Chandigarh

DF-I

CC/117/2022

Nitin Nanda - Complainant(s)

Versus

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

Ashim Aggarwal

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/117/2022
Date of Institution	:	25.1.2022
Date of Decision	:	4/11/2024

 

1. Nitin Nanda, S/o Sh. V.K. Nanda, R/o House No. 64, Sector 8, Panchkula, Haryana

2. Kamaldeep Kaur W/o Sh. Nitin Nanda, R/o of House No. 64, Sector 8, Panchkula, Haryana.

...Complainants

 

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.

2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Directors.

...Opposite Parties

 

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Ms. Himani Makkar, Advocate for complainant
	:	Ms. Tanika Goyal, Advocate for OPs.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-
   1. It transpires from the averments as projected in the consumer complaint that the Complainants were desirous of owning a residential accommodation for family use and occupation near Chandigarh, so they jointly booked an independent floor with the OP's in their upcoming project namely "DLF Valley, Panchkula" at Village Bhagwanpur, Tehsil & District Kalka, Panchkula, by paying the booking amount of Rs.4,00,000/- on 06.03.2010. The unit was purchased by the Complainants was for their own / family use and not for resale. On 10.3.2010, the Complainants were issued allotment letter whereby the Complainants were allotted Independent Floor No. DVF-B1/71- GF, (hereinafter referred to be as subject flat) vide allotment letter Ext. C-1. The Complainants were assured that the Buyer's agreement would be executed within a week or so. As per Floor Buyer's Agreement' dated 05.01.2011, Ext. C-2 the OPs agreed to offer the possession  of the subject flat within a period of 24 months from the date of execution of the agreement i.e. on or before 5.1.2013.  However the possession, had been delayed by more than 3.5 years, despite of making all final and timely payments to the OPs. The OPs were continuously making demand from the complainants for payment and being left with no option,  the complainants kept making  payments as per schedule and made a total payment of Rs.54,37,945.06 and the OPs issued combined receipt Ext. C-3. Vide letter dated 26-10-2016 Ext. C-4, the OPs had informed the complainants that they have received  Occupation Certificate for the subject unit and ready to handover the possession   but despite repeated requests, the OPs never provided copy of the Occupation Certificate while issuing the offer letter Annexure C-4. The OPs had informed the complainant about the final area of the unit as 1750 Sq. Ft. (162.50 Sq. Mtrs.) i.e. increase of 200 Sq. Ft. (18.5 Sq. Mts.) as opposed to the total saleable area as per the Buyer's Agreement Ext. C-2 being 1550 Sq. Ft. (144 Sq. Mrs. and accordingly the OPs demanded the differential amount for the unilateral and arbitrary increase in the area of the subject Unit. However,  the complainant were shocked on perusal of the Occupation Certificate dated 02-05-2016 Ext. C-5 issued by the Senior Town Planner-Cum in Chairman, Building Composition Committee Panchkula, which  revealed that the same has been issued for an area of 126.304 Sq. Mtrs., i.e. 1359.52 Sq. Ft only, which is even less to the original area of  1550 Sq Ft and decrease of  190.48 Sq Ft (17.696 Sq Mtrs) from the actual area  was shown in the same.  The OPs have collected differential amount from the complainants by claiming the same for the area of 1750Sq. ft.  whereas it was actually only 1359.52 sq. ft.  regarding which occupation certification issued by the authority concerned and the aforesaid act of the OPs amounts to unfair trade practice. The possession of the subject unit was handed over to the complainant by the OPs on 31.5.2017 vide Ext. C-6 and as the OPs have not even paid the delayed compensation to the complainant rather have wrongly charged the differential amount from the complainants for the less area than the area, the OPs initially agreed to handover to the complainants, the aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
   2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, limitation and cause of action. However, it is admitted that the subject unit was allotted to the complainants and an amount of Rs.54,37,945/-  has been paid by the complainants. It is alleged that the possession of the subject unit was offered to the complainants on 26.10.2016 and the same was taken over by the complainants on 31.5.2017. The copy of occupation certificate and offer of possession dated 26.10.2016 is annexed as Annexure OP-3 (colly). It is further alleged that in fact the term  "covered area" used in the Occupation certificate is different from "saleable area" as it does not include balconies, staircase, ledges and the proportionate share of common areas etc.  The price of the subject unit is based on saleable area  as defined in Annexure II of the Buyer’s Agreement  and not as mentioned in Occupation Certificate, which is based on FAR area. As per Annexure- II of the Independent Floor Buyer's Agreement, Saleable Area for the purpose of calculating the sale price of the Said Independent Floor, shall be the sum of the Specific Area of Said Independent Floor and it's prorata interest in the common Areas in said building/said plotwhereas the Specific Area of Said Independent Floor shall mean entire area enclosed by its periphery walls including area under walls, columns, verandahs/ balconies, cupboards and lofts etc. and half the area of common walls with adjoining Independent Floor which form integral part of Said Independent Floor and Common areas shall mean all such parts/ areas in Said Building which the Allottee of the Said Independent Floor shall use by sharing with the other Allottees/occupants in Said Building/ said plot including entrance at ground floor, plumbing shafts, electrical shafts, lift shafts, if provided, staircase including area for electric meter boxes & call bells, mumty, overhead water tanks and architectural features in provided. Moreover as per the said Annexure-II the Saleable Area mentioned in the Agreement is tentative and may undergo changes and the final Saleable Area shall be intimated upon completion of construction of the Said Building. Inclusion of Common areas within or outside the Said Building for the purpose of calculation of Saleable Area does not give any right, title or interest in Common areas to the Allottee except the right to use Common areas by sharing with other Allottees/ occupants in the said building/ said plot. The tentative percentage of Specific Area of the said Independent Floor to Saleable Area varies 87% to 92% approximately presently, depending on the size of the Independent Floor, which may undergo changes till completion of construction of the said building. The allotment was to be made on saleable area and the agreement provided for tentative saleable area at the time of its execution and it had been clearly provided in Clause 1.7 of the Agreement that the total price of the Unit in question shall be determined on the basis of final saleable area assessed after obtaining Occupation Certificate. It is averred that  on the completion of construction,  the saleable area was also audited and computed by the renewed exeternal experts viz. “GAA Advisory”  and certified by renowned external  expert and thereafter audited and certified by School of Planning and Architecture New Delhi (SPA).  and the relevant extract of the aforesaid report is extracted below for ready reference :-

