Haryana

StateCommission

CC/730/2017

DR. RAJ PAL SANGWAN - Complainant(s)

Versus

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

JASBIR SINGH PUNIA

29 Apr 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:16.11.2017

                Date of final hearing:29.04.2024

                                                Date of pronouncement:30.04.2024

 

Consumer Complaint No.730 of 2017

 

IN THE MATTER OF

 

1.      Dr. Raj Pal Sangwan son of Shri Phool Chand, R/o House No.81, Defence Colony, Hisar (Haryana).

2.      Dr. Indu Sangwan wife of Dr. Raj Pal Sangwan, R/o House No.81, Defence Colony, Hisar (Haryana).

                                                                             .….Complainants.

Through counsel Mr. Drupad Sangwan, Advocate

 

Versus

 

1.    DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8-C, Chandigarh-160009.

2.    DLF Homes Panchkula Private Limited, Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon-12202, Haryana, India through its Manager/Authorized Signatory/Office-In-charge/Director Sales and Marketing.

….Opposite parties.

Through counsel Mr. Tushar Sharma, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Drupad Sangwan, counsel for the complainants.

Mr. Tushar Sharma, counsel for opposite parties.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that opposite parties (“OPs”) floated a housing project under the name and style of “DLF Valley, Panchkula” situated at Sector-3, Pinjore, Haryana. On 23.09.2010, one Ms. Parul Sharma, R/o House No.140, Bhai Parmanand Colony, Kings Way Camp, Delhi booked one independent floor with the OPs by depositing an amount of Rs.4,00,000/- and an independent floor No.B1/43, ground floor, measuring 1550 sq. ft. was allotted to her on 27.12.2010. Basic sale price of said apartment was Rs.47,56,949/- and total sale price was Rs.54,74,599/-. Buyer’s Agreement was also executed between them on 27.12.2010. As per complainants they were in urgent requirement of a residential house and said Ms. Parul Sharma was not interested in the said apartment, so the complainants paid the amount of Rs.4,00,000/- to Ms. Parul Sharma along with brokerage of Rs.2,00,000/- and transfer fee of Rs.2,17,000/- plus delayed interest of Rs.67,750/-. Thus, the endorsement with regard to assignment of allotment right and substitution in the name of Allottee(s)/Buyer(s) was made in favour of complainant by the OPs on 21.01.2013 and also issued a confirmation letter dated 22.01.2013. As per the Buyer’s Agreement, possession of the said unit was to be given by the OPs within 24 months from the date of execution of said agreement i.e. 27.12.2010. Complainants have paid all the due installments from time to time to the OPs.

2.                It was alleged that the construction activities at the project site were abandoned between 19.04.2012 to 12.12.2012 due to stay granted by Hon’ble Supreme Court of India in SLP No.21786-88/2010. After taking into the account the period of stay, the said unit was to be completed in all respects latest by 20.08.2013, but the OPs offered possession vide letter dated 15.11.2016 and that too incomplete floor along with unreasonable and arbitrary financial outstanding. It was further alleged that the complainant also requested the OPs to refund/adjust the transfer fee alongwith 18% interest, to correct the account statement dated 15.09.2016, to refund an amount of Rs.3,17,823/- which has been overcharged and to pay penalty @Rs.10 per sq. ft. on the saleable area per month along with interest, but to no effect. Thereafter, complainants visited the project site several times to see state of floor before taking possession, but it was found far from completion as well as quality of material used i.e. flooring work, tiles etc. were of poor quality. This was brought to the knowledge of OPs, but no action was taken by them. It was further alleged that as per final statement of account dated 15.11.2016, the OPs illegally demanded money for increased area from 1550 sq. ft. to 1751 sq. ft., however there was no actual increase in the area of ground floor because if the area was increased from 1550 sq. ft. to 1751 sq. ft. even than the OP’s demand for Rs.1,12,959/- was in excess to the actual cost of increase in the area. Thus, the demand made by the OPs as per final statement of account dated 15.11.2016 was unfair.

