Chandigarh

StateCommission

CC/431/2018

Mrs. Krishna Sharma - Complainant(s)

Versus

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

Anamika Mehra, Adv.

11 Dec 2019

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	431 of 2018
Date of Institution	:	21.11.2018
Date of Decision	:	11.12.2019

 

Mrs.Krishna Sharma wife of Satish Sharma, aged about 45 years, resident of 55 Vijay Nagar Bhiwani, Haryana.

.……Complainant

V e r s u s

1. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/ Representative.

Second Address:- SCO No.190-191-192, Sector 8-C, Chandigarh-160009

2. Sh.Rakesh Kerwell, Director of DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana.

…..Opposite parties

 

Argued by:-          Ms.Anamika Mehra, Advocate for the complainant.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

 

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Complaint case No.	:	432 of 2018
Date of Institution	:	21.11.2018
Date of Decision	:	11.12.2019

 

Mr.Tapinder Singh Multani and Mrs.Gurinder Kaur Multani, R/o Flat No.201, Pushpa Castle G-4, Lokhandwla Road, Sunderban Complex, Andheri (West), Mumbai-400056.

.……Complainants

V e r s u s

1. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/ Representative.

Second Address:- SCO No.190-191-192, Sector 8-C, Chandigarh-160009

2. Sh.Rakesh Kerwell, Director of DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-122002, Haryana.

…..Opposite parties

 

Argued by:-          Ms.Anamika Mehra, Advocate for the complainants.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

 

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Complaint case No.	:	25 of 2019
Date of Institution	:	05.02.2019
Date of Decision	:	11.12.2019

 

Rajesh Mohan Mehra S/o Late Sh.Brij Mohan Mehra, R/o H.No.1217, Sec-11, Panchkula, Haryana.

.……Complainant

V e r s u s

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh-UT, Pin – 160009, through its Managing Director.

…..Opposite party

 

Argued by:-          Sh.Uday Chauhan, Advocate for the complainant.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite party.

 

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Complaint case No.	:	83 of 2019
Date of Institution	:	12.04.2019
Date of Decision	:	11.12.2019

 

1. Arvind Bhushan aged 45 years, s/o Sh.Banarsi Dass.
2. Aarti aged about 42 years, w/o Sh.Arvind Bhushan

          Both residents of Independent Floor No.C-2/30, IInd Floor, DLF Valley,    Sector 3, Pinjore, Distt. Panchkula (Haryana).

.……Complainants

V e r s u s

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh U.T. -160009 through its Manager/Authorized Signatory/Officer-in-Charge/Director Sales & Marketing

.…..Opposite party

 

Argued by:-          Sh.Devinder Kumar, Advocate for the complainants.

                             Sh.Shiv Kumar, Advisor (Legal) of the opposite parties.

 

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Complaints under Section 17 of the Consumer Protection Act, 1986

 

BEFORE:             JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MR.RAJESH K. ARYA, MEMBER.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   As common questions of facts and law have been emerged in above captioned four complaints and the facts thereof are analogous to each other to a great extent-therefore, this Commission would like to take them together and decide with a common order - which shall be delivered in consumer complaint bearing no.431 of 2018 titled as Mrs.Krishna Sharma Vs. DLF Homes Panchkula Pvt. Ltd. and another.

2.           All the four complaints have been filed by different persons asserting themselves to be the consumers under the provisions of Section 2 (1) (d) of the Act.  It has been specifically pleaded therein that the complainants are aggrieved of unfair trade practice, negligence and deficiency in rendering service at the hands of the opposite parties, as there has been an inordinate delay on their part in offering possession of their respective units, agreed to be purchased by them, in the project named “DLF Homes Panchkula”, Haryana, despite the fact that substantial amount stood paid by them to the opposite parties.
3.           The details pertaining to the respective units of all the four complaints with regard to the date of booking; execution of agreements; payments made;  date of offer of possession made; dates when possession was taken over by the complainants etc. are given below:- 

CC No.	Booking date	Agreement date	Date of Possession as per agreement	Possession offered on	Delay in Offer	Possession actually taken on or not	Final cost of the unit	Payment made	Allottee
431/2018	30.03.2010	01.04.2011	31.03.2013	28.02.2017	3 years and 11 months	04.12.2018	4227525.87	3043335.59	Original
432/2018	21.03.2010	03.01.2011	02.01.2013	15.11.2016	3 yrs and 10 months	05.12.2018	4284790.52	3341269.84	Original
83/2019	22.03.2010	09.12.2010	08.12.2012	26.10.2016	3 yrs and 10 months	08.05.2017	4215560.84	4481317. 93	Original
25/2019	30.03.2010	06.01.2011	05.01.2013	05.10.2016	3 yrs 9 months	Not yet taken	5014171.55	5129409.53	Original

