Chandigarh

StateCommission

CC/614/2017

Brig. Ashwani Kumar Goyal - Complainant(s)

Versus

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

16 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	614 of 2017
Date of Institution	:	18.08.2017
Date of Decision	:	16.03.2018

 

1. Brig. Ashwani Kumar Goyal son of Sh. Som Nath,

2. Meenu Goyal, wife of Brig. Ashwani Kumar Coyal,

Both are permanent resident of C/o M/s Som Nath & Sons, Main Bazar, Shahzadpur, Ambala. At present Group Cdr. NCC Group HQ-A, Banaras Hindu University, Varanasi, U.P.

…….Complainants.

Versus

 

DLF Homes Panchkula Pvt. Ltd., having its office at SCO 190-191-192, Sector 8-C Chandigarh-160009 through its Managing Director.

..........Opposite Party.

Argued by:

 

Sh. Vipul Dharmani, Advocate for the complainant.

Sh. Parveen jain, Advocate for the Opposite Party.

 

Consumer Complaint	:	418 of 2017
Date of Institution	:	15.05.2017
Date of Decision	:	16.03.2018

 

Mamta Yadav W/o Sunil Yadav R/o H.No.720-P, Sector-47, Gurgaon.

…….Complainant.

Versus

 

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
Sector 8-C Chandigarh through its Managing Director/Authorized Signatory.

..........Opposite Party.

Argued by:

 

Sh. Neeraj Jain, Advocate Proxy for Sh. Himanshu Puri, Advocate for the complainant.

Sh. Parveen Jain, Advocate for the Opposite Party.

 

 

Consumer Complaint	:	438 of 2017
Date of Institution	:	23.05.2017
Date of Decision	:	16.03.2018

 

Krishna Puri, Aged 65 years, wife of Shri Rajesh Puri, resident of House No.354, Sector 11, Panchkula (Haryana).

 

…….Complainant.

Versus

 

DLF Homes Panchkula Pvt. Ltd., SCO 190-192,
Sector 8-C Chandigarh through its Managing Director.

..........Opposite Party.

Argued by:

 

Sh. Vipul Dharmani, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Party.

 

 

Consumer Complaint	:	665 of 2017
Date of Institution	:	06.09.2017
Date of Decision	:	16.03.2018

 

1. Dr. Sunil Kumar Sharma son of Sh. Subhash Sharma Resident of H.No.5, Doctor Residence, Mahavir Dal Hospital, Kunjpura Road, Karnal, Haryana.

2. Dr. Urvashi Sharma wife of Dr. Sunil Kumar Sharma Resident of H.No.5, Doctor Residence, Mahavir Dal Hospital, Kunjpura Road, Karnal, Haryana.

…….Complainants.

 

Versus

 

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

 

IInd Address:-

SCO No.190-191-192, Sector 8-C Chandigarh U.T. Pin-160009 through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.

..........Opposite Party.

Argued by:

 

Sh. R. P. Dangi, Advocate for the complainants.

Sh. Parveen Jain, Advocate for the Opposite Party.

 

Consumer Complaint	:	713 of 2017
Date of Institution	:	29.09.2017
Date of Decision	:	16.03.2018

 

 

Ashok Anand S/o Late Sh. Kala Ram R/o 226 FF, Sector – 16, Panchkula.

…….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.

Registered Office Address:

 

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

 

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

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

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties.

 

Consumer Complaint	:	803 of 2017
Date of Institution	:	21.11.2017
Date of Decision	:	16.03.2018

 

 

Col. Ajay Singh Thakur S/o Sh. K. S. Thakur R/o 203, Engineer Regiment  C/o 56 APO, Pin – 914203.

 

…….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.

Registered Office Address:

 

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

 

2. Raksh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

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

 

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

Sh. Arjun Sharma, 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 aforesaid six consumer complaints bearing Nos.614, 418, 438, 665, 713 and 803 all of 2017.

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

3.         Arguments were heard in common. After hearing arguments on 19.02.2018, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid six 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.614 of 2017, titled as ‘Brig. Ashwani Kumar Goyal & Anr. Vs. Vs. DLF Homes Panchkula Pvt. Ltd.’.

