Chandigarh

StateCommission

CC/133/2016

Neeraj Sahni - Complainant(s)

Versus

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

Kasturi Lal, Adv.

17 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	133 of 2016
Date of Institution	:	06.04.2016
Date of Decision	:	17.08.2016

 

1. Neeraj Sahni, Aged 44 years s/o sh. Kasturi Lal;
2. Ruhee Sahni, aged about 39 years, w/o Sh. Neeraj Sahni;

Both residents of House No.654, Sector 8, Panchkula.

                                         .........Complainants

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – U.T. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd.,

1. 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.
2. Site Address: The Valley, Sector 3, Kalka-Pinjore        Urban Complex, Distt. Panchkual (Haryana).

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

Argued by:

 

Sh.  Kasturi Lal, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	191 of 2016
Date of Institution	:	09.05.2016
Date of Decision	:	17.08.2016

 

Ashok Gupta, aged about 42 years, son of Sh. Puran Chand Gupta, resident of House No.862, Sector 9, Panchkula (Haryana).

…..Complainant.

 

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – U.T. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd.,

1. 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.
2. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex, Distt. Panchkual (Haryana).

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

Argued by:

 

Sh.  Kasturi Lal, Advocate  for  the complainants.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

Consumer Complaint	:	192 of 2016
Date of Institution	:	09.05.2016
Date of Decision	:	17.08.2016

 

Yachana Gupta, aged about (not mentioned) years, daughter of Sh. Ramesh Gupta, resident of House No.488/B, Near Bus Stand, Pinjore, Distt. Panchkula (Haryana).

 

…..Complainant.

 

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – U.T. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd.,

1. 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.
2. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex, Distt. Panchkual (Haryana).

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

Argued by:

 

Sh.  Kasturi Lal, Advocate  for  the complainant.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

 

Consumer Complaint	:	193 of 2016
Date of Institution	:	09.05.2016
Date of Decision	:	17.08.2016

 

Usha Ranout, aged about (not mentioned), wife of Sh. Harinder Ranout, resident of Flat No.201, GH-102, Sector 20, Panchkula (Haryana).

…..Complainant.

 

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – U.T. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd.,

1. 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.
2. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex, Distt. Panchkual (Haryana).

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

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

 

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

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

Argued by:

 

Sh.  Kasturi Lal, Advocate  for  the complainant.

Ms. Ekta Jhanji, Advocate for Opposite Parties.

 

PER DEV RAJ, MEMBER

            Vide this common order, we propose to dispose of four complaints bearing No.133/2016, 191/2016, 192/2016 and 193/2016 referred to above. Since the facts involved in these complaints are almost identical, the facts are being culled from complaint case No.133 of 2016 titled as ‘Sh. Neeraj Sahni & Another Vs. DLF Homes Panchkula Pvt. Ltd. & Another’.

2.         The facts, in brief, are that in pursuance of the advertisement/promises/assurances made by the Opposite Parties, one Mrs. Anjali Riat and Mrs. Nandita applied for allotment of property No.DVF-E4/28-SF (2^nd Floor) with parking No.P-2F in Block “E” in DLF Valley, Panchkula and paid Rs.4,00,000/- as booking amount. They were allotted the same vide letter dated 23.03.2010 in the said project. They opted for 2 years construction linked payment plan, as per which, the total payable amount towards the unit, in question, was Rs.31,44,699.75 (i.e. Rs.25,37,737.40 as basic sale price, Rs.2,82,580.45 as external development charges, Rs.35,665.45 as infrastructure development charges and Rs.73,750/-  as maintenance security and Rs.2,14,966.39 as interest). It was further stated that an amount of Rs.73,750/- on account of maintenance security was wrongly included in the schedule. The aforesaid allottees paid amounts of Rs.2,14,974.46, Rs.3,07,272.23, Rs.7,106.09 and Rs.33,433/- to the Opposite Parties vide receipts (Annexures C-4 to C-7). Independent Floor Buyer’s Agreement was executed between the aforesaid allottees and the Opposite Parties on 07.01.2011 at Chandigarh. It was further stated that the unit, in question, was got transferred by the complainants in their name from the ownership of the original allottees vide substitution agreement as part of the original agreement dated 07.01.2011. Vide Clause 1.1 of the Agreement, the total sale price of the unit, in question, alongwith parking was agreed as Rs.30,70,949.75 i.e. @Rs.18,519.40 per sq. meter/Rs.1,720.50 per sq. ft. of the saleable area, including EDC/IDC of Rs.3,18,245.90 & interest on above components to the tune of Rs.2,14,966.39.

