Chandigarh

StateCommission

CC/795/2016

Sandeep Sharma - Complainant(s)

Versus

DLF Homes - Opp.Party(s)

Narender Yadav, Adv.

16 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	795 of 2016
Date of Institution	:	11.11.2016
Date of Decision	:	16.02.2017

 

Sandeep Sharma son of Sh. Yash Pal Sharma R/o Flat No.B-42, Spangle Condos, Ghazipur, Zirakpur.

 

                                            .........Complainant.

                                 Versus

 

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

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

 

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	797 of 2016
Date of Institution	:	11.11.2016
Date of Decision	:	16.02.2017

 

Veena Gupta W/o Sh. Satya Pal Gupta, H.No.857, Sector – 9, Panchkula.

                                            .........Complainant.

                                 Versus

 

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	798 of 2016
Date of Institution	:	11.11.2016
Date of Decision	:	16.02.2017

 

Ankit Sachdeva S/o Sh. Anup Sachdeva, H.No.466, Sector-2, Panchkula.

                                            .........Complainant.

                                 Versus

 

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

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

Argued by:

Sh. Narender Yadav, Advocate for the complainant.

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

Consumer Complaint	:	811 of 2016
Date of Institution	:	16.11.2016
Date of Decision	:	16.02.2017

 

Mrs. Renu Goel wife of Shri Satish Goel, resident of House No.1132, Sector-7, Panchkula.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Private Limited, SCO No.190-191-192, Sector 8-C, Chandigarh through its Authorised Representative.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office at 12^th Floor, DLF City, Phase-3, National Highway-8, Gurgaon through its Authorized Representative.

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

Argued by:

Sh. Shubham Jain, Advocate for the complainant.

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

Consumer Complaint	:	821 of 2016
Date of Institution	:	17.11.2016
Date of Decision	:	16.02.2017

 

Mridula Sood W/o Late Sh. Omkar Dev Sood R/o Sarswati Bhawan, North Oak, Sanjauli, Distt. Shimla HP.

 

                                            .........Complainant.

                                 Versus

 

DLF Homes Panchkula Private Ltd., Chandigarh Technology Park, Plot No.2, Tower D, Ground Floor, Chandigarh U.T., through its Managing Director.

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

Argued by:

Ms. Meena Bansal, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain, Sh. Arjun Sharma, Sh. Gaurav G. S. Chauhan, Advocates for the Opposite Party alongwith Sh. Shiv Kumar, Authorised Signatory of the Company.

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 five consumer complaints bearing Nos.795, 797, 798, 811 and 821 all of 2016.

2.          At the time of arguments, on 31.01.2017 and 06.02.2017 respectively, it was agreed between Counsel for the parties, that issues in law and facts involved in the above complaints, by and large, are the same, and therefore, the aforesaid 5 (1+4) complaints can be disposed of, by passing one consolidated order. (One case bearing No.737 of 2016, reserved for orders on 31.01.2017, with a view to seek certain clarifications, has been listed for fresh hearing).

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.795 of 2016, titled as ‘Sandeep Sharma Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’.

4.          In brief, the facts are that the Opposite Parties developed a Residential Group Housing Project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex. On the basis of advertisements, the complainant approached the Opposite Parties, who promised to provide an independent floor with total area of 1550 sq. ft. The complainant booked a flat in DLF Valley Project on 27.03.2010 for his residential purpose and paid an amount of Rs.4,00,000/- vide receipt RVL/CRB/01056/0310. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-1) on 22.02.2011 whereby independent floor No.C-2/28 SF (Second Floor) with parking number P-2F was allotted to the complainant. The complainant took a loan of Rs.24 Lacs from ICICI Bank on 22.05.2010  as per Loan Agreement (Annexure C-2) and is paying Rs.26,309/- as EMI. The total price of the unit was fixed as Rs.32,27,099.78 for the saleable area of 1550 Sq. Feet.  In Para 8 of the complaint, it was stated that till 12.02.2016, the complainant had paid Rs.32,96,269/- to the Opposite Parties.

