Haryana

StateCommission

CC/63/2018

DR. R.S. MEHLA - Complainant(s)

Versus

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

ADITYA BHARDWAJ

13 Feb 2019

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.63 of  2018

Date of the Institution:09.02.2018

Date of Decision: 13.02.2019

 

Dr. R.S.Mehla s/o Sh. Late Shri Lajja Ram, R/o H.No. 870, Urban Estate Sector-13, Karnal, Haryana 132001. M No.+91896665870

                                                                   .….Complainant

Versus

 

1.      DLF Homes Panchkula Private Limited, Registered office, DLF Gateway Tower,Second floor, DLF City Phase-III, NH-8, Gurgaon 122002, Haryana through its Managing Director.

2.      DLF Homes Panchkula Private Limited SCO 190-191-192, Sector 8 C, Chandigarh-160009 through its Managing Director.

                                                .….Opposite Parties

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

Present:-    Mr.Aditya Bhardwaj,  Advocate for complainant.

Mr.Parvesh Jain, Advocate counsel for opposite parties.

 

O R D E R

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

          The brief facts given rise for the disposal of the present complaint are that  complainant purchased an independent floor No.DVF-D5/10-GF#217 in DLF Valley, Panchkula of opposite parties and booking amount of Rs.4,00,000/- has been paid to the O.Ps.  As per the Allotment letter dated 26.03.2010, the possession of the floor was to be handed over to the complainant by April 2012.  Buyers agreement was executed between the parties on 30.12.2010 .  In total, the  he made payment of Rs.28,69,393/- till 2012.    As per the demand raised by the Ops, the complainant made a payment of Rs41,383/- on 29.10.2013 and thereafter complainant paid Rs.3,49,196, Rs.43,615/- Rs.43,369/-, Rs.2,08,240/-  respectively in different phases.  The O.ps. illegally demanded Rs.2,53,217.67 from him, which was paid by the complainant on 13.04.2017 under protest.  Hence under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.Ps. to  hand over the possession of the floor alongwith interest 18% per annum from the dates of respective deposits for the delayed period alongwith the interest pendentelite and compensation of Rs.Five lacs to the complainant for mental agony and stress suffered by the complainant.

2.                The complaint was resisted by the O.Ps. by filing a written version, in which O.Ps. stated that  they were committed by the terms and conditions executed on 08.12.2010 and were giving the possession of the flat  at the same price as was committed at the time of allotment of the floor on 26.03.2010.  The offer of possession was sent to the complainant vide letter dated 10.10.2016 and compensation of Rs.5,34,652/- was also granted despite that complainant has filed the present complaint.  The price of the property as per SOP was Rs.37,98,999.75/-  plus service tax for 1450 sq. ft., but due to increase in area, the total price of the property was Rs.40,88,980.16/- plus service tax for an area of 1574 sq. ft. The complainant has only deposited Rs.38,84,500/-.  There was a DLI of Rs.382/- levied against account for a delay.  The demand was legally raised by the O.ps.  The occupation certificate has been received for all the 1707 floors.  All the basic amenities have been provided by the O.ps. Thus there was no deficiency in service on the part of the O.Ps.  Other averments were also denied and requested to dismiss the complaint.  Preliminary objections about complainant is not consumer, jurisdiction  etc. were also raised and requested to dismiss the complaint.

3.                When the complaint was posted for recording evidence of the parties, the complainant in his evidence has tendered the affidavit Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-15 and closed his evidence.

4.                On the other hand in order to rebut the evidence led on behalf of the complainant the O.Ps. had also tendered the affidavit Ex.RA that of Mr. Shiv Kumar authorised signatory and also tendered documents Ex.R-1  to R-13 and closed its evidence.

5.                The arguments have been advanced by Sh.Aditya Bhardwaj, the  learned counsel for the complainant as well as Mr.Parvesh Jain,  the learned counsel for the opposite parties.  With their kind assistance the entire record including voluminous documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                While unfolding the arguments it has been argued by Sh.Aditya Bhardwaj, Advocate the learned counsel for the complainant that as far as the executing the buyers agreement is concerned it is not in dispute.  It is also not in dispute that total sum of Rs.38,84,500 /- had been paid by the complainant to the  O.Ps.  As per the buyers agreement Ex.CW-6 and the terms and conditions incorporated therein including date of delivery of the possession, the possession complete in all respect was to be delivered to the complainant by before April 2012.  However inspite of the fact that the entire amount stands paid. The period within which, the possession of the floor was to be delivered had already expired and under these circumstances the complainant had no other option, but, to seek the possession of the floor and interest on the deposited amount.  A reliance has been placed upon the celebrated authority of Hon’ble National Commission titled as DLF Homes Vs. Yachana Gupta decided on 12.12.2018 vide which complainant was allowed interest

@ 9% per annum over the amount for non-delivery of the possession of the floor. 

7.                While addressing the arguments, the learned counsel for the complainant has also asserted that  certain amount which infact had already paid has also been demanded by the builder.  Inspite of the fact that the entire amount has already been paid still the possession has not been delivered and the builder has been demanded holding charges as well as delayed payment. 

8.                On the other hand, it has been argued by  Mr. Parvesh Jain, the learned counsel for the opposite parties that the matter even was heard by the Hon’ble Supreme Court of India and while disposing of the petition a grace period of one year was granted to the builder and as such, there is automatically extension of a year for delivering the possession.  As far as awarding the possession compensation in terms of a specific clause inserted in the buyers agreement, it has already been awarded compensation of Rs.5,34,652/- to the complainant.  To rebut this contention, it has been vehemently argued by the learned counsel for the complainant that Hon’ble National Commission in DLF Homes Vs. Yachana Gupta (supra) case when there is inordinate delay for non-delivery of the possession  in none of the fault of the complainant, in that eventuality, granting of the compensation as per the buyers agreement becomes redundant and it is the total prerogative of this Commission to analysis and then to allow the rate of interest as well as the amount of compensation.

9.                Facing such a situation and the ratio laid down by the Hon’ble National Commission  in DLF Homes Vs. Yachana Gupta (supra), as observed above, the clauses of the buyers agreement for awarding the compensation is of no consequence and deemed to be redundant and the Commission has to see under the given facts and circumstances  of the case what would be the appropriate amount of compensation, which could be allowed to the complainant for causing inordinate delay in not delivering the possession of the floor. 

10.              A plea of excessive area has also been raised by both the sides. It is a common norm that if the total area of the unit exceeds, in that eventuality, the allottee has to make the payment for the extra area but on the old charges and  hence this amount can be recovered from the complainant. 

11.              As far as the question of awarding the compensation is concerned,  there is a delay of more than four years as referred above for non delivery of the possession of the floor, as such, the complainant is entitled to get the interest @ 9% per annum  over the amount paid by the complainant with effect from December 2013 onwards as the period of one year grace was allowed by the Hon’ble Supreme Court till the actual delivery of the possession.  However, the builder will not be entitled to recover the holding charges and since the delay has not been explained on behalf of the builder and one particular amount has also been paid through a bank account by way of RTGS mode of payment that amount would be deemed to be paid.  The compensation of Rs.1,00,000/-  has also been allowed for causing the mental and physical agony.  In addition, the complainants are also entitled of Rs.21,000/-  as litigation charges.  In the above terms, the complaint is allowed accordingly.   It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act  would also be attractable. 

 

February    13th, 2019                                               Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

S.K.