3.         It was further stated that as per Clause 11 of the Agreement, the Opposite Parties were to complete construction of the unit, in question, within 24 months from the date of execution of the Agreement, failing which, in terms of Clause 15, the Opposite Parties were to pay compensation @Rs.10/- per sq. ft. of the saleable area of the unit per month beyond 24 months, till actual physical possession was delivered. It was further stated that uptil 18.02.2016, the complainants, in all, paid an amount of Rs.31,25,528.54 including service tax and interest on the delayed payment @18% p.a., to the Opposite Parties, against the total sale price of Rs.30,70,949.75, subject to final settlement of account. It was further stated that the complainants also obtained house loan of Rs.23,00,000/- from Punjab & Sind Bank, Branch Sector 17, Chandigarh vide sanction letter dated 02.05.2012. It was further stated that the construction of the unit, in question has not so far been completed by the Opposite Parties, though the agreed period of 24 months had expired on 07.01.2013. It was further stated that the complainants did not have any residential house in India and presently, they are residing in a rental accommodation on monthly rent of Rs.16,000/- per month. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practices.

4.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over the legal physical possession of unit, in question, with all promised facilities including completion certificate, complete in all respects; pay compensation on account of loss of rent @Rs.16,000/- per month w.e.f. 07.01.2013 onwards (Rs.6,24,000/-  calculated till 31.03.2016) till the date of handing over of possession; pay Rs.10/- per sq. ft. per month of the saleable area from 07.01.2013 onwards till the date of actual handing over of legal physical possession; refund Rs.76,951/- as other charges, Rs.34,096/- as enhanced EDC and Rs.79,285.75 as delayed interest alongwith interest @18% p.a.; pay Rs.25 Lacs as compensation on account of deficiency in rendering service and adoption of unfair trade practice, mental pain & suffering, agony and physical harassment, alongwith interest @18% per annum from the date of filing the complaint and Rs.50,000/- as cost of litigation.

5.         The Opposite Parties, in their preliminary submissions in the written statement submitted that the project was cost escalation free as the complainants shall get the possession of the floor on the same price as committed by the Opposite Parties on 23.03.2010 at     the time of allotment of flat to the original allottee. It was further submitted that construction of the project got delayed due to stay on construction activity by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation. It was further submitted that after dismissal of litigation by the Hon’ble Supreme Court on 12.12.2012, the Opposite Parties offered exit option vide letter dated 02.04.2013 to the complainants for refunding the amount alongwith 9% interest but the complainants opted to continue with the project and consented for extension.

6.         In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement and the complainants were seeking complete amendment/modification/re-writing of the terms of the concluded binding inter-se agreements and this Commission lacked jurisdiction to modify the clauses of the Agreement. It was further stated that this Commission did not have the jurisdiction to consider the complaint and pass orders on the relief claimed. The other preliminary objection raised is that the complainants are not consumers as the floor, in question, was booked by them not for perusal use but for investment purposes and earning profits.

7.         On merits, it was stated that the unit, in question, was booked by Mrs. Anjali Riat and Mrs. Nandia and thereafter, on 23.03.2010, the said unit was allotted to the above said persons and construction linked plan was opted by them. It was further stated that the complainants, after reading all the terms and conditions had entered into the Agreement and, as such, they cannot claim for modification/alteration at such a belated stage. The factum of execution of Independent Apartment Buyer’s Agreement on 07.01.2011 between the parties was admitted. It was further stated that the price of the unit, in question, was Rs.31,44,699.75 plus other charges/taxes as per the Agreement. It was further stated that the Opposite Parties were bound by the terms of the Agreement, to demand the outstanding amount from the complainants, in order to offer physical possession of the flat, in question. It was further stated that the Opposite Parties endeavored to offer possession within 24 months as stipulated in the Agreement and also contemplated to complete the development work at the site. It was further stated that as per Clause 43 of the Agreement, the Opposite Parties were not liable or responsible for not performing any of its obligation or undertakings as provided in the Agreement, if such performance is prevented due to force majeure conditions. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of the Opposite Parties. It was further stated that Writ Petition No.6230 was filed in Punjab and Haryana High Court, which vide its order dated 06.04.2010 restrained them from creating any third party right and also directed to ensure that the nature of land shall neither change nor any further construction activity was carried out. Subsequently, an appeal against order dated 06.04.2010 was filed before the Hon’ble Supreme Court and the order under challenge was stayed by the Hon’ble Apex Court on 23.07.2010. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was further stated that the Opposite Parties have already completed construction of 258 independent floors on 86 plots and another 1517 built up units are near completion. It was further stated that out of 1775 built up units, occupation certificates for 258 (86 plots) units have been received and as on date, possession of 86 units have been offered to the owners. It was further stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL). It was further stated that the Opposite Parties sought approval regarding revision in layout plan on 11.3.2013, which was received on 06.09.2013. It was further stated that the Opposite Parties further sought approval with respect to service plans from the concerned authorities vide letter dated 20.05.2013, which were received on 14.08.2014. It was further stated that 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.

