Chandigarh

StateCommission

CC/457/2017

Surinder Singh Mann - Complainant(s)

Versus

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

Ashim Aggarwal, Adv.

22 Dec 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	457  of 2017
Date of Institution	:	31.05.2017
Date of Decision	:	22.12.2017

 

 

1. Surinder Singh Mann S/o Late Sh. Gurmej Singh R/o H.No.5202/3, Modern Housing Complex, Manimajra.
2. Agamjot Mann W/o Sh. Surinder Singh Mann R/o H.No.5202/3, Modern Housing Complex, Manimajra.

 

                                             .........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 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.
3. Mr. Rakesh Kerwell, Director, DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh.
4. Mr. Manoj Talwar, Director, DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-III, Highway-8, Gurgaon.

 

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

 

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

 

BEFORE: SH. DEV RAJ, PRESIDING MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

 

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainants.

Ms. Ekta Jhanji alongwith Sh. Parveen Jain, Advocates for the Opposite Parties.

       

PER DEV RAJ, PRESIDING MEMBER

              During arguments, Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates, Counsel for the Opposite Parties, under their signatures, placed on record, a table/chart showing detail of property purchased, its price, date of agreement, amount received, DLI etc. and whether possession offered, which was taken on record.

2.         In brief, the facts are that the complainants, who are husband and wife, being desirous of owning a residential accommodation for their family and occupation near Chandigarh, jointly purchased an independent floor in the project of the Opposite Parties, in the name and style of “DLF Valley, Panchkula” at Village Bhagwanpur, Tehsil & Distt. Kalka, Panchkula, from the original allottee Mr. Om Kant Aggarwal on 03.05.2013. It was stated that Mr. Om Kant Aggarwal was allotted the independent floor No.DVF-E8/8-GF#217 having saleable area of 1525 sq. ft. on 05.10.2010 vide allotment letter (Exhibit C-1). The complainants opted for 2 Years Construction Linked Payment Plan. It was further stated that the price payable for the said unit was Rs.49,60,824.80 plus club charges, etc. It was stated that the Opposite Parties intentionally delayed the execution of Independent Floor Buyer’s Agreement, which was ultimately executed on 26.04.2011 (Exhibit C-2). It was further stated that the said unit was purchased by the complainants from Mr. Om Kant Aggarwal on 03.05.2013, which was transferred in their names vide letter dated 03.05.2013 (Exhibit C-3).

3.         It was further stated that as per Clause 11(a) of the Agreement, the Opposite Parties were to hand over possession of the said independent floor within 24 months from the date of execution of the Agreement i.e. by 24.04.2013. It was further stated that the complainants, in all, paid an amount of Rs.51,42,867.87 to the Opposite Parties uptill 02.11.2016, as per detail given in Para 8 of the complaint. It was further stated that upon numerous requests and visiting the site from 2013 onwards, the Opposite Parties assured that construction was being expedited and possession would be offered very soon. It was further stated that vide letter dated 19.04.2017 (Exhibit C-17), the Opposite Parties offered possession of the unit, in question and asked the complainants to remit various amounts and documents. It was further stated that the aforesaid letter cannot be termed as letter for offer of possession as per agreement and is mere paper sent for curtailing the liability of the Opposite Parties.

4.         It was further stated that vide aforesaid letter dated 19.04.2017, the Opposite Parties raised illegal demand of Rs.12,17,896.49 plus Rs.90,491/- and also offered a Customer Goodwil Package, asking the complainants to execute a consent letter waiving off any demands or claims of any nature against the Opposite Parties. It was further stated that the Opposite Parties enhanced the final demand by nearly four times of the original amount, which does not include stamp duty and registration charges. It was further stated that the same caused extreme unwarranted financial hardship to the complainants as they never anticipated such heavy financial liability. It was further stated that no compensation whatsoever was offered by the Opposite Parties to the complainants vide the said final statement of accounts. It was further stated that the complainants are not interested in seeking possession after delay of more than four years from the promised date of possession. It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency, in rendering service, and indulgence into unfair trade practice.

5.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to refund the amount of Rs.51,42,867.87 to the complainants with interest @15% p.a. from the respective dates of deposits till the date of payment; award Rs.5,00,000/- as compensation for deficiency in service, unfair trade practice, mental harassment, loss & injury suffered by the complainants due to negligence of the Opposite Parties; award Rs.55,000/- towards litigation expenses and pass such further orders/directions, as may be necessitated in the matter and deemed appropriate under the circumstances of the case.

6.         The Opposite Parties, in their preliminary submissions in the written statement stated that the offer of possession was sent to the complainants on 19.04.2017 but the complainants themselves are neither taking possession nor have paid the due amount as raised in Final Statement of Account dated 19.04.2017 and, as such, they are liable to pay holding charges as well as delay interest on the due payments. It was further stated that the complainants are subsequent purchasers and had purchased the floor, in question, on 03.05.2013 from the original allottee i.e. Sh. Om Kant Aggarwal. It was further stated that the disputed floor was allotted to the original allottee on 05.10.2010 and subsequently, the Floor Buyer’s Agreement was executed between the Opposite Parties and the original allottee on 26.04.2011. It was further stated that the complainants have filed the instant complaint in total disregard to the terms of Floor Buyer’s Agreement executed between the parties, which amounted to default/breach of its terms and conditions. It was further stated that after receipt of occupation certificate on 20.10.2016, offer of possession was sent to the complainants on 19.04.2017. It was further stated that the complainants had full knowledge about the executed terms of Agreement dated 26.04.2011. It was further stated that the project is cost escalation free and the complainants have been getting benefits of cost escalation on account of construction material/labour land holding cost and also of price appreciation of the floor of more than Rs.20 Lacs. 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.

7.         As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received and offer of possession had been sent to 1707 customers. It was further stated that in the instant case, offer of possession has been sent to the complainants vide letter dated 19.04.2017. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company namely Jones Lang Lasalle.

8.         In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainants are not consumers as the floor, in question, was purchased by them for investment purposes and earning profits. Another objection raised in the written statement is 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 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 8, 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. The territorial jurisdiction of this Commission to entertain and try the complaint has also been challenged on the ground that the project, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District. It was further stated that only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint.

9.         On merits, it was stated that the price of the unit as per Schedule of Payment (SOP) was Rs.56,22,805.36 plus service tax. It was further stated that due to increase in area from 1525 sq. ft. to 1722 sq. ft, the price of the floor also stood increased to Rs.63,23,390.63 plus service tax. It was admitted that the complainants deposited a sum of Rs.51,42,868.57 with the Opposite Parties and there is an outstanding amount of Rs.1,63,062/- towards DLI for a delay of 724 days in remitting installments. 

10.       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 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 delivery of possession of the unit, in question, was delayed on account of force majeure conditions. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was reiterated that possession of the unit, in question, was offered to the complainants on 19.04.2017. 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.

11.       The complainants, in support of their case, submitted their joint affidavit, by way of evidence, alongwith which, a number of documents were attached.

12.       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. 

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

14.       It is evident that initially Sh. Om Kant Aggarwal was allotted Independent Floor No.DVF-E8/8-GF#217 in DLF Valley, Panchkula by the Opposite Parties vide allotment letter dated 05.10.2010 (Exhibit C-1) and Independent Floor Buyer’s Agreement was executed at Chandigarh on 26.04.2011 (Exhibit C-2). The said unit was then purchased by the complainants from Sh. Om Kant Aggarwal on 03.05.2013, which was transferred in favour of the complainants vide letter dated 03.05.2013 (At Page 219 of the written statement). The total price of the said independent floor, as depicted in the Agreement, was Rs.49,60,824.80, besides other charges, securities, deposits and taxes etc. as specified in the Application/ Agreement. In all, a sum of Rs.51,42,868.57, was paid to the Opposite Parties as admitted by them in their written statement and also 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 14.12.2017.

15.       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 may be stated here that the Opposite Parties, in similar cases relating to this project, had given an exit option to the allottees in June 2013, in view of stay by Hon’ble Supreme Court, to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession. However, in the instant case, no such document has been placed on record to show that any such offer was ever given to the allottee in the year 2013. 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 (Annexures R-7 & R-8), which in turn, delayed the completion of the project. The possession of the unit, in question, was offered by the Opposite Parties to the complainants on 19.04.2017 vide offer of possession letter (Annexure R-1 colly) and the instant complaint has been filed on 31.05.2017. In the instant case, the complainants did not deposit any amount towards the demand raised vide aforesaid offer of possession letter 19.04.2017 and sought refund of the deposited amount by filing this complaint.

16.         Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 26.04.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010 (Ann. R-5 and R-6), is not relevant.

17.       A specific averment as regards delay in execution of the Agreement has been made by the complainants in Para 3 of their complaint. It was stated that the Opposite Parties intentionally delayed the execution of the agreement, which was ultimately executed on 26.04.2011 i.e. after expiry of more than six months from the date of allotment viz. 05.10.2010. It may be stated here that the unit, in question, was transferred in their name on 03.05.2013 and it was for the original allottee to agitate qua delay in execution of the Agreement at the relevant time but he did not do so. It may also be stated here that it is not immediately after booking of the unit that Buyer’s Agreement is executed and the process, in all fairness, is likely to take some time. The plea raised, therefore, is not tenable.

18.           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.”

            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.

19.       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-3) was made by the original allottee Om Kant Aggarwal 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 26.04.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., 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.

20.         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.

21.         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, 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 have sought relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service by not delivering possession within the stipulated/extended period. 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.  

22.       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 1, the complainants have specifically stated that they purchased the flat, in question, as they were desirous of owning a residential accommodation for their family use and occupation near Chandigarh. 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.  

23.       The next question, that falls for consideration, is, as to whether, the complainants are entitled to refund on account of delay in offering/delivering possession of the flat, in question. In the instant case, Independent Floor Buyer’s Agreement was admittedly executed between the parties on 26.04.2011. 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. The possession of the unit, in question, has been offered on 19.04.2017. Three years period for handing over possession i.e. stipulated two years plus one year extended period on account of stay by Hon’ble Apex Court, expired on 25.04.2014 from the date of the Agreement, which was executed on 26.04.2011. 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 26.04.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. No reason or circumstances, which were beyond the control of the Opposite Parties for delay of more than 3 years beyond initial period of two years and one year extended period, have been explained. There is, thus, inordinate delay in offering possession of the allotted unit. 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, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. 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  complainant, 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  complainants 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. Also in 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 complainants are held entitled to refund of the amounts alongwith interest @15% per annum. Since the unit, in question, was transferred in favour of the complainants on 03.05.2013, 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 complainants are held entitled to interest @15% per annum, w.e.f. 03.05.2013 in respect of amounts deposited up-to 03.05.2013 and interest @15% per annum on the amounts deposited thereafter from 03.05.2013 onwards from the respective dates of deposits.

24.         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 offering/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. Definitely, the complainants have suffered physical harassment and mental agony by not getting the unit, in question, within the stipulated period. In the instant case, there is a huge DLI in the sum of Rs.1,63,062.83, on account of delayed payments by the complainants. Delay in payment of installments partly contributes to delay in completion of the project. Therefore, the complainants are not entitled to same amount of compensation, which this Commission has been granting in cases of this project. In the facts and circumstances of the case, grant of compensation in the sum of Rs.1,25,000/-, would serve the ends of justice.

25.       No other point, was urged, by the Counsel for the parties.

26.       For the reasons recorded above, the complaint is partly accepted with costs. The Opposite Parties, are jointly and severally, held liable and directed as under:-

1.   To refund the amount of Rs.51,42,868.57 alongwith simple interest @15% per annum, to the complainants, with effect from 03.05.2013 for the amount(s) paid uptil 03.05.2013 by the previous allottee and from the respective dates of deposits, in respect of payments made w.e.f. 03.05.2013 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;
2.   Pay compensation in the sum of Rs.1,25,000/-, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainants, within 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount(s) alongwith simple interest @15% per annum from the date of filing the complaint till actual payment.

27.        However, it is made clear that in case, the complainants have 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(s).

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

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

Pronounced.

22.12.2017

(DEV RAJ)

PRESIDING MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

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