DLF Homes Panchkula Pvt. Ltd. V/S Sharan Pal Kaur - Consumer Court Case

Chandigarh

StateCommission

CC/137/2017

Sharan Pal Kaur - Complainant(s)

Versus

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

Tajeshwar Singh, Adv.

07 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	137 of 2017
Date of Institution	:	14.02.2017
Date of Decision	:	07.11.2017

Sharan Pal Kaur w/o Sh. Ravinder Singh r/o House No.3278, Sector 27-D, Chandigarh.
Ravinder Singh s/o Late Sh. Joginder Singh r/o House No.3278, Sector 27-D, Chandigarh.

.........Complainants.

Versus

DLF Homes Panchkula Pvt. Ltd., SCO 190-192,
Sector 8-C Chandigarh through its Manager/Authorized Signatory/Director/Officer-in-charge.
DLF Homes Panchkula Pvt. Ltd., DLF Gateway Tower, 2^nd Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana.

Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex.

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

Argued by:

Sh. Tejeshwar Singh, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	212 of 2017
Date of Institution	:	15.03.2017
Date of Decision	:	07.11.2017

Col. S. S. Chandel S/o Late Sh. Babu Ram Chandel, resident of Flat No.A-14, Florentine Housing Society, Sopan Baug, Ghorpadi, Pune – 411 001, Maharashtra.
Shashi Chandel wife of Col. S. S. Chandel, resident of Flat No.A-14, Florentine Housing Society, Sopan Baug, Ghorpadi, Pune – 411 001, Maharashtra.

.........Complainants.

Versus

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.
DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

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

Argued by:

Sh. Jasneet Kaur, Advocate Proxy for Sh. Ashim Aggarwal, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	221 of 2017
Date of Institution	:	16.03.2017
Date of Decision	:	07.11.2017

Ramphal S/o Late Sh. Kali Ram, R/o H.No.99A, Maden pur, Sector-26, Panchkula.

.........Complainant.

Versus

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	270 of 2017
Date of Institution	:	30.03.2017
Date of Decision	:	07.11.2017

Mr. Bhwani Shankar Sharma (in fact Bhawani Shankar Sharma), House No.697, First Floor, Sector 43, Chandigarh.
Mr. Rakesh Sharma R/o House No.697, First Floor, Sector 43, Chandigarh.

.........Complainant(s).

Versus

The DLF Homes Panchkula Private Limited, SCO 190-192, Sector 8-C, Madhya Marg, Chandigarh, Pin – 160009 through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing.
The DLF Homes Panchkula Pvt. Ltd., Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex.

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

Argued by:

Sh. Satyaveer Singh, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	276 of 2017
Date of Institution	:	31.03.2017
Date of Decision	:	07.11.2017

Bhaskar Gautam S/o Sh. Brijesh Kumar Tyagi, resident of F-48/2, Meenakshi Puram, Behind Defence Colony, Mawana Road, Meerut (Uttar Pradesh).

.........Complainant.

Versus

The Regional Manager, DLF Homes, Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh.
DLF Limited having Regd. Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon through its Directors.

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

Argued by:

Sh. Bhupinder Ghangas, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	329 of 2017
Date of Institution	:	18.04.2017
Date of Decision	:	07.11.2017

Satparwirtak Singh Ghuman S/o Sh. Gurwak Singh Ghuman,
Mini Randhawa, S/o Satparwirtak S. Ghuman,

Both R/o 705 Vista Ridge, Dr. N. E. Leesburg VA 20176, USA.

.........Complainants.

Versus

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Sh. Arjun Sharma, Advocate for the Opposite Parties.

Consumer Complaint	:	393 of 2017
Date of Institution	:	09.05.2017
Date of Decision	:	07.11.2017

Kanta Sheoran wife of Sh. Rajesh Sheoran Resident of VPO Khullar, Tehsil Abohar, District Fazilka – 110070, Punjab.

.........Complainant.

Versus

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

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

Argued by:

Sh. Shubhankar Baweja, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	536 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	07.11.2017

Col. Sandeep Kumar Jain S/o Sh. Balbir Prasad Jain,
Ritu Jain W/o Col. Sandeep Kumar Jain,

Both R/o #240/2, Vikram Nagar, Shankar Vihar, Rao Tula Ram Marg, New Delhi – 110010.

.........Complainants.

