Haryana

Ambala

RBT/CC/234/2023

Anil Kumar Gupta son of Sh.Raj Kumar Gupta - Complainant(s)

Versus

DLF Homes Panchkula - Opp.Party(s)

Narinder Sharma

10 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	RBT/CC/234/2023
Date of Institution	:	14.09.2020/ 08.06.2023
Date of decision	:	10.11.2023

Anil Kumar Gupta @ Anil Gupta son of Sh. Raj Kumar Gupta, R/o H.No.1667, Sector-21, Panchkula, PIN-134116 (Haryana).

……. Complainant

Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector- 8-C, Chandigarh, U.T., PIN-160009 through its manager/Authorized Signatory/ Officer- in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Registered 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.

….…. Opposite Parties.

 Before:       Smt. Neena Sandhu, President.

                      Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri G.S. Ahluwalia, Advocate, counsel for the complainant

                     Shri Pushkar Sharma, Advocate, counsel for the OPs.                  

Order:        Smt. Neena Sandhu, President.

                   The complainant has filed this complaint against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following directions to them:-

1. To pay compensation approximately of Rs.24,88,054/- for delayed possession @ 18% per annum on the deposited amount till 02.08.2018, i.e the date of possession.
2. To pay Rs.5,00,000/- as compensation for the financial loss, hardship, mental agony, harassment caused to the complainant.
3. To pay Rs.1,10,000/- as litigation expenses.
4. To pay compensation under section 14 (hb) of CPA on account of unfair trade practice
5. Grant any relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the complainant booked the flat (Dwelling unit)/Independent Floor No.DVF-B-1/54-FF Area 1751.00 Sq.ft. on 27.12.2010 in Residential Group Housing Project of the OPs i.e. "The Valley" Sector-3 Kalka-Pinjore Urban Complex. The parties entered into an Independent Floor Buyers Agreement dated 27.12.2010, Annexure C-1. As per clause 11 (A) of the agreement possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement i.e. latest by 26.12.2012. The complainant visited the site on various occasions to enquire the status of the unit in question and other amenities/ facilities as promised but in fact till the date of offering possession ie. 29.10.2016 the unit was not ready for possession. After that, the complainant approached the OPs time and again to give the possession of the unit on the agreed terms & conditions but to no avail. The complainant had invested his hard earned money to get the residential accommodation and due to delay in giving the possession has caused the financial loss, grave mental agony & emotional disturbance to the complainant. The OPs failed to hand over the physical and legal possession of unit in question complete in all respects after obtaining all due permissions, certificates including the completion certificates from the concerned authorities. Ultimately, possession of the unit was delivered to the complainant on 02.08.2018 and by that time complainant made all the payment to the OPs.  Thus, the complainant is entitled to delayed compensation of about Rs.24,88,054/- calculated @18% p.a. on the deposited amount i.e. on equitable grounds of charging delayed payment interest. The OPs have also charged the compound interest amount of Rs.1,76,184.67, which was added in the basic amount, as depicted in final statement of account as on 29.10.2016. The OPs have also taken one time club membership charges, but, issued letter dated 01.08.2020 in which they asked for payment of Rs.24,780/-, which is illegal and arbitrary because OPs admitted this fact that club is operational since 01.10.2019, which shows that they are liable to pay compensation for the amount already charged upto 01.10.2019 and have no right to demand such type of dues. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version wherein they  raised preliminary objections to the effect that this complaint is barred by limitation; in view of arbitration clause in the agreement this complaint is not maintainable under CPA; the complainant is not consumer but investor; the complainant has no cause of action; the complainant has approached with unclean hands and suppressed material facts; the complainant is trying to rewrite/amend the agreement; the parties are bound by terms and conditions of the agreement; delay in delivery of possession was caused due to force majeure circumstances faced by the OPs i.e. stay on the  project by Hon’ble Supreme  Court and High Court; this Commission is not having jurisdiction to entertain this complaint; etc. On merits, it has been stated that OPs, upon receipt of occupation certificate dated 19.07.2016, offered possession of the unit on 29.10.2016 and the complainant has taken possession on 02.08.2018. The Complainant is essentially seeking infructuous relief of compensation after taking of possession by the OPs more than 2 years 6 months ago without any application of condonation of delay.   In recent judgment the Hon'ble Supreme Court in D.S. Dhanda SLP No. 3623-3654 of 2019 held that terms and conditions of agreement have to be followed as it is executed by both the parties. The floor was allotted/sold on construction linked payment plan which was accepted by the complainant and he continued to make the payment till taking of the possession. Resultantly his consent in delay is implied. Payments made by the complainant includes the amount of taxes i.e. EDC, IDC, service tax, vat, electricity amounting to Rs.877736.90. At this stage complainant is backing out from the executed contract and thus only on this score the complaint deserve to dismissed. Construction of Project was delayed due to stay on construction ordered by the Hon'ble High Court and thereafter by the Hon'ble Supreme Court of India, due to third party litigation involving the Acquisition Proceedings of the land of litigants therein, in the year 2010 and 2012. The complainant was allotted an Independent Floor by the OPs on 29.03.2010. A Writ Petition bearing No. 6230/2010 was also filed before the Hon'ble Punjab and Haryana High Court and vide order dated 06.04.2010 the Hon'ble Court had restrained the OPs from creating any third parties right and had also directed to ensure that the nature of land shall neither change nor any further construction activity shall be carried out. An appeal assailing the order dated 06.04.2010 of the Hon'ble Punjab and Haryana High Court was filed before the Hon'ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by Hon'ble Supreme Court on 23.07.2010. Thus, 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. Special Leave Petition bearing No. 21786-88/2010 was filed before the Hon'ble Supreme Court of India and vide its order dated 19.4.2012, 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 the possession, the same being entirely beyond the control of the OPs. The project was launched in four phases and on the date of passing of the aforesaid stay order, approximately 40 percent work at the site stood completed for the First Phase and a little less than that for the remaining phases. Thereafter, vide order dated 12.12.2012, the Hon'ble Supreme Court while dismissing the aforesaid Special Leave Petition, vacated the stay order dated 12.12.2012, subsequent to which the OPs made an endeavor to immediately resume the construction at the project site. On the date of the passing of stay order, nearly 2000 workers were deployed on the site for completion of the project. However, there was considerable difficulty for the OPs to gather the work force and to resume construction activity in the said project. The OPs took several months for gathering the requisite work force and for resuming the construction work in full swing and thus possession of the unit was offered vide 29.10.2016 yet it was taken over by the complainant only on 02.08.2018. Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with heavy cots.
