Chandigarh

StateCommission

CC/521/2017

Yashbir Singh - Complainant(s)

Versus

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

Jagjeet Beniwal,Adv.

22 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	521 of 2017
Date of Institution	:	07.07.2017
Date of Decision	:	22.03.2018

 

Yashbir Singh son of Shri Rajpal Singh resident of House No.1150, Sector 9, Karnal, District Karnal.

 

…….Complainant.

Versus

 

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

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

Site Address:-

The Valley, Sector 3, Kalka-Pinjore, Urban Complex.

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

Argued by:

 

Sh. Jagjeet Beniwal, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

 

Consumer Complaint	:	576 of 2017
Date of Institution	:	26.07.2017
Date of Decision	:	22.03.2018

 

Col. Satya Vrat Sheoran son of Late Major Bharat Singh Sheoran resident of 424 Defence Colony, Hisar.

 

…….Complainant.

Versus

 

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

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

Site Address:-

The Valley, Sector 3, Kalka-Pinjore, Urban Complex.

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

Argued by:

 

Sh. Harish Nain, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Parties.

 

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

 

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

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, MEMBER

            By this order, we propose to dispose of the aforesaid two consumer complaints bearing Nos.521 and 576 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 etc., which was taken on record.

3.         Arguments were heard in common. After hearing arguments on 12.03.2018, we were of the opinion that the facts and issues in law, involved in the above two complaints, by and large, were the same, and therefore, the aforesaid two complaints could be disposed of, by passing one consolidated order.

4.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.521 of 2017, titled as ‘Yashbir Singh Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’

5.         In brief, the facts are that the Opposite Parties developed a Residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. The complainant booked a flat in the Valley Project on 30.03.2010 and paid an amount of Rs.4,00,000/-. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-3) on 26.04.2011 whereby independent floor No.DVF-D1/6 SF (Second Floor) with a parking was allotted to the complainant. The total price of the unit was fixed as Rs.39,24,599.74 for the saleable area of 1550 Sq. Feet. It was further stated that after the booking and before execution of the Agreement, the complainant deposited almost Rs.13,03,404/-.  

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. The Opposite Parties also published an advertisement dated 13.01.2014 stating that possession would be delivered in 2014 but nothing was done. It was further stated that the Opposite Parties offered possession of the unit, in question, vide letter dated 26.10.2016 (Annexure C-4) and increased the area by 200 sq. ft. and illegally charged Rs.4,60,000/- for the increased area. It was further stated that possession was offered after a delay of more than 36 months and the Opposite Party was liable to pay Rs.15,500/- per month as provided in the Agreement.  It was further stated that promised facilities and amenities have not been provided. It was further stated that quality of construction is very poor. It was further stated that wrong doings and illegal action of the Opposite Parties have caused undue harassment and mental agony to the complainant, for which he is entitled to compensation.

7.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant 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 in accordance with the allotment letter and Agreement and with all promised facilities and amenities; to obtain all due permissions and certificates including the Completion Certificate inter-alia from the concerned authorities; pay interest calculated @24% 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 complainant; to pay compensation @Rs.10/- per sq. feet of the saleable area as per Clause 15 of the Agreement; award compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainant due to the actions/omissions of Opposite Parties; Rs.75,000/- 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 after receipt of occupation certificate on 02.05.2016, offer of possession was sent to the complainant on 26.10.2016. Neither the complainant is taking possession nor paid the due amount as raised in FSA dated 26.10.2016 and as such, the complainant is liable to pay holding charges. It was further stated that instant complaint has been filed in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that the complainant had full knowledge about the executed terms of Independent Floor Buyer’s Agreement dated 26.04.2011. It was further stated that the project was cost escalation free as the complainant has been getting benefits of cost escalation on account of construction material/labour, land holding cost and also of price appreciation of the floor. 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.

9.         It was stated that occupation certificate(s) of 1775 units had already been received and offer of possession was sent to 1707 customers. It was further stated that out of 1707 allottees, 643 allottees have already taken possession and 153 allottees have already got their conveyance deed executed. 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.

