Chandigarh
StateCommission
CC/974/2016
Naresh Kumar - Complainant(s)
Versus
DLF Homs Panchkula Pvt.Ltd. - Opp.Party(s)
Narender Yadav, Vineet Yadav, Adv.
12 Apr 2017
ORDER
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Consumer Complaint | : | 974 of 2016 |
Date of Institution | : | 29.12.2016 |
Date of Decision | : | 12.04.2017 |
Naresh Kumar S/o Sh. Rattan Lal, H. No.10, Jind Road, Model Town, Kaithal, Haryana.
.........Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 953 of 2016 |
Date of Institution | : | 21.12.2016 |
Date of Decision | : | 12.04.2017 |
- Surender Bairagi son of Sh. Yudhishter Singh,
- Pushpa wife of Sh. Surender Bairagi,
Both residents of House No.2097, Sector 27-C, Chandigarh.
.........Complainants.
Versus
- 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.
- 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.
- Director General, Town and Country Planning, Haryana, HQ at SCO 71-75, Sector 17-C, Chandigarh – 160017.
..........Opposite Parties.
Argued by:
Sh. Shubhankar Baweja, Advocate for the complainants.
Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for Opposite Parties No.1 & 2.
Complaint against Opposite Party No.3 already stands dismissed vide order dated 06.01.2017.
Consumer Complaint | : | 958 of 2016 |
Date of Institution | : | 22.12.2016 |
Date of Decision | : | 12.04.2017 |
Satpal Singh, aged about ___ years, son of Late Shri Mam Chand, resident of House No.631, Sector 13-17, Panipat at present SDM Residence Bhiwani, District Bhiwani (Haryana).
……Complainant.
Versus
- 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.
- 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.
Site Address: The Valley, Sector 3, Kalka, Pinjore, Urban Complex.
..........Opposite Parties.
Argued by:
Sh. R. S. Sathi & Sh. Robin Sathi, Advocates for the complainant.
Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 960 of 2016 |
Date of Institution | : | 19.12.2016 |
Date of Decision | : | 12.04.2017 |
Rajinder Sharma, aged about 48 years, son of Shri Pyare Lal Sharma, resident of House No.20640, Ajit Road, Street No.26/2, Bathinda (Punjab).
…..Complainant.
Versus
- 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.
- 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.
Site Address: The Valley, Sector 3, Kalka, Pinjore, Urban Complex.
..........Opposite Parties.
Argued by:
Sh. R. S. Sathi & Sh. Robin Sathi, Advocates for the complainant.
Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 975 of 2016 |
Date of Institution | : | 24.12.2016 |
Date of Decision | : | 12.04.2017 |
Ram Pal Singh S/o Sh. Hari Singh R/o H.No.860, Sector-9, Panchkula.
……Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 976 of 2016 |
Date of Institution | : | 29.12.2016 |
Date of Decision | : | 12.04.2017 |
- Narender Kumar S/o Sh. Chuni Lal,
- Kaushal Sharma S/o Narender Kumar Sharma,
Both R/o H.No.140, 1st Floor, Bhai Parmanand Colony, Kingsway Camp, Delhi.
….Complainants.
Versus
- 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.
- 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 complainants.
Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 979 of 2016 |
Date of Institution | : | 29.12.2016 |
Date of Decision | : | 12.04.2017 |
Dr. A. S. Chandel S/o Late Sh. Kidar Singh, Flat No.105, Prashar Complex, Ward No.10, JBT Road Kotla Nala, Solan, Nauni Solan – 173212.
…..Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 980 of 2016 |
Date of Institution | : | 29.12.2016 |
Date of Decision | : | 12.04.2017 |
Mohinder Singh S/o Sh. Kehar Singh R/o H.No.642-B, R.C.F.T-II, Hussainpur, K.P.T., Punjab.
…..Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 981 of 2016 |
Date of Institution | : | 29.12.2016 |
Date of Decision | : | 12.04.2017 |
Avinash Chander Mehta S/o Sh. Bashamber Dass Mehta, Flat No.101, GHS-32, Sector-20, Panchkula, Haryana.
….Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 51 of 2017 |
Date of Institution | : | 18.01.2017 |
Date of Decision | : | 12.04.2017 |
- Lt. Col. Vishal Mahajan S/o Satish Kumar Mahajan,
- Shikha Mahajan W/o Lt. Col. Vishal Mahajan,
Both R/o #55, FAFA Colony, Bhim Road, Jalandhar Cantt. Punjab.
….Complainants.
Versus
- 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.
- 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 complainants.
Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Consumer Complaint | : | 54 of 2017 |
Date of Institution | : | 18.01.2017 |
Date of Decision | : | 12.04.2017 |
Col. Vishal Madhok S/o Lt. Col. D. B. Madhok (Retd.) R/o H.No.3026, Sector 35-D, Chandigarh – 160022.
….Complainant.
Versus
- 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.
- 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, Sh. Parveen Jain & Ms. Sapna Seth, Advocates for the Opposite Parties.
