Chandigarh

StateCommission

CC/315/2017

Virender Singh - Complainant(s)

Versus

DLF Homes - Opp.Party(s)

Narender Kaajla, Adv.

16 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	315 of 2017
Date of Institution	:	11.04.2017
Date of Decision	:	16.11.2017

 

 

Virender Singh son of Sh. Partap Singh, Resident of Flat No.298, Salaria Office Enclave, Sector 21, New Delhi.

                                             .........Complainant.

                                  Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
Sector 8-C, Madhya Marg, Chandigarh through its Managing Director/Authorized Signatory/Officer-in-charge.

2.  DLF Homes Panchkula Pvt. Ltd., Regd. Office: DLF Gateway Tower,  Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Managing Director/Authorized Signatory/Officer-in-charge.

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

Argued by:

 

Sh. Narender Kaajla, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	358 of 2017
Date of Institution	:	26.04.2017
Date of Decision	:	16.11.2017

 

Manju W/o Sh. Harpal Singh, Resident of Flat No.44, Sidharth Appartment, Inder Enclave, Paschim Vihar – 110087, New Delhi.

                                             .........Complainant.

                                  Versus

1. DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8-C, Chandigarh, Pin – 160009 through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex.

2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing. Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex.

 

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

 

Argued by:

 

Sh. R. P. Dangi, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

 

Consumer Complaint	:	377 of 2017
Date of Institution	:	02.05.2017
Date of Decision	:	16.11.2017

 

Prithvi Singh Lohan resident of House No.60 GH 80, Sector 20, Panchkula (Haryana).

                                             .........Complainant.

                                  Versus

1. DLF Homes Panchkula Private Limited, SCO 190-191-192, Sector 8-C, U.T., Pin – 160009 through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing.

2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Office-in-charge/Director Sales & Marketing.

 

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

Argued by:

 

Sh. Sandeep Malik, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	535 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	16.11.2017

 

Poonam Rathee W/o Prof. Bhagat Singh R/o University Flat No.204, M. D. University Campus, Rohtak, Haryana – 124001.

                                             .........Complainant.

                                  Versus

 

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

Registered Office Address:

M/s 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.

2. Manoj Talwar, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

4. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

 

Argued by:

 

Sh. Narender  Yadav, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	537 of 2017
Date of Institution	:	13.07.2017
Date of Decision	:	16.11.2017

 

Kususm Lata (in fact Kusum Lata) W/o Sh. Mohan Lal, R/o H.No.544, Sector 4, panchkula.

                                             .........Complainant.

                                  Versus

 

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

Registered Office Address:

M/s 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.

2. Manoj Talwar, Director, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

4. Ananta Raghuvanshi, Executive Director, Sales and Marketing, DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India.

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

 

Argued by:

 

Sh. Narender  Yadav, Advocate for the complainant.

Sh. Arjun Sharma, Advocate for the Opposite Parties alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Consumer Complaint	:	545 of 2017
Date of Institution	:	17.07.2017
Date of Decision	:	16.11.2017

 

Naveen Dutt son of Sh. S. K. Sharma, Resident of H.No.1868, Faridabad 121006, Delhi, India.

 

                                             .........Complainant.

                                  Versus

 

DLF Homes Panchkula Pvt. Ltd., Regd. Office: DLF Gateway Tower,  Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

IInd Address:-

SCO 190-191-192, Sector 8C, Chandigarh – UT, Pin 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

Site Address: The Valley, Sector 3, Kalka-Pinjore Urban Complex.

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

Argued by:

 

Sh. R. P. Dangi, Advocate for the complainants.

Sh. Arjun Sharma, Advocate for the Opposite Party alongwith Sh. Shiv Kumar, Advisor (Legal).

 

Complaints under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: SH. DEV RAJ, PRESIDING MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, PRESIDING MEMBER

            By this order, we propose to dispose of the aforesaid six consumer complaints bearing Nos.315, 358, 377, 535, 537 and 545 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, amount received, DLI etc. and further the date when possession was offered, which was taken on record.