5.         In brief, the facts are that the Opposite Party is the developer of the Project “DLF Valley”. One Mr. Subhranta Kumar Das & Smt. Gour Chanran Pattanaik booked a flat in the said Project by paying an amount of Rs.4,00,000/- vide receipt dated 26.03.2010, and they were allotted Flat bearing No.D-2/4 (First Floor) on 05.04.2010 vide allotment letter (Annexure C-2). An Independent Floor Buyers Agreement (Annexure C-3) was also executed on 23.02.2011. Subsequently, the aforesaid unit was purchased by complainant No.1 from the original allottees, which was transferred in his favour vide letter dated 09.05.2013 (Annexure C-4). It was stated that complainant No.1 did not execute any undertaking in favour of the Opposite Party for not claiming any compensation etc. The name of complainant No.2  was added in the allotment documents vide letter dated 25.03.2017(Annexure C-5). It was stated that the unit was purchased by the complainants for their own residential purpose. It was further stated that there was delay of 10 months in executing the agreement. The total sale consideration of the said unit was Rs.35,37,009.78. The complainants had already paid an amount of Rs.46,49,347/- to the Opposite Party  uptill 27.07.2017.

6.         As per Clause 11(a) of the Agreement, the Opposite Party was under legal obligation to deliver possession of the unit, in question, within 24 months from the date of execution of the Agreement i.e. by 23.02.2013. It was further stated that the Opposite Party illegally charged Rs.2,47,596.89 towards interest, which component was never defined in the Agreement. It was further stated that possession was offered by the Opposite Party vide letter dated 19.06.2017 (Annexure C-10), whereby the Opposite Party raised demand of Rs.9,55,772.67, which contained illegal demand of Rs.4,10,000/- on account of increase in area from 1550 sq. ft. to 1750 sq. ft. It was further stated that the Opposite Party called upon the complainants to take possession on 08.08.2017 and on visiting the flat, the same was found to be in dilapidated conditions and not at all worthy of possession. It was further stated that the complainants duly informed the shortcomings in the said flat to the Opposite Party vide Customer observation form dated 08.08.2017 (Annexure C-11).

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 possession of the unit, in question, after completing the entire construction, furnishing and other development work, as promised at the time of booking of the said unit, without any further delay; pay interest calculated @18% per annum on the deposited amount from the respective dates of deposits till possession is handed over to the complainants; pay compensation 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 deficient services and unfair trade practices of the Opposite Party and pay Rs.55,000/- towards cost of litigation.

8.         The Opposite Party, in its preliminary submissions in the written statement admitted that the complainants are subsequent purchasers and had purchased the said floor on 09.05.2013 from Sh. Subhranta Kumar Das & Gour Charn Patnaik. The factum of execution of the Agreement with the original allottees on 23.02.2011 has also been admitted. It was further stated that after receipt of occupation certificate on 02.05.2016, offer of possession was sent to the complainants on 19.06.2017. 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 complainants had full knowledge about the executed terms of Independent Floor Buyer’s Agreement dated 23.02.2011. It was further stated that the project was cost escalation free as the complainants shall get possession of the unit on the same price as committed by the Opposite Party at the time of allotment of the floor   on 05.04.2010. It was further stated that all the losses/cost, escalation on many count like building material cost, labour cost, land cost, has been borne by the Opposite Party. 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.         In regard to present status of the project, it was stated that out of 1791 floors, occupation certificate(s) of 1775 units had already been received and offer of possession to the allottees has already been started. 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 complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainants are not consumers as the floor, in question, was purchased by them for investment purposes and earning profits. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Party 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. 

11.       The Opposite Parties moved Miscellaneous Applications under Sections 5 and 8 of Arbitration and Conciliation Act, 1996, for referring the matter to the sole arbitration, in the following complaints:-

 

Sr. No.	Complaint No.	Miscellaneous Application No.
1.	418/2017	754/2017
2.	614/2017	1046/2017
4.	713/2017	35/2018
5.	803/2017	40/2018

 

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

12.       On merits, it was stated that the price of the property as per SOP is Rs.40,21,389.10 plus service tax for 1550 sq. ft. It was further stated that due to increase in the area, the total price of the property was Rs.45,17,937.98 plus service tax for an area of 1609 sq. ft. (in fact 1750 sq. ft.). It was further stated that the complainants have deposited a sum of Rs.45,57,680.30 and there is a DLI of Rs.8,450.39 levied against the account of the complainants for a delay of 78 days in remitting installments. 

