Chandigarh

StateCommission

CC/163/2019

Smt. Surinder Pal Kaur - Complainant(s)

Versus

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

Puneet Tuli Adv.

16 Dec 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Consumer Complaint	:	163 of 2019
Date of Institution	:	22.07.2019
Date of Decision	:	16.12.2020

 

1. Smt. Surinder Pal Kaur W/o Sh. Amarjit Singh Sawhney R/o BG-1/195, Paschim Vihar, New Delhi.
2. Sh. Amarjit Singh Sawhney S/o Late Sh. Harnam Singh R/o BG-1/195, Paschim Vihar, New Delhi.

                                             .........Complainants.

Versus

1. DLF Homes Panchkula Pvt. Ltd. thorugh its Managing Director/Director, SCO 190-191-192, Sector 8-C, Chandigarh.
2. DLF Homes Panchkula Pvt. Ltd. having its registered office at  12^th Floor, DLF Gateway Tower, DLF City, Phase-III, National Highway 8, Gurgaon, Haryana through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
3. DLF Homes Panchkula Pvt. Ltd. through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.

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

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

 

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                MRS. PADMA PANDEY, MEMBER.

                MR. RAJESH K. ARYA, MEMBER.

 

PRESENT: (THROUGH VIEEO CONFERENCING):

 

Sh. Puneet Tuli, Advocate for the complainants.

Sh. Shiv Kumar, Advocate & Advisor (Legal) of the opposite parties.

 

PER  RAJESH K. ARYA, MEMBER

         In this complaint, the complainants have sought compensation on account of delay in delivery of possession by way of interest @9% per annum on the deposited amount(s) for delay in handing over the possession from the stipulated date of possession i.e. 29.12.2012 till the date of handing over of actual physical possession of the unit, in question,; compensation of Rs.10,00,000/- towards mental agony & physical harassment; punitive damages of Rs.5,00,000/- and litigation expenses to the tune of Rs.75,000/-.

2.                Admittedly, the complainants purchased a Flat bearing No.DVF-E5/8-GF#217 from the opposite parties in their project, namely, DLF Valley, Panchkula vide allotment letter dated 05.04.2010 (Annexure C-2) . Independent Floor Buyer Agreement (Annexure C-3) was executed on 27.12.2010. 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, failing which, the opposite parties were liable to pay Rs.10/- per sq. ft. per month on account of delay in possession. However, possession, which was to be delivered by the opposite parties up-to 26.12.2013, was offered only on 05.10.2016 vide letter (Annexure C-6). Vide the said letter offering possession, the opposite parties also raised a demand of Rs.8,03,097.47 & Rs.82,714/- towards Valley Residents Welfare Society. In Para 15 of the complaint, it has been averred that due to the death of the son of the complainants on 13.09.2017, they could not follow with the opposite parties in relation to the defects in the said flat, compensation for delay in possession and discount being a government employee. It was further stated that the defects and the discrepancies in the said flat were not rectified by the opposite parties till 03.08.2018 (as per handing taking over certificate, when finally keys were handed over to the complainants. It was further stated that the opposite parties assured the complainants that the compensation for delayed possession would be soon paid to the complainants but till date the same has not been paid.

3.                As per the opposite parties, the offer of possession 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. The complainants were given exit option vide               letter dated 15.04.2013 (in fact 20.05.2013) by accepting refund of entire amount paid with 9% interest but they refused to avail the said                 option and consented to the extension of time. It was further                 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.

4.                Apart from above, in this complaint, the opposite parties have taken almost similar preliminary objections to the effect that the parties were bound by the terms and conditions mentioned in 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  a consumers as the floor, in question, was purchased by them for investment purposes and earning profits; 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; 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; 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 that when given the option to exit, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance.

5.                In the instant complaint, since the possession of the unit, in question, already stood delivered to the complainants on 07.07.2017 vide Annexure C-8 and conveyance deed was also got executed on 07.07.2017 (at Page 135 of the reply, therefore, there is no dispute qua handing over of possession of the unit, in question.

6.                It may be stated here that qua similarly situated cases of this project, the matter has finally been decided by the Hon’ble Supreme Court of India in the case of DLF Homes Panchkula Pvt. Ltd. Vs. D. S. Dhanda etc., Civil Appeal Nos.4910-4941 of 2018 (@ SLP(C) Nos. 3623-3654 OF 2019) decided on 10.05.2019.