3.         Arguments were heard in common. At the time of arguments on 09.11.2017, 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 six 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.315 of 2017, titled as ‘Virender Singh Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’

5.         In brief, the facts are that the Opposite Parties allotted a floor bearing no.DVF-E-3/22-SF (Second Floor) measuring 1550 Sq. feet to one Sh. Akhil Nehru son of Sh. Anil Nehru. The total specific area was 127.11 Sq. Mtr. approximately and saleable area was 144 Sq. Mtr. approximately @Rs.18,519.46 per Sq. Mtr. alongwith parking bearing No.P-2F. The total sale price of the said unit was Rs.32,27,100/- including all charges like PLC, EDC/IDC etc. An Independent Floor Buyer’s Agreement was executed between the Opposite Parties and Sh. Akhil Nehru on 10.01.2011 (Annexure C-1). The said unit was transferred in the name of the complainant on 02.07.2015 on the same terms and conditions of the previous allottee vide endorsement in agreement (Annexure C-2). The complainant never delayed and paid the entire amount.

6.         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 plus one year extended period i.e. by 09.01.2014. It was further stated that the Opposite Parties have been delaying the offer of physical possession on one pretext or the other. It was further stated that the Opposite parties issued letter dated 14.01.2016 (Annexure C-5) for handing over of independent floor to the complainant and demanded Rs.12,78,591.88, which the complainant deposited, under protest, in the month of February 2016 by resisting the unjustified demands. It was further stated that now even after depositing the entire amount, the Opposite Parties failed to hand over the actual and physical possession of the unit, in question and the very purpose of purchasing the unit has been defeated. It was further stated that complainant was not liable to pay any amount in the shape of charges/taxes which the Opposite Parties were liable to refund.

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 possession of the unit, in question, immediately without any further delay; execute conveyance dead and get the same registered with the office of Sub Registrar as per Haryana Govt. rates after handing over the physical possession of the floor;  pay interest @12% on the deposited amount w.e.f. 26.01.2014 (in fact 10.01.2014) till the date of actual handing over of the physical possession of the flat; refund excess amount deposited by the complainant beyond the agreement as mentioned in Para 9 of the complaint and also refund the excess amount deposited on account of increase in area; pay Rs.3,00,000/- on account of mental agony and harassment and Rs.55,000/- for 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 offer of possession was sent to the complainant on 14.01.2016 but the complainant himself is not taking possession for more than 1 ½ years nor has paid the due amount as raised in FSA dated 14.01.2016. It was further stated that the complainant is a subsequent purchaser and had purchased the unit on 02.07.2015 from the original allottee Mr. Akhil Nehru. It was further stated that the disputed floor was allotted to the original allottee on 10.03.2010 and subsequently, Floor Buyer’s Agreement was executed between him and the Opposite Parties on 10.01.2011. It was further 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 after receipt of occupation certificate on 10.07.2015, offer of possession was sent to the complainant on 14.01.2016. It was further stated that the complainant had full knowledge about the terms of Agreement dated 07.02.2011 (in fact 10.01.2011) executed between the parties. It was further stated that the complainant raised a loan of Rs.28 Lacs from HDFC Bank at lower interest rate and on the other hand, through the complaint, he is claiming interest of 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 have prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. It was further stated that the project was cost escalation free, as the complainant shall get the possession of the floor on the same price as committed by Opposite Parties, at the time of allotment of the floor through allotment letter dated 10.03.2010. 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.         It was stated that occupation certificate has been received for all 1775 floors and offer of possession to 1707 customers has been sent. It was further stated that out of 1707 allottees, 555 allottees have already taken possession and 146 allottees have already got their conveyance deed executed. It was further 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. 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 06.04.2010 to 23.07.2010 and 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 12 of the preliminary objections, 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.

11.       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.	315/9017	746/2017
2.	358/2017	675/2017

 

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.   