         

4.           By stating that the aforesaid act and conduct of the opposite parties,  in not offering possession of the respective units by the promised date, despite the fact that substantial amount had been received by them, amount to deficiency in providing service and adoption of unfair trade practice, these complaint have been filed by the complainants seeking directions to the opposite parties to pay compensation by way of interest on the deposited amount for the period of delay; compensation for mental agony and physical harassment; litigation expenses etc.  
5.           Their claim has been contested by the opposite parties, in all the four complaints, on almost similar grounds, inter alia, that the dispute being of a contractual nature, consumer complaints were not maintainable and as such cannot be adjudicated by this Commission and rather the Civil Court has jurisdiction to decide the same; that in the face of existence of provision to settle disputes between the parties through Arbitration, this Commission has no jurisdiction to entertain these consumer complaints; that none of the complainants falls within the definition of “consumer” as defined under Section 2(1)(d) of the Act; that this Commission did not vest with pecuniary and territorial jurisdiction: that possession was offered to them after completing the construction and development work, on receipt of occupation certificates from the competent Authority but they failed to take over the same on making remaining payment legally demanded from them; they are liable to pay holding charges; that they were defaulters in making payment as such they are not entitled to any relief for delay in offering possession; the complaints filed are time barred; delay in construction work took place on account of delay in granting approvals by the Competent Authorities. It has also been submitted that because the possession of the respective units has already been taken over by the complainants during pendency of the complaints (except in CC No.25 of 2019) as stated above in para no.3 (supra) now the complainants are not entitled to claim any relief.
6.           On merits, booking of the units; execution of agreements between the parties; payments made by the complainants against their respective units; offer of possession made to them after delay as shown in the table extracted above are not disputed. However, it has been commonly pleaded in the replies  filed that construction at the project site could not be completed within the promised time, on account of stay granted on construction activities by the Hon`ble Supreme Court of India between 19.04.2012 upto 12.12.2012; consent had been sought from the complainants for extension of one year time from the promised date, to handover possession or in the alternative it was left open to them to get refund of the amount deposited by them, alongwith interest but that option was not exercised by the complainants. However, in consumer complaint no.25 of 2019, it has been submitted that the complainant can take over possession of the unit on making payment of the remaining amount.  Common prayer in the reply to each complaint has been made to dismiss the same.
7.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavits and also produced numerous documents.
8.           We have heard the contesting parties and have carefully gone through record of the cases, very carefully.
9.           From the pleadings of parties and other material available on the record, following points have emerged for consideration in these cases: -
   1. Whether in the face of existence of arbitration clause in the agreements, jurisdiction of this Commission is barred?
   2. Whether this Commission has pecuniary and territorial jurisdiction to entertain the complaints?
   3. Whether the complainants fall under the definition of consumer?
   4. Whether the complaints filed are barred by time?
   5. Whether the complainants could be termed as defaulters?
   6. Whether the complainants are entitled to any compensation for delay in delivery of possession of their respective units and if yes, from which date and to what extent?

 

10.           First of all, coming to the objection raised with regard to jurisdiction of this Commission in the face of existence of Arbitration clause in the agreements, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been 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. Even the Review Petition (C) Nos. 2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, objection raised by the opposite parties in this regard stands rejected.
11.           The next question which needs consideration is with regard to pecuniary jurisdiction, it may be stated here that if the total value of the respective units; plus other reliefs claimed in each complaint are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide these complaints. Objection taken in this regard stands rejected.
12.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that Sub-section 2 of Section 17 of the Act envisages that person aggrieved have remedy to file a complaint before a State Commission within the limits of whose jurisdiction:-

“(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or

 

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or

 

(c) the cause of action, wholly or in part, arises”.

 

In the instant cases, perusal of number of documents placed on record reveal that the same have been issued by the opposite parties from their Chandigarh Office. Even the Agreements in respect of the units in question, containing detailed terms and conditions, have been executed at Chandigarh Office of the Company, meaning thereby  that the opposite parties were actually and voluntarily residing and carrying on their business, from their  branch office at Chandigarh and personally work for gain here at. As such, objection taken in this regard is rejected. 

