Haryana

Panchkula

CC/281/2015

MUKESH KUMAR &ANOTHER. - Complainant(s)

Versus

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

PARMOD BHARDWAJ.

05 Jul 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                            

Consumer Complaint No	:	281 of 2015
Date of Institution	:	16.12.2015
Date of Decision	:	05.07.2016

                                                                                          

1.       Mukesh Kumar, aged 26 years, S/o Sh.Ram Phal Singh,

2.       Ms.Surjeeta Devi d/o Sh.Mukesh Kumar,

Both R/o H.No.359, Amrawati Enclave, Tehsil Kalka, District Panchkula.

                                                                                          ….Complainants

Versus

 

1.       DLF Homes Panchkula Private Limited, Chandigarh Technology Park, Plot No.2, Tower-D, Ground Floor, Chandigarh (U.T.)-160 101 through its Deputy Manager.

2.       D.L.F. Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Madhya Marg, Chandigarh through its Deputy Director.

3.       D.L.F. Homes Panchkula Pvt. Ltd., Regd. Office, 2^nd Floor, DLF Gateway Tower, DLF City, Phase III, National Highway-8, Gurgaon, through its Regional Manager/Managing Director.

                                                                        ….Opposite Parties

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

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Parmod Bhardwaj, Adv., for the complainant. 

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

 

ORDER

(Dharam Pal, President)

                             The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that they had purchased a flat No.C-3/26-SF alongwith its parking from Sh.Sohan Lal Bansal and Ompati in DLF Valley, Panchkula. As per agreed clause of the Ops, the construction plan for the flats was two years but they have failed to handover the property to the complainants within stipulated period despite the fact the complainants have made the entire payment of Rs.32,27,099.78 to them except only last pending installment.  The Ops have taken false and flimsy ground that the Hon’ble Supreme Court has stayed the construction work at site but if the period of stay is to be added even then the possession was to be delivered in the month of December, 2013 but they have failed to deliver the possession of the flat. They approached the Ops for taking physical possession but the Ops felt sorry and assured to pay compensation to the tune of Rs.15,000/- per month for the delayed period to the allottes but till date they have not made any payment.   The complainants have purchased the said flat by borrowing the amount from nears and dears but the OPs have mis-appropriated the amount paid by them.  Thereafter, a legal notice was served upon the Ops by the complainants but to no avail. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.

2.                          The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Ops is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Ops have already completed construction of all 222 Independent Floors on 74 Plots and another 1553 built up units are nearing completion. It is submitted that out of 1775 built-up units, occupation certificate has been received for 222 units and as on date 78 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is submitted that the agreement between the parties were executed before 5 to 6 years which was duly signed and executed by each allottee after properly understanding each and every clause contained in the agreement. It is submitted that the terms of the agreement are binding between the respective parties. The complainant does not fall within the ambit of consumer. Further, the Ops have acted in accordance with the terms and conditions of the Buyers Agreement. It is submitted that the complainant was duly informed about the schedule of possession as per clause 11 (a), (b) and (c) of the Apartment Buyers Agreement entered into between the complainant and Ops that the Company endeavored to complete the construction of the said project within 24 months unless there is delay due to a force majeure condition or due to reasons mentioned in 11(b) and 11(c). It is submitted that even though the possession was to be given within a period of two years, there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. It is submitted that the construction activities at the project site had been put in abeyance and no further activities would be carried out and the Ops had informed the complainant about the stay of Hon’ble Supreme Court. It is submitted that the Ops could not be liable to perform any of its obligations or undertakings provided in the agreement if such performance is prevented due to Majeure conditions or continuance of any Force Majeure conditions which stipulated in clause 43 of the agreement that:-

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

 

