Chandigarh

StateCommission

CC/283/2016

Vaibhav Kumar - Complainant(s)

Versus

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

Narender Yadav, Vineet Yadav, Adv.

20 Oct 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	283 of 2016
Date of Institution	:	22.06.2016
Date of Decision	:	20.10.2016

 

1. Vaibhav Kumar S/o Sh. Vinod Kumar,
2. Uma Devi W/o Sh. Vinod Kumar,

Both resident of Block B2, House No.46, Paschim Vihar, New Delhi – 63.

                                            .........Complainants

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

 

Site Address:

The Valley, Sector 3, Kalka-Pinjore Urban Complex.

 

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

Argued by:

 

Sh. Narender Yadav, Advocate  for  the complainants.

Ms. Ekta Jhanji, Sh. Parveen Jain and Sh. Arjun Sharma, Advocates for Opposite Parties.

 

Consumer Complaint	:	314 of 2016
Date of Institution	:	04.07.2016
Date of Decision	:	20.10.2016

 

 

Brig. Jitendra Dixit S/o Sh. Mahabir Dixit, R/o D 11/30 GF, Exclusive Floors, DLF Phase V, Gurgaon.

 

                                            .........Complainant.

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector – 8 C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase – III, Gurgaon – 122002. Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

 

Site Address:

The Valley, Sector 3, Kalka-Pinjore Urban Complex.

 

 

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

Argued by:

 

Sh. Narender Yadav, Advocate  for  the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain and Sh. Arjun Sharma, Advocates for Opposite Parties.

 

 

 

Consumer Complaint	:	364 of 2016
Date of Institution	:	19.07.2016
Date of Decision	:	20.10.2016

 

Asha Gupta, W/o Dr. J. P. Gupta, #34, Near Polytechnic Chowk, Ambala, Haryana.

 

…..Complainant.

 

Versus

DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-12, Sector 8-C, Chandigarh through its Managing Director.

 

..........Opposite Party.

Argued by:

 

Sh. Gaurav Bhardwaj, Advocate  for  the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain and Sh. Arjun Sharma, Advocates for Opposite Party.

 

 

Consumer Complaint	:	424 of 2016
Date of Institution	:	04.08.2016
Date of Decision	:	20.10.2016

 

Mrs. Manuj Saini W/o Sh. S. K. Saini R/o #268, Sector 12-A, Panchkula.

 

…..Complainant.

Versus

1. M/s DLF Homes Panchkula Pvt. Ltd. through its Managing Director, SCO No.190-191-192, Sector 8-C, Chandigarh-160009.
2. M/s DLF Homes Panchkula Pvt. Ltd. through its Managing Director, 12^th Floor, DLF Gateway Tower, DLF City, Ph-, NH-8, Gurgaon – 122002.

 

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

Argued by:

 

Sh. Rohit Mittal, Advocate  for  the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain and Sh. Arjun Sharma, Advocates for Opposite Parties.

 

Complaints 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, following four consumer complaints:-

1	CC/283/2016	Vaibhav Kumar & Anr.	Vs	DLF Homes Pachkula Pvt. Ltd. & Anr.
2	CC/314/2016	Brig. Jitendra Dixit	Vs	DLF Homes Pachkula Pvt. Ltd. & Anr.
3	CC/364/2016	Asha Gupta	Vs	DLF Homes Pachkula Pvt. Ltd.
4	CC/424/2016	Manju Saini	Vs	M/s DLF Homes Pachkula Pvt. Ltd. & Anr.

 

2.          At the time of arguments, on 03.10.2016, it was agreed between Counsel for the parties, that facts involved in the above complaints, by and large, are virtually the same, and therefore, these four complaints can be disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.283 of 2016, titled as ‘Vaibhav Kumar and another Vs. DLF Homes Panchkula Private Limited and another.’