Respondent particulars (Property No.)	A	B	C	D
	Original saleable area (Sq.mt)	Final Saleable Area (sq.mt)	Percentage of change in area	Final Saleable Area
				D1	D2
				Specific area	Common area
(DVF-E1/9-FF)	144	162.560	12.90%	145.816	16.744

So far as the percentage of change in area of the subject unit was found to the extent of 12.90% (200 sq.ft.) and is actually attached/forms part of the floor allotted to the complainants and complainants have been possessing and using the same. It is further alleged that even the complainants after accepting the possession of the subject flat with the increased area have paid differential amount to the OPs and after 4-5 years they have filed the instant complaint against the OPs and as such the complaint is time barred. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.The consumer complaint is sought to be contested.

3. In rejoinder, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject flat was allotted to the complainants vide buyer’s agreement dated 5.1.2011 (Annexure OP-2) and after obtaining the occupation certificate dated 2.5.2016 (Ext. C-5) from the competent authority, possession of the same was offered to the complainant vide offer of possession letter dated 26.10.2016 (Ext. C-4)  and on 31.5.2017 the possession of the subject flat was also handed over to the complainants vide possession letter Ext. C-6, the first and foremost question for determination before this Commission is if the consumer complaint of the complainant is barred by limitation, as alleged by the OPs in the preliminary objections taken by the OPs in their written version as well as in the application filed by the OPs for dismissal of the consumer complaint.
   2. In order to determine the question of limitation, it would be worth  to gaze the entire record carefully. As discussed above and also evident from  Ext. C-4 the offer possession letter dated 26.10.2016 the complainant was offered possession on 26.10.2016 and the complainants have taken over actual physical possession of the subject flat on 31.5.2017 Ext. C-6 As per Section 69 of Act 2019 limitation for filing complaint is 2 years from the date of accrual of cause of action. The relevant portion of the aforesaid clause if reproduced as under:-

“Section 69 of the Consumer Protection Act deals with limitation for filing of the consumer complaint and the same is reproduced below for ready reference :-

“69.  Limitation period.-(1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay.”

 

6.  Thus, in the light of Section 69 of the Act, one thing is clear on record that the District Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen except where the complainant satisfied the commission that he/she had sufficient cause for not filing the complaint within such period and the delay in filing the consumer complaint can be condoned.
7. In the case in hand, as it stands proved on record that admittedly firstly the cause of action if any accrued to the complainant against the OPs is from the date of offer of possession i.e. on 26.10.2016, thereafter from the date of taking over actual physical possession of the subject flat by the complainants i.e. on 31.5.2017 and  if they have any grievance against the OPs, they could have approached to this  Commission at the most within 2 years from date of taking actual physical possession of the subject flat i.e. on 31.5.2019  but the complainants have slept over the matter and filed the instant complaint on 25.1.2022 i.e. after a delay of more than two and half years, hence, it is safe to hold that the consumer complaints of the complainants, which were filed in the year 2022, is patently barred by limitation.
8. The Hon’ble National Commission, in similar circumstances, in the case of Avtar Singh Chauhan vs. DLF Home Developers Ltd. & Anr., CC/789/2020 decided on 2.3.2023, has held that limitation period would start from ‘the date of offer of possession’ and compensation for delayed delivery of possession would be tenable till the date of offer of possession after receiving the occupation certificate and not till ‘the date of delivery of possession’. The relevant portion of the said order is reproduced below for ready reference :-