Complaints under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
PER DEV RAJ, MEMBER
By this order, we propose to dispose of the aforesaid 11 consumer complaints bearing Nos.974, 953, 958, 960, 975, 976, 979, 980, 981 all of 2016 and 51 & 54 both of 2017.
2. After hearing arguments on 27.03.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, are the same, and therefore, the aforesaid 11 complaints can be disposed of, by passing one consolidated order.
During arguments, Ms. Ekta Jhanji, Advocate, Counsel for the Opposite Parties, placed on record, a detailed chart, under her signatures, showing in each case detail of property purchased, its price, date of agreement, total price and amount received and further whether possession offered etc. which was taken on record. It was also stated by the Counsel that the facts given in the chart were correct, as per their record.
3. Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.974 of 2016, titled as ‘Naresh Kumar & Anr. 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, one Rajesh Mirchumal Mirchandani booked an independent floor with total area of 1450 sq. ft. in DLF Valley Project on 27.03.2010 and paid an amount of Rs.4,00,000.00. Sh. Rajesh Mirchumal Mirchandani entered into an Independent Floor Buyer’s Agreement with the Opposite Parties on 15.02.2011 (Annexure C-1) whereby an independent floor bearing No.D-6/21 SF (Second Floor) with a parking bearing No.P-2F, measuring 1450 sq. ft. was allotted to him. Subsequently, the complainant entered into an Agreement with the original allottee on 29.03.2012 and the property was transferred in the name of the complainant vide endorsement letter dated 29.03.2012 (Annexure C-2). The total price of the unit was fixed as Rs.32,18,999.69. In Para 7 of the complaint, it was stated that till 04.08.2016, the total amount of Rs.34,64,149/- was paid 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 vide letter dated 29.10.2016 offered the physical possession of the unit, in question and asked the complainant to deposit the amount of Rs.7,38,525/- to be paid within six months with a condition that non-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 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. It was further stated that the Opposite Parties demanded Rs.22,916/- 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 his 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.22,916/- 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.70,000/- 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 is a subsequent purchaser and had purchased the said floor on 29.03.2012 from the original allottee, namely, Sh. Rajesh Mirchumal Mirchandani. It was further stated that the disputed floor was allotted to the original allottee on 03.04.2010 and subsequently Floor Buyer’s Agreement was executed with the original allottee on 15.02.2011. 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, which amounted to default/breach of its terms and conditions. It was further stated that the complainant is backing out from the executed contract. It was further stated that the complainant had full knowledge about the executed terms of Agreement. It was further stated that occupation certificate was applied on 21.03.2016, which was received on 09.06.2016. It was further stated that the offer of possession has already been sent to the complainant vide letter dated 29.10.2016 (Annexure R/1 colly). 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 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. As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received. It was reiterated that occupancy certificate of the floor, in dispute, had already been received on 09.06.2016 and offer of possession letter dated 29.10.2016 already sent to the complainant. 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. Further, the value of the property as per Schedule of Payment (SOP) was Rs.35,40,080.10 plus service tax, as applicable. It was further stated that due to increase in area of the floor after final measurement from 1450 sq. ft. to 1575 sq. ft., the price of the floor stood revised to Rs.40,16,378.72 plus service tax. It was further stated that the complainant had deposited a sum of Rs.34,64,149.12 and there is an outstanding amount of Rs.16,083.83 towards DLI of 163 days.
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 booked by him for investment purposes and earning profits. Another objection raised in the written statement is that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite 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 of preliminary objections, it was 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. Apart from above objections, the territorial jurisdiction of this Commission to entertain and try the complaint has been challenged on the ground that since the project, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District, only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint.
11. The Opposite Parties also moved miscellaneous applications under Section 8 of Arbitration and Conciliation Act, 1996 in all these consumer complaints, as under, for referring the matter to the sole arbitration:-
Sr. No. | Complaint Case No. | Miscellaneous Application No.
|
974/2016 | 281/2017 | |
953/2016 | 219/2017 | |
958/2016 | 279/2017 | |
960/2016 | 280/2017 | |
975/2016 | 282/2017 | |
976/2016 | 283/2017 | |
979/2016 | 285/2017 | |
980/2016 | 286/2017 | |
981/2016 | 287/2017 | |
51/2017 | 274/2017 | |
54/2016 | 276/2017 |
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, reiterating the submissions, as stated above, 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 delivery of possession of the unit, in question, was delayed on account of force majeure conditions. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was again reiterated that after receiving occupancy certificate for the floor, in question, on 09.06.2016, offer of possession letter dated 29.10.2016 was sent to the complainant. 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 after allotment of the unit, in question, to Sh. Rajesh Mirchumal Mirchandani, the original allottee, an Independent Floor Buyer’s Agreement between him and the Opposite Partes was executed at Chandigarh on 15.02.2011 (Annexure C-1). The total price of the said independent floor, as depicted in the Agreement, was Rs.32,18,999.69, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. Thereafter, said unit was purchased by the complainant, which was transferred in his name vide endorsement dated 29.03.2012 (annexure C-2 at page 43 of the file). The complainant, in all, actually paid a sum of Rs.41,79,759/- 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 27.03.2017. 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, 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 unit, in question was transferred in the name of the complainant on 29.03.2012. The possession of the unit, in question, has been offered by the Opposite Parties to the complainant on 29.10.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint was filed on 29.12.2016. As is evident from zimini order dated 06.03.2017, admittedly, against the demand raised vide offer of possession letter dated 29.10.2016, the complainant has paid the entire amount to the Opposite Parties minus amount towards contingent deposit of vat i.e. Rs.7,15,638/- on 21.01.2017 + Rs.82,766/- on 17.02.2017 and only the requisite documents remained to be submitted by the complainant. It was ordered that on furnishing the documents, actual physical possession of the unit, in question, be handed over by the Opposite Parties to the complainants immediately. During arguments on 27.03.2017, it was admitted by the Opposite Parties that despite payment of the amount towards the demand raised, possession of the unit, in question, has still not been delivered to the complainant.