12.       On merits, it was stated that the price of the property as per SOP is Rs.36,73,239.25 plus service tax for 1550 sq. ft. It was further stated that due to increase in the area, the total price of the property was Rs.42,33,230.11 plus service tax for an area of 1751 sq. ft. It was further stated that the complainant deposited a sum of Rs.45,30,579/- and there was an outstanding amount of Rs.5,405.95 towards DLI in remitting payments. It was denied that the price of the unit, in question, was Rs.32,27,100/-. It was stated that Floor Buyers Agreement was executed between the parties on 10.01.2011 and thereafter the property was transferred in the name of the complainant on 02.07.2015 and the complainant knew well in advance in 2015 that the project had been delayed.     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 date of 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 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 reiterated that offer of possession letter dated 14.01.2016 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 neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

16.       It is evident that vide allotment letter dated 10.03.2010 (at Page 341 of the written statement), one Mr. Akhil Nehru was allotted Independent Floor No.DVF-E3/22-SF in DLF Valley, Panchkula and Independent Floor Buyer’s Agreement was executed between him and the Opposite Parties on 10.01.2011 (Ann. R-4 Colly). The said unit was then purchased by the complainant from Mr. Akhil Nehru on 02.07.2015 as per endorsement at Page 117 of the written statement. The complainant also gave an undertaking on 29.06.2015, at page 234 of the written statement, not to claim any compensation/claims on account of delay possession of the unit, in question. The total price of the said independent floor, as depicted in the Agreement, was Rs.32,27,100/-, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. In all, a sum of Rs.44,30,812/- has actually been paid to the Opposite Parties, as mentioned in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Parties, at the time of arguments on 09.11.2017. 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 may be stated here that the Opposite Parties, in similar cases relating to this project, had given an exit option to the complainant(s) in June 2013, in view of stay by Hon’ble Supreme Court, to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession. However, in the instant case, no such document has been placed on record to show that any such offer was ever given to the allottee in the year 2013. 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 (Annexures R-7 & R-8), which in turn, delayed the completion of the project. The Opposite Parties have claimed that this being a force majeure condition, they are entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Parties to the complainant on 14.01.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint has been filed on 11.04.2017.  

17.        The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 10.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite Parties that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexures R-5 & R-6), is not relevant.

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. 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 three Judges Bench of Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’ III (2017) CPJ 270 (NC).

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

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, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was also stated that since the property, in question, is situated in District Panchkula, a part of cause of action arose at Panchkula. It may be stated here that according to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him/her. Clearly, application for allotment of Unit (Annexure R-3) was made by the complainant at Chandigarh address of the Opposite Parties viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer’s Agreement was also executed between the parties on 10.01.2011 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.

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 the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

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

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

 

 

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

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

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

 

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

23.        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 10.01.2011 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 Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

24.       Though in similar cases of this project, the Opposite Parties have been taking benefit of one year on account of stay by Hon’ble Apex court from April 2012 to December 2012 but in the instant case, no exit option is available on record. The Opposite Parties have specifically pleaded that there was stay by the Hon’ble Apex court, which in turn delayed the project. 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 in January 2014 on 09.01.2014. No justification whatsoever for delay in offering possession beyond 09.01.2014 has been explained by the Opposite Parties. The argument of the Opposite Parties that delay in handing over possession of independent floor was attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 10.01.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 14.01.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question, to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Parties. It is also on record that vide email dated 21.03.2016, the complainant pointed out certain snags/deficiencies in the unit, in question. Subsequently, he vide his emails dated 26.05.2016, 29.05.2016 & 03.08.2016 asked the Opposite Parties for handing over of possession and about his entitlement for 12% interest on the deposited amount for late handing over of possession of the unit, in question. Further, there are, on record, customer observation sheets dated 09.07.2016 & 16.01.2017, whereby the complainant again pointed out number of snags/deficiencies in the unit in question. All the aforesaid emails and observation sheets have been annexed as Annexure C-6 Colly. The Opposite Parties are bound to remove the deficiencies/snags, pointed out, in the construction of the unit, in question, and deliver the possession to the complainant.