13.       It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainants within 24 months from the date of signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Party 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 was vacated only on 12.12.2012. It was reiterated that offer of possession letter dated 19.06.2017 was sent to the complainants, which is ready in all respects. It was submitted that the amount of contingent deposit of vat is no more a contingent vat but is now payable by the complainants because the same has been paid by the opposite parties. It was further stated that increase in area is within the terms and conditions of the agreement as per Clause 10. It was further stated that compensation as per clause 15 is not given to the complainants because the complainants defaulted in making payment of installments. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

17.       It is evident that vide allotment letter dated 05.04.2010 (Annexure C-2), one Mr. Subhranta Kumar Das was allotted Independent Floor No.DVF-D2/4-FF#217 in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between him (Mr. Subhranta Kumar Das, Sh. Gour Charan Pattanaik (co-applicant) and the Opposite Party on 23.02.2011 (Annexure C-3). The said unit was subsequently purchased by complainant No.1 on 09.05.2013 and the name of complainant No.2 (Meenu Goyal) was added in the proper papers vide letter dated 25.03.2017 (Annexure C-5). Confirmation letter regarding transfer of property in the name of the complainants was also issued on 09.05.2013 (Annexure C-4). The total price of the said independent floor, as depicted in the Agreement, was Rs.35,37,099.78, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.45,57,680.30 has actually been paid to the Opposite Party, as admitted in the written statement and 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 Party, at the time of arguments on 19.02.2018. As per Clause 11(a) of the Agreement, 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. It may be stated here that the Opposite Party, in similar cases relating to this project, had given an exit option to the complainant(s) in April-June 2013, in view of stay by Hon’ble Supreme Court, to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession. Option in the instant case was given on 15.04.2013 (Page 201 of the written statement). It is a fact 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 Party has claimed that this being a force majeure condition, it is entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Party to the complainants on 19.06.2017 vide offer of possession letter (Annexure R-2 colly.) and the instant complaint has been filed on 18.08.2017.

18.        The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 23.02.2011 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 Party 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.

            As regards delay in executing the agreement after booking, it may be stated here that after issuing allotment letter, in all fairness, the Opposite Party could take 3-4 months’ time to execute the agreement. It is also a fact that there was stay by Hon’ble Punjab and Haryana High Court from 06.04.2010 to 23.07.2010, which acted as a force majeure condition. The plea raised, therefore, is not tenable.

            So far as averment of charging of interest component of Rs.2,47,596.89 from the complainants is concerned, it may be stated here that the complainants are subsequent allottees, in whose name, the unit was transferred on 09.05.2013. The agreement, in question, was executed on 23.02.2011. It is clearly and specifically mentioned that the price of the unit, in question, included interest component of Rs.2,47,596.89. The complainants, being subsequent allottees, in whose favour, the agreement executed with the original allottee(s), was transferred, were very much in position to go through the contents of the agreement before getting the unit transferred in their name. The plea raised is, therefore, not sustainable and the same stands rejected.

            In two complaints cases bearing No.713 & 803 of 2017, the Opposite Parties moved Miscellaneous Applications bearing No.38 & 40 of 2018 under Order 1 Rule 10(2) of Code of Civil Procedure for striking off the names of Opposite Parties No.2 & 3, namely, Sh. Manoj Talwar, Director & Sh. Ananta Raghuvanshi, Executive Director, Sales and Marketing, from the array of the parties. It has been stated in Para 4 of the application(s) that neither the complainant(s) have made any averment against Opposite Parties No.2 & 3, who are Directors in Opposite Party No.1 – Company nor made any prayer or claimed any relief against them. It has further been stated that even otherwise, the presence of Opposite Parties No.2 and 3 is not necessary to dispose of the complaint effectively. The plea raised is without any basis. A Company acts through its Directors. It has not been denied that Opposite Parties No.2 and 3 are not Directors of the Company and were not responsible for managing the affairs of the Company. The objection is, therefore, not tenable and the same stands rejected. Accordingly, the aforesaid applications stand disposed of.

19.        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 Party, 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.