13.           As far as objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the respective units to indulge in ‘purchase and sale of flats’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their  onus, hence we hold that the complainants are consumers as defined under Section 2(1)(d) of the Act.
14.           There is no dispute that the complainants booked their respective units in the aforesaid project of the opposite parties. It is also an admitted fact that possession of the units was not offered to the complainants within the committed period as mentioned in the respective agreements i.e. within a period of 24 months from the dates of execution thereof. The opposite parties have specifically pleaded that delay in completing construction took place on account of grant of stay by the Hon’ble Supreme Court of India, on construction activities in the area between 19.04.2012 up-to 12.12.2012. It may be stated here that earlier also, in number of consumer cases filed by similar located allottees like Harjinder Kaur Vs. DLF Homes Panchkula Pvt. Ltd. and anr. Consumer complaint no.611 of 2016; Smt. Roma Sangwan Vs. M/s DLF Homes Panchkula Pvt. Ltd, consumer complaint No.553 of 2016, decided on 09.01.2017 a similar plea with regard to stay aforesaid, in respect of the same project had been taken by the opposite parties before this Commission and also before the Hon’ble National Commission in Appeal(s), which was considered and the opposite parties were given benefit of one year of extended period, from the actual date of offer of possession mentioned in the agreement(s).
15.           In this view of the matter, in the present cases also, if two years period stipulated in the agreements and one year extended period therefrom, on account of stay aforesaid is taken into consideration, it is found that the said period i.e. 24 months plus one year (total 3 years) had already expired in all the complaints, but possession was still not offered and was offered after delay, as explained below in the tabulated format:-

 

CC No.	Agreement date	Possession date (24 months from agreement)	Possession date after adding one year extended period	Possession offered on	Delay even after including extended period of one year
431/2018	01.04.2011	31.03.2013	31.03.2014	28.02.2017	2 years and 11 months
432/2018	03.01.2011	02.01.2013	02.01.2014	15.11.2016	2 yrs and 10 months
25/2019	06.01.2011	05.01.2013	05.01.2014	05.10.2016	2  yrs 9 months
83/2019	09.12.2010	08.12.2012	08.12.2013	26.10.2016	2 yrs and 10 months

 

                   From the perusal of afore-extracted table, it transpires that despite the fact that the opposite parties availed the benefit of one year of extended period, over and above the period committed in the agreements for completing construction of the units, even then they failed to offer possession thereof and there had been further delay as reflected in the table above, for which no cogent and convincing justification has been given by the opposite parties. As such, the opposite parties are deficient on this score.

                   However, the plea taken by the opposite parties, to the effect that further delay in handing over possession of the units took place on account of delay in receiving statutory approvals from the competent authorities, is not tenable. It is settled law that the builder is required to obtain all the approvals/sanctions before launching the project and selling units therein. In these cases, it has been an admitted fact that permissions/approvals for revision in layout plans and service plans in respect of the project in question were obtained by the opposite parties only on 11.03.2013 and 20.05.2013, whereas, on the other hand, the units in question were sold in the years 2010-2011. This act of the opposite parties amounts to deficiency in rendering service and also adoption of unfair trade practice, out of which they cannot claim any immunity. The complainants were thus caused mental agony, harassment and financial loss at the hands of the opposite parties, as they were deprived of their house and also the amount paid by them were utilized by the opposite parties without providing them anything for a long period.

16.           The next question which arises for consideration is, as to whether the complainants are entitled to any compensation for delay in offering possession of their respective units and if yes, from which date and to what extent? In this regard, it is submitted that we have find that the controversy regarding handing over delayed possession, in respect of this project for similar located allottees, has already been set at rest by the Hon’ble Supreme Court  of India in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, Etc. Etc. and DLF Homes Panchkula Pvt. Ltd. & Anr. Vs. Sudesh Goyal, Etc., II (2019) CPJ 117 (SC), wherein interest @ 9% per cent per annum on the amount deposited, for the period of delay (plus two months from the date of offer of possession) and also lumpsum compensation including litigation cost to the tune of Rs.50,000/- was granted. Relevant part of the said order of the Hon’ble Apex Court is reproduced hereunder:

HANDING OVER DELAYED POSSESSION

“19.    Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant.  Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i)        To send a copy of the occupation certificate to the Complainants along with offer of possession.  The Appellant shall also direct the Jones Lang LaSalle – the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii)       It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries.

iii)      Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v)       Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs.50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc.  The complainant shall not be entitled to any other amount over and above the amount mentioned above.

 vi)      In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later……..”