5.          As per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement. The Opposite Parties also published an advertisement dated 13.01.2014 stating that possession would be delivered in 2014 but nothing was done. It was further stated that Opposite Party No.1/Builder vide letter dated 26.10.2016 (Annexure C-5) offered physical possession of the unit, in question, while admitting the fact of receipt of occupation certificate and raised demand of Rs.9,01,695.74, to be paid within six months within a condition that non-submission of payment within six months of final statement of account would attract interest/“Holding Charges” @Rs.10/- per sq. feet per month as per terms and Condition No.13 of the Agreement. It was further stated that Opposite Party No.1 is now just giving the paper possession and not the legal possession of the unit.

6.          It was further stated that the complainant is residing in a rented accommodation and paying rent of Rs.10,500/-, as per copy of rent deed (Annexure C-6). It was further stated that the complainant came to know after visiting the project site on various occasions that the unit, in question, and other amenities/facilities, as promised, were not even ready for possession of unit. It was further stated that the Opposite Parties demanded Rs.25,463/- for contingent deposit of Vat, which was neither mentioned in the Agreement nor in the schedule of payment. It was further stated that the complainant has invested her hard earned money and delay in the grant of possession has caused financial loss and grave mental agony and disturbance to him.

7.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over physical and legal possession of the unit, in question, complete in all respects after obtaining all due permissions and certificates including the Completion Certificate inter-alia from the concerned authorities; pay interest calculated @12% per annum on the deposited amount from the date of delay in handing over of the possession till the date, possession is handed over to the complainant; withdraw the demand of Rs.25,463/- raised on account of contingent deposit of Vat; award compensation of Rs.5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainant due to the actions/omissions of Opposite Parties; Rs.50,000/- as litigation expenses; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.

8.          The Opposite Parties, in their preliminary submissions in the written statement stated that the complainant filed the instant complaint in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that the complainant is backing out from the executed contract. It was further stated that occupation certificate (Annexure R/1) was received on 10.01.2016 and offer of possession letter dated 26.10.2016 was sent to the complainant. It was further stated that the complainant had the full knowledge about the executed terms of Agreement dated 22.02.2011 executed between the parties. It was further stated that the complainant has raised a loan of Rs.27 Lacs from HDFC Bank at lower interest rate and on the other hand, he is claiming interest @12% on the deposited amount. It was further stated that the complainant prayed for unfounded demands, which were not as per executed terms of the Agreement and, thus, the Opposite Parties also pray to allow 31% cost escalation of the construction as well 47% of the land holding cost, totaling 76% of the sale price. 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 the Opposite Parties at the time of allotment of the floor through allotment letter dated 03.04.2010. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012.

9.          The Opposite Parties have further stated after dismissal of the said litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Parties vide letter dated 21.05.2013 offered an exit option to the complainant by accepting refund of his entire amount paid till date with 9% interest but he refused to avail the said option and apart from opting to continue with the project, also consented to the extension of time. It was stated that occupation certificate(s) of 1669 units had already been received and offer of possession was under process. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company, namely, Jones Lang Lasalle.

10.        In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainant is not a consumer as the floor, in question, was purchased by him for investment purposes and earning profits and that when given the option to exit vide letter dated 21.05.2013, the complainant agreed to continue with allotment and delay and, as such, he (complainant) voluntarily waived of his right to raise any grievance. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement 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 Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 10, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively.  The Opposite Parties moved Miscellaneous Applications under Section 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.	795/2016	42/2017
2.	797/2016	41/2017
3.	798/2016	44/2017
4.	811/2016	40/2017
5.	821/2016	19/2017

 

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.  