It is submitted that the complainant was also informed that the Company would endeavor to complete the project subject to delay of 12 months which has occurred due to the stoppage of the work and the complainant was also given an exit option that in case they did not agree to the additional time to be taken for completion of the construction & the Ops would cancel the allotment and refund the amount paid by them alongwith simple interest @ 9% p.a. It is submitted that the complainant applied for the Independent Floor in the project of the Ops in the month of Januray, 2011. Subsequently, a writ petition bearing No.6230/2010 was filed before the Hon’ble Punjab and Haryana High Court and vide order dated 06.04.2010, the Hon’ble High Court restrained the Ops from creating any third party right and had also directed to ensure that the nature of the land shall neither change nor any further construction activity should be carried out. It is submitted that an appeal assailing the order dated 06.04.2010 of the Hon’ble High Court was filed before the Hon’ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by the Hon’ble Supreme Court on 23.07.2010. It is submitted that the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon’ble Supreme Court. Thereafter, a Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide its order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activities at the project site in abeyance and the Ops were compelled to not carry out any further construction at the site in pursuance to the directions that led to delay in handing over possession, the same being entirely beyond the control of the Ops. It is submitted that the Hon’ble Supreme Court vide order dated 12.12.2012 dismissed the Special Leave Petition and vacated the stay order & to which the Ops made an endeavor to immediately resume the construction at the project site. It is submitted that there was considerable difficulty for the Ops to gather the work force and to resume construction activity in the project. It is submitted that the complainant was also informed about the clause 18/19 of the application for allotment in accordance to which in case of delay by the Appellant Company in completion of construction, the Ops should pay compensation at Rs.10/- per sq. ft. per month of the saleable area to the complainants, however, the complainant did not avail of the refund alongwith interest offered by the Ops. It is submitted that the Ops sought approval regarding revision in layout plan on 11.03.2013 which received was on 06.09.2013 after constant follow upon with the concerned authorities. Thereafter, the Ops vide its letter dated 20.05.2013 sought approval with respect to service plans which was received on 14.08.2014 by the Ops. It is further submitted that the original allottees were given an exit option and were informed that in case they do not wish to continue with allotment the Ops will cancel the allotment and refund the amount with simple interest @ 9 % but they continued with the allotment and further agreed to the delay in completion and construction and have voluntarily waived off their right, therefore, the Ops cannot be held liable for any deficiency in service or unfair trade practice. Moreover, the complainants have not approached this Forum with clean hands and are trying to raise such type of issues at belated stage because the complainants came into picture for the first time on 21.05.2013 and the said flat was purchased by the original allottee on 17.03.2010 for a sum of Rs.33,04,599.78/- but till date only Rs.30,44,551/- have been paid by the complainants. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3.                          The counsel for the complainants has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-32 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-11 and closed his evidence.

4.                          We have heard the learned counsel for the parties and have also perused the record.

5.                          When the case was fixed for filing written statement, the counsel for the Ops has filed an application u/s 8 of the Arbitration & Conciliation Act, 1996 for rejecting/referring the complaint to the Arbitrator. Reply to the application filed by the counsel for the complainant.

6.                          It is evident that Sh.Sohan Lal Bansal and Ompati had booked a flat measuring 1550 sq. ft. bearing Flat No.C-3/26-SF alongwith its parking DLF Valley, Panchkula and thereafter the complainants purchased the said unit, in question, which was later on transferred in his name vide letter dated 21.05.2013 (Annexure C-31). It is also admitted that Independent Floor Buyer’s Agreement was executed on 02.12.2010 (Annexure C-32). The total price payable for the said independent floor, as depicted in Agreement, was Rs.32,27,099.78/- and as admitted by the Opposite Parties, the complainants made payment to the tune of Rs.30,44,551/- to the Company. Further as per Clause 11(a), 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.

7.                          The first objection of the Opposite Parties that   the complainants are not the consumer under Section 2(1)(d) of the Act is not on sound footing. The mere fact that it was a residential floor is sufficient to prove that the same was to be used by the complainants after purchasing the same from original allottees i.e. Sh.Sohan Lal Bansal and Mrs.Omwati. As such, this objection being devoid of merit, is not sustainable and the same is rejected.