3.                It was further alleged that the complainants also requested Ops to provide the copy of building plan and saleable area duly approved by competent authority in order to verify the increase in area, but OPs failed to do so. Moreover, the OPs also charged arbitrarily interest of Rs.9,865/- as service tax, but it was not specified anywhere. Further, the demand of Rs.1,01,646/- for electricity, water and sewerage charges was also illegal because no such point was mentioned in the agreement. Complainants also made several attempts to settle the issue amicably, but the OPs did not bother about the same. It was further alleged that complainants also claimed interest on the payments made by them to the OPs because those demands were raised by OPs on account of the fact that possession was to be delivered as per agreement, but there was inordinate delay in handing over the possession of unit. Apart from this the complainants are also entitled for compensation on account of mental and physical agony, but the demands of complainant were not settled by OPs and thus, OPs are deficient in rendering the services. Thus, complainant prayed for allowing of present complaint and other reliefs as prayed for.

4.                Notice of the complaint was issued against the OPs, upon which they appeared and filed their written statement and submitted therein that an independent floor No.B1/43, ground floor, measuring 1550 sq. ft. was allotted to Ms. Parul Sharma, R/o House No.140, Bhai Parmanand Colony, Kings Way Camp, Delhi on 27.12.2010 and the complainants purchased said floor from her on 21.01.2013 and thus the complainants did not fall within the definition of a ‘Consumer’. It was a construction linked plan which was accepted by complainants and they continued to make the payment till taking of possession i.e. 22.09.2018. It was submitted that complainants themselves defaulted in execution of agreement and thus they themselves were liable for delay in taking possession of unit in question. Moreover, at the time of buying said unit they submitted various documents and it was specifically mentioned in the affidavit of nominee dated 16.04.2012 that “I/We shall be bound by all the terms and conditions of the said agreement No.064 dated 27.12.2010 being the nominee(s) of said Mrs. Parul Sharma D/o Sh.Narender Kumar Sharma, R/o #140 Bhai Parma Nand Colony, Kishan Camp, Delhi-110009”.

5.                It was further submitted that all the taxes i.e. EDC, IDC, Service tax, VAT etc. were charged on the demand of Government and payable to the Government in terms of the agreement. However, the possession was offered by OPs on 15.11.2016 and the same was taken by complainants on 22.09.2018. Moreover, the complainants also benefitted from price appreciation as is envisaged from the circle rates fixed up by the Haryana State for the said property of Rs.4600/- PSFF & the complainants purchased the said property @ Rs.3300/- thus they benefitted by Rs.1300/- per sq. ft. It was further submitted that the Floor Buyer’s Agreement was executed between the parties on 27.12.2010. The price of said independent floor as per SOP was Rs.56,84,456/- plus service tax for 1550 sq. ft. However, after occupancy certificate and increase in area the price total price comes to Rs.68,54,776/- plus taxes for an area of 1751 sq. ft. and increase in value was due to increase in area of the floor.

6.                It was further submitted that Writ Petition No.6230/2010 was filed before the Hon’ble Punjab & Haryana High Court and vide its order dated 06.04.2010, OPs were restrained from creating any third party right and also directed to ensure that the nature of land shall neither change nor any further construction activity shall be carried out. Thereafter an appeal was filed before Hon’ble Supreme Court of India wherein the order dated 06.04.2010 was stayed on 23.07.2010. Thereafter,  Special Leave Petition bearing No.21786-88/2010 was also filed before Hon’ble Supreme Court of India and vide its order dated 19.04.2012 Hon’ble Supreme Court stayed the construction activities at the site. After that vide order dated 12.12.2012 Hon’ble Supreme Court while dismissing the aforesaid Special Leave Petition, vacated the stay order subsequent to which the OPs made an endeavor to immediately resume the construction at project site. Thus, the delay in delivery of possession was occurred due to abovementioned force majeure reasons.

7.                It was further submitted that occupancy certificate of the floor under dispute was received on 01.05.2016 and offer of possession was sent on 15.11.2016. However, the complainants took possession of unit in question on 22.09.2018 and are seeking compensation for delay in possession, which is not justified. Further, the complainant seeks refund of service tax with interest as well as interest on deposited amount alongwith compensation etc. which are not justified.