11.        On merits, apart from reiterating above, it was stated by the Opposite Parties that the amount paid by the complainant till date is Rs.32,96,421/-. It was further stated that after occupancy certificate, due to increase in area, the total price of the property was Rs.41,58,943.43 plus service tax for an area of 1750 sq. ft. 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 Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that letter dated 26.10.2016 was sent to the complainant and the demand raised was in accordance with the terms and conditions of the Agreement. It was further stated that in the letter offering possession, demands were raised by the Company towards increased area in the floor, registration of the floor, electrical charges, IBMS charges, club charges etc. in order to deliver possession of the said floor strictly in accordance with the executed Agreement. It was further stated that vide offer of possession letter, the complainant was requested to remit the outstanding due and to furnish the documents in order to facilitate the conveyance of the floor, in question. It was further stated that there is a DLI of Rs.11,752.73 levied against the account for a delay of 744 days. It was reiterated that occupation certificate was already received on 10.01.2016. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

15.        It is evident that the complainant was allotted Independent Floor No.DVF-C-2/28-SF in DLF Valley, Panchkula by the Opposite Parties and Independent Floor Buyer’s Agreement between the parties was executed at Chandigarh on 22.02.2011 (Annexure C-1). The total price of the said independent floor, as depicted in the Agreement, was Rs.32,27,099.78, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. The complainant, in all, actually paid a sum of Rs.42,64,859/- as mentioned in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Party(ies), at the time of arguments on 06.02.2017. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It is also on record that vide letter dated 20.05.2013 (Annexure R-3), they (Opposite Parties) sought further time of 12 months, in addition to 24 months, to complete the construction work. 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. As is evident from Annexure C-5/R-1 Colly, possession of the unit, in question, has been offered by the Opposite Parties to the complainant on 26.10.2016, after receipt of occupation certificate on 13.01.2016. Alleging offer of possession to be not complete, the present complaint was filed on 11.11.2016. 

16.        The Opposite Parties, in preliminary submissions, have prayed to allow them 31% cost escalation of construction as well as 47% of the land holding cost, totaling 76% of the sale price. There is a clear and specific stipulation in Clause 1.2 of the Agreement that price of the unit is escalation free. Since the Opposite Parties failed to complete construction and deliver possession within stipulated period and extended          one year period, they (Opposite Parties) are themselves responsible for delay and deficiency in service and        their prayer for allowing them escalation cost amounts           to seeking amendment of the terms and conditions of the Agreement. The plea, being devoid of merit, must fail, and the same stands rejected.

17.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 22.02.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010, is not relevant.

18.             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. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 25 to 35 of the said order, inter-alia, being relevant, are extracted hereunder:-

“25.        The next 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.

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.”

27.                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

28.      Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

29.       In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

 “8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

30.     Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

31.        Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

32.        We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant has spent his life savings to get a unit, for his residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, 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 can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

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.”

35.     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.”

             In view of the above, the objection raised by Counsel for the Opposite Parties, being devoid of merit, is rejected.

19.        Another objection raised by the Opposite Parties was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction and that the parties unequivocally agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula. It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, Independent Floor Buyer’s Agreement (Annexure C-1) was executed between the parties on 22.02.2011 at Chandigarh. Not only this, receipts (Annexure C-3 colly.) and the offer of possession letter dated 26.10.2016 (Annexure C-5) bear the Chandigarh address of the Opposite Parties i.e. DLF Homes Panchkula Pvt. Ltd., Shop No.101-102, DLF City Centre, IT Park, Kishan Gargh, Chandigarh, Pin-160101 and DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8-C, Chandigarh, PIN-160009, at the top. 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.

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

21.        The next objection raised by Counsel for Opposite Parties was that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/ rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission. It was further stated that the complainant was virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines ‘service’ as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

 

22.        From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainant has the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by him, as he falls within the definition of a ‘consumer’, as stated above. In the instant case, the complainant is seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainant is trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

23.          To defeat claim of the complainant, the next objection raised by the Opposite Parties was that since the complainant had purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of ‘consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Rather, the complaint in his complaint, has clearly stated that he purchased the flat, in question, solely for residential purposes. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the  residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

“In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

24.          An objection has been raised by the Opposite Parties that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, he waived of his right to raise any grievance. This plea of the Opposite Parties is not well based. While seeking option vide letter dated 20.05.2013, the complainant was informed of delay and extension of one year was sought. One year extended period expired on 21.02.2014 whereas the possession was offered on 26.10.2016. Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 21.02.2014, position would have been different and in that situation, it would have been accepted that the complainant had waived of his right to raise grievance. The plea being devoid of merit is not tenable.  