8.         The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties. The complainants, in the rejoinder stated that the Opposite Parties have sent letter dated 08.06.2016 (Annexure C-19), demanding further payment of Rs.13,87,772.82Ps to deliver possession of the unit, in question, to the complainants. It was further stated that there are number of shortcomings in the structure so far constructed. It was further stated that the Opposite Parties have wrongfully increased the area more than permissible 15% area without getting the consent of the complainants under Clause 10 of the contract and raised demand on this count to the tune of Rs.4,69,900/- and, as such, the Opposite Parties have no right to claim any of the amount.

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

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

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

12.       It is evident, on record, that initially Mrs. Anjali Riat and Mrs. Nandita were allotted independent floor No.DVF-E4/28-SF in DLF Valley vide allotment letter dated 23.3.2010 (Ann. C-2) and they opted for 2 Years Construction  Linked  Payment  Plan.  Independent Floor

Buyer’s Agreement dated 07.01.2011 (Annexure C-10) was executed between the original allottees and the Opposite Parties at Chandigarh, as per which, the total price was Rs.30,70,949.75Ps i.e. Basic Sale Price Rs.25,37,737.46Ps. + External Development Charges of Rs.3,18,245.90 + Rs.2,14,966.39 as interest on above components. In addition to the total price and other charges mentioned in the Application/Agreement, Annexure-III to the Agreement, charges as mentioned in Clause 1.4 of the Agreement i.e. Membership Fee Rs.30,000/- for five years, Rs.6,000/- per annum as Annual Club Charges and Rs.20,000/- as refundable security deposit, were payable. The said unit was transferred in the name of the complainants vide letter dated 11.03.2013 (Annexure     C-9). Further, as per Clause 11(a), the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. There was stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, on account of which, the Opposite Parties sought extension of time for one year, to which, the complainants agreed. The option to get refund was not exercised by the complainants. Since the Independent Floor Buyer’s Agreement 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), the       averment of the Opposite Parties that there was    litigation involving acquisition proceedings of the land during the year 2010, is not relevant. It is also not disputed that possession of the unit, in question, was offered  by  the Opposite Parties to the complainants only on 08.06.2016 vide letter (Annexure C-19), whereby the Opposite Parties also raised a demand of Rs.13,87,772.82Ps.

13.       An objection was raised by Counsel for the Opposite Parties that the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between the original allottees and the Opposite Parties, purely to invoke jurisdiction of this Commission. It was further stated that the complainants were virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to entertain and decide the complaint. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit , in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 Act, defines ‘service’ as under:-

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

 

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

15.       To defeat claim of the complainants, the next objection raised by the Opposite Parties was that since the complainants had purchased the flat, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, as such, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealers, and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. The complainants are seeking possession, which means that they purchased the same for their residence. They have specifically stated that they are residing in rented accommodation and paying rent @Rs.16,000/- per month. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. The complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

16.       Another question, which falls for consideration, is, as to whether the complainants are required to make payment in the sum of Rs.13,87,772.82, demand whereof has been raised by the Opposite Parties, while offering possession vide letter dated 08.06.2016 (Annexure C-19). The complainants also moved a miscellaneous application for staying the operation of letter dated 08.06.2016 (Annexure C-19) which was disposed of vide order dated 19.07.2016. The break-up of the demand raised is as under:-

