Chandigarh

StateCommission

CC/14/2017

Gulab Singh - Complainant(s)

Versus

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

Abhineet Taneja

14 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	14 of 2017
Date of Institution	:	06.01.2017
Date of Decision	:	14.08.2017

 

 

Gulab Singh S/o Sh. Didar Singh R/o House No.62, Ward No.10, Sir Chottu Ram Colony, Karnal, Narwana, Distt. Jind, Haryana.

 

                                             .........Complainant.

                                  Versus

 

 

1. DLF Homes Panchkula Private Limited through its Managing Director, 12^th Floor, DLF Gateway Tower, DLF City, Phase-III, NH-8, Gurgaon.
2. The Regional Manager, DLF Homes Panchkula Private Limited, SCO-190-191-192, Sector-8C, Chandigarh.

                                                        ........Opposite Parties.

Argued by:

 

Sh. Abhineet Taneja, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.

 

 

Consumer Complaint	:	92 of 2017
Date of Institution	:	30.01.2017
Date of Decision	:	14.08.2017

 

Jai Lall Bragta son of Late Sh. Budhi Singh Bragta, Resident of Vikram  Cottage, Lakshmi Narayana Mandir Area, Shimla – 171006, Himachal Pradesh.

 

                                             .........Complainant.

                                  Versus

 

M/s. DLF Homes Panchkula Private Limited, having its office at SCO 190-191-192, Sector 8-C, Chandigarh – 160009 through its Managing Director.

 

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

 

Argued by:

 

Sh. Vipul Dharmani, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Party.

 

 

 

Consumer Complaint	:	136 of 2017
Date of Institution	:	14.02.2017
Date of Decision	:	14.08.2017

 

1. Mrs. Divyajot Kaur wife of Sh. Sumit Sagar Dogra,
2. Mr. Manmohan Singh Bagga son of Sh. Harbans Singh,

Present Correspondence Address: House No.146, Sector 21-A, Chandigarh – 160022.

                                             .........Complainants.

                                  Versus

 

1. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory/Representative.
2. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh – 160009 through its Chairman/Managing Director/Director/Authorized Signatory/Representative.

 

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

Argued by:

 

Sh. Sumit Sagar Dogra, Husband of complainant No.1 and also on behalf of complainant No.2.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the 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 the aforesaid 3 consumer complaints bearing Nos.14, 92 and 136 all of 2017.

2.           At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price and amount received etc. and further the date when possession was offered etc., which is taken on record. It was stated by the Counsel that the facts given in the chart were correct, as per their record.

3.         Arguments were heard in common. At the time of arguments on 25.07.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid 3 complaints can be disposed of, by passing one consolidated order.

4.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.14 of 2017, titled as ‘Gulab Singh Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’

5.         In brief, the facts are that the complainant vide application dated 16.03.2010 applied for three bedroom flat with Opposite Party No.1 by depositing a sum of Rs.4 Lacs as booking amount. He was allotted three bedroom flat bearing No.B1/10 (Second Floor) alongwith parking no.P-2F in the project of Opposite Party No.1, namely, ‘DLF Valley, Panchkula’ vide allotment letter dated 16.03.2010. It was further stated that as Opposite Party No.1 was not having necessary sanctions/approvals at the time of floating the scheme, the Independent Floor Buyer’s Agreement was belatedly executed on 15.03.2011 (Annexure C-1) i.e. after a lapse of one year. It was further stated that as per Clause 11(a) of the Agreement, the Opposite Parties were to hand over possession of the floor within 24 months from the date of execution of the Agreement and in case of non-delivery of possession within the stipulated period, the Opposite Parties were liable to pay compensation @Rs.10/- per sq. ft. of the saleable area of the unit, in question, per month for such delayed period.

6.         It was further stated that the possession of the unit, in question, was offered by the Opposite Parties on 15.11.2015 vide letter (Annexure C-3) i.e. after 6 years from the date of booking. It was further stated that the Opposite Parties also informed the complainant as regards stay for 11 months from Hon’ble Supreme Court, due to which the delay in handing over possession took place. It was further stated that the total consideration of the flat, in question, was Rs.36,92,099.75, however, in the Final Statement of Account, annexed with the possession letter, the Opposite Parties increased the cost of the flat to Rs.48,44,671.94 on account of enhanced area, taxes etc. and raised a demand of Rs.15,09,098.91 against the complainant payable by 15.03.2017. It was further stated that the amenities such as community hall, covered stilt parking, yoga centre, proper swimming pool, library, card/carrom room, pool/billiards room and a club house with modern facilities, were not ready till date. It was further stated that the demand of Rs.1,59,303/- on account of other charges; Rs.4,30,000/- towards increase in area; Rs.1,01,588/- towards proportionate cost of electricity expenditure; Rs.30,497/- for installation of electric meter and connection charges and Rs.25,463/- towards contingent deposit of Vat, are illegal and arbitrary.

