Chandigarh

StateCommission

CC/213/2017

Mr. Rajiv Tanwar - Complainant(s)

Versus

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

Ashim Aggarwal,Adv.

08 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	213 of 2017
Date of Institution	:	15.03.2017
Date of Decision	:	08.03.2018

 

Mr. Rajiv Tanwar S/o Late Sh. Raj Kumar, resident of House No.432, Sector-6, Panchkula.

 

                                              .........Complainant.

V e r s u s

 

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.

2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

 

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

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	214 of 2017
Date of Institution	:	15.03.2017
Date of Decision	:	08.03.2018

 

Suresh Gaur S/o Sohan Lal, Resident of H.No.95/1, Prade Street Kalka, Distt. Panchkula.

 

                                             .........Complainant.

V e r s u s

 

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its authorized representative.

2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

 

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

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainant.

Sh. Arjun Sharma, Advocates for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Complaint 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 the aforesaid two consumer complaints bearing Nos.213 and 214 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 27.02.2018, 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 two 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.213 of 2017, titled as ‘Mr. Rajiv Tanwar Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’

5.         In brief, the facts are that since the complainant was desirous of owning a residential accommodation for his own and family use and occupation near Chandigarh, he alongwith his father purchased an independent floor No.DVF-E-6/9-FF#217 having saleable area of 1450 sq. ft. on 31.03.2010 vide allotment letter (Exhibit C-1) in the project of the Opposite Parties, in the name and style of “DLF Valley, Panchkula” at Village Bhagwanpur, Tehsil & Distt. Kalka, Panchkula. An Independent Floor Buyer’s Agreement was executed between the complainant, his father and the Opposite Parties on 15.06.2011 (Exhibit C-2). The price payable for the unit, in question, was Rs.35,08,999.69 plus club charges etc. It was stated that buyer’s agreement is an outright unilateral document containing one-sided clauses, which were never shown to the complainant at the time of booking and were incorporated without any consultation with the complainant. It was further stated that the agreement was signed by the complainant under duress. It was further stated that the Opposite Parties deliberately delayed execution of agreement.

6.         As per Clause 11(a) of the Agreement, the Opposite Parties were to hand over possession of the said independent floor within 24 months from the date of execution of the Agreement i.e. by 15.06.2013. Possession of the unit was purportedly offered by the Opposite Parties vide letter dated 15.05.2016 (Exhibit C-15) (in fact 15.11.2016). As per statement of account, the complainant was required to deposit the total balance amount of Rs.8,08,587.87 by 15.05.2017. Uptil 28.01.2016, the complainant paid an amount of Rs.35,36,931.14. The complainant has challenged the demands qua increase in area by 124 sq. ft., VAT, Service Tax levied after 14.06.2013. It was further stated that Opposite Parties also offered a customer goodwill package vide letter dated 15.05.2016 (Exhibit C-16) (in fact 15.11.2016), asking the complainant to execute a ‘Consent Letter’ waiving off any demands or claims of any nature against the Opposite Parties. It was further stated that the complainant vide email dated 06.02.2017 (Exhibit C-18) as well as letter of even date, rejected the aforesaid paper possession of the Opposite Parties and also showed his readiness to make final payment on receipt of clarifications sought in the said letter.

7.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over physical possession of the unit, in question, complete in all respects after rectification of all snags and execute/register conveyance/sale deed in a time bound manner; withdraw letter dated 15.11.2016 offering possession; pay interest @15% p.a. from expiry of three years till date of handing over of possession; bear increase in service tax levied after 14.06.2013; award Rs.10,00,000/- as compensation for deficiency in service, unfair trade practice, mental harassment, loss & injury suffered by the complainant due to negligence of the Opposite Parties; award Rs.55,000/- towards litigation expenses and pass such further orders/directions, as may be necessitated in the matter and deemed appropriate under the circumstances of the case.