1.	Basic Sale Price	Rs.1,36,388.38
2.	External Development Charges (EDC)	Rs.1,02,479.58
3.	Internal Development Charges (IDC)	Rs.1,916.80
4.	Change in area & PLC as per Clauses No.1.10 and 10 of the Agreement.	Rs.4,69,900.00
5.	Service Tax	Rs.27,302.00
6.	Delayed Interest.	Rs.28,991.06
7.	Other Charges (as per Clause 11)	Rs.80,440.00
8.	Service Tax	Rs.12,066.00
9.	Electricity, Water, Sewerage charges
	Proportionate cost of electricity expenditure @Rs.58.05 per sq. ft.	Rs.1,00,368.00
	Electrical Meter and connection charges to individual floor.	Rs.30,497.00
10.	Service Tax	Rs.19,630.00
11.	Contingent Deposit (VAT)	Rs.25,157.00
12.	Club charges	Rs.15,000.00
13.	Service Tax	Rs.2,250.00
14.	Club Security Deposit	Rs.20,000.00
15.	Interest bearing maintenance security & CAM charges	Rs.90,859.00
16.	Stamp duty, Registration charges & Others	Rs.2,24,528.00
	Total Payable:	Rs.13,87,772.82

 

17.       The complainants have disputed the entire demand raised. It may be stated here that as per summary of dues (Annexure C-3 at Page 32), against the total price of Rs.31,44,699.75, which included a sum of Rs.73,750/- on account of maintenance security, the complainants made payment in the sum of Rs.31,25,528.54. Apparently, the deposited amount by the complainants included a sum of Rs.84,863.02 towards delayed interest. Further the total price of Rs.31,44,699.75 did not mean that nothing beyond this amount was payable by the complainants. It is clearly stipulated at internal page 6 of the Agreement that the total price of the unit did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement, for instance:-

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

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

18.       Insofar as demand of Basic Sale Price (Rs.1,36,388.38), External Development Charges (Rs.1,02,479.58) and Internal Development Charges (Rs.1,916.80) is concerned, these amounts, as per stipulation at internal Page 7 of Independent Floor Buyer’s Agreement were to be paid by the complainants (allottees) in accordance with the terms and conditions of the application/agreement and as per demand raised by the Company from time to time. From perusal of application form annexed by the Opposite Parties alongwith their written statement, at page 136, it clearly transpires that 5% of Total Price + IBMS + Club + Registration + Stamp Duty + Other Charges, if any, were payable at the time of offer of possession. Thus, clearly, the demand qua Basic Sale Price (Rs.1,36,388.38), External Development Charges (Rs.1,02,479.58) and Internal Development Charges (Rs.1,916.80), being justified, is payable by the complainants.

 

 

 

19.       As regards demand raised in the sum of Rs.4,69,900/-  on account of change/increase in the area in terms of Clause 10 of the Agreement, the complainants have specifically submitted that since increase in area, in terms of Clause 10 aforesaid, is more than 15%, their (complainants) consent was required and, therefore, the demand raised on this account is illegal. Increase in area is slightly higher than 15%. It may be stated here that the complainants have not disputed the increase in area by adducing some cogent evidence. In our opinion, the objection raised is technical. No doubt, the Opposite Parties did not comply with the requirement of seeking consent of the complainants, the fact remains that the complainants are seeking possession. It is not the case of the complainants that on account of increase in area, they (complainants), instead of seeking possession, are seeking refund. The complainants could dispute the increase on the basis of cogent evidence by way of report/affidavit of an Engineer/Architect but nothing of that sort has been done. Therefore, the demand raised by the Opposite Parties to this effect, is legal and tenable. In the absence of any cogent evidence by the complainants that increase in area was actually not there, demand of Rs.4,69,900/- cannot be said to be illegal. Therefore, the complainants are bound to pay the same.

 

20.       The other demands raised are on account of other charges i.e. Rs.80,440/- @Rs.91.03 per sq. ft, electricity and water charges @Rs.58.05 per sq. ft. to the tune of Rs.1,00,368/-; electrical meter and connection charges to the floor in the sum of Rs.30,497/- per unit, contingent deposit of VAT @Rs.14.55 per sq. ft. in the sum of Rs.25,157/-; club charges in the sum of Rs.15,000/- and club security deposit in the sum of Rs.20,000/-. The Counsel for the Opposite Parties vehemently argued that all these charges are in accordance with terms and conditions of the Agreement only. As already stated above, at internal page 6 of the Agreement, it was stipulated that the total price was to be calculated on the basis of saleable area of the floor in question, which did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement. Further in terms of Clause 1.11 of the Agreement, the complainants agreed to pay all taxes, as stipulated therein, in addition to total price of the unit, in question.      Thus, in view of above, the demand raised on account of other charges  plus service tax, is also in accordance with terms and conditions of the Agreement and the same is payable by the complainants. 