25.       The complainant in Para 9 of the complaint has challenged the demand raised by the Opposite Parties to the tune of Rs.12,78,591.88, vide offer of possession letter dated 14.01.2016. It may be stated here that in large number of cases of this very project, this Commission has held such demands raised by the Opposite Parties, to be justified. It was also so held in case titled ‘Kavita Devi Vs. M/s DLF Homes Panchkula Pvt. Ltd. & Anr.’, Consumer Complaint bearing No.31 of 2017, decided by this Commission on 17.05.2017.

26.       So far as specific claim of the complainant with regard to demand raised towards change in area as per clauses No.1.10 for PLC and 10 for change in area as per Floor Buyer’s Agreement, it may be stated here that admittedly, the complainant was informed about this demand while offering possession, vide letter dated 14.01.2016. As per Clause 10 of the Agreement, if there was an increase/decrease of more than 15% in the saleable area of the independent floor, only then, the Opposite Parties were to intimate the complainant in writing and obtain his consent. The total increase in the saleable area, in the instant case, being less than 15%, the Opposite Parties were not bound to seek consent of the complainant. The saleable area of the unit, in question, as per the agreement was 1550 sq. ft. and while offering possession, in the final statement of account, annexed with the possession letter dated 14.01.2016, it was mentioned that the final area of the unit was 1751 sq. ft. Thus, there was increase of 201 sq. ft. When compared with the original area of the unit viz.1550 sq. ft., the increase is around 13%, which is less than 15%. Still in case, the complainant had any grievance regarding increase in area, he could raise objection 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 11.04.2017. 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 was liable to pay the same.

27.       It may be stated here that while offering possession vide letter dated 14.01.2016, the Opposite Parties raised a demand of Rs.12,78,591.88, which included contingent deposit of Vat of Rs.25,477/- and Rs.2,58,828/- on account of Stamp Duty & Registration Charges. As stated during arguments, the complainant has made payment of the entire amount of demand raised, including contingent deposit of vat of Rs.25,477/-& property registration charges of Rs.2,58,828/-, on 10.02.2016 and 23.02.2016. This stands corroborated from copies of receipts at Pages 37 and 38 of the complaint. The requisite documents have also been executed and submitted by the complainant to the Opposite Parties. Though the Counsel for the Opposite Parties, during arguments, stated that reminder to take possession of the unit, in question, was sent on 10.10.2017, but fact remains that the unit, in question, has not been delivered to him (complainant) till date.

28.         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 10.01.2011 i.e. by 09.01.2014. There is, thus, inordinate delay of around 2 years, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 14.01.2016. Clearly there is delay in offering possession on account of which, the complainant deserve to be compensated. The two Judges Bench of 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.

 

              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, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the delay period in offering possession.

            However, in the instant case, the complainant, being second allottee, had furnished an undertaking on 29.06.2015 (at Page 234 of the written statement) not to claim compensation on account of delayed possession. Paras 4 & 5 of the said undertaking reads thus:-

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

5. We undertakes that I am satisfied ourself with all the aspects concerning the substitution of the Floor in their name and the I hereby undertakes not to hold the company responsible and liable in the event and discrepancy of whatsoever nature is noticed in any of the documents at a later date.”

 

The unit was transferred in his favour on 02.07.2015. 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. 02.07.2015 (date of transfer) up-to + 2 months from the date of offer of possession. The possession having been offered on 14.01.2016, the complainant shall be entitled to compensation up-to plus 2 months from 14.01.2016 i.e. 13.03.2016 (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 i.e. from the date the unit was transferred in his name. For failure of the Opposite Parties to deliver possession within 30 days from the date, payment was made and documents were submitted, the complainant shall be further entitled to interest @12% for delay beyond 30 days, till the date possession is delivered.

30.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the date promised in the Agreement and within one year extended period. The complainant has been 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. 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.