 

17.           It has been noted that, thereafter, in similar cases where the facts are almost identical to the present cases are being adjudicated by the Hon’ble National Commission, keeping in the mind the law laid down in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda’s case (supra) i.e. grant of interest @9% p.a. on the deposited for the period of delay (plus two months from the date of offer possession) and lumpsum compensation including cost of litigation to the tune of Rs.50,000/-.  As such, this Commission is of the view that if the present cases being of similar facts are also decided in accordance with the law laid down in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda’s case (supra), that will meet the ends of justice.  
18.           Furthermore, in no way, the opposite parties can wriggle out of their deficiencies by saying that delay took place on account of the reason that the complainants defaulted in making payment. In our considered opinion, the complainants cannot be said to be defaulters, in the face of settled law that the allottees of units/plots could not be expected to go on making payments to the builder as per the payment plan, when they could discover that it is not in a position to hand over possession of the property in time, for want of construction and development at the project site. This view is supported by the judgment of the Hon’ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein, it was held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Plea taken by the opposite parties in this regard is rejected.   
19.            At the same time, because in all the four complaints, neither actual physical possession of the units in question had been delivered to the complainants, by the date when these complaints were filed; nor compensation for the period of delay in offering possession has been paid to them; nor sale deeds in respect thereof have been got executed. In each complaint, the complainant(s) has/have paid huge amounts as mentioned in para no. 3 above, and the cause of action is continuing one, as such, it cannot be said that the complaints filed are barred by limitation. Our this view is supported by the observation made by the Hon’ble National Commission in M/s. Gokul Properties Vs. . Sri. Pradip Kumar Bagchi & Ors., First Appeal No. 1885 of 2017, decided on 28 Mar 2019, wherein it was held that in the cases where sale deed has not been executed, there is a continuing cause of action in favour of the allottees to file consumer complaint. Relevant part of the said order reads as under:-

“Having regard to the fact that the Complainant has paid part consideration to the Appellant/Developer towards the subject flat and also no steps were initiated by the Appellant/Developer if indeed the possession was taken by the Complainant by force, we are of the considered view that the cause of action is a continuing one and cannot be said to be barred by limitation as the Sale Deed was still not executed.”

20.           As far as objection taken by the opposite parties to the effect that this Commission has no jurisdiction to entertain these complaints, being the disputes of contractual nature and the matter needs to be relegated to the civil court, it may be stated here that it is a simple case of non-delivery of possession of the units to the complainants by the opposite parties by the promised date, referred to above; and also nonpayment of compensation for the period of delay, thereby causing financial loss, mental agony and harassment to the complainants. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held by the Hon’ble Supreme Court 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 Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, these complaints involve the consumer dispute and the same is maintainable before this Commission. Objection taken in this regard is rejected.
21.           For the reasons recorded above, all the four complaints bearing nos.431 of 2018, 432 of 2018, 25 of 2019 and 83 of 2019 are partly accepted with costs.
22.           In CC No.25 of 2019, the opposite party is directed to hand over actual physical possession of the respective unit to the complainant, if not yet handed over, within a period of 21 days from the date of receipt of certified copy of this order.
23.           Furthermore, the opposite parties, jointly and severally, are directed:-
    1. To execute and get registered the sale deeds of the respective units in favour of the complainants, in consumer complaints nos.431 of 2018, 432 of 2018, 25 of 2019 and 83 of 2019, within a period of two months from the date of receipt of a certified copy of this order, on receipt of legally due amount from the complainants, strictly as per respective agreements including the stamp duty charges. However, it is made clear that the opposite parties shall not demand any holding charges from the complainants, in any of the complaints above.
    2. To pay compensation by way of interest @9% p.a., on the entire deposited amount to the complainants, in each case i.e. in CC No.431/2018 from 31.03.2014 to 28.04.2017 (two months from date of offer being 28.02.2017); in CC No.432/2018 from 02.01.2014 to 15.01.2017 (two months from date of offer being 15.11.2016); in CC No.25/2019 from 05.01.2014 to 05.12.2016 (two months from date of offer being 05.10.2016); and in CC No.83/2019 from 08.12.2013 to 26.12.2016 (two months from date of offer being 26.10.2016), within a period of one month from the date of receipt of a certified copy of this order, failing which the said amount shall carry penal interest @12% p.a. from the date of passing of this order, till payment is made.
    3. To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum to the tune of Rs.50,000/-, to the complainants, in each case i.e. consumer complaints nos.431 of 2018, 432 of 2018, 25 of 2019 and 83 of 2019, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount of Rs.50,000/-, in each case, shall carry interest @12% p.a. from the date of passing of this order till realization.
24.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in connected case files.
25.           The files be consigned to Record Room after completion.

Pronounced.

11.12.2019

Sd/-

 [RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.