Haryana

Panchkula

CC/283/2015

ANURADHA GUPTA & ANR. - Complainant(s)

Versus

DLF HOMES PANCHKULA PVT.LTD. - Opp.Party(s)

ABHINEET TANEJA.

29 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	283 of 2015
Date of Institution	:	18.12.2015
Date of Decision	:	29.09.2016

1.       Anuradha Gupta w/o Sh.Lalit Gupta

2.       Lalit Gupta s/o Sh.J.R.Gupta

          Bot R/o House No.652, Sector-7, Panchkula.

                                                                                          ….Complainants

Versus

 

DLF Homes Panchkula Pvt. Ltd. through its Managing Director, Madhya Marg, Sector 8-C, Chandigarh.

                                                                        ….Opposite Party

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Mr.Abhineet Taneja, Adv., for the complainant. 

                             Mr.Gaurav G.S.Chauhan, Adv., for the OP.

 

ORDER

(Dharam Pal, President)

1. The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Op with the averments that they vide application dated 15.02.2010 applied for four bedroom flat measuring 420 sqr. Mtr. (500 sqr. Yrd.) for an amount of Rs. Rs. 52,13,559.75 with the opposite party and deposited the sum of Rs.6,00,000/- as booking amount. The total area of the flat was 2250 sqr. Feet. At the time of floating the scheme, the opposite party was not having necessary sanctions/approvals from the competent authorities to construct the flats. Due to this reason, the opposite party did not enter into an agreement with the complainants. The complainants were allotted flat no. A-1/57 at first floor. The opposite party committed that the physical possession was to be offered within the stipulated period from the date of booking whereas the opposite party executed the agreement only after the lapse of one year and sent the copy of agreement to the complainants wherein it was written that the physical possession would be offered within 24 from the date of agreement. It was also mentioned in the agreement that there were some other companies and individuals who were the owners of the property i.e. M/s Gavel Builders Constructions (P) Limited, M/s Kenya Builders and Constructions Pvt. Limited, M/s Jingle Builders andDevelopers (P). Limited , M/s Morina Builders and Developers (P) limited, M/sMorven Builders and Dvelopers (P) Limited, M/s Jesen Builders and Developers(P) Limited, M/s Morgan Builders and Developers Pvt. Limited, Sh. Ghanshyam, Sh. Vivek Singh, Sh. Rajpal Singh, Sh. Mehar Singh and Sh. Nirmal Singh. It is not understandable as to how the opposite party was competent to float the scheme when it was not even the owner of the land. The complainants also paid a sum of Rs.41,25,981/- upto 31.03.2015 from time to time in which EDC, IDC etc. were included. After receiving the huge amount from the complainants and other allottees, the opposite party even changed colours and also failed to offer the physical possession of flat after passing of 5 years. Thereafter, the opposite party informed the complainants that there is a delay in handing over the physical possession because there is a stay from Hon’ble Supreme Court. It is also submitted that as and when the opposite party demanded EDC and IDC from the complainants, the same was duly paid on time. From the account statement, it was clear that out of the total consideration of Rs. 52,13,559.75, the sum of Rs. 364949.07 has been included as interest. The complainants requested the opposite party many times to give the complete details of the EDC and IDC charges but to no avail. Thereafter, the opposite party also demanded the amount of service tax from the complainants which was to be paid to the govt. which was to be paid from the year 2013. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Op appeared before this Forum and filed written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Op is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Op has already completed construction of all 258 Independent Floors on 86 Plots and another 1517 built up units are nearing completion. It is submitted that out of 1775 built-up units, occupation certificate has been received for 258 units and as on date 86 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is submitted that the agreement between the parties were executed in January, 2011 which was duly signed and executed by each allottee after properly understanding each and every clause contained in the agreement. It is submitted that the terms of the agreement are binding between the respective parties. The complainant does not fall within the ambit of consumer. Further, the Op has acted in accordance with the terms and conditions of the Buyers Agreement. It is submitted that the complainant was duly aware that under clause 1.6 of the Independent Floor Buyers Agreement, that the building plans/layout plan were subject to change and were not yet approved. The relevant extract of the clause is as under:-

“1.6 The Allottee understands that the building plan/layout plan of the said ………………………….”