4.          In brief, the facts are that the Opposite Parties developed a Residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. On the basis of advertisements, complainant No.1, a businessman, approached the Opposite Parties, who represented that the above project was one of the prestigious projects and promised to provide an independent floor with total area of 1450 sq. ft. The complainants booked a flat in DLF Valley Project on 11.03.2010 for their residential purpose and paid an amount of Rs.4,00,000/- vide receipt RVL/CRB/000193/0310. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-3) on 31.01.2011 whereby independent floor No.D-7/18 SF (Second Floor) with parking number P-2F was allotted to the complainants. The total price of the unit was fixed as Rs.30,01,499.75 for the saleable area of 1450 Sq. Feet.  In Para 7 of the complaint, it was stated that till now, the complainants had paid Rs.27,63,418/- to the Opposite Parties.

5.          As per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement. Further as per Clause 15, if any delay happened beyond 24 months, then the Opposite Parties were to pay compensation @Rs.10/- per sq. feet per month of the saleable area for such delay. The complainants were assured that possession of the flat would be given within the stipulated period as the construction of the project was in full swing. Despite the commitments made in the Agreement, the Opposite Parties failed to deliver the possession. The Opposite Parties also published an advertisement dated 13/01/2014 (Annexure C-4) wherein they again promised to hand over possession in 2014 but failed to do so.

6.           It was further stated that the Opposite Parties have not provided community hall, covered stilt parking, Yoga Centre, proper swimming pool, library, card/carrom room, pool/billiards room, and a club house with modern facilities and several such facilities/amenities as were provided in brochure/ website. It was further stated that the construction quality is very poor and most of the promised services/ amenities/facilities were lacking. It was further stated that the complainants have suffered immense losses despite having paid for the unit.

7.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants 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 the physical and legal possession of unit, in question, complete in all respects after obtaining all due permissions and certificates including the Completion Certificate inter-alia from the concerned authorities; pay interest calculated @12% per annum on the deposited amount from the date of delay in handing over of the possession till the date, possession is handed over to the complainants; pay compensation @Rs.10 per square feet of the saleable area for delaying the possession along with interest @24% per annum from 31.01.2011; award compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to the actions/omissions of Opposite Parties; pay Rs.5,00,000/- as compensation for delay in handing over the possession; Rs.70,000/- as litigation expenses; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.

8.          The Opposite Parties, in their preliminary submissions in the written statement submitted that the occupation certificate from the competent authority has already been received by them on 19.07.2016  (Annexure-R/1) and the process to offer possession of the floor, in question, was under process. It was further stated that the complainants had full knowledge about the executed terms of the Agreement dated 31.01.2011. It was further stated that 31% cost escalation of the construction as well 47% of the land holding cost, totaling 76% of the sale price of the allotted floor be allowed. It was further stated that the project was cost escalation free as the complainants shall get the possession of the floor on the same price as committed by the Opposite Parties at the time of allotment of flat to the complainants on 15.03.2010. It was further submitted that construction of the project got delayed due to stay on construction activity by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012. It was further submitted that after dismissal of litigation by the Hon’ble Supreme Court on 12.12.2012, the Opposite Parties gave an exit option vide letter dated 02.04.2013 (Annexure R-10) to the complainants for refunding   the  amount  alongwith  9%  interest  but  the complainants opted to continue with the project and consented for extension.

9.          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 and the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission. It was further stated that this Commission did not have the jurisdiction to consider the complaint and pass orders on the relief claimed. The other preliminary objections raised are that the complainants are not consumers as the floor, in question, was booked by them, not for personal use but for investment purposes and earning profits.