8.         The Opposite Parties, in their preliminary submissions in the written statement stated that the 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 complainant is backing out from the executed contract. It was further stated that after receipt of occupation certificate on 05.04.2016, offer of possession was sent to the complainant on 15.11.2016. It was further stated that the complainant had the full knowledge about the executed terms of the Agreement dated 15.06.2011. It was further stated that the complainant prayed for unfounded demands, which are not as per executed Agreement and the Opposite Parties also prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost i.e. total 76% of the sale price. It was further stated that the project is cost escalation free and the complainant shall get the possession on the same price as committed by the Opposite Parties at the time of allotment, and all losses/cost escalation on many counts like building material cost, labor cost, land cost etc. has been borne by the Opposite Parties.

9.         Indicating present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received and offer of possession had 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 complainant has 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 complainant is not a consumer as the floor, in question, was purchased by him for investment purposes and earning profits. Another objection raised in the written statement is that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, the complainant shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) at Page 28 of the written statement, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively. The territorial jurisdiction of this Commission to entertain and try the complaint has also been challenged on the ground that the project, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District. It was further stated that only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint. It was further stated that after dismissal of the litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Parties vide letter dated 15.04.2013 offered an exit option to the complainant by accepting refund of entire amount paid till date with 9% interest but he refused to avail the said option and consented to the extension of time and voluntarily waived of his right to raise any grievance.

11.       On merits, it was stated that the price of the unit as per Schedule of Payment (SOP) was Rs.38,52,880.10 plus service tax for 1450 sq. ft. It was further stated that due to increase in area to 1574 sq. ft, the price of the floor also stood increased to Rs.44,80,052/- plus service tax. It was admitted that the complainant deposited a sum of Rs.35,36,930.54 with the Opposite Parties. It was denied that the Floor Buyer’s Agreement contained one-sided terms and conditions, sans any benefits to the complainant. It was also denied that the agreement was executed under duress as the Opposite Parties threatened to forfeit 15% of the total price. It was further stated that the agreement is executed only when 25% of the price is paid by the allottee(s). The complainant vide Clause 1 of Allottee’s representation in the Independent Floor Buyer’s Agreement acknowledged that the Opposite Parties have readily provided all information and clarification as required by the allottee.

12.       It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that vide offer of possession letter dated 15.11.2016, the complainant was asked to remit the outstanding dues and furnish the documents in order to facilitate the conveyance of the unit, in question. It was further stated that the complainant till date has paid an amount of Rs.35,36.931.14 and there is a DLI of Rs.1,58,669.17 levied against him for a delay of 596 days in remitting installments. It was admitted that the office of the Opposite Parties is situated in Chandigarh and the agreement was also executed between the parties at Chandigarh. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

13.       The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

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

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

16.       It is evident that Independent Floor No.DVF-E6/9-FF#217 in DLF Valley, Panchkula was allotted to the complainant vide allotment letter dated 31.03.2010 (Exhibit C-1) and Independent Floor Buyer’s Agreement between the complainant (Sh. Rajiv Tanwar), his father (Sh. Raj Kumar) and the Opposite Parties was executed at Chandigarh on 15.06.2011 (Exhibit C-2). The total price of the said independent floor, as depicted in the Agreement, was Rs.35,08,999.69, besides other charges, securities, deposits and taxes etc. as specified in the Agreement. In all, a sum of Rs.43,22,616.54, was paid to the Opposite Parties as admitted by them in the Chart showing details of the property,  in  question,  placed  on  record,  under  the signatures of the Counsel for the Opposite Parties, at the time of arguments on 27.02.2018. The contention of the complainant that the Buyer’s Agreement contained one-sided clauses and he was made to sign the same under duress is without any basis. The agreement was signed on 15.06.2011 and if the same was signed under duress, immediately grievance to this effect should have been raised with the Opposite Parties but no evidence to support this contention has been placed on record. As regards delay in execution of buyer’s agreement, admittedly, the complainant made first payment of Rs.4 Lacs on 26.03.2010 and agreement was executed on 15.06.2011. It is case  of the Opposite Parties that Buyer’s Agreement is executed after receipt of 25% payment. It is also a fact duly borne on record that there was stay by the Hon’ble Punjab & Haryana High Court from 06.04.2010 to 23.07.2010 (Annexures R-6 & R-7), which acted as a force majeure condition. Not only this, after issuing allotment letter, in all fairness, the Opposite Parties could taken 3-4 months to execute the agreement. The plea regarding delayed execution of agreement is, therefore, not tenable.