It is submitted that the complainant was duly informed about the schedule of possession as per clause 11 (a), (b) and (c) of the Apartment Buyers Agreement entered into between the complainant and Op that the Company endeavored to complete the construction of the said project within 24 months unless there is delay due to a force majeure condition or due to reasons mentioned in 11(b) and 11(c). It is submitted that even though the possession was to be given within a period of two years, there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. It is submitted that the construction activities at the project site had been put in abeyance and no further activities would be carried out and the Op had informed the complainant about the stay of Hon’ble Supreme Court. It is submitted that the Op could not be liable for the delay or failure due to Force Majeure conditions or continuance of any Force Majeure conditions which stipulated in clause 43 of the agreement that:-

“The Company shall not be liable to perform any of its obligations or undertakings provided in the Agreement if such performance is prevented due to Force Majeure conditions or continuance of any Force Majeure condition(s).”

It is submitted that the complainant applied for the independent floor in the project of the Op in the month of January, 2011. Subsequently, a writ petition bearing No.6230/2010 was filed before the Hon’ble Punjab and Haryana High Court and vide order dated 06.04.2010, the Hon’ble High Court restrained the Op from creating any third party right and had also directed to ensure that the nature of the land should neither change nor any further construction activity should be carried out. It is submitted that an appeal assailing the order dated 06.04.2010 of the Hon’ble High Court was filed before the Hon’ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by the Hon’ble Supreme Court on 23.07.2010. It is submitted that the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon’ble Supreme Court. Thereafter, a Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide its order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activities at the project site in abeyance and the Op was compelled not to carry out any further construction at the site in pursuance to the directions that led to delay in handing over possession, the same being entirely beyond the control of the Op. It is submitted that the project was launched in four phases and on the date of passing of the aforesaid stay order apprx. 40% work at the site stood completed for the first phase and a little less than that for the remaining phases. Thereafter, the Hon’ble Supreme Court vide order dated 12.12.2012 dismissed the Special Leave Petition and vacated the stay order & to which the Op made an endeavor to immediately resume the construction at the project site. It is submitted that there was considerable difficulty for the Op to gather the work force and to resume construction activity in the project. It is submitted that the delay in handing over the possession of the Independent Floor was attributable to the delay in receiving statutory approvals beyond the control of the Op. It is submitted that the Op sought approval regarding revision in layout plan on 11.03.2013 which were received on 06.09.2013 after constant follow upon with the concerned authorities. Thereafter, the Op vide its letter dated 20.05.2013 sought approval with respect to service plans which received on 14.08.2014 to the Ops. The Op also stated to the complainant that in case of delay in giving possession, they agreed to pay compensation @ Rs.10/- sq. ft. per month in terms of clause 19/18 of the application form to the complainants. Further if the complainants were not interested to continue with the allotment, the Op would cancel the allotment and the Op would refund the amount with simple interest @ 9%, therefore, the Op cannot be held liable for any deficiency in service or unfair trade practice. Moreover, the complainant has not approached this Forum with clean hands and is trying to raise such type of issues at belated stage. It is submitted that the complainants were allotted flat No.DVF-A-1/57 FF measuring 2250 sq. ft. for an amount of Rs.53,26,309.75 vide allotment letter dated 10.03.2010 and paid Rs.6,00,000/- on 15.02.2010 at the time of booking of the floor and the buyer agreement was executed on 21.01.2011. It is submitted that the Op demanded EDC & IDC charges from the complainant but those charges were demanded by the State Government from the Op. It is submitted the Op every time has raised a demand of payment in which service tax was included. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-4 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-11 and closed his evidence.
4. We have heard the learned counsel for the parties and have also perused the record.
5. In brief, the facts are that the Opposite Party developed a Residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. On the basis of advertisements, the complainants approached the Opposite Parties, who represented that the above project is one of the prestigious projects and promised to provide an independent floor with total area of 2250 sq. ft. The complainants booked a flat in DLF Valley Project on 15.02.2010(Annexure C-1) and paid an amount of Rs. 6,00,000/- on 15.02.2010. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-2) on 31.01.2011 whereby independent floor No.A-1/57 (First Floor)  was allotted to the complainants. The total price of the unit was fixed as Rs.52,13,559.75 for the saleable area of 2250 Sq. Feet.  The complainant till the filing of the present complaint had paid Rs.4725981/- to the Opposite Party.
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. Further as per Clause 12, if any delay happened beyond 24 months, then the Opposite Parties were to pay compensation @Rs.10/- per sq. feet per month of the saleable area for such delay. The complainants were assured that possession of the flat would be given within the stipulated period as the construction of the project was in full swing. Despite the commitments made in the Agreement, the Opposite Party failed to deliver the possession.  
7. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Party, to hand over the physical and legal possession of unit, in question, complete in all respects; pay interest calculated @12% per annum on the deposited amount from the date of delay in handing of the possession till the date, the possession is handed over to the complainants; pay compensation @ Rs.10 per square feet of the saleable area for delaying the possession along with interest @24% per annum from 11.11.2010; to give the proper and legal possession of independent floor in question, after obtaining all due permissions and certificates including the Completion Certificate inter-alia from the concerned authorities; award compensation of Rs.1,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to the actions/omissions; pay Rs.11,000/- as litigation expenses; and grant any other relief which the Forum deems fit and proper under the facts and circumstances of the present case.
8. The Opposite Party, in their preliminary submissions in the written statement submitted that the opposite party has already completed construction of all 258 Independent Floors on 86 Plots and another 1517 built up unites are nearing completion. It is further submitted that out of 1775 built up units occupation certificate has been received for 258(86Pots) units and as on date 86 units have been offered for possession to the owner. It was further submitted that construction of the project got delayed due to stay on construction activity by the High Court during 2010 and thereafter by Hon’ble Supreme Court of India due to third party litigation. It was further submitted that after dismissal of litigation by the Hon’ble Supreme Court on 12.12.2012, the Opposite Party gave an exit option vide letter dated 02.04.2013 (Annexure R-6) to the complainants for refunding   the  amount  alongwith  9%  interest  but  the complainant opted to continue with the project and consented for extension.
9. 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 and the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Forum. It was further stated that this Forum did not have the jurisdiction to consider the complaint and pass orders on the relief claimed. The other preliminary objection raised is that the complainants are not consumers as the floor, in question, was booked by them not for personal use but for investment purposes and earning profits.
10. On merits, the factum of booking of property No.A-1/57 (First Floor) measuring 2250 sq. ft. by the complainants and execution of builder buyer agreement on 31.01.2011 between the parties, has been admitted by the Opposite Party. It was also admitted that the price of the unit, in question, was Rs.5213559.75 plus other taxes and charges as applicable. It was admitted that the office of the Opposite Party is situated in Chandigarh. It was stated that the complainants have deposited a sum of Rs.4725981/- with the Opposite Party. It was further stated that the construction activity of the project is in full swing and Op is in process of delivery the possession of the flat. It was further stated that possession was to be offered within 24 months (2 years) as stipulated in the Agreement unless there was delay due to a force majeure condition or due to reasons mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that as per Clause 43 of the Agreement, the Opposite Party was not liable or responsible for not performing any of their obligation or undertakings as provided in the Agreement, if such performance is prevented due to force majeure conditions. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of the Opposite Party. 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 the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was further stated that out of 1775 floors, occupation certificate of 258 (86 plots) units has already been received and offer of possession to the allottees has already been offered. It was further stated that the Opposite Party sought approval regarding revision in layout plan and service plans on 11.3.2013 and 20.05.2013, which was received on 06.09.2013 and 14.08.2014 respectively. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.
11. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 
12. It is evident, on record, that the complainants ware   allotted   independent   floor  No.DVE-A-57 FF (First Floor) in DLF Valley and Independent Floor Buyer’s Agreement dated 31.01.2011 (Annexure C-2) was executed between the complainants and the Opposite Party at Chandigarh, as per which, the total price was Rs.5213559.75 i.e. Basic Sale Price Rs.4299157.47  + External Development/IDC Charge Rs.549453.21+ Rs.364949.07 as interest on above components. In addition to the total price and other charges mentioned in the  Agreement, charges as mentioned in Clause 1.4 of the Agreement i.e. Membership Fee Rs.30,000/- for five years, Rs.6,000/- per annum as Annual Club Charges and Rs.20,000/- as refundable security deposit, were payable. Further, as per Clause 11(a), the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. There was stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, on account of which, the Opposite Party sought extension of time for one year vide letter dated 02.04.2013 (Annexure R-6), to which, the complainants agreed. The option to get refund was not exercised by the complainants. Since the Independent Floor Buyer’s Agreement was executed between the parties on 31.01.2011 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 Party that Hon’ble Punjab & Haryana High Court had restrained the Opposite Party from creating any third party rights, during the year 2010, is not relevant.
13. An objection was raised by Counsel for the Opposite Party that the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Forum. It was further stated that the complainants were virtually inviting this Forum to assume powers conferred under the Civil Court and, therefore, this Forum did not have the jurisdiction to entertain and decide the complaint. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, they were to  hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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”