8.                It was further submitted that the OPs have acted as per terms and conditions mentioned in the agreement dated 27.12.2010 and as per agreement, the building plans/layout plan were subject to change. Further, as per the said agreement, the complainant was duly informed about the schedule of possession and the OPs have to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to other reasons. However, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012. Thereafter, OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. Further, it was submitted that delay in delivery of possession was occurred due to force majeure i.e. pending litigation before the Hon’ble Supreme Court of India and thus, there was no deficiency in service on the part of OPs.

9.                It was further submitted that all the demands were raised in accordance with the agreement. Moreover, the charging of EDC is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.  Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

10.              When the complaint was posted for recording evidence of the parties, learned counsel for complainants has tendered in evidence joint affidavit of Shri Raj Pal Sangwan and Mrs. Indu Sangwan as 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-13 and closed the evidence.

11.              On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri Shiv Kumar, Authorized Signatory of OPs as Ex.RA alongwith other documents Ex.R-1 to Ex.R-12 and closed the evidence on behalf of OPs.

12.              The arguments have been advanced by Mr.Drupad Sangwan, learned counsel for the complainants and Mr. Tushar Sharma, learned counsel for OPs. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint have been properly perused and examined.

13.              As per the basic averment raised in the complaint and including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainants are entitled to get compensation of the amount alongwith the interest which they had prayed for or not? 

14.              While unfolding his arguments, it has been argued by Mr. Drupad Sangwan, learned counsel for the complainants that one Ms. Parul Sharma, R/o House No.140, Bhai Parmanand Colony, Kings Way Camp, Delhi booked one independent floor with the OPs by depositing an amount of Rs.4,00,000/- and an independent floor No.B1/43, ground floor, measuring 1550 sq. ft. was allotted to her on 27.12.2010. Basic sale price of said unit was Rs.47,56,949/- and total sale price was Rs.54,74,599/-. Buyer’s Agreement was also executed between them on 27.12.2010. He further argued that the complainants purchased said unit from Ms. Parul Sharma by paying an amount of Rs.4,00,000/- to her along with brokerage of Rs.2,00,000/- and transfer fee of Rs.2,17,000/- plus delayed interest of Rs.67,750/-. Thereafter, assignment of allotment right and substitution in the name of Allottee(s)/Buyer(s) was made in favour of complainants by the OPs on 21.01.2013 and also issued a confirmation letter dated 22.01.2013. As per the Buyer’s Agreement, possession of the said unit was to be given by the OPs within 24 months from the date of execution of said agreem\ent i.e. 27.12.2010. Complainants have paid all the due installments from time to time to the OPs. He further argued that construction activities at the project site were abandoned between 19.04.2012 to 12.12.2012 due to stay granted by Hon’ble Supreme Court of India in SLP No.21786-88/2010. After taking into the account the period of stay, the said unit was to be completed in all respects latest by 20.08.2013, but the OPs offered possession vide letter dated 15.11.2016 and that too incomplete floor along with unreasonable and arbitrary financial outstanding.

15.              Learned counsel for complainants further argued that complainants also requested the OPs to refund/adjust the transfer fee alongwith 18% interest, to correct the account statement dated 15.09.2016, to refund an amount of Rs.3,17,823/- which has been overcharged and to pay penalty @Rs.10 per sq. ft. on the saleable area per month along with interest, but to no effect. Thereafter, complainants visited the project site several times to see state of floor before taking possession, but it was found far from completion as well as quality of material used i.e. flooring work, tiles etc. were of poor quality. Defects were also brought to the knowledge of OPs, but no action was taken by them. He further argued that as per final statement of account dated 15.11.2016, the OPs illegally demanded money for increased area from 1550 sq. ft. to 1751 sq. ft., however there was no actual increase in the area of ground floor because if the area was increased from 1550 sq. ft. to 1751 sq. ft. even then the OP’s demand for Rs.1,12,959/- was in excess to the actual cost of increase in the area, meaning thereby, the OPs have charged excess amount from complainants.

