional relinquishment of a right. The voluntary choice is the essence of waiver. There should exist an opportunity for choice between the relinquishment and an enforcement of the right in question. It cannot be held that there has been a waiver of valuable rights where the circumstances show that what was done was involuntary. There can be no waiver of a non-existent right. Similarly, one cannot waive that which is not one's as a right at the time of waiver. Some mistake or misapprehension as to some facts which constitute the underlying assumption without which parties would not have made the contract may be sufficient to justify the court in saying that there was no consent.”

47.       In our opinion, Conveyance Deed/Sale Deed is not the settlement deed, which the builder often uses for compromise with the flat buyers. It is a document for transferring of a title. However, in the instant case, a non-specific para was put, which does not talk about the waiver of rights of the complainants for claiming delay compensation. Admittedly, the opposite parities paid part compensation while admitting the dispute with regard to delay compensation. Thus, we have no hesitation to say that the complainants never showed their willingness to waive of their rights through Sale Deed.

48.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by the Opposite Party, by the date promised in the Agreement and within one year extended period. The complainants have been compensated by granting 9% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. Grant of compensation in the sum of Rs.75,000/- on account of mental agony and physical harassment suffered by the complainants would serve the ends of justice.

49.       In the connected complaints bearing No.806 of 2017, 807 of 2017, 10 of 2018 and 25 of 2018, the possession of the unit, in question, has been delivered by the opposite parties to the complainants and the Conveyance Deeds/Sales Deeds have also been executed qua the units, in question, as per detail given below:-

 

Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered	DLI, if any.  (Rs.)	Date on which possession taken.	Date of execution of Conveyance Deed/Sale Deed.	Possession taken under protest vide following documents.
806/2017	25.01.2011	24.01.2014	03.02.2016	5,430.57	03.06.2016	03.06.2016	03.6.2016 (C-6 colly)
807/2017	10.01.2011	09.01.2014	03.02.2016	17,063.96	03.06.2016	06.06.2016	03.6.2016 (C-6 colly)
10/2018	14.01.2011	13.01.2014	14.01.2016	19,475.47	11.07.2016	11.07.2016	11.7.2016 (C-6)
25/2018	19.11.2010   Second allottee  Page - 231 16.11.2016	18.11.2013	05.10.2016	4,898.03	16.02.2017	27.03.2017	31.5.2017 (C-9) 16.2.2017 (C-7)

 

50.       It may be stated here that in these four cases, no compensation for delayed possession has been given by the opposite parties to the complainant(s) in the Final Statement of Account(s), while offering possession of the unit(s), in question. This fact was also admitted by both the Counsel for the parties during arguments.

51.       It is also coming out from record of these complaints that as in the case of Madan Lal Kansal (CC/805/2017), the complainants in above four cases also took possession of the unit(s), in question, and executed the Sale Deeds, under protest reserving their right to delay compensation. Perusal of these files also reveals that the complainants repeatedly requested the opposite parties for grant of delay compensation through letters/emails etc. prior to and after execution of sale deeds.

52.       Not only this, the opposite parties even failed to explain the reason as to why part compensation is only paid in Complaint Case bearing No.805 of 2018 filed by Sh. Madan Lal Kansal & Anr. and why not in remaining complaints.

53.       Counsel for the opposite parties argued that delay compensation is given only in those cases where there is no DLI against the complainant. The argument raised cannot be accepted. In complaint case bearing No.805 of 2017, there is very small DLI of Rs.154/- and still delay compensation was given by the opposite parties to the complainants in that case. However, in remaining four complaints, tabulated above, there is also DLI ranging between Rs.5,000/- to Rs.20,000/- and still no delay compensation was granted to the complainants. Therefore, the methodology adopted by the opposite parties for granting delay compensation is totally wrong. Once there is delay in offering possession, the opposite parties ought to have paid delay compensation to the allottees for such period.

54.        Therefore, in these four cases also, the complainants are held entitled to the same relief as has been granted in the case of Madan Lal Kansal & Anr., Consumer Complaint bearing No.805 of 2017) i.e. compensation @9% p.a. interest on the deposited amounts for the delay period, after expiry of 3 years as mentioned in the agreement, up-to the date of offer of possession.

55.        In these cases also, grant of compensation in the sum of Rs.75,000/-, in each case, would serve the ends of justice.

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

57.      For the reasons recorded above, all the complaints bearing Nos.805 of 2017, 806 of 2017, 807 of 2017, 10 of 2018 and 25 of 2018 are partly accepted, with costs, in the following manner:-

 

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

(i)

To pay compensation, by way of simple interest @9% p.a., on the deposited amount(s), to the complainant(s), with effect from:- 07.01.2014 to 14.01.2016 (in CC/805/2017), 25.01.2014 to 03.02.2016 (in CC/806/2017), 10.01.2014 to 03.02.2016 (in CC/807/2017), 14.01.2014 to 14.01.2016 (in CC/10/2018) & 19.11.2013 to 05.10.2016 (in CC/25/2018), 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 @10% p.a. (simple), instead of 9% p.a. (simple), from the date of default i.e. w.e.f expiry of period of 45 days, till realization.             (Since in CC/805/2017, the opposite parties have paid an amount of Rs.4,00,002.37 on account of delay compensation, this amount shall be reduced/deducted from the compensation amount arrived at by way of interest @9% p.a. on the deposited amount for the delay period).

(ii)

Pay compensation in the sum of Rs.75,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.22,000/-, in each case, as litigation costs, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @9% p.a. (simple), from the date of filing the complaint till realization.

58.       Certified copies of this order be placed in the files of connected consumer complaints bearing Nos.806 of 2017, 807 of 2017, 10 of 2018 and 25 of 2018.

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

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

Pronounced.

14.03.2019

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

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