17.       As per Clause 11(a) of the Agreement, the Opposite Parties were 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 is also on record that vide letter dated 15.04.2013 (Annexure R-3 at page 86 of the written statement), the Opposite Parties sought further time of 12 months, in addition to 24 months, to complete the construction work. Vide aforesaid letter, option was also given to the complainant to seek refund alongwith 9% interest. It is, however, on record, that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 (Annexures             R-8 & R-9), which in turn, delayed the completion of the project. The possession of the unit, in question, was offered by the Opposite Parties to the complainant on 15.11.2016 vide offer of possession letter (Annexures C-15/R-1 colly.). While offering possession, the Opposite Parties raised demand of Rs.8,08,587.87 plus Rs.82,714/- towards welfare fund. As admitted during arguments possession of the unit, in question, has been delivered to the complainant on 14.07.2017 after making the entire payment and executing the requisite documents.

18.       It may also be stated here that on account of death of Sh. Raj Kumar, father of the complainant, who was co-signee to the Buyer’s Agreement, on an application moved by the complainant for substitution of name, the Opposite Parties vide letter dated 05.01.2017 (Annexure C-3), confirmed the substitution of name of Late Sh. Raj Kumar with the name of the complainant (Rajiv Tanwar), qua the unit, in question, for the purposes of all future legal documentation including the Sale Deed to be executed.

19.       During the pendency of the complaint, the complainant also moved one application on 25.07.2017 stating that some clauses of Format-2 i.e. Indemnity-cum-Undertaking for taking over the Independent Floor for occupation and use, are illegal and unfair/arbitrary. It was further stated in the application that pursuant to offer of possession sent on 15.11.2016, the complainant on 16.05.2017 had deposited an amount of Rs.7,85,686/- and Rs.82,714/- towards maintenance and executed all documents under protest and with amendments etc. It was also stated in the application that there is no dispute on the Vat Undertaking and maintenance agreement. The complainant also annexed copy of Format 2 alongwith the application as Exhibit C-20 alongwith other two documents as Exhits C-21 and C-22.

20.       Reply to the application aforesaid was also filed by the Opposite Parties. 

21.           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 has been prayed that hearing may be adjourned till decision on Section 8 application. However, perusal of file shows that no such application was ever filed by the opposite parties at any stage. 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 Parties, 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.

22.       In regard to other preliminary objections raised by the Opposite Parties, in their 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-4) was made by the complainant 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 15.06.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Parties is that the complainant has 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 complainant was 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 Parties, in their written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Parties is that since the complainant 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, he 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 complainant has specifically averred in Para 20 of his complaint that he bought the unit for own/family use and not for resale/commercial purpose. His averment gets fortified from the fact that he sought possession and has taken over the possession on 14.07.2017 after making due payment.

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

(iv)       It was argued by the Counsel for the Opposite Parties that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, he waived of his right to raise any grievance. While dealing with this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), held in Para 26 as under:-

“26……..This plea of the Opposite Parties is not well based. While seeking option vide letter dated 05.06.2013, the complainants were informed of delay and extension of one year was sought. One year extended period expired on 02.02.2014 whereas the possession was offered on 15.11.2016. Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 02.02.2014, position would have been different and in that situation, it would have been accepted that the complainants had waived of their right to raise grievance. The plea being devoid of merit is not tenable.”

            In this instant case also, exit option was given to the complainant vide letter dated 15.04.2013 but possession was not delivered even within the extended one year period. Therefore, in the light of observation made by this Commission, as extracted above, the objection raised is not tenable.

23.        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 15.06.2011 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 Parties, 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 complainant was 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.

24.       The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012 (Annexures R-8 & R-9), 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 14.06.2014. No justification whatsoever for delay in offering possession beyond 14.06.2014 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond their control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 15.06.2011 and before execution thereof, the Opposite Parties 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 Parties 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 Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (Exhibit C-15/Annexure R-1 colly.), clearly, there is inordinate delay (around 2 years 5 months) in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Parties.

25.       As admitted during arguments, the possession of the unit, in question, stood delivered to the complainant on 14.07.2017, after making entire payment towards the demand raised by the Opposite Parties and after signing/submission of the requisite documents.