20.       In regard to other preliminary objections raised by the Opposite Party, in its 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 original allottees 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 23.02.2011 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. The objection raised by the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Party is that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission and further the complainants were virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. 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 Party, in its written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Party is that since the complainants 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. 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.”

 

            The complainants have specifically averred in Para 4 of their complaint that being husband and wife, they wish to finally settle down near Chandigarh and as such, they wanted to purchase a flat for their residential purposes. Their averment gets fortified from the fact that they have sought possession of the unit, in question.

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

21.        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 23.02.2011 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 Party, it was liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

22.       The Opposite Party has 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 22.02.2014. No justification whatsoever for delay in offering possession beyond 22.02.2014 has been explained by the Opposite Party. 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 its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 23.02.2011 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, 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 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. Possession of the unit, in question, having been offered vide offer of possession letter dated 19.06.2017, clearly, there is inordinate delay (around 3 years 4 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 Party.

23.       It may be stated here that while offering possession vide letter dated 19.06.2017, the Opposite Party raised a demand of Rs.10,47,735.67 i.e. (Rs.9,55,772.67 + Rs.91,963.00), which included contingent deposit of Vat of Rs.25,463/-. As stated during arguments, the complainants have deposited the entire amount including contingent deposit of Vat, the last payment having been made in July/August 2017 and nothing remains outstanding. The requisite documents have also been executed/submitted by the complainants to the Opposite Party on 27.07.2017. Despite payment of demanded amount and submitting documents, possession of the unit, in question, has not been delivered to them (complainants) till date by the Opposite Party.

24.         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 Party 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 23.02.2011 i.e. by 22.02.2014. As already stated above, possession of the unit, in question, was offered by the Opposite Party on 19.06.2017. There is, thus, inordinate delay of around 3 years 4 months, even beyond the extended period. Clearly there is delay in offering possession on account of which, the complainants deserve 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.

 

25.         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.  

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 complainants are entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 23.02.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 19.06.2017, the complainants shall be entitled to compensation up-to plus 2 months from 19.06.2017 i.e. 18.08.2017 (30 days for making payment + 30 days grace period). The complainants are, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. As stated during argument, the complainants made payment and submitted documents in July/August 2017. For failure of the Opposite Party to deliver possession within 30 days after deposit of due payment and submission of documents by the complainants, for delay beyond 30 days, the complainants shall be further entitled to interest @12% p.a. on the deposited amount till possession is delivered.

27.       It was stated and agreed by Counsel for the Opposite Party that the stamp duty and registration charges would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainants.

28.        It may be stated here that the complainants have also pointed out snags/discrepancies in the unit, in question, vide customer observation sheets dated 13.12.2016, 11.04.2017 and 08.08.2017 (Annexures C-9 colly. and C-11).  The Opposite Parties are duty bound to hand over possession within 30 days after removing the snags, as pointed out in the aforesaid customer observation sheets. It was, however, stated during arguments by Counsel for the Opposite Party that after removing snags pointed out by the complainants, reminders to take possession have been sent to the complainants on 04.12.2017 and 15.02.2018.

29.         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 date promised in the Agreement and within one year extended period. The complainants have been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. Grant of compensation in the sum of Rs.1,50,000/- in this case would serve the ends of justice.

30.       In five connected complaints bearing Nos.438, 803, 665, 713 and 418 of 2017, the possession of the unit(s), in question, has been offered but the same has been delivered to the complainant(s) only in two complaints bearing No.665 and 713 of 2017. However, in one complaint bearing No.418 of 2017, the complainant has sought refund of the deposited amount. 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:-

	COMPLAINT NO.
Sr. No.		438/2017	803/2017	665/2017	713/2017	418/2017
1.	Date of Independent Floor Buyer’s Agreement.	02.01.2012 (2nd Allotee) 10.05.2016   (Undertaking given)	19.05.2011	26.12.2011 (1st Agreement)   As allotment shifted, 2nd Agreement was executed on 22.09.2015	17.11.2010	18.01.2011
2.	Amount paid as per Chart (Rs.).	71,65,490.00	44,25,788.14	76,74,570.00	46,59,827.35	33,56,073.39
3.	Due date for possession after 2 years plus 1 year extended period.	01.01.2015	18.05.2014	25.12.2014	16.11.2013	17.01.2014
4.	Date on which possession offered.	31.05.2017	14.01.2016	31.05.2017	15.11.2016	28.02.2017
5.	Whether amount deposited after offer of possession.	Yes on 04.09.2017 (Nothing due)	Yes on 09.03.2016 & 20.05.2017	Yes on 18.09.2017	Yes on 17.07.2017	-
6.	Whether documents submitted after offer of possession.	Yes	Pending	Yes	Yes	-
7.	Date on which possession delivered.	-	-	29.09.2017	11.08.2017 (Under protest)	-
8.	Date of Occupation Certificate.	21.10.2016 (R-1 Colly.)	10.07.2015 (R-2 Colly.)	21.10.2016 (R-1 Colly.)	19.07.2016 (R-2 Colly.)	19.07.2016 (R-1 Colly.)