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 complainant has 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 complainant is not  consumer as the floor, in question, was purchased by him 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 10 of the preliminary objections, it was further stated that approvals regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, were received on 06.09.2013 and 14.08.2014 respectively. It was further stated that vide letter dated 05.06.2013 (at Page 204), the complainant was given an exit option and was informed that in case, he does not wish to continue with allotment, the Opposite Parties would cancel the allotment and would refund the amount paid with simple interest @9%, however, the complainant agreed to continue with the allotment and also agreed to the delay in completing the construction and therefore, voluntarily waived his right to raise any grievance qua this aspect.  

11.       On merits, it was stated that the price of the property as per SOP is Rs.44,58,889.04 plus service tax for 1550 sq. ft. It was further stated that due to increase in the area, as per Clauses 9 & 10 of the Agreement, the total price of the property was Rs.50,70,954.78 plus service tax for an area of 1750 sq. ft. It was further stated that the complainant have deposited a sum of Rs.49,08,051/- and there is an outstanding amount of Rs.97,562.98 towards DLI for a delay of 1081 days. 

12.       It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant 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 further stated that offer of possession letter dated 26.10.2016 was sent to the complainant but the complainant is not taking possession. 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.

13.       The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

14.       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. 

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

16.       It is evident that vide allotment letter dated 03.04.2010 (at Page 263 of the written statement), the complainant was allotted Independent Floor No.DVF-D1/16-SF-217 in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between him and the Opposite Parties on 26.04.2011 (Annexure C-3). The total price of the said independent floor, as depicted in the Agreement, was Rs.39,24,599.72, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.49,08,051/- has actually been paid to the Opposite Parties, as mentioned in the Chart showing details of the property etc., in question, placed on record, under the signatures of the Counsel for the Opposite Parties, at the time of arguments on 12.03.2018. 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 05.06.2013 (at Page 204 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 complainant to seek refund alongwith 9% interest. It is 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 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 complainant on 26.10.2016 vide offer of possession letter (Annexure C-4/R-2 colly.) and the instant complaint has been filed on 07.07.2017. During arguments, it was stated by Counsel for the Opposite Parties that another letter offering possession was sent to the complainant on 06.03.2018.

17.        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), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexure R-5 & R-6), is not relevant.

18.       As regards objection qua poor quality of construction of the unit, it may be mentioned here that no cogent evidence by way of report of an Engineer/Architect to substantiate the allegation has been brought on record. In the absence of cogent evidence, such a bald assertion cannot be given any cognizance. This point as also the point regarding non-completion of certain common facilities/amenities were also not pressed during arguments.

19.       It may be stated here that in this complaint, the complainant, has specifically challenged demand qua increase in area of the unit, in question, whereas in the connected complaint bearing No.576 of 2017, the complainant, sought clarification qua demands regarding increase in area, electricity, water, sewerage charges, stamp duty and registration charges besides maintenance charges etc. and requested for adjusting the same from the compensation amount due on account of delayed compensation. As is evident from record, in CC/521/2017, the saleable area of the unit, in question, as per the Agreement was 1550 sq. ft. While offering possession, in the final statement of account, annexed with the possession letter dated 26.10.2016, it was mentioned that the final area of the unit was 1750 sq. ft. Thus, there was increase of 200 sq. ft. When compared with the original area of the unit viz. 1550 sq. ft., the increase is less than 15%. The complainant came to know about change in the area when possession was offered to him on 26.10.2016. In case, the complainant had any grievance regarding increase in area, in terms of Clause 10 of the Agreement, he could raise objections          within 30 days. There is nothing on record to            show that the complainant raised any objection during the period of 30 days or till filing of the complaint on 07.07.2017. The complainant has 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 complainant is liable to pay the same. Otherwise also, the issue qua demand raised on account of increased area and other demands raised in the offer of possession letter has already been settled by this Commission in Consumer Complaint bearing No.32 of 2017 titled Kavita Devi Vs. M/s DLF Homes Panchkula Pvt. Ltd. decided on 17.05.2017 alongwith which, 12 connected complaints were also decided. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

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 judgment of a three Judges Bench of the National Commission in a case titled as Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017.

            Against the aforesaid order passed by the larger Bench of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, M/s Emaar MGF Land Limited filed Civil Appeal No.(s) 23512-23513 of 2017 in Hon’ble Supreme Court of India, which were also dismissed.

