Haryana

StateCommission

CC/235/2016

PARMINDER KAUR - Complainant(s)

Versus

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

PARDEEP SOLATH

22 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No      :     235 of 2016

Date of Institution:      18.08.2016

Date of Decision :       22.12.2016

1.     Parminder Kaur w/o Sh. Harinder Singh Bhangoo, Resident of House No.1170, TDI City, Sector-110, Landran Road, Mohali (Punjab).

2.     Ankur Bhangoo s/o Sh. Harinder Singh Bhangoo, Resident of House No.1170, TDI City, Sector-110, Landran Road, Mohali (Punjab).

                                      Complainants

Versus

1.      DLF Homes Panchkula Private Limited, DLF Gateway Tower, 2^nd Floor, DLF City, Phase-III, Gurgaon-122992, Haryana through its Managing Director.

2.      DLF Homes Panchkula Private Limited, Village Bhagwanpur, near Surajpur (Behind Amravati Enclave), Tehsil Kalka, Pinjore, District Panchkula, Haryana-133301 through its Managing Director.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

 

Argued by:          Shri Pardeep Solath, Advocate for complainant.

Shri Gaurav G.S. Chauhan, Advocate for Opposite Parties.    

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

          Parminder Kaur and Ankur Bhangoo-complainants have filed complaint under Section 17 of the Consumer Protection Act, 1986, submitting that one Dev Raj Aggarwal booked a flat with DLF Homes Panchkula Private Limited (hereinafter referred to as the ‘builder’)-Opposite Parties. Plot No.DVF-B1/28-GF#217 in DLF Valley, Panchkula, was allotted by the builder to said Dev Raj Aggarwal. Independent Floor Buyer’s Agreement (Exhibit C-1) was executed between the parties on 22^nd December, 2010. Thereafter, the above said property was purchased by the complainants from the allottee-Dev Raj Aggarwal and the same was transferred by the builder-opposite parties in their names vide letter dated 26^th December, 2012 (Exhibit C-2) by charging the transfer fee from the complainants. The basic sale price of the flat was Rs.33,87,524.97 besides other charges, that is, Preferential Location Charges (PLC), External Development Charges (EDC), Maintenance Security and interest. The complainants paid the amount of Rs.42,29,301/- on different dates. The possession of the flat was to be delivered to the complainants within 24 months from the date of the agreement, that is, on or before December 22^nd, 2012. The complainants approached the builder to hand over possession but the builder failed to do so.  Hence, the complainants have sought refund of the deposited amount alongwith interest and compensation.

2.                The opposite parties-builder contested the complaint by filing written version.  It was stated that the possession of the flat was delayed on account of force majeure, that is, a pending litigation before the Hon’ble Supreme Court wherein the construction of the flat was stayed by the Hon’ble Supreme Court.  Thus, denying the allegations of the complainants, it was prayed that the complaint be dismissed.

3.                Complainant appeared as CW-1 and tendered her affidavit Exhibit C-5 besides other documents Exhibit C-1 to C-4.

4.                The opposite party-builder tendered affidavit of Shiv Kumar-authorised signatory of DLF Homes Private Limited and also tendered documents Exhibits R-1 to R-14.

5.                Counsel for the parties have been heard. File perused.

6.                It is admitted case of the parties that both the complainants had purchased the flat from the builder-opposite party. The complainant was required to pay the price of the flat as per payment plan. It is also not in dispute that the possession of the flat was to be handed over to the complainants within 24 months from the date of the agreement, that is, on or before December 22^nd, 2012 but the possession was not delivered.  Indisputably, the amount of Rs.42,29,301/- was paid by the complainants with respect to the flat in question.

