Chandigarh

StateCommission

CC/82/2015

Ram Gopal Dahiya - Complainant(s)

Versus

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

Gaurav Bhardwaj,Adv.

10 Jul 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH
 

Consumer Complaint	:	82 of 2015
Date of Institution	:	05.05.2015
Date of Decision	:	10.07.2015

 

Ram Gopal Dahiya S/o Sh. Jage Ram R/o H.No.995, Sector – 4, Panchkula.

……Complainant.

Versus

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh through its Managing Director.

              ....  Opposite Party.

 

Consumer Complaint under Section 17 of the Consumer Protection Act 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

               

 

Argued by:

Sh. Gaurav Bhardwaj, Advocate for the complainant.

Ms. Ekta Jhanji, Advocate alongwith Sh. Avinit Avasthi, Advocate for the Opposite Party.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that the complainant was willing to own a residential flat, in Panchkula for his family and personal use and, as such, he applied for  a residential independent floor having super area of 1550 sq. ft. in DLF Valley, Panchkula by depositing Rs.4,00,000/- as booking amount on 17.03.2011 vide receipt (Annexure C-1). It was stated that the complainant further paid Rs.6,89,614/- and Rs.5,42,450/- vide receipts dated 4.5.2011 and 12.07.2011. His application was accepted. It was further stated that the complainant was provisionally allotted an independent floor D-4/12-SF and Independent Floor Buyer’s Agreement was executed between the parties on 16.11.2011. It was further stated that as per Clause 1.1 of the said Agreement, the total price of the floor was Rs.53,19,600/- i.e. @Rs.2,976/- per sq. ft of saleable area plus EDC etc. It was further stated that, however, at page 32 of the said Agreement, the total price was mentioned as Rs.53,97,100/- and schedule of payments was also provided. It was further stated that the complainant further paid an amount of Rs.6,80,100/-, 6,80,100/-, Rs.25,708 and Rs.5,00,736/- vide receipts dated 23.1.2012, 03.02.2012, 15.03.2012 and 16.02.2013 respectively (Annexures C-5 to C-8).

2.         It was further stated that the complainant thereafter received a letter dated 8.7.2013 from the Opposite Party, informing that due to pendency of a case before the Hon’ble Supreme Court, the project was likely to be delayed by 12 months, and an option was given to him for continuing with allotment or refund of amount with 9% interest. It was further stated that the complainant opted for continuing with the allotment and further paid an amount of Rs.35,270/-, 3,49,720, Rs.44,692/- and Rs.5,47,700/- vide receipts dated 21.08.2013, 15.10.2013, 02.12.2013 and 02.04.2014 respectively (Annexures C-9 to C-12A). It was further stated that, thus, in all, the complainant paid a total amount of Rs.44,95,640/- i.e. almost 85% of the total sale consideration to the Opposite Party. It was further stated that the complainant waited patiently for possession of the floor, in question.

3.         It was further stated that as per Clause 11(a) of the Agreement, possession of the flat was to be delivered within 24 months, from the date of its execution, and as per letter dated 8.7.2013, further 12 months were sought by the Opposite Party, to which the complainant agreed. It was further stated that in case possession was not delivered within the time, then a notice of 90 days was to be sent for termination and the amount was to be refunded without any interest. It was further stated that as per Clause 15 of the Agreement, the Company was liable to pay Rs.10/- per sq. ft. of saleable area per month after the agreed time of handing over of possession.

4.         It was further stated that the complainant received a letter dated 22.10.2014 (Annexure C-13) from the Opposite Party, informing that the cost had been increased by Rs.6,08,000/- and Rs.18,787.20Ps as service tax.As such, there was increase of Rs.6,26,787.20Ps in the cost. It was further stated that the period of 24 months and further 12 months expired on 16.11.2014, but the Opposite Party showed its inability to handover possession and asked the complainant to wait for more time. It was further stated that the complainant had already paid 85% of the total sale consideration and the rest of the amount was to be paid at the time of completion certificate and offer of possession. It was further stated that the Opposite Party failed to offer possession to the complainant till date and still there was no likelihood of handing over the same.