            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.       In regard to other preliminary objections raised by the Opposite Parties, in their written statement, as referred to in Para 10 above, the following questions fall for consideration:-

(i)           Whether 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 may be stated here that this issue has already been dealt with in detail by this Commission in case titled “Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’, 2017 (3) CPJ 8, wherein in Para 21 and 22, this Commission held as under:-

“21. ……..It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Page 80 of written statement) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer's Agreement (Annexure C-2) was also executed between the parties on 03.02.2011 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., v. 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 Fora. 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 v. 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. v. Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others v. 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 the complainants, 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.”

              In the instant case also, application for allotment of Unit (Annexure R-3) was made by the complainant 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 and as admitted, 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 complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Parties is that the complainant has 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 and further the complainant was 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. This issue has also been dealt with by this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Paras 23 and 24, which read thus:-

“23.  …….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 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"

 

24. 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. v. 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 v. 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.”

 

            The objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Parties is that since the complainant 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, he would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. Qua this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Para 25 held as under:-

“25.  ……….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 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. Rather, the complainants in their complaint, have clearly stated that they purchased the flat, in question, solely for residential purposes. Otherwise also, in a case titled as Kavita Ahuja v. 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 v. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as "Aashish Oberai v. Emaar MGF Land Limited", Consumer Case No. 70 of 2015, decided on 14 Sept. 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. v. 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.”

 

            In the instant case, the complainant has sought possession of the unit, in question, which is a residential property, which, in any manner, cannot be said to be for commercial purposes.

            In view of above, the complainant falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act and as such, the objection raised by the Opposite Parties, in their written reply, being devoid of merit, is rejected.  

(iv)       It was argued by the Counsel for the Opposite Parties that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, he waived of his right to raise any grievance. While dealing with this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), held in Para 26 as under:-

“26……..This plea of the Opposite Parties is not well based. While seeking option vide letter dated 05.06.2013, the complainants were informed of delay and extension of one year was sought. One year extended period expired on 02.02.2014 whereas the possession was offered on 15.11.2016. 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 02.02.2014, position would have been different and in that situation, it would have been accepted that the complainants had waived of their right to raise grievance. The plea being devoid of merit is not tenable.”

            In this instant case also, exit option was given to the complainant vide letter dated 05.06.2013 (at page 204 of the written statement) but possession was not delivered even within the extended one year period. Therefore, in the light of observation made by this Commission, as extracted above, the objection raised is not tenable.

22.        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 26.04.2011 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 complainant was 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.

23.       The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012 (Annexures R-7 & R-8), which in turn delayed the project. 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 25.04.2014. No justification whatsoever for delay in offering possession beyond 25.04.2014 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 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. Possession of the unit, in question, having been offered vide offer of possession letter dated 26.10.2016, clearly, there is inordinate delay (around 2 years 6 months) in offering possession of the unit. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Parties.

24.       It may be stated here that while offering possession vide letter dated 26.10.2016, the Opposite Parties raised a demand of Rs.14,08,463.32 i.e. (Rs.13,16,500.32 + Rs.91,963.00), which included contingent deposit of Vat of Rs.25,463/-. As stated during arguments and as per acknowledgement/receipts (at Pages 41 to 43), the complainant has deposited the entire amount including contingent deposit of Vat on 26.04.2017 and 16.06.2017. However, the requisite documents have not been executed/submitted by the complainants. Admittedly, possession of the unit, in question, has not been delivered to him (complainant) till date by the Opposite Parties.

25.         The next question, that falls for consideration, is, as to whether, the complainant is 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 26.04.2011 i.e. by 25.04.2014. There is, thus, inordinate delay of around 2 years 6 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 26.10.2016. Clearly there is delay in offering possession on account of which, the complainant deserves to be compensated. It may be stated here that a two Judges Bench of 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, where there was delay in delivering possession, 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.

            Also 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.

 

              No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant 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 complainant 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.  