25.         The next question, that falls for consideration, is, as to whether, there is delay in offering/delivering possession of the flat, in question. Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 22.02.2011 read thus:-

“11(a) Schedule for possession of the said Independent Floor:-

 

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent  Floor  within  a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.

11(b) Delay due to reasons beyond the control of the company:-

If the possession of the Said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension.”

As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainant was entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also 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 20.05.2013, to complete construction within further 12 months. Option was also given to the complainant, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment(s) thereafter. As admitted by the Counsel for the parties, at the time of arguments, against the total demand of Rs.9,93,658.74 i.e. (Rs.9,01,695.74 + Rs.91,963.00) raised vide offer of possession letter dated 26.10.2016, the complainant has made payment in the sum of Rs.9,64,523.00 on 06.01.2017. Taking into account 12 months extension, the Opposite Parties were required to deliver possession on or before 21.02.2014, but not later than that. As stated in the written statement, permission for occupation of the unit, in question, was received on 13.01.2016 (Annexure R-1). By making a misleading statement, that possession of the unit, was to be delivered within  maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 21.02.2014, and by not abiding by the commitment made, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable.  The Independent Floor Buyer’s Agreement was executed on 22.02.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (approximately 2 years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Clearly, there is inordinate delay of around four years beyond initial stipulated period of two years in offering possession of the unit, in question to the complainant. The Opposite Parties are, thus, deficient in rendering service.

26.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 22.02.2011 i.e. by 21.02.2014. There is, thus, inordinate delay of around 2 years 8 months, even beyond the extended period. Possession of the unit, in question, was offered by the Opposite Parties on 26.10.2016 i.e. just before filing of the complaint. 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, held in Para 16 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.

27.        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.”

28.        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.  

29.        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, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit would meet the ends of justice. The possession having been offered on 26.10.2016, the complainant shall be entitled to compensation up-to plus 2 months from 26.10.2016 i.e. 25.12.2016 (30 days for making payment + 30 days grace period).

30.        The complainant, in the instant case, in terms of this Commission’s order dated 16.11.2016, made payment of Rs.9,64,523/- except contingent deposit of vat on 06.01.2017. Despite payment of the demand raised vide offer of possession letter less contingent deposit of vat by the complainant, the Opposite Parties failed to deliver possession within 30 days i.e. by 05.02.2017. Therefore, for delay beyond 30 days, the complainant shall be further entitled to compensation @12% interest till possession is handed over.

31.        As per offer of possession letters placed, on record, six months’ time was given to the complainant(s) to complete the formalities and make the payment without delayed interest.

32.        Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates, Counsel for the Opposite Parties, on instructions, stated that in case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months and as and when amount is deposited and other necessary documents are submitted, within 3 weeks thereafter, possession will be handed over, to the complainant(s). It was further stated that contingent Vat deposit will not be insisted upon at this stage, subject to furnishing of an affidavit by the allottee(s) to make the payment as and when demanded by the Government. In cases relating to this project, earlier the Opposite Parties, at the time of offering possession, were also raising demand   on   account   of  stamp  duty  and  registration charges but now while offering possession, no demand on account of stamp duty and registration charges has been raised.

33.        The Counsel for the parties were further in agreement that stamp duty and registration charges shall be payable at the time of execution of the sale deed of the unit, in question, after possession is handed over; charges on account of advocate fee etc. would not be payable by the complainants, but incidental expenses, which may be incurred at the time of registration of sale deed, shall be borne by the complainants.