8.                          The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.35 in Application Form. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, 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.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the application form/Agreement, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. Not only this, recently also, a similar view was taken by the National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/ Opposite Party challenged that order in the Hon’ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon’ble Supreme Court of India, while dealing with various judgments, including Magma Leasing and Finance Limited and another Vs. Potluri Madhavilata and another (2009) 10 SCC 103 (the one reliance on which has been placed by the opposite parties in present case also)  observed that the same (judgments) have no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to refer to the Arbitral Tribunal. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

9.                          The next question, which falls for consideration, is, as to whether there was any deficiency attributable to the Opposite Parties in handing over possession of the flat, in question, to the complainant. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 02.12.2010 being relevant, are extracted hereunder:-

“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………..”

10.                        No doubt, as per the afore-extracted clauses, the Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of execution of the Agreement dated 02.12.2010 i.e. by 02.12.2012. However, as admitted by the Opposite Parties themselves, they failed to offer possession within the aforesaid stipulated period of 24 months. As per para 2 of the preliminary objections made by the Ops in their reply have stated that Ops have already completed construction of all 258 independent floors on 86 plots and another 1517 built up units are nearing completion. It is stated that out of 1775 built up units, occupation certificate has been received for 258 (86 plots) units and as on date 86 units have been offered for the possession to the owners. It is stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL).  But the Ops have failed to point out whether the possession of the flat allotted to the complainants has been offered or not. It is the case of the Opposite Parties that due to force majeure conditions, delay in completing the project partly occurred due to stoppage of work because of stay on construction activities by the Hon’ble Supreme Court of India. In support of their contention, the Opposite Parties placed on record copies of orders of the Hon’ble Supreme Court of India. The operative part of order dated 19.04.2012, interalia, reads as under:-

“….With a view to avoid further complications in the mater, we direct the State of Haryana and its functionaries and also the impleaded respondents not to undertake further constructions on the land which was acquired vide Notification dated 26.9.2007 read with the declaration dated 25.9.2008. This would mean that all the ongoing construction activities shall be stopped forthwith.”

11.                        Undisputedly, the Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 not to undertake further construction at the project land, stood vacated. Since there was stay by the Hon’ble Supreme Court from 19.04.2012 to 12.12.2012, the period of delay to this extent falls within the ambit of force majeure conditions. Since, the Opposite Parties were prevented to perform their obligations, they are entitled to 8 months in addition to two years period, stipulated in the Agreement for handing over possession. In other words, the Opposite Parties are not liable to pay any penalty for eight months, there being stay on the construction activities. During arguments, the Counsel for the Opposite Parties admitted the fact that the Opposite Parties have failed to deliver possession of the floor, in question, complete in all respects, to the complainants, till date, what to talk of compensation, as envisaged under Clause 15 of the Independent Floor Buyer’s Agreement dated 02.12.2010. Nothing has been placed, on record, by way of documentary evidence, to this effect. The complainant had made payments in the sum of Rs.18,45,342.70/- to the Opposite Parties, which was undoubtedly their hard earned money.

12.                        Initially, the apartment was booked by Sh.Sohan Lal Bansal and Mrs.Ompati. Floor Buyer Agreement was executed on 02.12.2010. As per the agreement, the possession of the flat was to be handed over to the alltotee within 24 months i.e. upto 02.12.2012. The complainants purchased the flat on 15.04.2013 after expiry of the date of possession. It is not the case of the complainants that they have not visited the site and is not aware about the construction status of the flat and construction activities going on the site. The complainants knew at the time of re-purchase of the flat that there was a delay in handing over the possession and inspite of that they purchased the said flat.  From the conduct of the complainants, it can be easily held that when they acquired the allotment by way of re-purchase they were satisfied with the progress of the construction and development on the site.