 

31.       It may be stated here that in complaint bearing No.665 & 803 of 2017, the complainant(s), apart from increase in area of the unit, in question, have also challenged the demands raised in the offer of possession letter. The issue qua legality of these demands raised, 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. Except the demand on account of contingent deposit of vat, which could be paid, after payment of the same by the Opposite Parties to the Govt., this Commission held the other demands raised to be legal and valid. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

32.       In complaints bearing Nos.438, 803, 665 and 713 all of 2017, amounts towards the demand raised vide offer of possession letters including contingent deposit of vat amount have been deposited by the complainants with the Opposite Parties. The requisite documents have also been submitted by the complainants except in complaint bearing No.803 of 2017.  

33.       As stated above, out of aforesaid four complaints, possession of the unit(s), in question, in complaint bearing No.665 and 713 of 2017, in which complainants made payment on 18.09.2017 and 17.07.2017 respectively, has been delivered by the Opposite Parties to the complainants on 29.09.2017 and 11.08.2017 respectively.

34.       It may also be stated here that in complaint bearing No.665 of 2017, the complainants were initially allotted Flat No.D8/12-FF by the Opposite Parties and Independent Floor Buyer’s Agreement was executed on 26.12.2011. Taking into account one year extended period, possession of the said unit was to be offered/delivered by 25.12.2014. The Opposite Parties vide letter 24.08.2015 shifted the allotment to flat No.DVF-C3/11-GF and all the payments received till that date were transferred towards the new property and lien/interest/right on flat No.D8/12-FF was terminated and fresh Agreement dated 22.09.2015 was executed between the parties. Possession of flat No.DVF-C3/11-GF was offered to the complainants on 31.05.2017. As stated above, the complainants took possession of flat No.DVF-C3/11-GF on 29.09.2017. It may be stated here that by shifting the allotment or by terminating the previous agreement, the Opposite Parties cannot escape their liability to pay compensation to the complainants for delay in delivering possession of the unit, in question. The complainants are, therefore, entitled to compensation by computing delay in delivering possession, in terms of agreement dated 26.12.2011.

35.       Therefore, in all the aforesaid complaints i.e. CC Nos.665, 713 and 803 of 2017 (except Complaint bearing No.438 of 2017), the complainants are held entitled to compensation @12% p.a. interest on the deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession.

36.       In complaint bearing No.438 of 2017, the unit, in question, was transferred in favour of the complainant in terms of endorsement/letter dated 10.05.2016 (Annexure C-5). It has been stated that the original allottee, namely, Mrs. Charu Singla had paid booking amount to the Opposite Party. The unit was transferred in the name of the complainant on 10.05.2016. The complainant has placed reliance on judgment passed by this Commission in complaint bearing No.71 of 2016 titled ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’ on 13.10.2016, wherein this Commission awarded interest @12% p.a. on the deposited amount for the delayed period from the date of furnishing undertaking/date on which the rights were transferred in favour of the complainant(s), alongwith compensation of Rs.1,50,000/- and litigation costs of Rs.35,000/-. Undertaking given by the complainant is available on record of this complaint, at Pages 239-240 (of the written statement), wherein in Paras 4 and 5, she stated as under:-

“4. I/We undertake that the I/We am not entitled for any compensation/claims on account of delay possession of the said independent Floor as agreed upon with the First Allottee and all the relevant paras in this regard in the Application form/independent Floor buyer’s Agreement will become null and void.