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 him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the promised date in the Agreement or latest by 21.02.2014 i.e. within the extended period. Admittedly, the possession of unit, in question, has been offered to the complainant on 26.10.2016. The compensation in the sum of Rs.5 Lacs claimed by the complainant is on the higher side. The complainant has been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. Under these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Parties, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

35.          Similarly, in following two complaints bearing No.797 and 798 both of 2016, particulars of which are indicated in Table-A below, the possession of the unit(s) has been offered by the Opposite Parties:-

TABLE – A

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.	Date of Occupation Certificate.	Compensation, if any, credited, & reduced from demand.
1.	797/2016	20.01.2011	19.01.2014	29.10.2016	19.07.2016	Rs.5,93.645.48
2.	798/2016	13.12.2010	12.12.2013	05.10.2016	09.06.2016	-

 

36.         In complaint case No.797 of 2016, delay compensation to the tune of Rs.5,93,645.48 in not offering possession of the unit, in question, within the stipulated period has already been given to the complainant in Final Statement of Account annexed with letter of possession and admitted in the Chart submitted by the Counsel for Opposite Parties at the time of arguments.

37.        In two compliant cases viz. CC/797/2016 and CC/798/2016, against the demand raised by the Opposite Parties, while offering possession, the complainant(s) in terms of this Commission’s order dated 16.11.2016 deposited an amount of Rs.6,33,662/- and Rs.8,47,565/- except contingent deposit of vat with the Opposite Parties on 03.01.2017 and 27.12.2016 respectively, as indicated in the chart/sheet given by Counsel for the complainants during arguments. However, during arguments, it was conceded by the Counsel for the Opposite Parties that in CC/797/2016, possession has still not been delivered to the complainant(s) in terms of orders passed.

38.        In Consumer Complaint No.797 of 2016, the complainant made payment on 03.01.2017 as already stated above. As possession was offered on 29.10.2016, the complainant is held entitled to interest @12% for the delayed period up-to 28.12.2016. For failure of the Opposite Parties to hand over possession within 30 days, after payment by the complainant i.e. by 02.02.2017, for delay period beyond 30 days also, they (Opposite Parties) shall be liable for payment of compensation @12% simple interest. Further as is apparent from offer of possession letter dated 29.10.2016, placed, on record, benefit in the sum of Rs.5,93,645.48 on account of compensation for delayed period, has been given to the complainant in the Final Statement of Account. Therefore, in this case, the complainant is entitled to compensation by way of   interest @12% calculated for delayed period (minus) the amount of Rs.5,93,645.48 benefit of which has been given to the complainant by adjusting/crediting the amount in the Final Statement of Account.

39.        In complaint case No.798 of 2017, possession of the unit, in question, has been delivered to the complainant on 13.01.2017, after deposit of an amount of Rs.8,47,565/- on 27.12.2016 by the complainant in terms of order dated 16.11.2016 passed by this Commission. This was stated and admitted by the Counsel for the complainant(s) in the chart given during arguments. Since possession was offered on 05.10.2016, the complainant, in this case, is held entitled to interest @12% p.a. for the delayed period up-to 04.12.2016.

40.        In these complaints (CC/797/2016 & CC/798/2016), the complainants are held entitled to compensation on account of mental agony, physical harassment and deficiency in service in the sum of Rs.1,50,000/- in each case.

41.        In Consumer Complaint No.811 of 2016, details whereof are given hereunder in Table B, possession of the unit, in question, has not been offered to the complainant by the Opposite Parties:-

 

TABLE – B

 

1	2	3	4
Complaint Case No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after one year extended period	Date of receiving Occupation Certificate.
811/2016	07.02.2011	06.02.2014	20.10.2016

 

42.        In this complaint, occupation certificate of the unit, in question, has been received by the Opposite Parties on 20.10.2016. As stated above, possession of the unit, in question, has not been offered/delivered by the Opposite Parties to the complainant. Therefore, in view of observations made in the preceding paras, the complainant, in this case, is entitled to possession of the units, in question, complete in all respects on payment of amount due. The complainant, in this case, is held entitled to 12% p.a. interest on the deposited amount for the delayed period beyond three years i.e. from 07.02.2014 till possession is handed over. The complainant is also held entitled to compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service.