16.              Learned counsel for complainants has further argued that complainants also requested the Ops to provide the copy of building plan and saleable area duly approved by competent authority in order to verify the increase in area, but OPs failed to do so. Moreover, the OPs also charged arbitrarily interest of Rs.9,865/- as service tax, which was not specified anywhere. Further, the demand of Rs.1,01,646/- for electricity, water and sewerage charges was also illegal because no such point was mentioned in the agreement. Complainants also made several attempts to settle the issue amicably, but the OPs did not bother about the same. He further argued that complainants also claimed interest on the payments made by them to the OPs because those demands were raised by OPs on account of the fact that possession was to be delivered as per agreement, but there was inordinate delay in handing over the possession of unit. Apart from this the complainants is also entitled for compensation on account of mental and physical agony, but the demands of complainant were not settled by OPs and thus, OPs are deficient in rendering the services and prayed for compensation as mentioned in prayer clause of complaint.

17.              On the other hand, Mr. Tushar Sharma, learned counsel for OPs has argued that floor No.B1/43, ground floor, measuring 1550 sq. ft., which is in dispute was allotted to Ms. Parul Sharma on 27.12.2010 and the complainants purchased said floor from her on 21.01.2013 and thus the complainants did not fall within the definition of a ‘Consumer’. He argued that it was a construction linked plan which was accepted by complainants and they continued to make the payment till taking of possession i.e. 22.09.2018, but complainants themselves defaulted in execution of agreement and thus they themselves were liable for delay in taking possession of unit in question. He further argued that at the time of buying said unit it was specifically mentioned in the affidavit of nominee dated 16.04.2012 that complainants are bound with the terms and conditions of agreement. Moreover, the taxes i.e. EDC, IDC, Service tax, VAT etc. were charged on the demand of Government and payable to the Government in terms of the agreement. Possession was offered by OPs on 15.11.2016 and the same was taken by complainants on 22.09.2018. He further argued that complainants also benefitted from price appreciation as is envisaged from the circle rates fixed up by the Haryana State for the said property of Rs.4600/- PSFF & the complainants purchased the said property @ Rs.3300/- thus they benefitted by Rs.1300/- per sq. ft. Floor Buyer’s Agreement was executed between the parties on 27.12.2010. The price of said independent floor as per SOP was Rs.56,84,456/- plus service tax for 1550 sq. ft. However, after occupancy certificate and increase in area the price total price comes to Rs.68,54,776/- plus taxes for an area of 1751 sq. ft. and increase in value was due to increase in area of the floor.

18.              He further argued that Writ Petition No.6230/2010 was filed before the Hon’ble Punjab & Haryana High Court and vide its order dated 06.04.2010, OPs were restrained from creating any third party right and also directed to ensure that the nature of land shall neither change nor any further construction activity shall be carried out. Thereafter an appeal was filed before Hon’ble Supreme Court of India wherein the order dated 06.04.2010 was stayed on 23.07.2010. Special Leave Petition bearing No.21786-88/2010 was also filed before Hon’ble Supreme Court of India and vide its order dated 19.04.2012 Hon’ble Supreme Court stayed the construction activities at the site. After that vide order dated 12.12.2012 Hon’ble Supreme Court while dismissing the aforesaid Special Leave Petition, vacated the stay order subsequent to which the OPs made an endeavor to immediately resume the construction at project site. Thus, the delay in delivery of possession was occurred due to abovementioned force majeure reasons. He further argued that the occupancy certificate of the floor under dispute was received on 01.05.2016 and offer of possession was sent on 15.11.2016. However, the complainants took possession of unit in question on 22.09.2018 and are seeking compensation for delay in possession, which is not justified. Further, the complainant seeks refund of service tax with interest as well as interest on deposited amount alongwith compensation etc. which is not justified.

19.              He further argued that as per the agreement, the complainants were duly informed about the schedule of possession and the OPs have to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to other reasons. However, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012. Thereafter, OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. Further, it was argued that delay in delivery of possession was occurred due to force majeure i.e. pending litigation before the Hon’ble Supreme Court of India and thus, there was no deficiency in service on the part of OPs. All the demands were raised in accordance with the agreement. Moreover, the charging of EDC is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.  Other allegations made in the complaint were also denied. Finally it was argued that there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