26.       It may be stated here that apart from increase in area of the unit, in question, the complainant has also challenged the other demands raised in the offer of possession letter. In the instant case, the increase in the area is less than 15%, for which, no consent was required. Otherwise also, the issue qua legality of other 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, this Commission held the other demands raised to be legal and valid. Qua contingent deposit of vat, the complainant could make payment after the same is deposited by the Opposite Parties. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

27.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties 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 15.06.2011 i.e. by 14.06.2014. There is, thus, inordinate delay of around 2 years 5 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 15.11.2016. Clearly there is delay in offering possession on account of which, the complainant deserves 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.

 

28.         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.  

29.       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 complainant is 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. 15.06.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 15.11.2016, the complainant shall be entitled to compensation up-to plus 2 months from 15.11.2016 i.e. 14.01.2017 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. The possession stands delivered on 14.07.2017. For failure of the Opposite Parties to deliver possession within 30 days after deposit of due payment and submission of documents by the complainant, for delay beyond 30 days, the complainant shall be further entitled to interest @12% p.a. on the deposited amount till possession was delivered.

30.       It was stated and agreed by Counsel for the Opposite Parties that the stamp duty and registration charges would be payable by the complainant at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainant. As regards the amount of contingent Vat deposit, in case, the complainant has deposited the same, the Opposite Parties shall pay interest @12% p.a. (simple) on the Vat amount deposited, to the complainant, till the demand qua the same is raised by the Government.

31.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainant has been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. In the instant case, there has been DLI in the sum of Rs.1,58,669/- against the complainant. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant is 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/- on account of mental agony and physical harassment suffered by the complainant would serve the ends of justice.

32.       Qua the application moved by the Opposite Parties on 25.07.2017 challenging some clauses of Format-2 i.e. Indemnity-cum-Undertaking for taking over the Independent Floor for occupation and use, it may be stated here that the complainant will sign the said Format-2 under protest and liberty shall remain with him to raise his grievance qua any condition, of which he is aggrieved, before the appropriate Court.

33.       In the connected complaint bearing No.214 of 2017, the possession of the unit, in question, has also been delivered to the complainant, as per detail given in the following table:-

 

Complaint No.	214/2017
Date of independent Floor Buyer’s Agreement.	07.01.2011
Due date for possession after 2 years plus 1 year extended period	06.01.2014
Date on which possession offered	15.11.2016
Amount received by Opposite Parties as per Chart.	Rs.51,05,393.27
Whether amount deposited after offer of possession.	Yes
Whether documents submitted after offer of possession	Yes (except Format-2)
Date on which possession delivered.	18.08.2017

 

34.       It is evident from record that in terms of zimini order dated 25.07.2017 passed by this Commission, the Opposite Parties handed over possession of the unit, in question, to the complainant on 18.08.2017, without insisting upon signing of Format-II.

35.       Therefore, in this case also, in view of observations made in Complaint Case No.213 of 2017, the complainant is also 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.       He (complainant) will sign the Format-2 (i.e. Indemnity-cum-Undertaking for taking over the Independent Floor for occupation and use) under protest and liberty shall remain with him to raise his grievance qua any condition, of which he is aggrieved, before the appropriate Court..

37.       In this case, the complainant is also held entitled to compensation for mental agony, harassment and deficiency in rendering service. The compensation in the sum of Rs.1,50,000/-, if granted, would serve the ends of justice.

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

39.      For the reasons recorded above, both the complaints bearing Nos.213 & 214 of 2017 are partly accepted with costs. The Opposite Party/Parties, in each case, 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 two months 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 15.06.2014 & 07.01.2014 till 14.01.2017 & 14.01.2017 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(s) 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(s), till the date possession was delivered, shall be payable within 45 days from the date of receipt of certified copy of this order and failure shall entail penal interest @15% p.a., instead of 12% p.a., till payment is made.
(iii)	Pay compensation in the sum of Rs.1,00,000/- [in CC/213/2017] & Rs.1,50,000/- [In CC/214/2017] on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, 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(s) shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

 

40.       As agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties and the actual expenditure for registration of Sale Deed besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

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

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

Pronounced.

08.03.2018

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

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