31.       In following three complaints bearing Nos.358, 535 & 545, 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.`1	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.	358/2017	24.02.2011	23.02.2014	26.10.2016	Yes on 25.04.2017	Yes	1,35,545.57
2.	535/2017	18.07.2011	17.07.2014	05.10.2016	Yes on 15.11.2016, 15.05.2017 & 22.08.2017	Yes	15,525.25
3.	545/2017	22.03.2011	21.03.2014	28.02.2017	Yes on 05.09.2017 (Rs.2,88,860/-)	Pending	23,812.56

 

32.       In the complaints tabulated above, possession of the unit(s), in question, was offered to the complainant(s) in the months of October 2016 and February 2017.

33.       It may also be stated here that in all these three complaints, amounts towards the demand raised vide offer of possession letters have been deposited by the complainants with the Opposite Parties. The documents have been submitted in complaint cases bearing No.358 & 535, both of 2017 except complaint bearing No.545 of 2017, wherein reminder to submit requisite documents, as stated by the Counsel for the Opposite Parties, has been sent to the complainant(s) on 07.11.2017. In these cases, possession of the units, in question, has not yet been delivered to the complainant(s).

34.       Sh. Arjun Sharma, Advocate alongwith Sh. Shiv Kumar, Advisor (Legal) 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. It was stated and agreed by Counsel for the Opposite Parties that the stamp duty and registration charges would be payable by the complainants at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainants.

35.       In complaint bearing No.358 of 2017, the complainant has moved a miscellaneous application bearing No.673 of 2017 to place on record Customer Observation Sheet dated 08.05.2017 and Photographs, to show that there are number of snags/deficiencies in the unit in question. In reply to the said application, the Opposite Parties stated that deficiencies pointed out at para no.2(a), (b), (f), (g), (h), (i) & (j) of the application have been rectified. Regarding deficiency at (e) i.e. not providing of jet in the washroom of servant quarter, it was stated that the Opposite Parties are not bound to provide the same. Qua deficiencies at (c) & (d) i.e. the floor and wall tiles are of different color, it was stated that since the tiles are ordered in bulk, slight difference of color is always bound to be there. It was stated that option for change of tiles having colour difference has been given to the complainant from the available lot. It was further stated that some of the items like magic eye etc. are required to be fixed at the time of taking over possession. In our opinion, the document i.e. Customer Observation Sheet dated 08.05.2017 and photographs are necessary to settle the issue qua snags/deficiencies in the unit, in question. The application is allowed and the aforesaid document and photographs are taken on record.

36.       Counsel for the complainant(s), at the time of arguments argued that snags, lastly pointed out on 31.08.2017, still exist. On the other hand, Counsel for the Opposite Parties stated that the snags have been removed and reminder to take possession was sent on 10.10.2017. The snags, if any, shall be removed by the Opposite Parties within four weeks from the date of receipt of certified copy of the order.

37.       In complaint bearing No.535 of 2017, the complainant(s) submitted Snag List/Customer Observation to the Opposite Parties on 28.10.2016 (Annexure C-5, at Page 82 of the file) & on 15.05.2017 (Annexure C-7, at Page 84 of the file), pointing out number of snags, which, as alleged by the complainant(s), still exist. Similarly, in complaint bearing No.545 of 2017, snag list/Customer Observation Sheet (Annexure C-5) was submitted by the complainant to the Opposite Parties on 26.06.2017.       The Counsel for the Opposite Parties, on instructions from Sh. Shiv Kumar, Advisor (Legal) of the Opposite Parties, stated that the snags/deficiencies, if any, will be removed, before delivering possession.

38.       Therefore, in all the aforesaid three complaints, the complainants are held entitled to compensation @12% p.a. interest on the deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession. After payment and submission of documents, in the event of failure of the Opposite Parties to deliver possession, after removal of snags, within 30 days, for delay beyond 30 days, the complainants shall be further entitled to interest @12% till actual physical possession is delivered.