Versus

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

Registered Office Address:

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

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	538 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	07.11.2017

Maj. Pardeep Vij S/o Sh. Kasturi Lal Vij,
Janhvi Vij W/o Maj. Pardeep Vij,

Both R/o 16 Panna Park Society, Near Vijay Cross Roads, Navrangpura, Ahmedabad, Gujarat – 380009.

.........Complainants.

Versus

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

Registered Office Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	539 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	07.11.2017

Dr. Sunil Soni S/o Dr. S. K. Soni, R/o Dr. Ram Narain Soni Hospital, Sector -15, Kaimri Road, Hisar – Haryana.

.........Complainant.

Versus

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

Registered Office Address:

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

Consumer Complaint	:	577 of 2017
Date of Institution	:	28.07.2017
Date of Decision	:	07.11.2017

Shri Neeraj Pal R/o House No.D-214, Vivek Vihar, Sector 82, Noida – 201301, Uttar Pradesh.

.........Complainant.

Versus

DLF Homes Panchkula Private Limited through its Managing Director, Registered Office, 2^nd Floor, DLF Gateway Tower, DLF City, Phase-III, National Highway No.8, Gurgaon 122 002, Haryana.
DLF Homes Panchkula Private Limited, through its Project Head/Branch Manager, SCO Nos.190-192, Sector 8-C, Chandigarh, U.T., 160 009.

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

Argued by:

Sh. Gaurav Bhardwaj, Advocate proxy for Sh. N. P. Sharma, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

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

BEFORE: SH. DEV RAJ, PRESIDING MEMBER.

MRS. PADMA PANDEY, MEMBER.

PER DEV RAJ, PRESIDING MEMBER

By this order, we propose to dispose of the aforesaid 11 consumer complaints bearing Nos.137, 212, 221, 270, 276, 329, 393, 536, 538, 539 and 577 all of 2017.

2. At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price, amount received, DLI etc. and further the date when possession was offered, which was taken on record.

3. Arguments were heard in common. At the time of arguments on 30.10.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid 11 complaints can be disposed of, by passing one consolidated order.

4. Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.137 of 2017, titled as ‘Sharan Pal Kaur & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’

5. In brief, the facts are that with a dream of owning their own residential unit, the complainants approached the Opposite Parties in February 2010 and booked the unit by paying booking amount of Rs.4 Lacs vide receipt RVL/CRB/00599/0310 dated 22.03.2010. They were allotted Unit No.E7/14-FF with parking space bearing No.P-1F, having a specific area of 1267 sq. ft. and a saleable area of 1450 sq. ft., in Residential Group Housing Project of the Opposite Parties under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. The Basic sale price of the said unit was fixed at Rs.27,64,424.97 and EDC/IDC & Interest on above components was agreed at Rs.2,96,669.96 & Rs.2,30,404.86 respectively. The total consideration was set at Rs.32,91,499.79 besides Rs.72,500/- on account of Maintenance Security, thus, bringing the total consideration of the unit, in question, to Rs.33,63,999.79. It was further stated that an Independent Floor Buyers Agreement (Annexure C-6) was entered into between the parties on 30.11.2010. In Para 7 of the complaint, it was stated that the complainants have paid the total amount of Rs.34,43,806/- to the Opposite Parties vide receipts (Annexures C-1 to C-19). It was stated that out of this amount, receipts qua payments made on 21.11.2013, 19.07.2016, 02.11.2016 & 08.11.2016 were not available with the complainants.

6. As per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement, which period expired on 29.11.2012. It was further stated that the Opposite Parties offered possession of the unit, in question, vide letter dated 15.11.2016 (Annexure C-21) i.e. after delay of almost 4 years and asked the complainants to deposit the amount of Rs.7,30,439.09 and IBMS of Rs.82,766/- within six months, failing which, holding charges @Rs.10/- per sq. feet. per month as per Clause 13 of the Agreement were to attract. It was further stated that the actual physical and legal possession has not been offered and only paper possession was offered. It was further stated that the other amenities and facilities as promised by the Opposite Parties were not complete. It was further stated that the Opposite Parties arbitrarily raised the demand of Rs.22,916/- on account of contingent deposit of vat, which could be demanded after obtaining completion certificate. The complainants also challenged the demand of Rs.2,56,250/- raised on account of increase of 125 sq. ft. i.e. from 1450 sq. ft. to 1575 sq. ft. in saleable area of the unit in question. It was further stated that the amenities such as community hall, covered stilt parking, yoga centre, proper swimming pool, library, card/carrom room, pool/billiards room and a club house with modern facilities, were not ready. It was further stated that the acts of the Opposite Parties have caused financial loss and grave mental agony and harassment to the complainants.