26.       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 complainant is 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. 26.04.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 26.10.2016, the complainant shall be entitled to compensation up-to plus 2 months from 26.10.2016 i.e. 25.12.2016 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. In the event of failure of the Opposite Parties to deliver possession within 30 days after deposit of due payment and submission of documents by the complainant, for delay beyond 30 days, the complainant shall be further entitled to interest @12% p.a. on the deposited amount till possession is delivered.

27.       Sh. Parveen Jain, Advocate, Counsel for the Opposite Parties, stated that the complainant need not pay Advocate charges and further agreed that the stamp duty and registration charges would be payable by the complainant at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainant.

28.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainant has been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. In this case, there has been DLI in the sum of Rs.62,166.75 (as per chart submitted during arguments) against the complainant. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant is not entitled to same amount of compensation, which this Commission has been granting in cases pertaining to this project. Grant of compensation in the sum of Rs.1,25,000/- would serve the ends of justice.

29.       In connected complaint bearing No.576 of 2017 the possession of the unit, in question, has been offered but the same has not been delivered to the complainant. The details of date of agreement, due date for possession, date on which possession offered, whether amount deposited after offer of possession and documents submitted etc., are given in the following table:-

1.	Date of Independent Floor Buyer’s Agreement.	10.02.2011   (2nd Allottee) 23.02.2012
2.	Amount paid as per Chart (Rs.).	34,26,930.87
3.	Due date for possession after 2 years plus 1 year extended period.	09.02.2014
4.	Date on which possession offered.	03.02.2016
5.	Whether amount deposited after offer of possession.	Not deposited
6.	Whether documents submitted after offer of possession.	Pending
7.	Date on which possession delivered.	-
8.	Date of Occupation Certificate.	10.07.2015 (R-1 Colly.)

 

30.       In the aforesaid complaint, neither the amount towards the demand raised vide offer of possession letter including contingent deposit of vat amount has been deposited by the complainant with the Opposite Parties nor the requisite documents have been submitted by the complainant. In this complaint, demand qua stamp duty and registration charges in the sum of Rs.2,45,228/- has also been raised by the Opposite Parties.

31.       Therefore, in this complaint also, the complainant is 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 i.e. up-to 02.04.2016.

32.       Further after payment, except payment towards stamp duty and registration charges, and submission of documents, in the event of failure of the Opposite Parties to deliver possession, within 30 days, for delay beyond 30 days, the complainant shall be further entitled to interest @12% till actual physical possession is delivered.

33.       The complainant, in the aforesaid complaint, is also entitled to compensation for mental agony, harassment and deficiency in rendering service.  There has been DLI in the sum of Rs.1,40,930.87 against the complainant. In the facts and circumstances of the case, grant of compensation in the sum of Rs.1,00,000/- in this case i.e. CC/576/2017, would serve the ends of justice.

34.       No other point, was urged/pressed, by the Counsel for the parties, in these cases.

35.      For the reasons recorded above, both the complaints bearing Nos.521 and 576 of 2017 are partly accepted, with costs, in the following manner:-

            In these complaints, possession of the unit(s), in question, was offered to the complainant(s) in the months of October, 2016 & February, 2016 respectively. Out of two complaints, the amount towards the demand raised vide offer of possession letter including contingent deposit of vat has been deposited only in CC No.521 of 2017. In CC No.576 of 2017, neither payment has been made nor documents submitted. The Opposite Parties could handover possession of the unit(s), in question, only after receipt of payment/submission of documents. The Opposite Parties shall hand over possession within 30 days after removing the snags, if any, after deposit of amount, wherever due and submission of documents by the complainant(s).

            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.
(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(s), to the complainant(s), with effect from  26.04.2014 & 10.02.2014 respectively up-till two months from the date of offer of possession i.e. up-to 25.12.2016 & 02.04.2016 respectively, [w.e.f. due date(s) of possession in respect of deposits made up-to the said due date and from respective dates of deposits in respect of amount(s) paid after the said due date],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 i.e. after expiry of 45 days period, till realization.             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 10th 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.1,25,000/- (in  CC No.521 of 2017) and Rs.1,00,000/- (in CC No.576 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.

 

36.       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).

37.       Certified copy of this order, be placed on the file of consumer complaint bearing No.576 of 2017.

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

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

Pronounced.

22.03.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

Ad