20.              In view of the above submissions and after careful perusal of the entire record, it stands proved that a project was floated by the OPs under the name and style of “DLF Valley, Panchkula” situated at Sector-3, Pinjore, Haryana. It also stands proved that on 23.09.2010, one Ms. Parul Sharma, R/o House No.140, Bhai Parmanand Colony, Kings Way Camp, Delhi booked one independent floor in the said project of OPs by depositing an amount of Rs.4,00,000/- and an independent floor No.B1/43, ground floor, measuring 1550 sq. ft. was allotted to her on 27.12.2010. It was a construction linked plan. Buyer’s Agreement dated 27.12.2010 also stands proved. It is an admitted fact that the complainants purchased abovementioned unit from Ms. Parul Sharma by paying an amount of Rs.4,00,000/- to her along with brokerage of Rs.2,00,000/- and transfer fee of Rs.2,17,000/- plus delayed interest of Rs.67,750/- and entered in the shoes of allotment rights on 21.01.2013 and OPs also issued a confirmation letter dated 22.01.2013 to the complainants. As per the complainants basic sale price of said apartment was Rs.47,56,949/- and total sale price was Rs.54,74,599/- and as per the Buyer’s Agreement, possession of the said unit was to be given by the OPs within 24 months from the date of execution of said agreement i.e. 27.12.2010. Further as per the complainants they paid all the due installments from time to time to the OPs.

 21.              The main controversy involved in the present matter is with regard to delay in handing over the possession of flat in question within the stipulated period. As per the complainants, in view of the terms & conditions of Floor Buyer’s Agreement dated 27.12.2010, possession of the flat in question would be delivered within a period of 24 months from the date of execution of said agreement, whereas the possession was offered by OPs vide letter dated 15.11.2016 and the same was taken by complainants on 22.09.2018. As per the complainants, they are entitled for compensation on account of delay in handing over the possession, but as per the OPs delay in handing over the possession is due to force majeure reasons.

22.              However, it is admitted fact by the parties that there was a stay on construction as ordered by Hon’ble High Court and thereafter by Hon’ble Supreme Court of India due to third party involving the acquisition proceedings of the land of litigants therein in the year, 2010 & 2012.  Moreover, as per terms and conditions mentioned in the agreement dated 27.12.2010 and as per clause 11 (a) (b) & (c) of the said agreement, complainant was duly informed about the schedule of possession and as per clause 11 (a), the OPs have to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to reasons mentioned in 11(b) & (c). Since, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012, so the OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. But, it is also pertinent to mention here that the stay was vacated by Hon’ble Supreme Court of India vide order dated 12.12.2012 and as per the agreement, the complainants are entitled to get compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1550 sq. ft. per month, which now stands increased to 1751 sq. ft. Meaning thereby, the complainants are entitled to get compensation of Rs.10/- per sq. ft. of the saleable area per month for delayed period and ends of justice would be met, if the Ops are directed to pay compensation for the delayed period from July, 2013 instead of January, 2013  to 15.11.2016 i.e. 40 months, when the possession was offered to complainant by OPs because OPs took several months for gathering the requisite work force and for resuming the construction work in full swing.

23.              As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement on behalf of the OPs. It is the normal trend of the developers that a developer would collect their hard-earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard-earned money is not completed.  Resultantly, completion of the project and the delivery of possession is delayed as in the present case.  When the project is not completed in time, as such, this Commission is of the considered opinion that there is deficiency in service on the part of OPs and the complainant is well within his legal rights to seek compensation for delayed possession. Even otherwise also, there is a strong element of physical and mental agony caused to the complainant for their having invested a huge amount and still being deprived of and not being put into possession of the flat and under these constrained circumstances, he had to knock at the door of this Commission for seeking compensation for delayed possession. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

24.              As far as the question of refund of charging of EDC/IDC is concerned, it is pertinent to mention here that it is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.

25.              In the light of the above observation and discussion, complaint stands allowed and the OPs are directed to pay compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1550 sq. ft. per month, which now stands increased to 1751 sq. ft., which comes to Rs.17,510/- per month from July, 2013 to 15.11.2016 i.e. 40 months, when the possession was offered to complainant by OPs. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainant would be entitled to get the interest on the awarded amount of compensation @ 9% per annum, for the defaulting period. The complainants are also entitled to a sum of Rs.21,000/- (Rs.Twenty one thousand Only) on account of compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.11,000/- (Rs. Eleven thousand only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

26.              Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

27.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

28.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 30^th April, 2024

 

                                                                                                            S.C Kaushik,

Member        

R.K                                                                                                       Addl. Bench-III