21.       So far as the demand for stamp-duty and registration charges is concerned, the complainants shall be liable to pay the same after physical possession of the unit, in question, is delivered to the complainants.

22.       In view of aforesaid discussion, out of demand of Rs.13,87,772.82, the complainants shall immediately pay Rs.11,63,244.82 i.e. [Rs.13,87,772.82 – Rs.2,24,528.00 (stamp  duty/registration  charges)].   The   complainants

shall pay stamp duty, registration charges in the sum of Rs.2,24,528/- within 30 days from the date possession is handed over.

23.       The next question, which falls for consideration, is, as to whether the development/amenities were complete. The complainants have averred that construction was not complete but no cogent evidence to this effect has been brought on record. The Opposite Parties, in their written statement, have stated that out of 1775 built-up units, they received occupation certificate only for 258 units and as on date, 86 units have been offered for possession to the owners. The possession in the instant case stands offered on 08.06.2016. The Opposite Parties have also stated that proper water connection and electricity supply were in place and full housekeeping maintenance services are being provided through leading multinational company. They have placed alongwith their written statement copies of Photographs depicting completion of the project as Annexure R/1B. The objection raised by the complainants to this effect, being without any cogent evidence, is not tenable and the same stands rejected.

24.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. The complainants in the complaint, besides seeking possession, have also sought compensation @Rs.10/- per sq. ft. per month of the saleable area from 07.01.2013 onwards till the date of actual handing over of legal physical possession.             In  the  instant  case, i.e. complaint case  No.133 of 2016,

Independent Floor Buyer’s Agreement was executed on 07.01.2011. The Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of Agreement dated 07.01.2011 i.e. by 07.01.2013. However, as is evident from record, the Opposite Parties failed to offer possession within the stipulated period of 24 months. It is the case of the Opposite Parties that due to force majeure conditions, delay in completing the project partly accrued due to stoppage of work because of stay on construction activities by the Hon’ble Supreme Court of India. In support of their contention, the Opposite Parties placed, on record, copies of order of Hon’ble Supreme Court of India. The operative part of order dated 19.04.2012, inter-alia, reads thus:-

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

 

Undisputedly, the Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 passed by it (Supreme Court) not to undertake further construction at the project land, stood vacated. On account of force majeure circumstances, referred to above, by giving them advantage of 12 months extended period, consent whereof, had been obtained from the complainants, vide letter dated 02.04.2013, the Opposite Parties were required to deliver possession on or before 07.01.2014 but not later than that, whereas the possession has been offered on 08.06.2016, after filing written statement by the Opposite Parties, during the pendency of the complaint. No other plausible or convincing reason for delay in delivering the possession has been placed on record. The argument of the Opposite Parties that delay in handing over possession of independent floor was alsoattributable 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 for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approval for which was also received in due course of time, the initial time taken for (more than 2 years) 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, in our opinion, it would not come within the ambit of force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties.

25.      No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.10/- per sq. ft. of saleable area (Clause 19 of the Application Form (at Page 133 of written statement), which is much less than the bank rate for loan or fixed deposit. If the argument of the Opposite Parties is to be accepted, it would lead to an absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business venture, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of 1986 Act.

26.       It may be stated here that in case titled Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

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

9.      xxxxxxxxxxxxx

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

(1)         xxxxxxxxxxxxxx

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

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

27.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 07.01.2014, till delivery of possession of the unit, would meet the ends of justice.