5.            It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the entire amount of Rs.44,95,640/- alongwith interest @18% P.A. from the respective dates of deposits till realization; pay Rs.10,00,000/- as compensation  for deficiency in service, unfair trade practice and mental harassment and Rs.50,000/- as cost of litigation expenses.     

6.         The Opposite Party was served, and put in appearance on 10.06.2015. It filed its written statement on 30.06.2015. The Opposite Party took up certain preliminary objections that the complainant was not a consumer as defined under Section 2(1)(d) of the Act and that this Commission was having no jurisdiction to entertain the complaint due to the existence of Arbitration clause No.39 in the Agreement. On merits, it was admitted that the complainant was allotted an independent floor No.DVF-D4/12-SF measuring 1550 sq. feet through application form for allotment dated 05.03.2011 and he opted for the installment payment plan. It was also admitted that Independent Floor Buyer’s Agreement was executed between the complainant and the Opposite Party on 16.11.2011, and at the time of booking of the said floor, the complainant paid Rs.4 lacs by way of cheque No.312755 on 05.03.2011. It was stated that the total price of the said independent floor was Rs.53,97,100/- which was also mentioned in the schedule of payment sent to the complainant. It was further stated that the complainant had opted for two years installment payment plan and as per the same, the complainant had deposited Rs.44,95,640/- with the Opposite Party till 02.04.2014 and no further payment was received by the Opposite Party after 02.04.2014. 

7.         It was admitted that as per the terms and conditions of the Agreement under Clause 11(a), the Opposite Party was bound to complete the construction of the said independent floor within a period of 24 moths (2 years) from the date of execution thereof. It was further admitted that possession was to be given to the complainant within 2 years. However, the Hon’ble Supreme Court vide order dated 19.04.2012 passed in SLP No.21786-88 of 2010 had stayed the construction of the said project at DLF Valley Panchkula from April 2012 upto December 2012. It was further stated that there was delay in construction because of stay of construction activities at the project by the Hon’ble Supreme Court, which was vacated on 12.12.2012. It was further stated that after the vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was further stated that the Opposite Party could not be held liable for delay or failure due to force majeure conditions. It was, however, admitted that letter dated 08.07.2013 was sent to the complainant, informing him the reason for delay in construction and an option for refund or extension in time was given to him by the Opposite Party. It was further stated that vide the aforesaid letter, the complainant was also made aware of Clause 18 of the application for allotment, as per which, in case of delay in completion of construction, the Company was to pay compensation @Rs.10/- per sq. ft. per month of the saleable area of the floor to the complainant.

8.         It was further stated that Clause 15 of the Agreement, relied upon by the complainant, was not applicable in the instant case as delay in construction was due to stay by the Hon’ble Supreme Court of India, which was covered under force majeure clause. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.

9.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Party.

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

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

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

13.       It is evident that the complainant, applied for an independent residential floor measuring 1550 sq. ft, in the project of the Opposite Party in the year 2011 vide application (Annexure R-1) and Floor No.D4/12-SF in DLF Valley, Panchkula was provisionally allotted to him, for which, Independent  Floor Buyer’s Agreement was executed on 16.11.2011 at Chandigarh (Annexure C-4 Colly.). The total price payable for the said independent floor, as depicted in the Agreement, was Rs.53,19,600/- and the complainant paid an amount of Rs.44,95,640/- till 02.04.2014 as admitted by the Opposite Party in Para 7 of the preliminary objections of its reply. Further as per Clause 11(a), the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement.

14.       The first objection of the Opposite Party that   the complainant is not a consumer under Section 2(1)(d) of the Act is not on sound footing. It is not the case of the Opposite Party that the complainant booked/purchased the floor, in question, for carrying on some commercial activity or he booked/purchased more than one floor in the same project of the Opposite Party. Moreover, it is a residential floor and the complainant, in the opening Para of the complaint, stated that he was willing to own a residential unit for his family and personal use. As such, this objection being devoid of merit, is not sustainable and the same is rejected.

15.       The next objection, raised by the Opposite Party, is regarding the existence of arbitration clause No.34 in the Application for allotment (Annexure R-1). 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 document, aforesaid, 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. In this view of the matter, this objection of the Opposite Party, being devoid of merit, must fail, and the same stands rejected.