“13.   On an overall consideration of the ratio in all the decisions referred to above, it becomes crystal clear that any claim on account of delayed possession would be tenable only till the date of ‘offer of possession’, but of course, after the Occupancy Certificate has been received by the Builder/Developer.  There is no entitlement of an allottee for such compensation "till the date of delivery of possession" as the Builder's liability ends once he makes the offer of possession. Further, as we have already seen, some orders which had directed that such delayed compensation was payable till the date of actual possession, were themselves modified not only by the Hon'ble Apex Court, but also by the Principal Bench of this Commission, and the compensation was found payable only "till the date of offer of possession" after having received the Occupancy Certificate.  This would mean that the cause of action qua the Complainants would commence from the date of offer of possession and not from any subsequent date such as that of the actual delivery of possession.  It is also to be noted that the objection on the ground of limitation bar did not arise in any of the aforesaid decisions.

14.    But in the present case, a specific objection in this regard has been raised.  It is undeniable that in the present case, the Occupancy Certificate was received by the Opposite Party on 21.2.2017, and only after that the offer of possession was made to the Complainants on 23.3.2017.  Consequently, the period of limitation starting from the latter date would end on 23.3.2019.  Any Complaint filed after that date would per se be beyond limitation…….xxxxxx

16.    For the aforesaid reasons, we are of the considered view that the present Complaints are manifestly barred by limitation, since the same were filed more than three years after the offer of possession was made to the Complainants in the month of March, 2017.”

9. Further, the Hon’ble National Commission in its latest order passed in DLF Homes Panchkula Pvt. Ltd. vs. Satish Goyal & Anr., FA/303/2021 decided on 07.10.2023 has held that State Commission erred in not considering the fact of limitation and further there was no application for condonation of delay and still the State Commission proceeded to adjudicate the matter without addressing the fundamental issue of delay. The relevant portion of the said order is reproduced as under:-

"16.  The complaint was barred by limitation before the State Commission. The State Commission also erred in not considering the fact that there was no application for condonation of delay and proceeded to adjudicate in the matter without addressing the fundamental issue of delay."

10.        Not only this, even our own Hon’ble State Commission, U.T., Chandigarh in R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., CC No.79 of 2019 decided on 12.07.2019 has held as under :-

“8.     Even though, no cause of action had accrued in favour of the complainant to file the instant complaint as there was no grievance of his put forth at the time of taking over the possession, still if we exclude two years limitation period to file the complaint from the date of offer of possession, the complaint is barred by limitation as there is a delay of five months in filing the same. In our opinion, the complaint deserves outright dismissal as the same is hopelessly time barred. The complaint deserves dismissal as the same does not assign any reason or ground for inordinate deliberate delay in filing the complaint after lapse of five months and even no application has been filed for condoning the unexplained, deliberate, hopeless delay in filing the complaint.”

11. The Hon'ble Apex Court in Civil Appeal No.2067 of 2002 - State Bank of India Vs. B.S. Agricultural Industries (I) (AIR 2009 SC 2210), wherein the Complaint was dismissed as time-barred, has observed as under :-

"Consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.”

Xii                      As far as the reliance placed by the complainant  on the order passed by the Hon’ble National Commission  in the case titled as Bankey Bihari Social Welfare Socity vs. Delhi Development Authority and Ors. decided on 13.3.2023 passed in  consumer case No.1381 of 2018,  is concerned , the facts of the said case are different from the fact and circumstances of the instant case and as such the law laid down in the aforesaid case is not applicable to the instant case.

xiii.                     So far as the case of the complainants that the OPs be directed to execute the sale deed in favour of complainants is concerned, as there is no iota of evidence on record that the complainants ever approached the OPs for the registration of the sale deed or that the OPs ever refused to execute the sale deed  and also that it is for the buyers to approach to the seller to get the sale deed executed in their favour, it is safe to hold that the complainants have failed to prove any cause of action against the OPs even to that extent also and as such this plea of the complainants also stands dismissed.

 

4. In view of the foregoing discussion and the law settled on this point, the miscellaneous applications filed by the OPs in the present consumer complaint for dismissal of the consumer complaints on the ground of limitation stands allowed.  Consequently, the present consumer complaint stands dismissed being time barred.
5.   Pending other miscellaneous application(s), if any, also stands disposed of accordingly.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 4/11/2024			[Pawanjit Singh] President
mp
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member