10.        On merits, it was stated that since till date, no conveyance deed has been executed in favour of the complainants, they (complainants) have not become the owner of the property, in question. 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 the complainants, on their own will/understanding and accord, purchased the flat, in question. It was further stated that the construction of all the facilities/amenities was on verge of completion and all the facilities promised by the Opposite Parties, in their brochure, would be completed and provided to the buyers. It was further stated that the project is almost 99% complete and the basic amenities are completed or are on way of completion. It was further stated that possession was to be offered within 24 months (2 years) as stipulated in the Agreement unless there was delay due to a force majeure condition or due to reasons mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that as per Clause 43 of the Agreement, the Opposite Parties were not liable or responsible for not performing any of their obligation or undertakings as provided in the Agreement, if such performance is prevented due to force majeure conditions. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of the Opposite Parties. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. 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 out of 1791 floors, occupation certificate(s) of 1320 units had already been received and offer of possession to the allottees has already been started. It was further stated that proper water connection and electricity supply was in place and full housekeeping and maintenance services were being provided through leading multinational company namely Jones Lang Lasalle. It was further stated that the Opposite Parties sought approval regarding revision in layout plan and service plans on 11.3.2013 and 20.05.2013, which was received on 06.09.2013 and 14.08.2014 respectively. 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.

11.        The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

12.        The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

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

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

15.        It is evident, on record, that the complainants were   allotted   independent   floor  No.DVF-D-17/18  (Second Floor) in DLF Valley and Independent Floor Buyer’s Agreement dated 31.01.2011 (Annexure C-3) was executed between the complainants and the Opposite Parties at Chandigarh, as per which, the total price was Rs.30,01,499.75 i.e. Basic Sale Price Rs.24,94,724.97 + External Development Charges of Rs.2,96,669.92 + Rs.2,10,104.86 as interest on above components. In addition to the total price and other charges mentioned in the Application/Agreement, Annexure-III to the Agreement, charges as mentioned in Clause 1.4 of the Agreement i.e. Membership Fee Rs.30,000/- for five years, Rs.6,000/- per annum as Annual Club Charges and Rs.20,000/- as refundable security deposit and charges/taxes as per Clause 1.11, 1.12 and 1.15 etc., were payable. 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. There was stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, on account of which, the Opposite Parties sought extension of time for one year vide letter dated 02.04.2013 (Annexure R-10), to which, the complainants agreed. The option to get refund was not exercised by the complainants. The plea of the Opposite Parties that by not exercising exit option, during 2013, the complainants waived off their right to raise any grievance, is not well based. While seeking option vide letter dated 02.04.2013 (Annexure R-10), the complainants were informed of delay and extension of one year was sought. One year extended period expired on 30.01.2014 and still the possession has not been offered. Had the Opposite Parties handed over possession before 30.01.2014, position would have been different and in that situation, it would have been accepted that the complainants had waived off their right to raise grievance. The plea being devoid of merit is not tenable.

16.        The Opposite Parties in preliminary submissions have prayed to allow them 31% cost escalation of construction as well as 47% of the land holding cost, totaling 76% of the sale price. There is a clear and specific stipulation in the Agreement that price of the unit is escalation free. The Opposite Parties failed to complete construction and deliver possession within stipulated period and extended one year period. They are themselves responsible for delay and deficiency in service and their prayer for allowing them escalation cost is not only unfair but it also amounts to seeking amendment of the terms and conditions of the Agreement. The plea, being devoid of merit, must fail, and the same stands rejected.

17.        Since the Independent Floor Buyer’s Agreement was executed between the parties on 31.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained the Opposite Parties from creating any third party rights, during the year 2010, is not relevant. As regards allegation of complainants that construction quality was very poor and most of the promised services/amenities/ facilities were lacking, no cogent evidence by way of report of an Engineer/Architect in support of allegation has been brought on record. In the absence of cogent evidence, the bald assertion made by the complainants cannot be given any cognizance. This point was also not pressed during arguments.

18.        An objection was raised by Counsel for the Opposite Parties that the complainants filed this complaint leveling 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. It was further stated that the complainants were virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to entertain and decide the complaint. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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”

 

19.        From the afore-extracted Section 2(1)(o) of 1986 Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  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 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. 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, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 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. Thus, the present complaint filed by the complainants is maintainable.

20.        To defeat claim of the complainants, the next objection raised by the Opposite Parties was that since the complainants had 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, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. 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. The complainants who are original allottees, are seeking possession, which means that they purchased the same for their residence. Complainant No.1 has specifically stated that he is living with his parents and needs a separate house for his own residential purpose. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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 Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 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 hand 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. vs. 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.  