28.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, by not delivering physical possession of the unit to them, by the Opposite Parties, by the promised date in the Agreement i.e. by 07.01.2013, plus one year period on account of stay by Hon’ble Supreme Court of India. Thus, the Opposite Parties were duty bound to deliver possession by 07.01.2014. The possession of unit, in question, has been offered to the complainants on 08.06.2016. The complainants, thus,  underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. The compensation in the sum of Rs.25 Lacs claimed by the complainants, in the face of facts and circumstances of the case, is highly exaggerated and on the higher side. For delay in offering possession beyond the stipulated period, the complainants on the deposited amount of Rs.31,25,528.54 have been granted interest @12% per annum till delivery of possession. Since possession has been offered on 08.06.2016, for delay period of around 2½ years, they will get an amount of Rs.9 Lacs approximately. The complainants, in our considered opinion, have been adequately compensated by granting interest @12% per annum on the deposited amount for the delay period. The price of unit is escalation free. They (complainants) will also get the benefit of escalation in the price of unit, in question. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

29.       By no stretch of imagination, the complainants are entitled to compensation of around Rs.40 Lacs as has been claimed. Further even if it is accepted that the complainants have been paying monthly rent of Rs.16,000/-, compensation for delay period by granting 12% interest works out to Rs.30,000/- per month. Therefore, no separate compensation is justified towards rent, if any, paid by the complainants.

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

 

Sr. No.	Description/ Details	Complaint No. 191  of 2016  Ashok Gupta  Vs. DLF Homes Pachkula Pvt. Ltd. & Anr.	Complaint No.192 of 2016  Yachana Gupta  Vs. DLF Homes Pachkula Pvt. Ltd. & Anr.	Complaint No.193 of 2016  Usha Ranout Vs. DLF Homes Pachkula Pvt. Ltd. & Anr.
a)	Date of Independent Floor Buyer’s Agreement	13.12.2010 (*)	01.02.2011	05.05.2011
b)	Total Price of Unit as per Agreement exclusive of Taxes etc.	Rs.30,01,499.75	Rs.37,26,499.75	Rs.32,91,499.75
c)	Amount deposited as per compliant.	Rs.30,10,264/-	Rs.30,00,763.97	Rs.33,58,906/-
d)	Whether demand raised while offering possession.	Possession not offered. Demand not raised.	Possession not offered. Demand not raised.	Possession not offered. Demand not raised.
e)	Whether possession offered.	No.	No.	No.

 

(*)[Allotment changed from wife to husband on 12.02.2015 (C-14)]

 

31.       In the aforesaid three Complaints No.191/2016, 192/2016 and 193/2016, possession of the unit(s) in question, has not been offered/delivered by the Opposite Parties to the complainant(s). Therefore, in view of the observations made in the preceding paras, the complainants, in these cases, are entitled to possession of the unit(s) in question, complete in all respects, plus other reliefs, to which the complainants in the instant case (consumer complaint No.133 of 2016) are held entitled to.

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

33.      For the reasons recorded above, all the complaints bearing No.133/2016, 191/2016, 192/2016 and 193/2016 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No.133/2016 titled Neeraj Sahni & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.

 

            Out of demand of Rs.13,87,772.82 raised by the Opposite Parties vide letter dated 08.06.2016 (Annexure C-19), the complainants shall pay an amount of Rs.11,63,244.82 to the Opposite Parties within 15 days from the date of receipt of certified copy of this order.

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

           

(i)	To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, to the complainants, within a period of 30 days, from the date balance payment is made by the complainants.
(ii)	Execute and get registered the sale deed in respect of the unit, in question, within one month from the date possession is handed over to the complainants. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainants.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 07.01.2014  till 31.08.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amounts, due to the complainants  w.e.f. 01.09.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
(v)	Pay compensation in the sum of Rs.1,50,000/- to the complainants, on account of mental agony and physical harassment to them, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.
(vi)	Pay an amount of Rs.50,000/- to the complainants, as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

            Time taken by the complainants in depositing Rs.11,63,244.82 beyond 15 days period from the date of receipt of certified copy of this order shall be excluded from the delay period for the purpose of payment of compensation @12% interest.

 

Consumer Complaints bearing No:

 

191/2016 titled Ashok Gupta Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.

192/2016 titled Yachana Gupta Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.

193/2016 titled Usha Ranout Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.

 

 

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

 

(i)	To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), within three months from the date  of receipt of a certified copy of this order, on payment of the amount(s), legally due against the complainant(s).
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), from 14.12.2013, 02.02.2014 and 06.05.2014 respectively till 31.08.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amounts, due to the complainant(s)  w.e.f. 01.09.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
(v)	Pay compensation in the sum of Rs.1,50,000/- to the complainant(s), on account of mental agony, physical harassment and deficiency in service, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.
(vi)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

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

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

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

Pronounced.

August  17, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

 [DEV RAJ]

MEMBER

 

 

 

[PADMA PANDEY]

 MEMBER

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