43.          In one complaint bearing No.821 of 2016 particulars of which are indicated in Table ‘C’ below, the complainant has sought refund of the deposited amounts:-

TABLE – C

 

Sr. No.	Description/Details	Complaint Case No.
		821/2016
1.	Amount deposited. (Rs.)	Rs.33,97,330.00(*)
2.	Date of Agreement.	04.02.2011
3.	Due date for offering possession.	03.02.2014
4.	Whether possession offered	10.10.2016
5.	Delay in offer of possession	2 Years 8 months
6.	Whether first allottee	Yes
7.	DLI	Rs.5,403.77 Ps

 

(*) During arguments, the Counsel for the Opposite Party admitted the receipt of the amount as shown against the Column ‘Amount deposited (Rs.)’ at Sr. No.1 in the table.

44.         As is evident from record of this complaint, the Independent Floor Buyer’s Agreement was executed on 04.02.2011. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 24 months from the date of execution of the agreement unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, deposits, securities etc. and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In this case, 24 months period plus the extended period of 12 months from the date of execution of the agreement expired on 03.02.2014. However, the possession of the unit, in question, was offered on 10.10.2016 after 2 years 8 months. 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 complainant is entitled to refund of the amount deposited 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 complainant, in this complaint, is held entitled to refund of the amount alongwith interest @15% per annum from the dates of respective deposits.

45.        As regards compensation for mental agony, harassment etc., the complainant is held entitled to compensation of Rs.1,75,000/-.

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

47.        For the reasons recorded above, all the complaints bearing Nos.795, 797, 798, 811 and 821 all of 2016 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

795 and 797 both of 2016

 

             In these cases, the Opposite Parties offered possession in October 2016, asking the complainants to deposit the amount(s) within six months, which, except contingent deposit of vat, has been deposited. In these two cases, the complainants deposited the demands raised in offer of possession letters, on 06.01.2017 and 03.01.2017 respectively. The complainants shall also complete the documentation, if not already done, within three weeks from the date of receipt of certified copy of this order.

             The Opposite Parties, 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), within a period of 30 days.
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within two months 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 22.02.2014 and 20.01.2014 respectively up-till two months from the date of offer of possession i.e. up-to 25.12.2016 and 28.12.2016 respectively, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.         [In CC/797/2016, compensation in the sum of Rs.5,93,645.48 on account of delay in possession has been credited in Final Statement of Account. The same shall be deducted from the compensation amount arrived at by way of interest @12% for delay period]                In these two cases, the complainants deposited the demand raised in offer of possession letters on 06.01.2017 and 03.01.2017 respectively. For failure of the Opposite Parties to deliver possession within 30 days, from 06.01.2017 and 03.01.2017 respectively,  beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for the delay period up-to 28.02.2017, by 10th March, 2017 and thereafter for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, 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:

798 of 2016.

 

              In this case, possession of the unit, in question, stands handed over to the complainant on 13.01.2017 in terms of this Commission order dated 16.11.2016.

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

(i)	Execute and get registered the sale deed(s) in respect of the unit, in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, with effect from 13.12.2013 till 04.12.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.
(iii)	Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Consumer Complaints bearing No:

811 of 2016.

 

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

(i)	To hand over physical possession of  the units, allotted in favour of the complainant, complete in all respects, to the complainant, within four months from the date  of receipt of a certified copy of this order, on payment of the amounts, by the complainant due against her.
(ii)	Execute and get registered the sale deed in respect of the unit, in question, within one month from the date of handing over of possession to the complainant. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant, with effect from 07.02.2014 till 28.02.2017, 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.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount, to the complainant w.e.f. 01.03.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
(v)	Pay compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, 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.

 

            In 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).

             As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposit 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 beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

Consumer Complaints bearing No:

821 of 2016.

 

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

 (i)   To refund the amount of Rs.33,97,330/-, alongwith simple interest @15% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Party shall pay the aforesaid amounts alongwith simple interest @18% per annum, instead of 15% per annum, from the date of default till actual payment;

(ii)   To pay an amount of Rs.1,75,000/- as compensation for mental agony, physical harassment & deficiency in service and Rs.35,000/-, as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Party shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

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

49.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.797, 798, 811 and 821 all of 2016.

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

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

Pronounced.

16.02.2017.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

 

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