21.         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 31.01.2011 (Annexure C-3), reads 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, they were 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 complainants were 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 an admitted fact, that by making reference to above fact of granting stay, which resulted into  delay in construction at the site, consent of the complainants was sought, vide letter dated 02.04.2013 (Annexure R-10), to complete construction within further 12 months. Option was also given to the complainants, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainants exercised former option and continued to make payment(s) thereafter and by the time, the complaint was filed, they had paid an amount of Rs.27,63,418/- as per Customer Ledger (Annexure C-2) and the balance payable is shown as Rs.5,78,642.91. Receipt of aforesaid amount of Rs.27,63,418/- has not been denied by the Opposite Parties. Reading of written statement makes it very clear, that still no firm date to hand over possession of the unit has been given. Taking into account 12 months extension, the Opposite Parties were required to deliver possession on or before 30.01.2014, but not later than that. Permission for occupation of the unit, in question, has been accorded to the Opposite Parties vide letter dated 19.07.2016 (Annexure R-1). Admittedly, possession of the unit, in question, was neither offered by the date of filing the instant complaint nor till date, despite payment of around 90% of the sale consideration by the complainants. By making a misleading statement, that possession of the unit, was to be delivered within  maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 30.01.2014, and by not abiding by the commitment, made by the Opposite Parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice. 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 31.01.2011 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, approval for which was also received in due course of time, the initial time taken (almost 2 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. Clearly, there is inordinate delay of more than two years beyond initial stipulated period of two years and one year extended period in offering possession of the unit, in question to the complainants.

22.         The next question, that falls for consideration, is, as to whether, the complainants are 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 have not delivered 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 31.01.2011 i.e. by 30.01.2014. 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.  If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 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.

23.        Recently 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 reads 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.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

24.        Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, and position stated above, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.

25.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by the Opposite Parties, by the promised date in the Agreement or latest by 30.01.2014 i.e. within the extended period. The complainants purchased the unit, with the hope that they will have a house to live in. The possession of unit, in question, has not been offered to the complainants, till date, what to speak of delivery thereof. The compensation in the sum of Rs.5 Lacs claimed by the complainants is on the higher side. The complainants have been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainants shall also get the benefit of escalation in price of the unit. There is delay in remitting installment(s). Under these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

26.        Details of date of execution of Independent Floor Buyer’s Agreement(s); whether complainant(s) are original allottees; due date for possession after one year extended period; date of receiving Occupation Certificate and DLI, in respect of connected complaint cases No.314 of 2016 and 424 of 2016, are given hereunder:-

TABLE - A

1	2	3	4	5	6	7
Sr. No.	Complaint Case No.	Date of independent Floor Buyer’s Agreement.	Whether original allottee?	Due date for possession after one year extended period	Date of receiving Occupation Certificate.	DLI
	314/2016	24.12.2010	Yes	23.12.2013	Not received	-
	424/2016	17.01.2011	2nd Allottee (29.03.2012)	16.01.2014	05.04.2016 (Annexure R-1)	4276.08

 

27.        Out of the above two complaints, occupation certificate of the unit, in question, has been obtained by the Opposite Parties in complaint No.424 of 2016 whereas in complaint No.314 of 2016, the same is still awaited. However, possession of the unit(s) in question, has not been offered/delivered. Therefore, in view of the observations made in the preceding paras, the complainant(s), in these two cases, are also entitled to possession of the unit(s), in question, complete in all respects on payment of amount due, and 12% interest for the delayed period beyond three years till possession is handed over. In each of these two complaints, the complainants are held entitled to compensation in the sum of Rs.1,50,000/- for mental agony and physical harassment. Besides above, the complainants are also held entitled to litigation cost to the tune of Rs.35,000/- in each of the above complaints.