39.        The complainant(s), in all the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service. In complaints bearing Nos.535 & 545, both of 2017, the complainants are held entitled to compensation in the sum of Rs.1,50,000/- in each case, on account of mental agony, physical harassment and deficiency in service. However, in complaint bearing No.358 of 2017, there has been DLI in the sum of Rs.1,35,545.57 against the complainant. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant, in this case, is not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,00,000/- would serve the ends of justice.

40.         In two complaints bearing No.377 and 537, both of 2017, particulars of which are given hereunder, in Table-II, possession of the unit(s), in question, stands delivered to the complainant(s) on 05.08.2017 & 09.06.2017 respectively, after deposit of the amounts, towards demands raised vide offer of possession letter(s), minus the demand qua component of contingent deposit of vat. This was admitted by the Counsel for the parties during arguments.

TABLE-II

Complaint No.	377/2017	537/2017
Date of Independent Floor Buyer’s Agreement.	10.02.2011	07.01.2011
Whether 1st or 2nd allottee	1st Allottee	1st Allottee
Due date for possession after 2 years plus 1 year extended period	09.02.2014	06.01.2014
Date on which possession offered.	15.11.2016	05.10.2016
Date on which possession taken	05.08.2017	09.06.2017
DLI (Rs):	35,647.38	27,936.20

 

41.       Therefore, in these two complaints, for the aforesaid reasons, the complainants are held entitled to compensation by way of grant of 12% interest on the deposited amount, for the delay period, (after two years + one year extended period), up-to the date of offer of possession plus 2 months (30 days for making payment + 30 days grace period).

42.       The complainant(s), in the aforesaid complaints, are also held entitled to compensation in the sum of Rs.1,50,000/-, in each case, on account of mental agony, physical harassment and deficiency in service.

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

44.      For the reasons recorded above, all the complaints bearing Nos.315, 358, 377, 535, 537 and 545 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

315, 358, 535 and 545 all of 2017

 

 

45.       In these complaints, possession of the unit(s), in question, was offered to the complainant(s) in the months of January, 2016, October 2016 and February 2017. Amounts towards the demand raised vide offer of possession letters have been deposited by the complainants. In complaint bearing Nos.315, 358 & 535 all of 2017, the requisite documents have also been submitted by the complainants. Admittedly, in all these four cases, possession of the unit(s), in question, has not yet been delivered to the complainant(s). The Opposite Parties shall hand over possession within 30 days after removing the snags, if any.

            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), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, is made and documents, wherever pending, 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 02.07.2015, 24.02.2014, 18.07.2014 & 22.03.2014 respectively up-till two months from the date of offer of possession i.e. up-to 13.03.2016, 25.12.2016, 04.12.2016 & 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.             Further for failure of Opposite Parties to deliver possession within 30 days from the date of making payment/ submission of documents by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.       [In CC No.315 of 2017, the complainant shall also be entitled to interest @12% p.a. on the stamp duty and registration charges paid by the complainant till sale deed is executed.]
	(iv)	Pay compensation in the sum of Rs.1,50,000/- each [in CC No.315, 535,  & 545 all of 2017] & Rs.1,00,000/- [in CC No.358 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:   377 and 537 both of 2017.

 

46.       In these cases, possession of the units, in question, stands delivered to the complainants.

            The Opposite Parties shall remove the snags/deficiencies in the unit(s), in question, within 30 days from the date of receipt of certified copy of the order.

            The Opposite Parties, in these cases, are further, jointly and severally held liable and directed as under:-

(i)	Execute and get registered the sale deed in respect of the unit, in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), with effect from 10.02.2014 & 07.01.2014 till 14.01.2017 & 04.12.2016 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.             Further 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, till the date possession was delivered, shall be payable within 45 days from the date of receipt of certified copy of this order and failure shall entail penal interest @15% p.a., instead of 12% p.a., till payment is made.
(iii)	Pay compensation in the sum of Rs.1,50,000/-, in each case, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, in each case, as litigation costs, 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 till realization.

 

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

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

49.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.358, 377, 535, 537 and 545 all of 2017.

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

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

Pronounced.

16.11.2017

 (DEV RAJ)

PRESIDING MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

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