5.    I, We undertakes that the I/We am satisfied himself with all the aspects concerning the substitution of the Floor in his/her name and that I/We hereby undertakes not to hold the company responsible and liable in the event any discrepancy of whatsoever nature is noticed in any of the documents at a later stage.”

 

            In view of ratio of judgment of this Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainant, in this case, is held entitled to compensation @12% p.a. (simple) interest w.e.f. 10.05.2016 (date of transfer) up-to + 2 months from the date of offer of possession.

37.       Further after payment 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.

38.        The complainant(s), in the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service. In complaints bearing Nos.665 and 713 of 2017, the complainant(s) are held entitled to compensation in the sum of Rs.1,50,000/- in each case. However, in complaints bearing No.438 and 803 of 2017, there has been DLI in the sum of Rs.1,18,718.18 and Rs.84,423.46 respectively against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainants, in these cases, are 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.1,00,000/- in CC/438/2017 and Rs.1,25,000/- in CC/803/2017, would serve the ends of justice.

39.        In complaint bearing No.418 of 2017, at Sr. No.5 of above table, the complainant has sought refund of the deposited amount. In the Chart submitted by the Counsel for the Opposite Party, during arguments, and as tabulated in the aforesaid table, receipt of the Rs.33,56,073.39 has been admitted by the Opposite Party.

40.       As is evident from record of the above complaint, the Independent Floor Buyer’s Agreements was executed on 18.01.2011. As per Clause 11(a), (b) & (c) of the Agreement, 24 months period plus the extended period of 12 months (on account of stay by the Hon’ble Supreme Court from 19.04.2012 till 12.12.2012) from the date of execution of the agreement expired on 17.01.2014. Possession was offered on 28.02.2017. There has been, thus, inordinate delay in offering possession. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein, there was inordinate delay, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

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

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

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

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

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

 

Therefore, the complainant, in this complaint, is held entitled to refund of the amount alongwith interest @13% per annum from the respective dates of deposits.

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

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

43.      For the reasons recorded above, all the complaints bearing Nos.614, 438, 803, 665, 713 and 418  of 2017 are partly accepted, with costs, in the following manner:-

 

Consumer Complaints bearing No:

614, 438 and 803 of 2017

 

44.       In these complaints, possession of the unit(s), in question, was offered to the complainant(s) in the month of June 2017, May 2017 and January 2016. The amount(s) towards the demand raised vide offer of possession letters have been deposited in all the complaints. Except in complaint bearing No.803 of 2017, the requisite documents have also been submitted by the complainant(s). Admittedly, possession of the unit(s), in question, has not yet been delivered to the complainant(s). The Opposite Parties shall hand over possession within 30 days after removing the snags, if any, after 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, to the complainant(s), with effect from  23.02.2014, 10.05.2016 & 19.05.2014 respectively up-till two months from the date of offer of possession i.e. up-to 18.08.2017, 30.07.2017 & 13.03.2016 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.1,50,000/- (in  CC/614/2017), Rs.1,00,000/- (in CC/438/2017) and Rs.1,25,000/- (in CC/803/2017) 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.

 

Consumer Complaint bearing No: 665 and 713 of 2017.

 

45.       In these cases, possession of the unit(s), in question, stands delivered to the complainant(s) on 29.09.2017 and 11.08.2017 respectively.

            The Opposite Parties, in these cases, are jointly and severally, held liable and directed as under:-

(i)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), with effect from 26.12.2014 & 17.11.2013 till 30.07.2017 & 14.01.2017 [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.
(iii)	Pay compensation in the sum of Rs.1,50,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, in each case, as litigation costs, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount(s) shall carry interest @12% p.a., from the date of filing the complaint till realization.

46.       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).

 

Consumer Complaint bearing No:

418 of 2017.

 

 

47.       The Opposite Party is held liable and directed as under:-

(i)            To refund the amount of Rs.33,56,073.39 alongwith simple interest @13% per annum, to the complainant, from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Party shall pay the aforesaid amount alongwith simple interest @15% per annum, instead of 13% per annum, from the date of default i.e. after expiry of 45 days period, till actual payment;

(ii)          To pay an amount of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Party shall pay the aforesaid amounts alongwith simple interest @13% per annum, from the date of filing the complaint till actual payment.

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

49.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.438, 803, 665, 713 and 418 of 2017.

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

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

Pronounced.

16.03.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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