13.                        The Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Raje Ram, AIR 2009 SC 2030. In that case, HUDA allotted a plot of land to one Madan Lal who deposited the 25% of the cost of the plot. Later, HUDA notified revision of the price and gave an option to the allottees to either accept the revision or receive back the initial deposit with interest.  On the request of the allottee and the respondent the allotment was transferred in favour of the respondent. Since HUDA failed to deliver possession of the plot within the stipulated time, the respondent approached the concerned District Forum expressing grievance against non-delivery of the possession within the stipulate time. HUDA then offered possession of the plot to him and the District Forum disposed of the complaint with a direction to HUDA to pay interest to the respondent at the rate of 18% per annum from the date of deposit till the date of offer of possession. Having been unsuccessful before the Hon’ble State Commission and Hon’ble National Commission, HUDA approached the Hon’ble Supreme Court by way of special leave. It was held by the Hon’ble Supreme Court that the respondent knew at the time the plot was realloted to him that there was delay and in spite of that he took the re-allotment. It was held that the case of the respondent could not be compared to the case of the original allottees. The respondents were aware at the time of purchase that the time for performance was not stipulated as the essence of the contract and the original allottee had accepted the delay. It was, therefore, held that the respondents were not entitled to interest on the amount deposited by them.  The persons who purchased flats more than one year after the date of initial allotment, could foresee that the builder will not be able to deliver the possession of the flat by the stipulated date. This is not their case that when they acquired the allotment by way of repurchase, they had found that the builder had already completed the development which was expected to complete by that time or that the builder had assured them that it would give possession to them by the original date stipulated in the agreement. Such persons therefore cannot be treated at par with the original allottees or those who acquired the allotment within one year of the initial allotment.

14.                        The Hon’ble National Commission while deciding the complaint case No.437/2014 titled as Shri Satish Kumar Pandey & Anr. Vs. M/s Unitech Limited alongwith other complaints on  08.06.2015 has held as under:-

2­3.    For the reasons stated herein above, the complaints are disposed of with the following directions:-

(a)     The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.05.2015;

(b)     The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them.  The interest payable till 31.08.2015 shall be paid by 10.09.2015, in three equal instalments, by the 10^th of each month i.e. by 10^th July, 2015, 10^th August, 2015 and 10^th September, 2015.  Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10^th of each succeeding month.

(c)     Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them.  They will also be paid compensation at the rate of Rs.5/- per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.

(d)     The increase in service tax with effect from 01.06.2015 shall be borne by the opposite party, in all these cases.

(e)     If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.05.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.05.2015, in delivering possession to the complainants.

(f)      The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.

15.                        In the present case the original allottees Sh.Sohan Lal Bansal and Mrs.Ompati had booked the flat C-3/26-SF. The complainants purchased the same which was transferred in their name on 15.04.2013. It is also admitted that independent floor buyer agreement was executed on 02.12.2010 between the original allottees and Ops. As per the decision of the Hon’ble National Commission in the above cited case the complainants falls under clause C of the above decision.

16.                        Since the plot in question has been transferred in the name of the complainants on 15.04.2013, therefore, they are entitled for the compensation after 32 months (24 months as per clause 11 (a) plus 8 months due to stay on construction by the Hon’ble Supreme Court) from the date of repurchase by them, till possession is delivered to them. They will also be entitled compensation at the rate of Rs.10/- per square foot of the super area of their respective flat after 32 months from the date of repurchase of the flat by them.

17.                        Keeping in view the above discussed facts and circumstances, we allow the present complaint and the Ops are directed as under:-

(i)     To pay compensation at the rate of Rs.10/- per square feet of the super area of the flat after 32 months from the date of repurchase of the flat by him (i.e.) 15.04.2013.

 (ii)      The opposite parties shall pay Rs.10,000/- as the cost of litigation complaint.

18.                        Let the order be complied with within 30 days from the receipt of certified copy of this order. A copy of this order be sent to the parties free of costs. File be consigned to records after due compliance.

 

 

 

Announced           (S.P.Attri)            (Anita Kapoor)          (Dharam Pal)

05.07.2016           Member                 Member                      President

 

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

 

                                          

                                            

                                                          Dharam Pal                                                                                                President