7.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant 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 physical possession of the unit, in question, complete in all respects; pay interest @15% on the amount deposited from the date of payment till the date of actual handing over of possession; pay compensation @Rs.10/- per sq. feet of the saleable area for delaying the possession; quash the demand raised vide offer of possession letter; award compensation of Rs.2,00,000/- on account of mental agony and harassment; Rs.50,000/- as punitive damages and Rs.22,000/- as litigation expenses.

8.         The Opposite Parties, in their preliminary submissions in the written statement submitted that the complaint has been filed in total disregard to the terms of the Agreement executed between the parties. It was further stated that at this stage, the complainant is backing out from the executed contract. It was stated that the complainant had full knowledge about the executed terms of Floor Buyer’s Agreement dated 15.03.2011. It was further stated that occupation certificate was received on 29.06.2016 and offer of possession was sent on 15.11.2016. It was further stated that the complainant prayed for unfounded demands which were not as per executed terms of the Agreement and thus, the Opposite Parties have prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. It was further stated that the project was cost escalation free, as the complainant shall get the possession of the floor on the same price as committed by Opposite Parties, at the time of allotment of the floor through allotment letter dated 19.03.2010. It was further stated that construction of the project got delayed due to the stay on construction as 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. 

9.         As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company namely Jones Lang Lasalle.

10.       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; that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement and that the complainant is not a consumer as he did not disclose the purpose for which the property was purchased. Another objection raised in the written statement is that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 8 of the written statement, it was stated that approvals regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, were received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 02.04.2013, the complainant agreed to continue with allotment and delay and, as such, he (complainant) voluntarily waived of his right to raise any grievance. Apart from above objections, the territorial jurisdiction of this Commission to entertain and try the complaint has been challenged on the ground that since the property, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District, only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint. It was further stated that complainant has not approached this Commission with clean hands and now at a belated stage was attempting to wriggle out of his contractual obligation by filing the instant complaint.

11.       The Opposite Party/Parties also moved miscellaneous applications under Sections 5 and 8 of Arbitration and Conciliation Act, 1996 bearing Nos.478 & 314 both of 2017 in complaints bearing No.14 & 92 of 2017,which were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.  

12.       On merits, while admitting the factual matrix of the case, it was stated that in order to wriggle out of the Agreement and put pressure on the Opposite Parties, the complainant is now making vague allegations against the Opposite Parties. It was further stated that the price of the property as per SOP was Rs.41,96,389.07 plus service tax for 1550 sq. ft., which was increased to Rs.48,44,671.94 plus service tax due to increase in the area to 1750 sq. ft. It was stated that the complainant deposited a sum of Rs.38,76,576.32 but the same were not paid in time. It was stated that there is a DLI of Rs.1,17,131.22 for 878 days delay in remitting the installments, against the complainant. It was further stated that all the demands were raised in accordance with the Agreement signed between the parties. It was further stated that possession was offered on 15.11.2016 but the complainant is not taking the same, making himself liable to pay the holding charges. It was further stated that the construction is on the verge of completion and all the facilities promised in the brochure would be completed and provided to the buyers. It was further stated that the Hon’ble High Court vide order dated 06.04.2010 passed in CWP no.6230 of 2010 restrained the Opposite Party to create any third party right. It was further stated that there was stay on construction in furtherance to the direction passed by Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010, which got vacated only on 12.12.2012. It was further stated that the complainant was given an exit option wherein he was offered refund with 9% interest on its deposits, however, he opted to continue with the project. It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was reiterated that after receipt of occupancy certificate on 29.06.2016, possession was offered to the complainant on 15.11.2016. 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.

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

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

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

16.       It is evident that the complainant was allotted Independent Floor No.DVF-B-1/10 (Second Floor) in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement etc. was executed between him and the Opposite Parties on 15.03.2011 (Annexure C-1). The total price of the said independent floor, as depicted in the Agreement, was Rs.36,92,099.75, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. The Opposite Parties were granted occupation certificate vide Memo No.STP(P)/OC-954/JD/2016/4685 dated 29.06.2016 and possession to the complainant was offered on 15.11.2016. The issue regarding non-providing of basic amenities like market, community hall and Yoga Centre etc. was not pressed during arguments. The complainant, in all, actually paid a sum of Rs.48,58,093.32 + Rs.91,963.00 (Residents Welfare Association), as mentioned/admitted in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Parties and as admitted, at the time of arguments on 25.07.2017. It was further stated that the aforesaid amount of Rs.48,58,093.32 also included the amount, which the complainant deposited on 14.03.2017 and 06.07.2017. As per Clause 11(a) of the Agreement, 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. Vide letter dated 02.04.2013, receipt whereof has been admitted by the complainant, they (Opposite Parties) sought further time of 12 months, in addition to 24 months, to complete the construction work. It was further stated that vide that letter, option was also given to the complainant to seek refund alongwith 9% interest. However, the complainant agreed to a further period of 12 months in handing over of possession. It is, however, on record, that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, which in turn, delayed the completion of the project. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, has been offered by the Opposite Parties to the complainant on 15.11.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint was filed on 06.01.2017.   

17.        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 Clause 1.2 of the Agreement that price of the unit is escalation free. Since the Opposite Party failed to complete construction and deliver possession within stipulated period and extended one year period, they (Opposite Parties) are themselves responsible for delay and deficiency in service and their prayer for allowing them escalation cost of construction as well as land holding amounts to seeking amendment of the terms and conditions of the Agreement. The same being devoid of merit, must fail, and the same stands rejected.

18.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 15.03.2011 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 them from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexures R-5 & R-6), is not relevant.

19.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, it is admissible to an Arbitrator to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

“26.      To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

33.        The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

34.        Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

            Same is the ratio of recent judgment passed by a three Judges Bench of Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.

            In  view of the above, the plea taken by the Opposite Parties, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

20.       Another objection raised by the Opposite Parties was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was stated that since the property, in question, is situated in District Panchkula, a part of cause of action arose at Panchkula. It may be stated here that according to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Annexure R-3) was made by the complainant at Chandigarh address of the Opposite Parties viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer’s Agreement was also executed between the parties on 15.03.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

21.         In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

22.        The next objection raised by the Opposite Parties was that the complainant has made 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 complainant was virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to 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 to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the 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”

 

 

              From the afore-extracted Section 2(1)(o) of the 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 the 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, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of a ‘consumer’, as stated above. In the instant case, the complainant is 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 complainant is trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

23.       To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant 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, he 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 complainant is a property dealer, and is 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. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, 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 complainant, 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 had 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 complainant, thus, falls 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.  

24.        An objection has been raised by the Opposite Parties that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, he waived of his rights to raise any grievance. This plea of the Opposite Parties is not well based. Though the Opposite Parties in their written statement have averred that the complainant was informed of delay and extension of one year was sought vide letter dated 02.04.2013 but no such letter is on record. It is, however, a fact that in similar cases of this project, action in the aforesaid manner was taken by the Opposite Parties. Even in the two connected consumer complaints, such an option was sought from the complainants.  The complainant in Para 8 of his complaint has, however, admitted that stay by the Hon’ble Supreme Court was in force for a period of eleven months. One year extended period expired on 14.03.2014 whereas the possession was offered on 15.11.2016 vide offer of possession letter (Annexure R-1 colly.). The objection raised by the Opposite Parties is not tenable because even after expiry of extended period on 14.03.2014, the Opposite Parties failed to honour their commitment and possession was offered only after more than 2 years 8 months from the expiry of extended period. The complainant, thus, cannot be said to have waived of his rights to raise grievance. The plea, being devoid of merit is not tenable.

25.        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 15.03.2011 read 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 complainant was 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 admitted that above fact of granting stay resulted into delay in construction at the site. 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 complainant was sought, vide letter dated 02.04.2013, to complete construction within further 12 months. Option was also given to the complainant, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment(s) thereafter. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 14.03.2014. No justification whatsoever for delay in offering possession beyond 14.03.2014 has been explained by the Opposite Parties. 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 its control, is not tenable.  The Independent Floor Buyer’s Agreement was executed on 15.03.2011 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, approvals for which were also received in due course of time, the initial time taken (more than two 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. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Parties.

26.       It may be stated here that while offering possession vide letter dated 15.11.2016, the Opposite Parties raised a demand of Rs.16,01,061.91 i.e. (Rs.15,09,091.91 + Rs.91,963.00). On 20.01.2017, Counsel for the complainant stated that the complainant is ready to deposit the amount claimed minus demand of Rs.25,463/- raised towards contingent deposit of Vat, by 16.03.2017 and it was assured by Counsel for the Opposite Parties that on deposit of aforesaid amount, possession would be delivered to the complainant within four weeks thereafter. As stated above, the complainant, in all, actually paid a sum of Rs.48,58,093.32, which included the amounts paid on 14.03.2017 and 06.07.2017. The complainant has, thus, deposited the amount against demand raised vide offer of possession letter dated 15.11.2016 minus contingent deposit of vat. Admittedly, the requisite documents have also been signed and submitted by the complainant to the Opposite Parties. It was further stated that possession of the unit, in question, has not been delivered to him (complainant) till date.

27.       In the instant case, despite depositing the amount, as stated above, the complainant has specifically challenged the demands raised vide the offer of possession letter dated 15.11.2016 (Annexure R-1) i.e. Rs.1,59,303/- on account of other charges; Rs.4,30,000/- towards increase in area; Rs.1,01,588/- towards proportionate cost of electricity expenditure; Rs.30,497/- for installation of electric meter and connection charges and Rs.25,463/- towards contingent deposit of Vat.

            Qua demand raised towards increase in area, it may be stated here that increase in area in the instant case is less than 15%, for which, no consent was required. Otherwise also, the issue qua legality of above demands raised, has already been settled by this Commission in Consumer Complaint bearing No.32 of 2017 titled Kavita Devi Vs. M/s DLF Homes Panchkula Pvt. Ltd. decided on 17.05.2017 alongwith which, 12 connected complaints were also decided. Paras 29 to 32 of the said judgment, being relevant, are extracted hereunder:-

“29.       The next question, which falls for consideration, is, whether the demands raised in possession letter dated 08.06.2016 were justified. While offering possession vide letter dated 08.06.2016, the Opposite Parties raised demand in the sum of Rs.12,17,289.13 besides Rs.90,859.00 account of IBMS & CAM charges. As per stipulation in the offer of possession letter, the complainant was required to deposit the amount towards various demands within 30 days and upon her doing so, possession was to be delivered by the Opposite Parties. Though this Commission vide order dated 16.01.2017 directed the complainant to deposit the amount of demand raised vide offer of possession letter dated 08.06.2016 within four weeks from the date of the said order and also directed the Opposite Parties to deliver possession of the unit, in question, within four weeks thereafter, yet, as admitted by Counsel for the parties, neither the amount towards demand raised vide offer of possession letter dated 08.06.2016 was deposited with the Opposite Parties nor the requisite documents submitted. The demands raised are as under:-

1.(a)	Basic Sale Price	Rs.1,72,166.11
	EDC (External Development Charges)	Rs.1,05,454.77
	IDC (Internal Development Charges)	Rs.1,876.00
(b)	Change in Area & PLC	Rs.5,96,900.00
	Service Tax	Rs.34,608.00
II.	Other charges vide clause 1.11 of the Floor Buyers Agreement @Rs.91.30 per sq. ft.	Rs.80,440.00
	Service Tax (as applicable)	Rs.12,066.00
III.	Electricity, Water and Sewerage charges as per relevant clause of the Floor Buyer’s Agreement. Proportionate cost of electricity expenditure @Rs.58.05 per sq. ft.	Rs.1,00,368.00
	Electrical Meter and Connection charges to individual floor/unit Rs.30,497.00 per unit.	Rs.30,497.00
	Service Tax @15.00%	Rs.19,630.00
IV.	Contingent Deposit for VAT @Rs.14.55 per sq. ft.	Rs.25,157.00
V.a)	Club Charges (50% of membership Fees)	Rs.15,000.00
	Service Tax @14.50%	Rs.2,250.00
b)	Club Security Deposit	Rs.20,000.00
	Balance Payable by  Gunjan Agarwal in favour of DLF Homes Panchkula Pvt. Ltd.	Rs.12,17,289.13
VII.	Interest Bearing Maintenance Security & CAM Charges.
(a)	Interest Bearing Maintenance Security (IBMS) @Rs.50/- per sq. ft.	Rs.86,450.00
(b)	1 Quarter Advance CAM @Rs.0.85 per sq. ft. per month.	Rs.4,409.00
	Total Payable by Gunjan Agarwal in favour of Valley Residents Welfare Society	Rs.90,859.00
VIII.	Stamp Duty, Registration Charges & Others	Rs.2,42,428.00

 

 

 

30.         Out of the above, the major amount is towards increase in area of independent floor. The complainant in Para 8 of the complaint has stated that the Opposite Parties unilaterally increased the area without the consent of the complainant, which is a clear misuse of Clause 10 of the Agreement. Admittedly, the complainant was duly informed about the increase in area while offering possession, vide letter dated 08.06.2016, that the demand raised by the Opposite Parties, included Rs.5,96,900/- on account of change in area as per clauses No.1.10 for PLC and 10 for change in area as per Floor Buyer’s Agreement. The next major demand in the sum of Rs.2,42,428/- was on account of stamp duty & registration charges. Regarding increase in area, the Opposite Parties relying upon Clause 10 of the Agreement, have stated that if there was an increase/decrease of more than 15% in the saleable area of the independent floor, then, only the Opposite Parties will intimate the complainant(s)/ allottee(s) in writing and obtain his/her consent. It has been stated that the total increase in the saleable area in the instant case being less than 15%, the Opposite Parties were not bound to seek any consent of the complainant/allottee. It may be stated here that saleable area of the unit, in question, as per the Agreement was 1475 sq. ft. While offering possession, in the final statement of account, annexed with the possession letter dated 08.06.2016, it was mentioned that the final area of the unit was 1729 sq. ft. Thus, there was increase of 254 sq. ft. When compared with the original area of the unit viz. 1475 sq. ft., the increase is more than 15%. The complainant came to know about change in the area when possession was offered to her on 08.06.2016. In case, the complainant had any grievance regarding increase in area, in terms of Clause 10 of the Agreement, she could raise objections to the changes within 30 days from the date of notice of changes. There is nothing on record to show that the complainant raised any objection during the period of 30 days or till filing of the complaint on 12.01.2017. The complainant has also not adduced any evidence by way of report of an Engineer/Architect that increase in area did not exist. The demand raised by the Opposite Parties to this effect, is, thus, legal and tenable and the complainant is liable to pay the same.

31.         As regards demand for stamp-duty and registration charges in the sum of Rs.2,42,428/-, in all fairness, the Opposite parties ought to have raised this demand after delivering possession. No doubt, possession of the unit, in question, has been offered to the complainant. Physical possession shall be delivered after the complainant deposits the amount. The sale deed is to be executed after delivery of possession. Therefore, the actual expenditure for registration of sale deed besides stamp duty and registration charges, shall be borne by the complainant at the time of registration/execution of sale deed. The Opposite Parties are also not pressing for stamp duty and registration charges before delivering possession. Not only this, vide this Commission order dated 16.01.2017, complainant was not asked to deposit stamp duty and registration charges and also contingent deposit of vat.

32.         The other demands are on account of other charges i.e. Rs.1,57,391/- @Rs.91.03 per sq. ft; proportionate cost of electricity expenditure @Rs.58.05 per sq. ft. to the tune of Rs.1,00,368/-; electrical meter and connection charges to the floor in the sum of Rs.30,497/- per unit, contingent deposit of VAT @Rs.14.55 per sq. ft. in the sum of Rs.25,157/-; club charges in the sum of Rs.15,000/- and club security deposit in the sum of Rs.20,000/-. The Counsel for the Opposite Parties vehemently argued that all these charges are in accordance with terms and conditions of the Agreement only. It may be stated here that at internal page 6 of the Agreement, it was stipulated that the total price was to be calculated on the basis of saleable area of the floor in question, which did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement, for instance:-

1. IBMS.
2. Additional IDC/EDC, wealth tax, government rates, tax on land, fees or levies of all and any kind of whatever name called on the said project, and
3. Maintenance charges, additional PLC, property tax, municipal tax on the said independent floor, and 
4. Charges for any additional parking space(s) other than the parking space(s) which will be charged at the then prevailing rate and will be offered subject to availability, and
5. Stamp duty, registration and incidental charges as well as expenses for execution of the Agreement and conveyance deed (which are to be borne and paid by the allottee); and
6. Taxes; and
7. Club charges;
8. Power back up charges, as applicable; and
9. The proportionate cost of installation of equipments for procuring and supplying electricity, cost for electric and water meter as well as charges for water and electricity connection/consumption; and
10. Any other charges that may be payable by the allottee as per the other terms of the Agreement and such other charges as may be demanded by the Company. 

 

Besides, as per Clause 1.11 of the Buyer’s Agreement, the complainant agreed that in addition to total price, the complainant shall be liable to pay all taxes as stipulated therein. Further from perusal of application form annexed by the Opposite Parties alongwith its written statement,  it clearly transpires that 5% of Total Price + IBMS + Club + Registration + Stamp Duty + Other Charges, if any, were payable at the time of offer of possession. Thus, clearly, the amount towards demand qua Basic Sale Price (Rs.1,72,166.11), External Development Charges (Rs.1,05,454.77) and Internal Development Charges (Rs.1,876.00), being justified, is payable by the complainant.”

 

Except the demand on account of contingent deposit of vat, this Commission held the other demands raised to be legal and valid. [The demand on account of stamp duty and registration charges has not been raised in this complaint case]. The view held in Kavita Devi’s case (supra) qua legality of demands raised holds good in this case also.

28.        It was agreed by the counsel for the Opposite Parties that demand raised on account of contingent deposit of Vat in the sum of Rs.25,463/- shall be payable by the complainant, as and when the same becomes payable by the Opposite Parties to the Government.

29.         The next question, that falls for consideration, is, as to whether, the complainant is 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 did not deliver 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 15.03.2011 i.e. by 14.03.2014. There is, thus, inordinate delay of around 2 years 8 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 15.11.2016. Clearly there is delay in offering possession on account of which, the complainant deserves to be compensated. The Hon’ble National Commission in the case of Shri Suman Nandi & Anr. Vs. M/s Unitech Limited & Anr., Complaint No.277 of 2013, decided on 17.12.2015, in Para 16 held as under:-

“16.       On perusal of the Buyer’s Agreement and the affidavits filed by the parties it is clear that the complainants had booked the subject apartments on the expressed promise extended by the opposite parties that subject to Force Majeure, the opposite parties would deliver the possession of the apartments complete in all respect within 30-36 months, as the case may be, of the execution of the Buyers Agreement and being influenced by the said promise the complainants entered into the contract. No doubt in the Buyer’s Agreement some scope for delay due to unavoidable circumstances was kept in mind for which clause 4.a. for compensating the complainants for delay was incorporated 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.5/- per sq. ft. per month which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view clause 4.a. was meant for computing compensation in case of a minor delay in delivery of possession.   If the argument of the opposite party is to be accepted, it would lead to 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 his other business venture at nominal interest of 2-3 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.”

 

The National Commission granted 12% interest as compensation from the date of default in delivery of possession.

            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 read 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.”

30.         No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant 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 complainant 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.  

31.       Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 15.03.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 15.11.2016, the complainant shall be entitled to compensation up-to plus 2 months from 15.11.2016 i.e. 14.01.2017 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above. For failure of the Opposite Parties to deliver possession within 30 days from the date, payment was made and documents submitted, the complainant shall be further entitled to interest @12% for delay beyond 30 days, till the date possession is delivered.

32.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainant has been adequately compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. The compensation in the sum of Rs.2 lacs claimed by the complainant is somewhat on the higher side. It may be stated here that there has been DLI in the sum of Rs.1,17,291.14, against the complainant. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, grant of compensation in the sum of Rs.1,25,000/-, would serve the ends of justice. Under these circumstances, the complainant is held entitled to compensation in the sum of Rs.1,25,000/-.

33.       Similarly, in complaint bearing No.136 of 2017, particulars of which are indicated below, the possession of the unit stands offered by the Opposite Parties:-

 

Complaint No.	136/2017
Date of independent Floor Buyer’s Agreement.	25.01.2011
Due date for possession after 2 years plus 1 year extended period	24.01.2014
Date on which possession offered.	29.10.2016
Whether amount deposited after offer of possession.	Yes on 09.03.2017 (Rs.7,47,568.62 + Rs.82,766.00) (In terms of this Commission order dated 16.02.2017)
Whether documents submitted after offer of possession	Yes

 

 

34.       In this case, possession of the unit, in question, was offered by the Opposite Parties to the complainants on 29.10.2016. However, despite payment of the amount (Rs.7,47,568.62 + Rs.82,766.00) on 09.03.2017, in terms of this Commission order dated 16.02.2017, possession has not yet been delivered to the complainants. The complainants have also submitted snag lists on 10.03.2017 and 20.04.2017 to the Opposite Parties. Despite that, as submitted at the time of arguments, no fresh offer after removing the snags has been made. 

35.       As per offer of possession letters placed, on record, in the aforesaid cases, though six months’ time was given to the complainant(s) to complete the formalities and make the payment, but the complainant(s) made payment in terms of this Commission order(s) referred to above.

36.       Ms. Ekta Jhanji, Sh. Parveen Jain and Ms. Sapna Seth, Advocates, Counsel for the Opposite Parties, on instructions, stated that the Opposite Parties are not insisting upon contingent deposit of Vat at this stage, subject to furnishing of an affidavit by the allottee(s) to make the payment as and when demanded by the Government. It was further stated that the complainants need not pay Advocate charges. No demand has been raised towards stamp duty and registration charges and the same would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed for shall be borne by the complainants.

37.       The Counsel for the Opposite Parties stated that the snags/deficiencies, if any, will be removed, before delivering possession.

38.       Therefore, in complaint No.136 of 2017 also, the complainants are entitled to compensation by way of grant of 12% interest, for the delayed period, up-to the date of offer of possession plus up-to 2 months (30 days for making payment + 30 days grace period).

39.       The complainants are also entitled to compensation on account of mental agony and physical harassment, which they suffered due to inordinate delay in offering possession. Therefore, grant of compensation in the sum of Rs.1,50,000/-, would serve the ends of justice. Under these circumstances, the complainants are held entitled to compensation in the sum of Rs.1,50,000/-.

40.         In one consumer complaint bearing No.92 of 2017, particulars of which are given hereunder, in terms of interim order dated 01.02.2017, passed by this Commission, the entire amount minus the demand qua component of contingent deposit of vat stood deposited by the complainant. The Counsel for the parties, during arguments, stated that possession of the unit, in question, stands delivered to the complainant on 20.04.2017.

Complaint No.	92/2017
Date of independent Floor Buyer’s Agreement.	03.02.2011
Due date for possession after 2 years plus 1 year extended period	02.02.2014
Date on which possession offered.	15.11.2016
Date on which possession taken/delivered	20.04.2017

 

41.       Therefore, in this complaint, the complainant is held entitled to compensation @12% p.a. interest for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession i.e. up-to 14.01.2017, possession offer date being 15.11.2016.

42.       The complainant is also held entitled to compensation in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and deficiency in service.

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

44.      For the reasons recorded above, all the complaints bearing Nos.14, 92 & 136 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

14 and 136 both of 2017

 

45.       In these cases, the Opposite Parties have offered possession in November 2016 and October 2016. The amounts towards demand raised, except the demands towards contingent VAT deposit and Advocate charges, have been deposited by the complainants. The documents in both the complaints have also been signed/submitted. The Opposite Parties shall hand over possession after removing the snags, if any, within 30 days.

            The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are, jointly and severally, 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), after removing the snags, if any, within a period of 30 days, from the date balance payment, if due, is made.
	(ii)	Execute and get registered the sale deed(s) 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, to the complainant(s), with effect from 15.03.2014 & 25.01.2014 respectively up-till two months from the date of offer of possession i.e. up-to 14.01.2017 & 28.12.2016 respectively, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.             For failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
	(iv)	Pay compensation in the sum of Rs.1,25,000/- [in CC No.14 of 2017] and Rs.1,50,000/- [in CC No.136 of 2017], on account of mental agony, physical harassment and deficiency in service and litigation costs [Rs.22,000/- in CC No.14 of 2017, as prayed] & [Rs.35,000/- in CC No.136 of 2017] to the complainant(s), 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: 92 of 2017.

46.       In this case, possession of the unit, in question, stands handed over to the complainant.

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

(i)	Execute and get registered the sale deed in respect of the unit, in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, with effect from 03.02.2014 till 14.01.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.             For failure of the Opposite Party to deliver possession within 30 days from the date of making payment/submission of documents by the complainant, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount, till the date possession was delivered, shall be payable within 45 days and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iii)	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, 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 till realization.

 

47.       In all these complaints, as agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

48.       As regards the amount of contingent Vat deposit, the complainant(s) shall furnish an affidavit to make the payment as and when demanded by the Government. The complainant(s) shall deposit amount of contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay in remittance, beyond three weeks from the receipt of notice, shall attract simple interest @12% per annum.

49.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.92 and 136 both of 2017.

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

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

Pronounced.

14.08.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

Ad