7.                Qua preliminary objections raised in this complaint, it may be stated here that similar objections have already been decided by us in umpteen number of bunch of cases earlier. Now our view qua aforesaid preliminary objections has been upheld by the Hon’ble Supreme Court of India in the case of D. S. Dhanda (supra). Therefore, we are not reiterating our view again and decide all the aforesaid objections raised by the opposite parties in the light of view held in the case of D. S. Dhanda (supra).

8.                However, qua the law point and issues involved, the Hon’ble Supreme Court of India, in the case of D. S. Dhanda (supra), held in Para 19 of its judgment as under:-

“19.  Thus, we find that the complainant is entitled to interest from the Appellant for not handing over possession as projected as is offered by it but it is not a case to award special punitive damages as the one of the causes for late delivery of possession was beyond the control of the Appellant. Therefore, in view of the settlement proposal submitted by the Appellant in earlier two set of appeals in respect of same project, and to settle any further controversy, the Appellant is directed as follows:

i) To send a copy of the occupation certificate to the Complainants along with offer of possession. The Appellant shall also direct the Jones Lang LaSalle - the real estate maintenance agency, engaged by the Appellant to undertake such maintenance works as is necessary on account of damage due to non-occupation of the flats after construction etc.

ii) It shall be open to the Complainants to seek the assistance of the maintenance agency to attend to the maintenance work which may arise on account of non-occupation or on account of natural vagaries. 

iii) Such maintenance work shall be completed by the Appellant within two months of the offer of possession but the payment of interest at the rate of 9 per cent per annum will be for a period of two months from the date of offer of possession in all situations.

v) Since the Complainants have been forced to invoke jurisdiction of the consumer forums, they shall be entitled to consolidated amount of Rs. 50,000/- in each complaint on all accounts such as mental agony and litigation expenses etc.  The complainant shall not be entitled to any other amount over and above the amount mentioned above.

vi) In case, the original allottee has transferred the flat, the transferee shall be entitled to interest at the rate of 9 per cent per annum from the date of expiry of three years from the agreement or from the date of transfer, whichever is later.”

9.                While adjudicating upon the judgment of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, modifying order of this Commission passed in the case of D.S. Dhanda etc. etc. (supra), the Hon’ble Supreme Court of India reduced the rate of interest from 12% p.a. to 9% p.a., awarded as compensation for the delay period in offering possession of the unit, in question. However, while doing so, the Hon’ble Supreme Court of India made it clear that the interest at the rate of 9% p.a. will be for a period of two months from the date of offer of possession in all situations.

10.              In this complaint, as referred to above, the possession of the unit, in question, has already been delivered to the complainants on 07.07.2017.  

11.              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. In this complaint, possession of the unit having been offered in the month of October, 2016, clearly, there was inordinate delay of around 2 year 9 months) in offering possession of the unit, in question, to the complainants. Delay in offering possession to the complainants is an act of clear deficiency of the Opposite Parties.

12.              As stated above, since the dispute involved in this complaint qua delay in offering/handing over possession of the unit beyond the stipulated period and seeking compensation on that count, is squarely covered by the ratio of judgment rendered by the Hon’ble Supreme Court in the case of D.S. Dhanda etc. etc. (supra), we think it appropriate to decide this complaint on same terms.   Thus, keeping in view the facts and circumstances of the case and position stated above, the complainants, in this complaint, are held entitled to grant of compensation in the form of simple interest @9% p.a. on the deposited amount for the period of delay, beyond two years plus one year extended period up-to the date of offer of possession plus two months.

13.              The complainants shall also get the benefit of escalation in price of the unit. Grant of consolidated compensation in the sum of Rs.50,000/- on account of mental agony and physical harassment suffered by the complainants and litigation expenses would serve the ends of justice.

14.              No other point was urged/pressed by the Counsel for the parties.

15.              Accordingly, in terms of order passed by Hon’ble Supreme Court of India in the case of D. S. Dhanda etc. etc., this complaint is  partly accepted, with costs, in the following manner:-

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

(i)

To pay compensation, by way of simple interest @9% p.a., on the deposited amount(s), to the complainants, with effect from 27.12.2013 to 04.12.2016, within two months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @10% p.a. (simple), instead of 9% p.a. (simple), from the date of default i.e. w.e.f expiry of period of two months, till realization.

(ii)

Pay consolidated compensation in the sum of Rs.50,000/- on account of mental agony, physical harassment and litigation expenses to the complainants, within two months from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @9% p.a. (simple), from the date of filing the complaint till realization.

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

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

Pronounced.

16.12.2020.

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

(PADMA PANDEY)

MEMBER

 

 

(RAJESH  K.  ARYA)

MEMBER

 

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