4.           Rejoinder was filed by the complainant reiterating all his averments and controverting those of the OPs.
5.           Complainant tendered his affidavit as Annexure C/A alongwith documents as Annexure C-1 to C-20 and closed the evidence of the complainant. On the other hand, learned counsel for the OPs tendered affidavit of Vinod Kumar son of Shri D.N.Jha, DLF Homes Panchkula Private Limited, Local office at DLF Valley, Bhagwanpura, Sector-3, Pinjore Kalka Urban Complex, Panchkula, Haryana as Annexure R-A alongwith documents-Annexure R-1 to R-14 and closed the evidence on behalf of OPs.
6.           We have heard the learned counsel for the complainant and learned counsel for the OPs and have carefully gone through the case file and also gone through the written arguments filed by the learned counsel for the complainant and learned counsel for the OPs.
7.           Learned counsel for the complainant submitted that by neither delivering possession of the unit in question by the promised date nor paying delayed compensation for the period of delay; nor redressing the grievances regarding raising of demand of illegal amount, the OPs are deficient in providing service and indulged into unfair trade practice. The learned counsel for the complainant has referred the judgment dated 26.02.2019, passed by Hon’ble Supreme Court of India in the case of  DLF Homes Panchkula (P) Limited  Versus Sushila Devi and Anr. etc. and judgment dated 10.05.2019, Hon’ble Supreme Court of India in the case of DLF Homes Panchkula Pvt. Ltd Versus D.S.Dhanda, Etc. and judgment dated 22.07.2022 passed by Hon’ble National Commission, New Delhi, in the case of DLF Homes Panchkula Pvt. Ltd. Vs. Madan Lal Kansal & Anr. and also judgment dated 12.01.2022, passed by Hon’ble National Commission, New Delhi, in the case of Vikas Mittal Vs. DLF Universal Limited & Anr.
8.           On the other hand, learned counsel for OPs while reiterating the  objections and contentions raised in their written version submitted that since valid possession of the unit in question stood offered to the complainant vide letter dated 29.10.2016 after obtaining occupation certificate dated 19.07.2016, yet, he failed to take over the same till 02.08.2018,  and at the same time delay in offering possession took place because of stay having been granted by the Hon’ble Supreme Court, in the manner, referred to above, i.e. they have encountered force majeure circumstances, as such, the complainant is not entitled to get any delayed compensation. The learned counsel for the OPs has referred the judgment dated 02.03.2023, passed by Hon’ble National Commission, New Delhi in the case of Avtarsingh Chauhan Vs. DLF Home Developers Limited and Anr.
9.           First coming to objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
10.           As far as objection regarding time barred is concerned, it may be stated here that if the period of two years are counted from 02.08.2018 i.e. the last cause of action when possession was taken over by the complainant, after excluding the period from 15.03.2020 due to COVID 19, in view the order dated 23.03.2020 passed by the Hon’ble Supreme Court in Civil Original Jurisdiction, Miscellaneous  Application  No. 21  of 2022 In  Miscellaneous  Application   No. 665 of 2021 In Suo  Motu  Writ  Petition (C)  No. 3 of 2020, In  Re:  Cognizance  For  Extension of Limitation, that the period from 15.03.2020 till 28.02.2022 (with extension of 90 days) i.e. till the end of May 2020 shall stand excluded for the purposes of limitation as may be prescribed under any general or special laws in respect of all judicial or quasi judicial proceedings,  this complaint filed on 14.09.2020 is within limitation. Thus, objection taken regarding time barred is rejected.
11.           Objection taken by the OPs that the complainant is not consumer and did not fall within the definition of ‘consumer’, also did not merit acceptance because here there is not even a single documentary evidence placed on record by the OPs to substantiate their objection. The onus is upon the OPs to prove that the complainant has purchased the flat in question in the capacity of investor. Unless it is proved so, we cannot hold that the complainant is investor, significantly, when he has taken over possession of the unit on 02.08.2018. Our this view is fortified from the ratio of law laid down by the Hon’ble National  Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31.  Hence we hold that the complainant is a consumer and objection taken by the OPs is rejected. 
12.           It may be stated here that admittedly possession of the unit in question was offered to the complainant on 29.10.2016, Annexure C-4 and thereafter he took over possession on 02.08.2018, vide possession certificate, Annexure C-18. It is clearly mentioned in this possession certificate, which is signed by the complainant as well as the OPs that the possession is delivered after clearance of final payments meaning thereby that there is no dues to be paid by the complainant regarding sale consideration of the unit in question and no dispute has been raised by the complainant at the time of signing this certificate. Under these circumstances, the moot question which needs to be decided by this Commission is whether the complainant is entitled for delayed compensation qua delivery of possession and if yes for what period. It is significant to mention here that as  per clause 11 (a) of the independent floor buyer’s agreement dated 29.12.2010, Annexure C-3 possession of the unit was to be delivered within a period of 24 months from the date of the said agreement i.e. on or before 28.12.2012, which admittedly has not been delivered. At the same time, this Commission is also considering the plea taken by the OPs that there was stay by the Hon’ble Apex court for a period of about 8 months i.e. from 19.04.2012 to 12.12.2012 which in turn delayed the project. In view of this, the two years period stipulated in the Agreement and 8 months extended period on account of stay by the Hon’ble Apex Court, expired on 28.08.2013. No justification whatsoever for delay in offering possession beyond 28.08.2013 has been explained by the OPs.  On the other hand, it was offered only vide letter dated 29.10.2016, Annexure C-4, which was taken over on 02.08.2018. The complainant has failed to apprise this Commission as to why, he remained silent after 29.10.2016 and ultimately took possession of the unit on 02.08.2018. Under these circumstances, we are of the considered view that the complainant is entitled to get interest @9% p.a. on the entire deposited amount as delayed compensation for the period from 28.08.2013 till 29.12.2016 (i.e. after expiry of 2 months from 29.10.2016 plus 8 months extended aforesaid), in view of decision rendered by the Hon’ble Supreme Court qua similar project and under similar circumstances in the case titled as DLF Homes Panchkula Pvt. Ltd. vs Himanshu Arora, decided on 19 November, 2018, CIVIL  APPEAL  NO.  11097  OF 2018. Relevant part of the said order is reproduced hereunder:-