7.                The plea taken by the builder-opposite parties that the construction could not be raised due to the stay granted by Hon’ble Punjab and Haryana High Court, is not tenable. Indisputably, stay was granted by Hon’ble Punjab and Haryana High Court in Writ Petition No.6230/2010 vide order dated 06.04.2010 (Exhibit R-5) whereby the builder was restrained from raising any further construction. However, the order passed by the High Court was stayed by Hon’ble Supreme Court vide order dated 23.07.2010 (Exhibit R-6). A Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide order dated 19.04.2012 (Exhibit R-7), the Hon’ble Supreme Court stayed the construction activities at the project site in abeyance. Thereafter, vide order dated 12.12.2012 (Exhibit R-8), Hon’ble Supreme Court dismissed the above said Special Leave Petition and vacated the stay order dated 12.12.2012 but still the builder did not complete the construction even up to the filing of the present complaint on 18.08.2016, that is, even after passing more than four years from the date the stay order was vacated by the Hon’ble Supreme Court on 12.12.2012. No explanation has been given by the builder for this inordinate delay in raising construction. Thus, the builder has proved itself deficient in service by not completing the construction of the flat.

8.                Non-construction of the flat as per agreement is itself a deficiency in service and therefore the allottees are entitled to seek refund of the amount paid by them alongwith interest. In paragraph No.6 of the affidavit filed by Shiv Kumar-authorised signatory of the builder it has been stated that the builder vide letter dated 20.05.2013 sought approval with respect to service plans from the concerned authorities and the same was received on 14.08.2014. What prevented the builder thereafter in handing over possession of the flat after completing the construction has not been explained. In view of this the plea that due to the restriction made by the Hon’ble Punjab and Haryana High Court and Hon’ble Supreme Court, the builder could not hand over the possession, appears to be made out of whole cloth. Support to this view can be had from the judgment rendered by Hon’ble National Commission in Arvinder Singh versus Unitch Hi-Tech Developers Limited & Anr. IV(2016) CPJ 424 (NC).

9.                Another contention raised on behalf of the builder is that the complainants being re-allottee of the flat cannot take the benefits of the terms of the agreement and therefore the complaint is liable to be dismissed.

10.              This plea is not tenable. A perusal of Independent Floor Buyer’s Agreement (Exhibit C-1) shows that the complainants stepped into the shoes of original allottees. It has been clearly mentioned in Exhibit C-1 that “The said nominee/nominees shall henceforth be deemed as the purchaser/purchaser in place of the within named Purchaser/Purchasers for the purpose of within written agreement and shall be bound by all the terms conditions thereof. All the receipts so far issued by the within named seller in favour of the said nominee/nominees and all the payments evidenced by such receipts shall henceforth be deemed as payments made by the said nominee/nominees”. In view of this builder cannot deny benefits accruing to complainant under the agreement.

11.              Undisputedly, the original allottee of the flat in question was one Dev Raj Aggarwal, whereas the complainants are re-allottee. So, the complainants are entitled to the benefits of the agreement because they have stepped into the shoes of original allottee. The builder cannot escape from its liability to pay the benefits of the agreement. Since in the instant case the complainants have sought refund of the deposited amount, therefore the complainants are entitled to interest on the amount paid by them with respect to the flat in question. The builder cannot take the plea that the complainants are not entitled to the benefits of agreement being re-allottee.

12.              Having taken into account the facts and circumstances of the case, the complainants are justified in seeking refund of the amount.  In view of this, it is held that the builder is liable to refund the amount deposited by the complainants, alongwith interest and compensation.

13.              Hence, the complaint is allowed. The builder-Opposite Parties are directed to refund the amount of Rs.42,29,301/- to the complainants alongwith interest at the rate of 12% per annum from the date of its respective deposits till the date of realization; Rs.25,000/- as compensation for harassment etcetera and Rs.10,000/- litigation expenses. The entire amount be paid to the complainants within a period of 45 days, from the date of receipt of this order, otherwise, it will carry interest at the rate of 15% per annum, till realization and it calls for pointed notice that under Section 27 of the Act, if the builder fails or omits to comply with this order, it shall be punishable with imprisonment for a term which shall not be less than one month but which may extend to three years or with fine or with both.              

Announced: 22.12.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL