DLF Homes V/S Kamlesh Rani - Consumer Court Case

Chandigarh

StateCommission

CC/789/2016

Kamlesh Rani - Complainant(s)

Versus

DLF Homes - Opp.Party(s)

Rajvir Singh Sihag, Adv.

29 Aug 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	789 of 2016
Date of Institution	:	11.11.2016
Date of Decision	:	29.08.2017

Kamlesh Rani W/o Anand Kumar, Flat No.211, GHS-27, Mansa Devi complex, Sector 5, Panchkula (Haryana).

.........Complainant.

Versus

DLF Homes Panchkula Private Limited through its Managing Director and having the following addresses:-

Correspondence Address:- SCO 190-191-192, Sector 8-C, Chandigarh – 160009.
Registered Office – DLF Gateway Tower, Second Floor, DLF City, Phase III, Gurgaon – 122002.

........Opposite Parties.

Argued by:

Sh. Rajvir Singh Sihag, Advocate for the complainant.

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

Consumer Complaint	:	956 of 2016
Date of Institution	:	21.12.2016
Date of Decision	:	29.08.2017

Pardeep Kumar son of Sh. Inder Singh permanent resident of #1487, Ward No.16, Street No.7, Rishi Nagar, Kaithal (Haryana).
Monika Sangwan W/o Pardeep Kumar permanent resident of #1487, Ward No.16, Street No.7, Rishi Nagar, Kaithal (Haryana).

.........Complainants.

Versus

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.
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.

Argued by:

Sh. Pardeep Kumar, complainant No.1 in person and on behalf of complainant No.2.

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

Consumer Complaint	:	165 of 2017
Date of Institution	:	20.02.2017
Date of Decision	:	29.08.2017

Satyendra Kumar Thakur S/o USP Thakur R/o D-201, Park Turquoise, Park Street Society (Near Wisdom World School), Khalewadi Phatta, Wakad, Pune, Maharashtra – 411057.
Himani Thakur W/o Satyendra Kumar Thakur R/o D-201, Park Turquoise, Park Street Society (Near Wisdom World School), Khalewadi Phatta, Wakad, Pune, Maharashtra – 411057.

.........Complainants.

Versus

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

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

Argued by:

Sh. Hoshiar Chand, Advocate for the complainants.

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

Consumer Complaint	:	203 of 2017
Date of Institution	:	08.03.2017
Date of Decision	:	29.08.2017

Saroj Rani w/o Sh. Udey Bhan r/o H.No.133, Marketing Board Colony, Sector-14, Panchkula.

.........Complainant.

Versus

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

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

Argued by:

Sh. Hoshiar Chand, Advocate proxy for Sh. Savinder Singh Gill, Advocate for the complainant.

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

Consumer Complaint	:	204 of 2017
Date of Institution	:	08.03.2017
Date of Decision	:	29.08.2017

Rekha Sihag wife of Rajvir Singh Sihag, resident of GHS-27, Flat No.106, Sector-5, MDC, Panchkula.
Neelam Gill daughter of Shri Shamsher Singh through her brother and GPA Rajvir Singh Sihag resident of GHS-27, flat No.111, Sector 5, MDC, Panchkula.

.........Complainants.

Versus

DLF Homes Panchkula Private Limited through its Managing Director and having the following addresses:-

Correspondence Address:- SCO 190-191-192, Sector 8-C, Chandigarh – 160009.
Registered Office – DLF Gateway Tower, Second Floor, DLF City, Phase III, Gurgaon – 122002.

........Opposite Party.

Argued by:

Sh. Rajvir Singh Sihag, Advocate for the complainants.

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

Consumer Complaint	:	348 of 2017
Date of Institution	:	21.04.2017
Date of Decision	:	29.08.2017

Col. Dinesh Syal S/o Late Maj. Jiwan Lal Syal,
Savita Sayal W/o Col. Dinesh Syal,

Residents of H.No.951, Sector-7, Panchkula (Haryana).

.........Complainants.

Versus

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.
DLF Homes Panchkula Pvt. Ltd., Registered Office at DLF Gateway Tower, 2^nd Floor, DLF City, Phase-3, Gurgaon – 122002, (Haryana), through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.

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

Argued by:

Mrs. Tarun Sinha, Advocate for the complainants.

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

Consumer Complaint	:	359 of 2017
Date of Institution	:	26.04.2017
Date of Decision	:	29.08.2017

Arun Kumar Gupta S/o Sh. Om Parkash Gupta,
Monika W/o Sh. Arun Kumar Gupta,

Both R/o 1 Drive, 72 Woodlands, #12-02 Woodsuale, 738089, Singapore.

.........Complainants.

Versus

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

(Names of Opposite Parties No.4 to 6 deleted vide order dated 03.08.2017)

7. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002,Haryana, India.

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

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

Consumer Complaint	:	360 of 2017
Date of Institution	:	26.04.2017
Date of Decision	:	29.08.2017

Lt. Col. Narender Patiyal S/o Sh. Birsingh Anantram Patiyal, OC IRW 21 CZW C/o 56 APO – 906115, Punjab.

.........Complainant.

Versus

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

(Names of Opposite Parties No.4 to 6 deleted vide order dated 03.08.2017)

7. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002,Haryana, India.

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	361 of 2017
Date of Institution	:	26.04.017
Date of Decision	:	29.08.2017

Brig. Kuljeet Jawanda S/o Sh. Gurdev Singh Jawanda R/o H.No.627, Sector-33B, Chandigarh – 134107.

.........Complainant.

Versus

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

(Names of Opposite Parties No.4 to 6 deleted vide order dated 03.08.2017)

7. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002,Haryana, India.

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	362 of 2017
Date of Institution	:	26.04.2017
Date of Decision	:	29.08.2017

Col. Vivan Sharma S/o Sh. Yag Dutt Sharma R/o House No.11, Society No.38, Sector 20, Panchkula.

.........Complainant.

Versus

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

(Names of Opposite Parties No.4 to 6 deleted vide order dated 03.08.2017)

7. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	363 of 2017
Date of Institution	:	26.04.2017
Date of Decision	:	29.08.2017

Rana Ranveer S/o Sh. Ram Gopal Singh,
Shweta Singh W/o Rana Ranveer through Rana Ranveer (GPA)

Both R/o Sadhugachi, Akhara Ghat, Post Office Shekhpur, Muzaffarpur, Bihar.

.........Complainant(s).

Versus

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

(Names of Opposite Parties No.4 to 6 deleted vide order dated 03.08.2017)

7. Rakesh Kerwell, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

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 11 consumer complaints bearing Nos.789 & 956 both of 2016 and 165, 203, 204, 348, 359, 360, 361, 362 and 363 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 03.08.2017, 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 11 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.789 of 2017, titled as ‘Kamlesh Rani Vs. DLF Homes Panchkula Pvt. Ltd..’

5. In brief, the facts are that influenced by the advertisements and commitments made by the Opposite Party, the complainant, being in residential requirement for her family, applied for an independent floor in the project of the Opposite Party i.e. “The Valley, Panchkula” in September 2010 by paying a sum of Rs.4 Lacs. Independent Floor Buyer’s Agreement was executed between the parties on 11.01.2011. The specific area of the allotted independent floor bearing No.E-5/30 SF (Second Floor) alongwith parking No.P-2F in the aforesaid project was 1460 sq. ft. and saleable area was 1640 sq. ft. The Basic Sale Price of the said apartment was quantified at Rs.41,18,040 (Rounded of), EDC/IDC at Rs.3,35,216/-(Rounded of) and the total price was specified as Rs.47,88,700/- (Rounded of). As per Clause 11(a) of the Agreement, the Opposite Party was 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 Party was 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 Opposite Party failed to make any development at the site till expiry of 24 months from the date of execution of the Agreement. On queries made, it was informed by the Opposite Party that the delay was on account of some stay order granted by the Hon’ble Supreme Court in some litigation going on at the behest of some third party. It was further stated that later on it was intimated by the Opposite Party through communication dated 28.12.2012 (Annexure C-2) that the stay granted on 19.04.2012 stood vacated on 12.12.2012. It was further stated that in the year 2013, the complainant took a joint home loan alongwith her son Sumit Kumar Aggarwal for Rs.22 Lacs from ICICI Bank Limited and the complainant withdrew a sum of Rs.6.50 Lacs from her PPF Account for making payment of installment to the Opposite Party. It was further stated that the husband of the complainant also took an over draft limit of Rs.4,10,000/- in May 2013 for the said purpose.

7. It was further stated that considering the inordinate delay in handing over of possession, the complainant time and again requested the Opposite Party to hand over the possession and adjust the account in terms of provision of the agreement. It was further stated that possession offered vide letter dated 10.10.2016 (Annexure C-6), was received on 17.10.2016, whereby an exorbitant demand of Rs.9,90,628.00 (rounded of)(Rs.8,98,244.50 + Rs.92,383) was raised under various heads besides payment on account of registration and stamp duty. It was further stated that the Opposite Party also arbitrarily demanded an amount of Rs.3,18,600/- on account of increase in area by 118 sq. ft. i.e. from 1640 sq. ft. to 1758 sq. ft. It was further stated that the Opposite Party, which has charged interest @15% per annum and 18% per annum in case of delay in making payment, has illegally and unilaterally declined to make payment of compensation @Rs.10/- per sq. ft. per month for inordinate delay of three years in offering possession.

8. 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 Party, to compensate the complainant on account of inordinate delay w.e.f. September 2013 by way of making payment/adjustment @15% p.a. from the date of deposit till the date of handing over of possession; pay compensation @Rs.10/- per sq. ft. per month of the saleable area; not to seek deposit of Rs.25,579/- on account of contingent deposit of vat and advocate fee of Rs.18,000/-; give specific details as regards demand raised qua other charges and electricity, water and sewerage charges; award compensation of Rs.2,00,000/- and also pay Rs.50,000/- as cost of litigation.

9. The Opposite Party, in its preliminary submissions, in the written statement submitted that the possession had already been offered to the complainant on 10.10.2016 and the complaint has been filed in total disregard to the terms of the floor Buyer’s Agreement executed between the parties. It was stated that the complainant had full knowledge about the executed terms of the Agreement dated 11.01.2011. 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 Party has 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 Party, at the time of allotment of the floor on 05.10.2010. 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. It was further stated that after dismissal of the litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Party vide letter dated 05.06.2013 (Annexure R-3) offered an exit option to the complainant by accepting refund of her entire amount with 9% interest but the complainant refused to avail the said option and opted to continue with the project by consent to extension of time.

10. As regards present status of the project, it was stated that occupation certificate(s) of 1669 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.

11. 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 she 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 the Opposite Party 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 preliminary objections 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 again reiterated that when given the option to exit vide letter dated 05.06.2013, the complainant agreed to continue with allotment and delay and, as such, she (complainant) voluntarily waived of her 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 her contractual obligation by filing the instant complaint.

12. The Opposite Party/parties moved Miscellaneous Applications under Sections 5 & 8 of Arbitration and Conciliation Act, 1996, for referring the matter to the sole arbitration, in the following complaints:-

Sr. No.	Complaint No.	Miscellaneous Application No.
1.	789/2016	622/2017
2.	956/2016	477/2017
3.	203/2017	490/2017
4.	204/2017	489/2017
5.	359/2017	677/2017
6.	360/2017	678/2017
7.	361/2017	680/2017
8.	362/2017	674/2017
9.	363/2017	676/2017

The aforesaid applications 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.

13. On merits, while admitting the factual matrix of the case, it was stated that the complainant on her own will/understanding and accord had purchased the floor, in question. It was further stated that the value of the property as per SOP was Rs.48,70,800/- plus service tax as applicable, for 1758 sq. ft. It was further stated that the complainant, till the date of filing the written statement, had paid an amount of Rs.46,19,932.62. It was further stated that the increase in price is due to increase in area after final measurement of the floor and all alterations/modifications were made as per Clause 9 and 10 of the Agreement. It was further stated that written consent was only required if the area sought to be increased was more than 15%. It was further stated that the complainant was also given discount of Rs.1,18,665.00. 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 Party as mentioned in Clauses 11(b) and 11(c) of the Agreement, however, due to force majure circumstances beyond the control of the Opposite Party, the possession got delayed. It was reiterated that possession was offered on 10.10.2016. 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 neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

17. It is evident that the complainant was allotted Independent Floor No.E-5/30 (Second Floor) in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement etc. was executed between her and the Opposite Party on 11.01.2011 (Annexure C-1). The total price of the said independent floor, as depicted in the Agreement, was Rs.47,88,799.75, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. The Opposite Party was granted occupation certificate vide Memo No.STP(P)/OC-777/PA/2016/4175 dated 09.06.2016 and possession to the complainant was offered on 10.10.2016. The issue regarding non-providing of basic amenities were not pressed during arguments. The complainant did not pay any amount towards the demand raised by the Opposite Party vide aforesaid offer of possession letter dated 10.10.2016. As per chart submitted by the Counsel for the Opposite Party, admittedly, it (Opposite Party) has received an amount of Rs.46,19,932.62 from the complainant. As per Clause 11(a) of the Agreement, the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. Vide letter dated 05.06.2013 (Annexure R-3), receipt whereof has been admitted by the complainant, it (Opposite Party) 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 Party has claimed that this being a force majeure condition, it is entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Party to the complainant on 10.10.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint has been filed on 11.11.2014.

18. The Opposite Party, in preliminary submissions, has prayed to allow it 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, it (Opposite Party) is itself responsible for delay and deficiency in service and its prayer for allowing it 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.

19. Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 11.01.2011 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 Party 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-6 & R-7), is not relevant.

20. 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 & Ors. Vs. Emaar MGF Land Ltd. & Anr.’ III (2017) CPJ 270 (NC).

In view of the above, the plea taken by the Opposite Party, 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.

21. Another objection raised by the Opposite Party 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 her. Clearly, application allotment of Unit (Annexure R-4) was made by the complainant at Chandigarh address of the Opposite Party 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 11.01.2011 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.

22. 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 her, to file the complaint. The submission of the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

23. The next objection raised by the Opposite Party 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 Party, 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 Party, it was 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 her, as she 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 Party and its 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 Party, in its written reply, therefore, being devoid of merit, is rejected.

24. To defeat claim of the complainant, the next objection raised by the Opposite Party 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, she 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. Otherwise also, she (complainant) has specifically stated in Para 14 of her complaint that she purchased the unit, in question, with the hope to meet the residential requirement of her family, which included a married son and another son aged around 25 years. The complainant has also averred that the complainant took home loan, withdrew Rs.6.50 Lacs from PPF and husband of the complainant also took an overdraft limit of Rs.4.10 Lacs. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, 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 Party, in its written reply, therefore, being devoid of merit, is rejected.

25. An objection has been raised by the Opposite Party that the complainant, when given the option vide letter dated 05.06.2013 (Annexure R-3) to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, she waived of her rights to raise any grievance. This plea of the Opposite Party is not well based. Clearly, the Opposite Party in its written statement has averred that the complainant was informed of delay and extension of one year was sought vide letter dated 05.06.2013. The complainant in Para 3 of her complaint has admitted that the factum of stay by the Hon’ble Supreme Court for the period from 19.04.2012 to 12.12.2012 was intimated to her by the Opposite Party vide letter dated 28.12.2012 (Annexure C-2). One year extended period expired on 10.01.2014 whereas the possession was offered on 10.10.2016 vide offer of possession letter (Annexure R-1 colly.). The objection raised by the Opposite Party is not tenable because even after expiry of extended period on 10.01.2014, the Opposite Party failed to honour its commitment and possession was offered only after more than 2 years 9 months from the expiry of extended period. The complainant, thus, cannot be said to have waived of her rights to raise grievance. The plea, being devoid of merit is not tenable.

26. 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 11.01.2011 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 Party, it was 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 05.06.2013 (Annexure R-3), 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 10.01.2014. No justification whatsoever for delay in offering possession beyond 10.01.2014 has been explained by the Opposite Party. The argument of the Opposite Party 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 11.01.2011 and before execution thereof, the Opposite Party 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 Party 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 Party. Possession of the unit, in question, having been offered vide offer of possession letter dated 10.10.2016 (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 Party.

27. It may be stated here that while offering possession vide letter dated 10.10.2016, the Opposite Party raised a demand of Rs.9,90,627.59 i.e. (Rs.8,98,244.59 + Rs.92,383.00). As stated above, the complainant, in all, actually paid a sum of Rs.46,19,932.62. However, as stated during arguments, the complainant did not pay any amount towards the demand raised vide offer of possession letter dated 10.10.2016. Therefore, the requisite documents have also not been executed and submitted by the complainant to the Opposite Party. It was further stated that possession of the unit, in question, has not been delivered to her (complainant) till date.

28. In the instant case, the complainant has specifically challenged the demands raised vide the offer of possession letter dated 10.10.2016 (Annexure R-1) i.e. Rs.1,60,031/- on account of other charges; Rs.3,18,600/- towards increase in area; Rs.1,02,052/- towards proportionate cost of electricity expenditure; Rs.30,497/- for installation of electric meter and connection charges and Rs.25,579/- towards contingent deposit of Vat.

29. 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:-

IBMS.
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
Maintenance charges, additional PLC, property tax, municipal tax on the said independent floor, and
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
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
Taxes; and
Club charges;
Power back up charges, as applicable; and
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
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.

30. It was agreed by the counsel for the Opposite Party that demand raised on account of contingent deposit of Vat in the sum of Rs.25,579/- shall be payable by the complainant, as and when the same becomes payable by the Opposite Party to the Government.

31. 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 Party 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 11.01.2011 i.e. by 10.01.2014. There is, thus, inordinate delay of around 2 years 9 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Party on 10.10.2016. 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.”

32. 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.

33. 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. 11.01.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 10.10.2016, the complainant shall be entitled to compensation up-to plus 2 months from 10.10.2016 i.e. 09.12.2016 (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 Party to deliver possession within 30 days from the date, payment is made and documents submitted, the complainant shall be further entitled to interest @12% for delay beyond 30 days, till the date possession is delivered.

34. 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 her, for inordinate delay in delivering physical possession of the unit to her, by the Opposite Party, 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. In our opinion, grant of compensation in the sum of Rs.1,50,000/-, for mental agony and physical harassment suffered by the complainant, would serve the ends of justice. Under these circumstances, the complainant is held entitled to compensation in the sum of Rs.1,50,000/-.

It may be stated here that Miscellaneous Application bearing No.501 of 2017 filed by the complainant in this complaint case was disposed of by this Commission vide order dated 03.08.2017, relevant portion of which reads as under:-

“It is stated by Counsel for the non-applicants/Opposite Parties that the amount mentioned in FSA only will be charged and no further penal interest will be levied. If the applicant/complainant makes deposit of amount claimed within 30 days, this will satisfy the applicant/complainant. Counsel for the applicant/complainant states that let this application be disposed of having become infructuous.

Ordered accordingly.

Accordingly, the application stands disposed of having become infructuous.”

35. In following eight complaints bearing Nos.203, 204, 348, 359, 360, 361, 362 and 363 all of 2017, particulars of which are indicated in Table-I below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-

TABLE-I

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered	Whether amount deposited after offer of possession.	Whether documents submitted after offer of possession	DLI (Rs.)
A.	B.	C.	D.	E.	F	G	H
1.	203/2017	11.04.2011 (2^nd Allottee) 30.08.2014 (Annexure C-1) Undertaking dated 13.08.2014 at Page 214-215 of written statement	10.04.2014	15.11.2016	Rs.5,00,000/- and Rs.2,36,621/- on 16.06.2017	Yes	43,912.38
2.	204/2017	27.06.2011 (2^nd Allottee) 22.01.2013)	26.06.2014	10.10.2016	Rs.3,15,000/- on 12.04.2017 Rs.1,89,400/- on 24.04.2017 Rs.20,000/- as service tax.	Pending	1,30,931.00
3.	348/2017	31.01.2011 (2^nd Allottee) 23.02.2012	30.01.2014	19.10.2016	Not deposited	-do-	68,446.25
4.	359/2017	27.01.2011	26.01.2014	05.10.2016	Rs.3,94,516/- on 17.11.2016 Rs.1,42,819/- on 22.12.2016 Rs.4,90,852/- on 28.12.2016 Some amount yet to be paid	-do-	28,543.08
5.	360/2017	01.12.2010	30.11.2013	10.10.2016	Rs.10,16,870/- on 15.03.2017	-do-	39,105.69
6.	361/2017	07.12.2010	06.12.2013	15.11.2016	Rs.3,57,487/- on 22.12.2016 Rs.2,40,768/- on 06.01.2017	-do-	8,337.38
7.	362/2017	06.01.2011	05.01.2014	15.11.2016	Not deposited	-do-	14,560.56
8.	363/2017	30.12.2010 (2^nd Allottee) 17.12.2013	29.12.2013	28.02.2017	Not deposited	-do-	29,585.64

36. In all the complaints tabulated above, possession of the unit(s), in question, was offered to the complainant(s) in the months of October and November 2016, except in complaint No.363 of 2017, wherein possession has been offered on 28.02.2017.

37. It may also be stated here that except in complaints bearing Nos.348, 362 & 363 all of 2017, amounts towards the demand raised vide offer of possession letters have been deposited by the complainants with the Opposite Parties. However, some amount still remained to be paid against the demand raised. In aforesaid three complaints bearing Nos.348, 362 & 363 all of 2017, no amount was paid by the complainants against the demand raised vide offer of possession letters. It may also be stated here that out of aforesaid eight complaints, the requisite documents have been executed and submitted by the complainant only in complaint bearing No.203 of 2017.

38. However, despite payment of the amounts and submission of documents in CC No.203 of 2017, possession of the unit, in question, in that case has not yet been delivered to the complainants.

39. 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(s) in five cases, details of which are given in Table-I above.

40. 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 shall be borne by the complainants.

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

42. Therefore, in all the aforesaid complaints, except complaint bearing Nos.203 of 2017, the complainants are 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.

43. However, in Complaint No.203 of 2017, the complainant, being second allottee, furnished an undertaking on 13.08.2014 (Pages 214-216 of the written statement) not to claim compensation on account of delayed possession. The unit was transferred in her favour on 30.08.2014 vide letter (Annexure C-1). In view of ratio of judgment of this Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainant is held entitled to compensation w.e.f. 30.08.2014 i.e. the date of transfer.

44. In this case, the complainant submitted snag list pointing out various deficiencies in construction of the unit, in question, to the Opposite Party on 16.06.2017 and thereafter, the Opposite Party issued reminder dated 06.07.2017 to the complainant to take possession.

Similarly, in Complaint No.360 of 2017, snag list was submitted by the complainant vide Customer Observation dated 16.03.2017 (Annexure C-4) pointing out cracks/seepage in construction, whereafter, as stated at the time of arguments, the Opposite Parties sent email on 31.07.2017 to take possession.

45. In the aforesaid complaints, 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.

46. In complaints bearing Nos.359, 360, 361, 362 & 363 all of 2017, the complaints are held entitled to compensation in the sum of Rs.1,50,000/-, in each case.

47. However, in complaints bearing Nos.203, 204 & 348 all of 2017, there has been DLI in the sum of Rs.43,912.38, Rs.1,30,931.00 & Rs.68,446.25 respectively, against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant(s), in these cases, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,00,000/- (in CC No.204 of 2017) and Rs.1,25,000/- each (in CC Nos.203 & 348 both of 2017), would serve the ends of justice.

48. In one consumer complaint bearing No.956 of 2016, particulars of which are given hereunder, in terms of interim order dated 13.01.2017, passed by this Commission, the entire amount minus the demand qua component of contingent deposit of vat stood deposited by the complainants. As is clear from zimini order dated 27.02.2017 and as stated by Counsel for the parties, during arguments, possession of the unit, in question, stands delivered to the complainants on 11.02.2017.

TABLE-II

Complaint No.	956/2016
Date of independent Floor Buyer’s Agreement.	27.12.2010 (2^nd Allottee) 04.03.2016 (Undertaking dated 19.02.2016) At page 254 of the written statement.
Due date for possession after 2 years plus 1 year extended period	26.12.2013
Date on which possession offered.	15.11.2016
Date on which possession taken/delivered	11.02.2017
DLI	Rs.46,025.61

49. In this case, the complainants also moved a Miscellaneous Application bearing No.549 of 2017, in which, they also proposed to implead Jones Lang Lasalle (JLL) as Opposite Party No.3. In this application, the complainants have stated that as submitted in Para 41 of the complaint, with a view to verify the claim of the Opposite Parties as to whether the house was fit for delivering possession, they alongwith a Law student, namely, Mr. Mandeep S/o Suresh visited the actual site and found that the property was not at all ready for handing over of possession and in such circumstances, how the competent authority viz. Government could grant the occupation certificate for handing over the possession; complainants further stated that either DLF made false claim about occupation certificate or it was procured by indulging in corruption/fabrication in collusion with the concerned government officers of the competent authority. The complainants attached few photographs taken on 07.12.2016. They further stated that in view of emergent situation created by notice dated 01.12.2016 (Annexure C-5) issued by the owner of rented accommodation coupled with order dated 13.01.2017 of this Commission, they had taken the physical possession of property, with a written condition that the pending deficiencies would be cured as soon as possible and after taking possession, they (complainants) sent series of emails/letters requesting the Opposite Parties (DLF Homes Panchkula Pvt. Ltd. ) to make the house habitable but all in vain. It has also been stated that in a period not less than two months of possession, various patterns of cracks in the complainant’s house, have been detected almost in all masonry walls, beams, beams of balconies, near the door, frame and several locations near the roof, which may turn the property dangerous for the safety of occupants and make the house unfit for occupation. The complainants have attached photographs of few cracks visible in the house captured on 14.05.2017. They have further stated that as a layman, it appears that the cracks have possibly been caused by inadequate foundation bearing capacity, improper dimension of beam and column of the structure in second floor or the shrinkage of wall; even some walls do not appear to follow the simple standard formula of construction i.e. 90 degree structure of walls, as the walls clearly appeared to have curves at different places. They have further stated that wall cracks could be due to inappropriate building structure capacity, inadequate foundation load bearing capacity and swelling soil and shrinkage in building material, and all these structural defects appeared the result of violation of PWD Code and Building Code by the DLF. It has also been stated that all walls except kitchen wall are without plastic emulsion and ceiling of house including the ceiling of staircase is without oil bound distemper and the complainants doubt the quality of alleged vitrified tiles. They (complainants) have further stated that they were given to understand that as per memorandum of understanding between the DLF and JLL, before handing over the possession of the property, the JLL was under legal obligation to carry out certain tests to ascertain whether the property was fit for occupation or not but the physical possession was handed over to the complainants without carrying out the requisite tests, expected from the multinational company.

50. Opposite Parties No.1 & 2 (DLF Homes Panchkula Pvt. Ltd.) filed reply to the application aforesaid, terming the application ex-facie not only non-maintainable but also misconceived, erroneous, vague, cryptic and abuse of process of law and as such, unsustainable in the eyes of law. It has been stated that the complainants, who are subsequent allottees, purchased the unit, in question, from Mr. Girdhari Lal and Mrs. Sushma Chaudhary on 04.03.2016 and are raising these vague and baseless allegations just to put pressure on the Opposite Parties, in order to succeed in their evil design of extorting money and before purchasing the unit, in question, the complainants had executed a specific undertaking dated 19.02.2016 relinquishing their right to claim any compensation from the Opposite Parties and also to abide by the terms of the Agreement. It has been stated that the complainants took possession of the unit, in question, on 11.02.2017 and as such, now they cannot make any such vague and baseless allegations. It has further been stated that the allegations made against the competent authority who had issued the occupation certificate to the Opposite Parties after the complainants have examined the unit, in question, with their friend Mr. Mandeep, a law student, are vague, baseless, and misconceived. It has further been stated that the competent authority before granting occupation certificate to the Opposite Parties satisfy themselves with the requirements for grant of occupation certificate and it is only after the competent authority is satisfied that an occupation certificate is granted.

51. As regards allegation qua alleged cracks in the unit, in question, the Opposite Parties have stated that the complainants themselves in Para 7 of their complaint have admitted to be layman and would possibly not know whether the alleged cracks are structural or temperature cracks. The Opposite Parties have stated that they tried to enquire about the vague and baseless allegations made by the complainants in the present application to further rectify the defects, if any, but the unit of the complainants was found locked from the past three weeks. They have stated that all the units in the valley have been constructed using same quality material and as such, if the complainants are not finding their unit safe for occupation, they might also not find any other unit in the valley project safe for their occupation.

52. Regarding plea of the complainants that JLL and the contractor should be made a party, it was stated that the agreement was executed between the complainants and the Opposite Parties and the grievance can only be raised qua the Opposite Parties, who have developed this project.

53. The proposed Opposite Party No.3 i.e. JLLBO also filed reply to the application, stating that it has nothing to do with the dispute already going on between the complainants and the DLF. It has further been stated that there has been no agreement between the complainants and the JLLBO and rather, the JLLBO has entered into an agreement dated 04.11.2015 with the DLF, by virtue of which, JLLBO has to manage the properties only after an allottee gets its possession from DLF and thereafter, the management services would be rendered by JLLBO on payment of usual maintenance charges by the resident/owner/occupant of the flat. It has also been stated that it was for DLF Homes to give possession to its allottees in a perfect condition and if there would be any discrepancies, those have to be settled by the DLF Homes to the satisfaction of its customer.

54. On perusal of the evidence, on record, it is noticed by us that the complainants are subsequent allottees. The unit, in question, was initially allotted to Sh. Girdhari Lal and Mrs. Sushma Chaudhary on 16.03.2010 vide allotment letter (Annexure C-1), and Independent Floor Buyer’s Agreement was executed on 27.12.2010 (Annexure C-6). The unit was transferred in the name of the complainants on 04.03.2016 vide letter (at Page 227 of the written statement). Before transfer of the unit, the complainants furnished an undertaking (at Pages 254 of the written statement) not to claim compensation on account of delayed possession, Clauses 3 and 4 whereof read thus:-

“3. We undertake that we have seen, verified, examined all the document and agreements, receipts, correspondence, forms and concerning the Independent Floor and has also seen the physical position of the Independent Floor/Flat/Plot/Villas in “DVF-C3/50-SF #217” project and after being satisfied from the same executing this undertaking.

4. We undertakes that we are not entitled for any compensation/claims on account of delay possession of the said Independent Floor/Flat/Plot/Villas as agreed upon with the First Allottee and all the relevant paras in this regard in the Application form/Independent Floor, buyer’s Agreement/ Floor/Flat/Plot/Villas become null and void.”

It is clear that before purchasing the unit, in question, the complainants satisfied themselves about the quality of construction etc.

55. It may also be stated here that while filing the consumer complaint on 21.12.2016, the complainants had also moved an application u/s 14(3B) of Consumer Protection Act, 1986 to forthwith hand over physical possession of the Independent Floor No.DVR-C3/50-SF. At the time of filing the complaint, possession of the unit stood offered to the complainants on 15.11.2016 (Annexure C-15) and they were required to deposit sum of Rs.10,27,021.64 i.e. (Rs.9,35,058.64 + Rs.91,963.00) as per the demand raised in the said letter. Considering the request of the complainants in the complaint, this Commission vide order dated 13.01.2017 directed the complainants to deposit the aforesaid amount i.e. Rs.10,27,021.64 i.e. (Rs.9,35,058.64 + Rs.91,963.00) minus Rs.25,463/- on account of contingent deposit of vat within 15 days from the date of passing of that order and also directed the Opposite Parties to deliver possession to the complainants within three weeks thereafter. Admittedly, the complainants took over the possession of the unit, in question, on 11.02.2017 and while doing so, they executed the possession slip dated 11.02.2017 (at Page 8 of the Rejoinder), wherein following remarks were recorded:-

“………they are satisfied by the quality of construction and material used, subject to the pending rectification and improvements.”

56. The rectifications required to be made were not specified. The first email document placed, on record, by the complainants regarding deficiencies in the unit is dated 06.03.2017. Further the allegations of the complainants regarding cracks in the unit and obtaining the occupation certificate from Govt. by indulging in corruption/fabrication in collusion with the concerned government officers, are based on conjectures and surmises. They (complainants) have themselves stated that the cracks could be structural or on account of temperature. To prove the correctness of the allegations, the complainants could very well adduce expert opinion/report of an Engineer/Architect, but they did not do so. Still the Opposite Parties (DLF), in their reply, have stated that they were ready to rectify the defects, if any, but the same could not be done as the same (unit) was found locked. It may be stated here that in summary proceedings before this Commission, the allegations of corruption and fabrication by the complainants cannot be adjudicated upon. Not only this, the govt. authority who indulged into corruption in collusion with Opposite Parties is not impleaded as an Opposite Party. We, however, direct the Opposite Parties to remove the defects within four weeks from the date of receipt of a certified copy of this order. In our opinion, in the facts and circumstances of the case, there is no justified ground to implead JLLBO as one of the Opposite Parties. The plea to this effect is not sustainable and the same stands rejected. Accordingly, the aforesaid application stands disposed of in above terms.

57. In this case, as discussed in Para 54, the complainants furnished an undertaking that complainants would not be entitled to any compensation for the delayed possession. This Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, interpreted similar undertaking so given in a manner that it does not act harshly qua the interest of a consumer. Therefore, in view of ratio of judgment in Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’s (supra), the complainants are held entitled to compensation w.e.f. 04.03.2016 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.

58. In this complaint, since there has been DLI in the sum of Rs.46,025.61, against the complainants. Delay in payment of installments has a bearing in completion of unit. In the facts and circumstances of the case, grant of compensation in the sum of Rs.1,25,000/-, would serve the ends of justice.

59. In consumer complaint bearing No.165 of 2017, particulars whereof are indicated below, the complainants have sought refund of the deposited amount:-

Table-III

Sr. No.	Particulars
1.	Amount deposited. (Rs.)	Rs.71,33,983.00
2.	Date of Agreement.	31.01.2012
3.	Due date for offering possession after 2 years plus 1 year extended period.	30.01.2015
4.	Whether possession offered	31.05.2017
5.	Delay in offer of possession	2 Years 4 Months
6.	Whether first allottee	Yes
7.	DLI	Rs.85,979.45

60. In this case, though the complainants have sought refund of Rs.75,24,983/- but in the Chart submitted by the Counsel for the Opposite Party and as conceded by the Counsel for the complainants and Counsel for the Opposite Party, during arguments, the complainants had paid an amount of Rs.71,33,983/- to the Opposite Party. Two receipts are issued in the sum of Rs.3,91,000/- against payment made vide cheque No.200485 dated16.08.2011.

61. It is evident from record of this complaint that Independent Floor Buyer’s Agreement was executed on 31.01.2012. 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. The possession of the unit, in question, has been offered on 31.05.2017 i.e. during the pendency of the complaint. In this case, three years period for handing over possession expired on 30.01.2015 from the date of the Agreement, which was executed on 31.01.2012. No reason or circumstances, which were beyond the control of the Opposite Party 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 Party. 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. Recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

Therefore, the complainants, in this complaint, are held entitled to refund of the deposited amounts alongwith interest @15% per annum from the respective dates of deposits.

62. In this complaint, since there has been DLI in the sum of Rs.85,979.45, against the complainants, which contributed to delay in completion of unit, therefore, the complainants are not entitled to same amount of compensation, which this Commission has been granting in such cases. Grant of compensation in the sum of Rs.1,50,000/-, would serve the ends of justice.

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

64. For the reasons recorded above, all the complaints bearing Nos.789 & 956 both of 2016 and 165, 203, 204, 348, 359, 360, 361, 362 and 363 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

789, 203, 204, 348, 359, 360, 361, 362 and 363 all of 2017

65. In these cases, the Opposite Parties have offered possession in November 2016 and October 2016, except in complaint bearing No.363 of 2017, wherein possession was offered on 28.02.2017 during the pendency of the complaint. Except in complaints No.789 of 2016 and 348, 362 & 363 all of 2017, the amounts towards demand raised, except the demands towards contingent VAT deposit and Advocate charges, have been deposited by the complainants in rest of the complaints. The documents in all the complaints have also not been signed/submitted except in CC No.203 of 2017, wherein documents have been 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, wherever due, is made and documents are submitted.
	(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 11.01.2014, 30.08.2014 (date of transfer), 27.06.2014, 31.01.2014, 27.01.2014, 01.12.2013, 07.12.2013, 06.01.2014 & 30.12.2013 respectively up-till two months from the date of offer of possession i.e. up-to 09.12.2016, 14.01.2017, 09.12.2016, 18.12.2016, 04.12.2016, 09.12.2016, 14.01.2017, 14.01.2017 & 27.04.2017 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 10^th 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.1,50,000/- each [in CC No.789 of 2016, 359, 360, 361, 362 & 363 both of 2017] and Rs.1,25,000/- each [in CC Nos.203 & 348 both of 2017] & Rs.1,00,000/- [in CC No.204 of 2017], on account of mental agony, physical harassment and deficiency in service and litigation costs of Rs.35,000/- in each case, 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: 956 of 2017.

66. In this case, possession of the unit, in question, stands handed over to the complainants, on 11.02.2017.

The Opposite Parties, in this case, are jointly and severally held liable and directed as under:-

(i)	to remove the snags/deficiencies in the unit, in question, within 30 days from the date of receipt of certified copy of the order.
(ii)	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 complainants.
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, with effect from 04.03.2016 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.
(iii)	Pay compensation in the sum of Rs.1,25,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, as litigation costs, to the complainants, 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.

67. 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).

68. 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.

Consumer Complaint bearing No:

165 of 2017.

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

To refund the amounts of Rs.71,33,983/- alongwith simple interest @15% per annum, to the complainants, 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 amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;
To pay an amount 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 complainants, 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 amounts alongwith simple interest @15% per annum from the date of filing the complaint till actual payment.

70. However, it is made clear that in case, the complainants have 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 complainants.

71. Certified copy of this order, be placed on the file of consumer complaints bearing Nos.956 of 2016 and 165, 203, 204, 348, 359, 360, 361, 362 and 363 all of 2017.

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

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

Pronounced.

29.08.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

(DEV RAJ)

MEMBER

(PADMA PANDEY)

MEMBER

Chandigarh

StateCommission

CC/789/2016

Kamlesh Rani - Complainant(s)

Versus

DLF Homes - Opp.Party(s)

Rajvir Singh Sihag, Adv.

29 Aug 2017

ORDER

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