16.          The next question, which falls for consideration, is, as to whether the complainant is entitled to refund of the amount deposited by him with interest or not. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 16.11.2011 (Annexure C-4 colly.), 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 constructions 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.”

No doubt, as per the afore-extracted clauses, the Opposite Party was to complete the construction of the floor, in question, within a period of 24 months from the date of execution of the Agreement dated 16.11.2011 i.e. by 15.11.2013. However, as admitted by the Opposite Party itself, it failed to offer possession within the aforesaid stipulated period of 24 months and vide letter dated 08.07.2013 (Annexure C-9) informed the complainant that it (Opposite Party) would endeavor to complete the project subject to the delay of 12 months, which occurred due to stoppage of the work because of stay on construction activities. In this letter, the Opposite Party also informed the complainant that 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 passed by it (Supreme Court) not to undertake further construction  at the project land stood vacated. Admittedly, there was no stay as on 12.12.2012 on construction activity. As per the own averment of the complainant, in Para 5 of the complaint, he (complainant) agreed to extension of the period for further 12 months for offering possession of the independent floor, in question. However, the Opposite Party even after vacation of stay by the Hon’ble Supreme Court, failed to deliver possession of the floor, in question, complete in all respects, to the complainant within the extended period of 12 months, which expired on 16.11.2014. Till date, or till the date of filing the complaint, which was filed on 05.05.2015, the possession had not been offered by the Opposite Party to the complainant, what to talk of compensation, as envisaged under Clause 13 of the Independent Floor Buyer’s Agreement dated 16.11.2011. Nothing has been placed, on record, by the Opposite Party, by way of documentary evidence, to the effect that it (Opposite Party) ever offered possession of the floor, in question, to the complainant during the extended period of 12 months or thereafter or till the filing of the complaint. The complainant had made payments in the sum of Rs.44,95,640/- to the Opposite Party, which was undoubtedly his hard earned money. When the Opposite Party itself failed to deliver possession to the complainant even within the extended period and till date, it was liable to refund the entire amount paid by the complainant with interest. The complainant is, thus, entitled to refund of Rs.44,95,640/- with interest @9% per annum. By not refunding this amount, the Opposite Party was deficient in rendering service.

17.         The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that he will have a house to live in. As admitted by the Opposite Party, the construction at the site which was stayed by the Hon’ble Supreme Court of India vide order dated 19.04.2012, was vacated on 12.12.2012. The stay, thus, operated only for eight months but the Opposite Party failed to deliver possession to the complainant even after the lapse of extended period of 12 months from 08.07.2013. Admittedly, possession has not been delivered by the Opposite Party till date. On account of non-delivery of possession of the floor, in question, by the Opposite Party, to the complainant, complete in all respects, within the stipulated period or the extended period, or even till the filing of the complaint, and by not refunding the amount to him (complainant), the complainant had certainly suffered physical harassment and mental agony at the hands of the Opposite Party, for which, he needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,50,000/-, if granted,  would be just and adequate, to meet the ends of justice.            

18.         No other point, was urged, by the Counsel for the parties.

19.          For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Party is liable and directed in the following manner:-

(i)    To refund the amount of Rs.44,95,640/-alongwith interest @9% per annum, from the respective dates of deposits, till realization, within three months, from the date of receipt of a certified copy of this order.

(ii)   To pay an amount of Rs.1,50,000/-  (Rupees One Lac Fifty Thousand  only), to the complainant, as compensation for mental agony and physical harassment, within a period of three months from the date of receipt of a certified copy of the order.

(iii)  To pay cost of litigation, to the tune of Rs.15,000/-, to the complainant.

(iv)  In case, the payment of amounts, mentioned in Clauses (i) and (ii), is not made, within the stipulated period, then the Opposite Party, shall be liable to pay the amount mentioned in Clause (i) above, with interest @12% per annum, instead of 9% per annum, from the respective dates of deposits, till realization and amount mentioned in Clause (ii) above, with interest @12% per annum from the date of default till realization, besides payment of costs, to the tune of Rs.15,000/-.

20.         Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced

July 10, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

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