7. 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 physical and legal possession of the unit, in question, complete in all respects after obtaining the requisite approvals and permissions; pay interest calculated @15% per annum on the deposited amount from the date of delay in handing over of the possession till the date, possession is handed over to the complainants; withdraw illegal demands of contingent deposit of Vat to the tune of Rs.22,916/- and demand of Rs.6,26,000/- on account of unilateral increase in saleable area etc.; award compensation of Rs.5,00,000/- on account of hardship, mental agony, harassment, financial loss and emotional disturbance caused to the complainants due to the actions/omissions of Opposite Parties; Rs.70,000/- as litigation expenses; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.

8. The Opposite Parties, in their preliminary submissions in the written statement stated that the complainants filed the instant complaint in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that the complainants are backing out from the executed contract. It was further stated that after receipt of occupation certificate on 19.07.2016, offer of possession was sent to the complainants on 15.11.2016 but they are not taking the same. It was further stated that the complainants had full knowledge about the terms of Agreement dated 30.12.2010 executed between the parties. It was further stated that the complainants prayed for unfounded demands which were not as per executed terms of the Agreement and thus, the Opposite Parties have prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. It was further stated that the project was cost escalation free, as the complainant shall get the possession of the floor on the same price as committed by Opposite Parties, at the time of allotment of the floor through allotment form dated 26.03.2010. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012. It was further stated that the Opposite Parties, vide letter dated 15.04.2013 (Annexure R-3), offered an exit option to the complainants by accepting refund of the entire amount paid till date with 9% interest, however, the complainants refused to avail the exit option and opted to continue with the project and also consented to the extension of time.

9. It was stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company, namely, Jones Lang Lasalle.

10. In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainants are not consumers as the floor, in question, was purchased by them for investment purposes and earning profits. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 06.04.2010 to 23.07.2010 and from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 14 of the preliminary objections, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 15.04.2013, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance.

11. The Opposite Parties moved Miscellaneous Applications under Section 8 of Arbitration and Conciliation Act, 1996, for referring the matter to the sole arbitration, in the following complaints:-

Sr. No.	Complaint No.	Miscellaneous Application No.
1.	221/9017	528/2017
2.	270/2017	655/2017
3.	276/2017	579/2017
4.	329/2017	654/2017

The aforesaid applications were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.

12. On merits, it was stated that the complainants booked the property No.DVF-E7/14-FF on 22.03.2010 and entered into Floor Buyers Agreement with the Opposite Parties on 30.11.2010. It was further stated that the unit, in question, was allotted to the complainants vide letter dated 26.03.2010. It was further stated that the price of the property as per SOP is Rs.36,18,830.16 plus service tax for 1450 sq. ft. It was further stated that after occupancy certificate, due to increase in the area, the total price of the property was Rs.40,65,705.08 plus service tax for an area of 1575 sq. ft. It was further stated that the complainants deposited a sum of Rs.31,22,939/- and there was an outstanding amount of Rs.15,677.55 towards DLI for a delay of 340 days. It was denied that the price of the unit, in question, was Rs.33,63,999.79 plus club charges etc. It was further stated that as per Clause 10 of the Agreement, the Opposite Parties were not under obligation to seek approval from the complainants, as the written consent was only required, if the area sought to be increased was more than 15%. It was further stated that in the present case, the increase in area is less than 15% and, as such, demand for additional area was completely right and justified. It was further stated that charging of EDC is purely a transparent transaction between the Opposite Parties and the State Government and the same is levied as per notifications issued by the competent authority and the said payment is further paid by the developer of the project as per the schedule of payment opted by the buyer. It was denied that the basic amenities have not been provided at the site. It was further stated that the demand of Vat has been raised as per clause 3 of the letter alongwith the letter along with final statement of account.

13. It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainants within 24 months from the date of signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that there was stay on construction in furtherance to the direction passed by Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010, which got vacated only on 12.12.2012. It was reiterated that offer of possession letter dated 15.11.2016 was sent to the complainants and the demand raised was in accordance with the terms and conditions of the Agreement. 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.

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

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

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

17. It is evident that vide allotment letter dated 26.03.2010 (at Page 249 of the written statement), complainant No.1, namely, Mrs. Sharan Pal Kaur was allotted Independent Floor No.DVF-E7/14-FF in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between the complainants and the Opposite Parties on 30.12.2010 (Ann. R-5 Colly). The total price of the said independent floor, as depicted in the Agreement, was Rs.32,91,499.79, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.37,57,419/- has actually been paid to the Opposite Parties, as mentioned in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Parties, at the time of arguments on 30.10.2017. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It is also on record that vide letter dated 15.04.2013 (Annexure R-3 at page 82 of the written statement), the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work. Vide aforesaid letter, option was also given to the complainants to seek refund alongwith 9% interest. It is, however, on record, that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, which in turn, delayed the completion of the project. The complainants agreed to a further period of 12 months in handing over of possession. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Parties to the complainants on 15.11.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint has been filed on 14.02.2017.

18. The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 30.12.2010 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexures R-6 & R-7), is not relevant.

19. As regards allegation of complainants regarding non-completion of certain basic amenities and facilities, the Opposite Parties have stated that all the promised facilities shall be provided. This point was, however, not pressed during arguments.

20. The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

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

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

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

33. The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC), and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

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

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

Same is the ratio of recent judgment passed by three Judges Bench of Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’ III (2017) CPJ 270 (NC).

In view of the above, the plea taken by the Opposite Parties, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

21. Another objection raised by the Opposite Parties was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was also stated that since the property, in question, is situated in District Panchkula, a part of cause of action arose at Panchkula. It may be stated here that according to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him/her. Clearly, application for allotment of Unit (Annexure R-4) was made by the complainants at Chandigarh address of the Opposite Parties viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer’s Agreement was also executed between the parties on 30.12.2010 at Chandigarh. Further the Opposite Parties, in Para 17 of the reply on merits, admitted that the office of the Opposite Parties is situated in Chandigarh and the Agreement was executed between the parties at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

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

23. The next objection raised by the Opposite Parties was that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission. 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 consider the present complaint. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines ‘service’ as under:-

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

From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. 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 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, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a ‘consumer’, as stated above. In the instant case, the complainants are seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainants are trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.

24. 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 was escalation in the prices of real estate, as such, they would not fall within the definition of ‘consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In their complaint in Para 3, the complainants have specifically stated that with a dream of owning their own residential unit, they approached the Opposite Parties in February 2010 and booked the unit, in question. 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. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

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

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

25. An objection has been raised by the Opposite Parties that the complainants, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, they waived of their rights to raise any grievance. This plea of the Opposite Parties is not well based. While seeking option vide letter dated 15.04.2013 (Annexure R-3), the complainants were informed of delay and extension of one year was sought. One year extended period expired on 29.12.2013 whereas the possession was offered on 15.11.2016 vide offer of possession letter (Annexure R-1 colly.). Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 29.12.2013, position would have been different and in that situation, it would have been accepted that the complainants had waived of their rights to raise grievance. The possession has been offered after delay of 2 years 10 months, even after one year extended period. The plea being devoid of merit is not tenable.

26. The next question, that falls for consideration, is, as to whether, there is delay in offering/delivering possession of the flat, in question. Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 30.12.2010 read thus:-

“11(a) Schedule for possession of the said Independent Floor:-

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.

11(b) Delay due to reasons beyond the control of the company:-

If the possession of the Said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for

delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension.”

As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

27. It is also an admitted fact, that by making reference to above fact of granting stay, which resulted into delay in construction at the site, consent of the complainants was sought, vide letter dated 15.04.2013 (Annexure R-3, at page 82 of the written statement), to complete construction within further 12 months. Vide aforesaid letter dated 15.04.2013, the Opposite Parties sought 12 months extension to deliver the possession. Option was also given to the complainants, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainants exercised former option and continued to make payment(s) thereafter. The complainants, were, thus, under bonafide belief that after one year extension, they would be getting possession after expiry of initial two years period plus one year extended period. The Opposite Parties, however, failed to honour their commitment and offered possession much later on 15.11.2016. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 29.12.2013. No justification whatsoever for delay in offering possession beyond 29.12.2013 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 30.12.2010 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question, to the complainants. Delay in offering possession to the complainants is an act of clear deficiency of the Opposite Parties. The Opposite Parties are bound to remove the deficiencies/snags, if any, in the construction of the unit, in question, and deliver the possession to the complainants.

28. The complainants in Para 12 of the complaint have stated that the demand in pursuance to increase in area is wrong and without any basis. Admittedly, the complainants were informed about the increase in area while offering possession, vide letter dated 15.11.2016, that the demand raised by the Opposite Parties, included Rs.2,56,250/- on account of change in area as per clauses No.1.10 for PLC and 10 for change in area as per Floor Buyer’s Agreement. Regarding increase in area, the Opposite Parties relying upon Clause 10 of the Agreement, have stated that if there was an increase/decrease of more than 15% in the saleable area of the independent floor, then, only the Opposite Parties were to intimate the complainants/allottees in writing and obtain their consent. It has been stated that the total increase in the saleable area in the instant case being less than 15%, the Opposite Parties were not bound to seek consent of the complainants. It may be stated here that saleable area of the unit, in question, as per the Agreement was 1450 sq. ft. While offering possession, in the final statement of account, annexed with the possession letter dated 15.11.2016, it was mentioned that the final area of the unit was 1575 sq. ft. Thus, there was increase of 125 sq. ft. When compared with the original area of the unit viz.1450 sq. ft., the increase is only 8.62%, which is less than 15%. The complainants came to know about change in the area when possession was offered to them on 15.11.2016. Still in case, the complainants had any grievance regarding increase in area, they could raise objection within 30 days from the date of notice of changes. There is nothing on record to show that the complainants raised any objection during the period of 30 days or till filing of the complaint on 14.02.2017. The complainants have also not adduced any evidence by way of report of an Engineer/Architect that increase in area did not exist. The demand raised by the Opposite Parties to this effect, is, thus, legal and tenable and the complainants are liable to pay the same.

29. It may be stated here that while offering possession vide letter dated 15.11.2016, the Opposite Parties raised a demand of Rs.8,13,205.09 i.e. (Rs.7,30,439.09+ Rs.82,766.00). Vide order dated 16.02.2017, this Commission directed the complainants to deposit the aforesaid amount minus Rs.22,916/- on account of contingent deposit of vat within three weeks from the date of passing of that order. The Opposite Parties were also directed to deliver possession of the unit, in question, within three weeks thereafter. The complainants moved a Miscellaneous Application bearing No.263 of 2017 wherein it was stated that out of demand raised vide offer of possession letter dated 15.11.2016, the complainants had already paid a sum of Rs.73,044/- vide receipt dated 15.12.2016 (Annexure A-3) annexed with the aforesaid miscellaneous application. It was stated that the balance amount payable was Rs.6,42,786.09 and since Vat amount of Rs.22,916/- was not required to be paid at that stage, the balance payable amount was Rs.6,19,870.09 + Rs.82,766.00 i.e. Rs.7,02,636.09. As stated during arguments, the complainants made payments on 29^th May 2017. In all, the complainants have paid a sum of Rs.37,57,419/-. The requisite documents have also been executed and submitted by the complainants to the Opposite Parties. However, possession of the unit, in question, has not been delivered to them (complainants) till date.

30. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 30.12.2010 i.e. by 29.12.2013. There is, thus, inordinate delay of around 2 years 10 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 15.11.2016. Clearly there is delay in offering possession on account of which, the complainants deserve to be compensated. The Hon’ble National Commission in the case of Shri Suman Nandi & Anr. Vs. M/s Unitech Limited & Anr., Complaint No.277 of 2013, decided on 17.12.2015, in Para 16 held as under:-

“16. On perusal of the Buyer’s Agreement and the affidavits filed by the parties it is clear that the complainants had booked the subject apartments on the expressed promise extended by the opposite parties that subject to Force Majeure, the opposite parties would deliver the possession of the apartments complete in all respect within 30-36 months, as the case may be, of the execution of the Buyers Agreement and being influenced by the said promise the complainants entered into the contract. No doubt in the Buyer’s Agreement some scope for delay due to unavoidable circumstances was kept in mind for which clause 4.a. for compensating the complainants for delay was incorporated but it does not mean that the intention was that even in the event of inordinate delay in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.5/- per sq. ft. per month which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view clause 4.a. was meant for computing compensation in case of a minor delay in delivery of possession. If the argument of the opposite party is to be accepted, it would lead to 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 his other business venture at nominal interest of 2-3 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 Consumer Protection Act.”

The National Commission granted 12% interest as compensation from the date of default in delivery of possession.

Recently in 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 read 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.”

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 the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.10/- per sq. ft. per month, which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view, Clauses 11(a) and 15 were meant for computing compensation, in case of a minor delay in delivery of possession.

31. Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainants are entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 30.12.2013 up-to + 2 months from the date of offer of possession. The possession having been offered on 15.11.2016, the complainants shall be entitled to compensation up-to plus 2 months from 15.11.2016 i.e. 14.01.2017 (30 days for making payment + 30 days grace period). The complainants are, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. For failure of the Opposite Parties to deliver possession within 30 days from the date, payment was made and documents were submitted, the complainants shall be further entitled to interest @12% for delay beyond 30 days, till the date possession is delivered.

32. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainants have been adequately compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. Grant of compensation in the sum of Rs.1,50,000/-, for mental agony and physical harassment suffered by the complainants, would serve the ends of justice.

33. In following nine complaints bearing Nos.212, 221, 270, 329, 393, 536, 538, 539 & 577, all of 2017, particulars of which are indicated in Table-I below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-

TABLE-I

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered	Whether amount deposited after offer of possession.	Whether documents submitted after offer of possession	DLI (Rs.)
A.	B.	C.	D.	E.	F	G	H
1.	212/2017	05.01.2011	04.01.2014	10.10.2016	Yes on 07.04.2017	Yes on 30.08.2017	1,957.09
2.	221/2017	28.12.2010	27.12.2013	15.11.2016	Not deposited	Pending	32,515.09
3.	270/2017	28.01.2011	27.01.2014	15.10.2016	Not deposited	Pending	96,620.96
4.	329/2017	03.05.2011	02.05.2014	15.11.2016	Not deposited	Pending	1,21,558.38
5.	393/2017	31.01.2012	30.01.2015	05.10.2016	Not deposited	Pending	58,480.00
6.	536/2017	08.12.2010	07.12.2013	28.02.2017	Yes on 21.06.2017	Yes	10,333,00
7.	538/2017	10.01.2011	09.01.2014	19.06.2017	Not deposited	Pending	1,78,186.61
8.	539/2017	18.07.2011	17.07.2014	31.05.2017	Yes on 01.08.2017	Pending	29,780.00
9.	577/2017	18.11.2010 (2^nd Allottee) 09.02.2012	17.11.2013	15.11.2016	Not deposited	Pending	22,769.91

34. In all the complaints tabulated above, possession of the unit(s), in question, was offered to the complainant(s) in the months of October and November 2016, except in complaint cases Nos.536, 538 & 539, all of 2017, wherein possession was offered on 28.02.2017, 19.06.2017 & 31.05.2017 respectively.

35. It may also be stated here that out of the aforesaid nine cases, amounts towards the demand raised vide offer of possession letters have been deposited by the complainants with the Opposite Parties only in three complaints bearing Nos.212, 536 & 539, all of 2017. The said documents have been submitted in complaint cases bearing No.212 and 536 both of 2017. In complaint bearing No.539 of 2017, it was stated by Counsel for the Opposite Parties that reminder to submit the requisite documents has been sent to the complainant(s) on 26.10.2017. In complaints bearing Nos.221, 270, 329, 393, 538 & 577, all of 2017, no amount towards the demand raised has been deposited by the complainant(s). In all these six cases, the requisite documents have also not been submitted by the complainant(s). In all these nine cases, possession of the units, in question, has not yet been delivered to the complainant(s).

36. In complaint No.221 of 2017, Counsel for the complainant submitted that while offering possession of the unit, in question vide letter dated 15.11.2016, demand raised by the Opposite Parties in the sum of Rs.13,59,349.43 + Rs.91,963.00, included demand in the sum of Rs.7,80,000.03 on account of change/increase in area and PLC. It was stated that as per final statement of account, the increase in area was 200 sq. ft. only i.e. revised area of 1750 sq. ft. from the original area of 1550 sq. ft. It was stated that at the rate of Rs.1720.50 per sq. ft., the rate stipulated in the Floor Buyer’s Agreement, the demand on this account should have been 200 x 1720.50 = Rs.3,44,100/- and not Rs.7,80,000.03 as demanded by the Opposite Parties. A specific objection to this effect has been taken by the complainant in Para 13 of his complaint. In the corresponding Para of the written statement, no cogent and reasoned justification for raising demand in the sum of Rs.7,80,000.03 has been given. It has only been stated that increase in area of the said floor was as per Clauses 9 & 10 of the Agreement and the demands raised are as per the terms and conditions of the Agreement. The Basic Sale Price of the unit, in question, being Rs.26,66,774.96, the increase in price on account of increase in area is around 30%, which in the absence of any cogent and convincing evidence by the Opposite Parties, is not justified. Therefore, out of demand of Rs.7,80,000.03, demand only in the sum of Rs.3,44,100/- is held justified and payable by the complainant.