28.        However, in one complaint bearing Nos.364 of 2016 (as indicated in Table ‘B’ below) the complainant has sought refund of the deposited amounts. Details of amount(s) deposited; date of Agreement; due date for offering possession after one year extended period; whether possession offered; delay in offering possession and whether the complainant is first allottee; are given hereunder:-

 

 

TABLE - B

Sr. No.	Description/ Details	364/2016 (Asha Gupta Vs. DLF Homes Panchkula Pvt. Ltd.)
1.	Amount deposited. (Rs.)	53,47,715.17
2.	Date of Agreement.	05.10.2011
3.	Due date for offering possession.	04.10.2014
4.	Whether possession offered	No
5.	Delay in offering possession	Around 2 Years
6.	Whether first allottee	Yes

 

 

29.       As is evident from record, the Independent Floor Buyer’s Agreement was executed on 05.10.2011. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 24 months from the date of execution of the agreement unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, 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 the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In the instant case, 24 months period plus the extended period of 12 months from the date of execution of the agreement expired on 04.10.2014. The possession of the unit, in question, has not been offered till date, meaning thereby that there is already delay of around 2 years in offering possession. No reason or circumstances, which were beyond the control of the Opposite Parties for such delay beyond initial period of two years and one year extended period, have been explained. There is, thus, inordinate delay in offering possession of the allotted unit. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Therefore, in this complaint, the complainant is entitled to refund of the amount alongwith interest @15% per annum from the dates of respective deposits till realization. The complainant has claimed compensation of Rs.5 Lacs for suffering mental agony, harassment and emotional disturbance. It has been stated by the Opposite Parties, in their written statement, under the caption “12. Facts of the case” that the complainant did not deposit the total price to the Opposite Parties and there was also an outstanding amount of Rs.3,14,105.90Ps levied against delayed payment on account of 2730 days. Further perusal of letter dated 20.04.2016 (page 171 of the written statement of the Opposite Parties) reveals that the complainant was consistently in default in making payment of various installments. Due to these reasons, the complainant is not entitled to same amount of compensation on account of deficiency, mental agony and physical harassment which this Commission has been granting in other cases. In the facts and circumstances of the case, compensation on account of physical harassment, mental agony, deficiency in rendering service and unfair trade practice, in the sum of Rs.1,00,000/-, if granted, would meet the ends of justice.

30.         No other point, was urged, by the Counsel for the parties, in all the cases.

31.        For the reasons recorded above, all the complaints bearing No.283/2016, 314/2016, 364/2016, and 424/2016 are partly accepted, with costs, in the following manner:-

 

Consumer Complaints bearing No:

 

CC/283/2016	Vaibhav Kumar & Anr.	Vs	DLF Homes Pachkula Pvt. Ltd. & Anr.
CC/314/2016	Brig. Jitendra Dixit	Vs	DLF Homes Pachkula Pvt. Ltd. & Anr.
CC/424/2016	Manju Saini	Vs	M/s DLF Homes Pachkula Pvt. Ltd. & Anr.

 

 

 

             The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are jointly and severally, held liable and directed as under:-

(i)	To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), within four months from the date  of receipt of a certified copy of this order, on payment of the amount(s), by the complainant(s) due against them.
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), from 31.01.2014, 24.12.2013 and 17.01.2014, respectively till 31.10.2016, 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, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount(s), to the complainant(s)  w.e.f. 01.11.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
(v)	Pay compensation in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant(s), in each case, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint(s) till realization.

 

 

Consumer Complaint bearing No:

 

CC/364/2016

Asha Gupta

Vs

DLF Homes Pachkula Pvt. Ltd.

 

 

             The Opposite Party, is held liable and directed as under:-

 (i)  To refund the amount of Rs.53,47,715.17 alongwith simple interest @15% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Party shall pay the aforesaid amount alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

 (ii) To pay an amount of Rs.1,00,000/- (Rupees One Lac only) as compensation for mental agony and physical harassment, and Rs.35,000/- as litigation costs to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Party shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

            However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

32.        Certified copy of this order, be placed on the files of consumer complaints bearing Nos.314/2016, 364/2016 and 424/2016.

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

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

Pronounced.

20.10.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

         MEMBER