“……6. Mr. Vishwanathan, learned Senior Counsel has placed a chart on the record. The chart indicates the amount which according to the appellants would have been payable in terms of Clause 15 of the Agreement between the parties, where compensation is liable to be computed at Rs.10 per sq. ft. of the saleable area for a delay beyond 24 months or such extended periods as permitted under the Agreement. The Chart also indicates the amount which was liable to be paid in terms of the Order of the SCDRC (at 12 per cent after 3 years from the Agreement date) and compensation computed in terms of the Order of the NCDRC at 9 per cent (from the date of payment). The chart indicates that in terms of the order of the SCDRC, the appellants would be liable to pay an amount of Rs.364.27 Lakhs to 28 flat purchasers whereas in terms of the Order of the NCDRC, the liability of the appellants would be Rs.564.67 Lakhs.

7. We are not inclined to enquire into the merits of the computation which has been placed on the record on behalf of the appellants. However, it emerges from the submissions which we have recorded earlier that the real grievance of the appellants is that though in the appeal filed in NCDRC by them, the rate of interest was reduced from 12 per cent to 9 per cent, the period over which interest would be payable to those seeking possession has been extended back to the date of payment of monies as a result of which the liability of the appellants has actually increased.

8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.

9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC.

10. We also direct that in computing the interest payable in terms of the Order of the NCDRC to the extent modified above, the appellants would be entitled to credit for the compensation, if any, which has been paid to any flat buyer in terms of Clause 15 of the flat purchase agreements. In other words, the amount of interest payable shall be computed after deducting any amount that has been paid to the concerned flat buyer under Clause 15 of the agreement..……”

13. In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs, in the following manner:-  

•   To pay compensation by way of interest @9% p.a., on the amount paid by the complainant for his unit with effect from 28.08.2013 till 29.12.2016.
•  To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
•  To pay Rs.3,000/- as litigation expenses.

 

                    The OPs are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @11% per annum on the awarded amount, from the date of default, till realization.

                   Application(s) pending, if any stand disposed of in terms of the aforesaid order.

                   Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

 Announced:- 10.11.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President