37. Sh. Parveen Jain, Advocate for the Opposite Parties (in CC/137, 212, 221, 270, 393, 536, 538, 539 & 577 all of 2017) and Sh. Arjun Sharma, Advocate (in CC/329/2017) stated that the Opposite Parties are not insisting upon contingent deposit of Vat at this stage, subject to furnishing of an affidavit by the allottee(s) to make the payment as and when demanded by the Government. It was further stated that the complainants need not pay Advocate charges. It was stated and agreed by Counsel for the Opposite Parties that the stamp duty and registration charges would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainants.

38. In complaint bearing No.536 of 2017, the complainant(s) submitted Snag List/Customer Observation to the Opposite Parties on 21.06.2017 (at Page 89 of the file) pointing out number of snags.

39. In complaint bearing No.538 of 2017, it was stated by Counsel for the complainant(s) that snags in construction still persist and the same have not been rectified by the Opposite Parties.

40. The Counsel for the Opposite Parties stated that the snags/deficiencies, if any, will be removed, before delivering possession.

41. Therefore, in all the aforesaid nine complaints, the complainants are held entitled to compensation @12% p.a. interest on the deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession. After payment and submission of documents, in the event of failure of the Opposite Parties to deliver possession, after removal of snags, within 30 days, for delay beyond 30 days, the complainants shall be further entitled to interest @12% till actual physical possession is delivered.

42. In complaint No.212 of 2017, it is apparent from offer of possession letter dated 10.10.2016 that benefit in the sum of Rs.5,31,944/- on account of compensation for delayed offer of possession, has been given in the Final Statement of Account. Therefore, in this case, the complainant is entitled to compensation by way of interest @12% calculated for delayed period (minus) the amount of Rs.5,31,944/- already adjusted while raising demand in the Final Statement of Account.

43. The complainant(s), in all the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service. In Complaints bearing Nos.212, 221, 536, 539 & 577, all of 2017, the complainants are held entitled to compensation in the sum of Rs.1,50,000/- in each case, on account of mental agony, physical harassment and deficiency in service.

44. However, in Complaint bearing No.270, 329, 393 & 538 all of 2017, there has been DLI in the sum of Rs.96,620.96, 1,21,558.38, 58,480.00 & 1,78,186.61 respectively against the complainants. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainants, in these case, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,00,000/- each in CC Nos.270 & 329 both of 2017 and Rs.1,25,000/- in CC No.393 of 2017 and Rs.75,000/- in CC No.538 of 2017 would serve the ends of justice.

45. In one consumer complaint bearing No.276 of 2017, particulars of which are indicated in Table-II below, the complainant has sought refund of the deposited amount:-

TABLE – II

Sr. No.	Description/Details
1.	Amount deposited. (Rs.)	Rs.44,13,394.00.00
2.	Date of Agreement.	08.02.2011
3.	Due date for offering possession.	07.02.2014
4.	Whether possession offered	On 19.04.2017
5.	Delay in offer of possession	3 Year 2 Months
6.	Whether first allottee	2^nd Allottee (06.10.2014) Undertaking given (25.09.2014, at Page 225-227 of the written statement)
7.	DLI	Rs.12,011.000

46. In the Chart submitted by the Counsel for the Opposite Parties, during arguments, receipt of the amount as shown against the Column ‘Amount deposited (Rs.)’ at Sr. No.1 in the table, has been admitted.

47. As is evident from record of the above complaint, the Independent Floor Buyer’s Agreements was executed on 08.02.2011. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 24 months from the date of execution of the agreement unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, deposits, securities etc. and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In this case, 24 months period plus the extended period of 12 months from the date of execution of the agreement expired on 07.02.2014. Possession was offered on 19.04.2017. There has been, thus, inordinate delay in offering possession. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein, there was inordinate delay, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the complainants to accept the same. It was so held by the National Commission in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

Therefore, the complainant, in this complaint, is held entitled to refund of the amount alongwith interest @15% per annum.

48. Now the question arises, from which date, the complainant is entitled to interest on the deposited amount. It is stated in para 5 of the complaint that the original purchaser of the property, being real brother-in-law of the complainant, decided to give this property to the complainant vide gift deed dated 21.07.2014 (Annexure C-1). Therefore, the complainant is a subsequent allottee as the unit, in question, was transferred in his name on 06.10.2014.

49. Since the unit in the instant complaint viz. complaint bearing No.276 of 2017 omeHomwas transferred in the name of the complainant on 06.10.2014, in the light of ratio of judgment in case titled ‘Darbara Singh and ors. Vs. Emaar MGF Land Limited and Ors.’, Complaint Case No.147 of 2016 decided by this Commission on 22.08.2016, the complainant is held entitled to interest @15% per annum, w.e.f. 06.10.2014 onwards in respect of amounts deposited up-to 06.10.2014 and interest @15% per annum on the amounts deposited thereafter from 06.10.2014 onwards from the respective dates of deposits.

50. As regards compensation for mental agony, harassment etc., the complainant, is held entitled to compensation of Rs.1,75,000/-.

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

52. For the reasons recorded above, all the complaints bearing Nos.137, 212, 221, 270, 276, 329, 393, 536, 538, 539 and 577 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

137, 212, 221, 270, 329, 393, 536, 538, 539 and 577 all of 2017

53. In these complaints, possession of the unit(s), in question, was offered to the complainant(s) in the months of October and November 2016, except in complaint cases Nos.536, 538 & 539 all of 2017, wherein possession was offered on 28.02.2017, 19.06.2017 & 31.05.2017 respectively. Amounts towards the demand raised vide offer of possession letters have been deposited by the complainants only in complaints bearing Nos.137, 212, 536 & 539, all of 2017 whereas in complaints bearing Nos.221, 270, 329, 393, 538 & 577, all of 2017, the said demands have not been deposited by the complainant(s). In these six cases and also complaint No.539 of 2017, the requisite documents have not been submitted by the complainant(s), whereas the said documents have been submitted in complaint cases bearing No.137, 212 and 536 all of 2017. Admittedly, in all these ten cases, possession of the units, in question, has not yet been delivered to the complainant(s). The Opposite Parties shall hand over possession within 30 days after removing the snags, if any, after balance payment wherever due, is made, and documents are submitted.

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), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, is made and documents are submitted.
	In Complaint No.221 of 2017, out of total demand raised, demand in the sum of Rs.3,35,900/- is not payable by the complainant.
(ii)	Execute and get registered the sale deed(s) 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), with effect from 30.12.2013, 05.01.2014, 28.12.2013, 28.01.2014, 03.05.2014, 31.01.2015, 08.12.2013, 10.01.2014, 18.07.2014 & 18.11.2013 respectively up-till two months from the date of offer of possession i.e. up-to 14.01.2017, 09.12.2016, 14.01.2017, 14.12.2016, 14.01.2017, 04.12.2016, 27.04.2017, 18.08.2017, 30.07.2017 & 14.01.2017 respectively, 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. (In CC/212/2017, a sum of Rs.5,31,944/-, credit for which has been given on account of delay compensation, shall be deducted from the compensation amount arrived at by way of interest @12% for delay period). Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10^th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/- each [in CC No.137, 212, 221, 536, 539 & 577 all of 2017]; Rs.1,25,000/- [in CC No.393 of 2017]; Rs.1,00,000/- each [in CC No.270 & 329 both of 2017] and Rs.75,000/- [in CC No.538 of 2017] on account of mental agony, physical harassment and deficiency in service and litigation costs of Rs.35,000/- in each case, to the complainant(s), 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.

54. In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

55. As regards the amount of contingent Vat deposit, the complainant(s) shall furnish an affidavit to make the payment as and when demanded by the Government. The complainant(s) shall deposit amount of contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay in remittance, beyond three weeks from the receipt of notice, shall attract simple interest @12% per annum.

Consumer Complaint bearing No:

276 of 2017.

56. The Opposite Parties are, jointly and severally, held liable and directed as under:-

To refund the amount of Rs.44,13,394/- alongwith simple interest @15% per annum, to the complainant, with effect from 06.10.2014 for the amount(s) paid uptil 06.10.2014 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 06.10.2014 onwards, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;
To pay an amount of Rs.1,75,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @15% per annum, from the date of filing the complaint till actual payment.

57. However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an Institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

58. Certified copy of this order, be placed on the file of consumer complaints bearing Nos.212, 221, 270, 276, 329, 393, 536, 538, 539 and 577 all of 2017.

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

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

Pronounced.

07.11.2017

(DEV RAJ)

PRESIDING MEMBER

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/137/2017

Sharan Pal Kaur - Complainant(s)

Versus

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

Tajeshwar Singh, Adv.

07 Nov 2017

ORDER

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