14.  From the above-extracted Section 2(1)(o) of 1986 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 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 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 Party and their deficiency in rendering service. In this view of the matter, the objection of the Opposite Party, in this regard, being devoid of merit, must fail, and the same stands rejected.
15. To defeat claim of the complainants, the next objection raised by the Opposite Party 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 the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. The complainants, who are original allottees, are seeking possession, which means that they purchased the same for their residence. They have specifically stated that they booked the unit, in question, for their residential purpose. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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. 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.  
16. 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 11.11.2010 (Annexure C-3), reads 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.”

17. As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also an admitted fact, that by making reference to above fact of granting stay, which resulted into  delay in construction at the site, consent of the complainants was sought, vide letter dated 02.04.2013 (Annexure R-6), to complete construction within further 12 months. Option was also given to the complainants, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainants exercised former option and continued to make payment(s) thereafter and by the time, the complaint was filed, they had paid an amount of Rs.4725981/-. Reading of written statement makes it very clear, that still no firm date to hand over possession of the unit has been given. Taking into account 12 months extension, the Opposite Party was required to deliver possession on or before 31.01.2014. It has also been stated that construction of the independent floor was almost complete but possession of the unit, in question, was neither offered by the date of filing the instant complaint nor till date. Though complainants averred that construction of certain amenities was not complete but no cogent evidence to this effect has been brought on record. By making a misleading statement, that possession of the unit, was to be delivered within maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 31.01.2014, and not by abiding by the commitment, made by the Opposite Party, they were not only deficient, in rendering service, but also indulged into unfair trade practice. The argument of the Opposite Party 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 their control, is not tenable.  The Independent Floor Buyer’s Agreement was executed on 31.01.2011 and before execution thereof, the Opposite Party 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, approval for which was also received in due course of time, the initial time taken (more than 2 years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Party 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 Party. Clearly, there is inordinate delay of around three years beyond initial stipulated period of two years and one year extended period in offering possession of the unit, in question to the complainants.
18. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties have not delivered 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 31.01.2011 i.e. by 31.01.2014. No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating  the  complainants  for  delay,  but it does not mean that the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.10/- per sq. ft. per month, which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view, Clauses 11(a) and 15 were meant for computing compensation, in case of a minor delay in delivery of possession.  If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 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. Recently in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads 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 above, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

19. Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.
20. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by the Opposite Party, by the promised date in the Agreement or latest by 31.01.2014 i.e. within the extended period. The complainants purchased the unit, with the hope that they will have a house to live in. The possession of unit, in question, has not been offered to the complainants, till date, what to speak of delivery thereof. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Party. The compensation in the sum of Rs.1 Lacs claimed by the complainants is on the higher side. The complainants have been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation of Rs.1,50,000/-.
21. The Opposite Party (DLF Homes Panchkula Pvt. Ltd.), is, held liable and directed as under:-

(i)	To hand over physical possession of the unit, allotted in favour of the complainants, complete in all respects, to the complainants on or before 3011.1016.
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 31.01.2014, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.
(iii)	To pay compensation by way of interest @12% p.a. on the deposited amounts, due to the complainants  w.e.f. 01.12.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the  date of default, till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/- to the complainant(s), on account of mental agony, physical harassment and deficiency in service, 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.
(v)	Pay an amount of Rs.50,000/- to the complainant(s), as litigation costs, 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 till realization.

 

 

 

 

22. Certified copies of this order be sent to the parties, free of charge.   The file be consigned to Record Room, after completion.

 

 

Announced                       (Anita Kapoor)            (Dharam Pal)

29.09.2016                       Member                        President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Dharam Pal                                                                                                President