17. As regards prayer of the Opposite Parties, in preliminary submissions, to allow them 31% cost escalation of construction as well as 47% of the land holding cost, totaling 76% of the sale price, it may be stated that 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.
18. Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 15.02.2011 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 (Annexures R-5 and R-6), is not relevant.
19. The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. 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 the Opposite Parties, being devoid of merit, is rejected.
20. Another objection raised by the Opposite Parties was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was stated that since the 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, application for allotment of Unit (Page 86 of written statement) was made by the complainant at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh of Opposite Parties. Independent Floor Buyer’s Agreement (Annexure C-1) was also executed between the parties on 15.02.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainant, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.
21. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainant had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to him, to file the complaint. The submission of the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
22. The next objection raised by 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”
23. 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.
24. 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, for his own 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.
25. The next question, that falls for consideration, is, as to whether, there is delay in offering/delivering possession of the flat, in question. Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 15.02.2011 [Exhibit C-1] read thus:-
“11(a) Schedule for possession of the said Independent Floor:-
The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.
11(b) Delay due to reasons beyond the control of the company:-
If the possession of the Said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension.”
As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainant was entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.
26. 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 February 2014 on 14.02.2014. No justification whatsoever for delay in offering possession beyond 14.02.2014 has been explained by the Opposite Parties. As admitted by the Counsel for the opposite parties, at the time of arguments, the complainant has made payments in the sum of Rs.41,79,759/-. As stated in the written statement, permission for occupation of the unit, in question, was received on 09.06.2016 (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 14.02.2014, and by not abiding by the commitment, made by the Opposite Parties, they 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 15.02.2011 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 (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. Clearly, there is inordinate delay of around 3 years 8 months beyond initial stipulated period of two years and 2 years 8 months from one year extended period 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 Opposite Parties. The Opposite Parties are also bound to remove the deficiencies/snags, if any, in the construction of the unit, in question, without delay.
27. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite Parties did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 15.02.2011 i.e. by 14.02.2014. 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 29.10.2016 i.e. just two months 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, 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.
28. 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.”
29. 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.
30. 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 beyond two years plus one year extended period i.e. from 15.02.2014, till delivery of possession of the unit would meet the ends of justice. The possession having been offered on 29.10.2016, the complainant shall be entitled to compensation up-to plus 2 months from 29.10.2016 i.e. 28.12.2016 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above.
31. During arguments, Counsel for the complainant stated that in terms of this Commission order dated 03.01.2017, the amount towards demand raised vide offer of possession letter dated 29.10.2016, minus, contingent deposit of vat, stood deposited with the Opposite Parties. It was stated that despite payment as above by the complainant, the Opposite Parties have not delivered possession of the unit, in question. Therefore, for delay beyond 30 days, the complainant shall be further entitled to compensation @12% interest till possession is handed over.
32. The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Parties, by the promised date in the Agreement or latest by 14.02.2014 i.e. within the extended period. Admittedly, the possession of unit, in question, has been offered to the complainant on 29.10.2016. 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/-.
33. Similarly, in following 8 complaints bearing No.953, 958, 960, 975, 976, 980 all of 2016 and 51 & 54 both of 2017, particulars of which are indicated in Table-I below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-
TABLE – I
Sr. No. | Complaint No. | Date of independent Floor Buyer’s Agreement.
| Due date for possession after 2 years plus 1 year extended period
| Date on which possession offered. | Date on which amount deposited after offer of possession (minus contingent deposit of vat). | Whether requisite documents submitted. If so, on which date. |
A. | B. | C. | D. | E. | F. | G. |
1. | 953/2016 | 22.12.2010 | 21.12.2013 | 10.10.2016 | Not deposited | Pending |
2. | 958/2016 | 24.02.2011 | 23.02.2014 | 10.10.2016 | 06.02.2017 | Pending (Rs.2,000/- also pending) |
3. | 960/2016 | 14.12.2010 | 13.12.2013 | 15.11.2016 | 07.02.2017 | Pending |
4. | 975/2016 | 22.12.2010 | 21.12.2013 | 15.11.2016 | 14.01.2017 | Yes |
5. | 976/2016 | 24.12.2010 | 23.12.2013 | 15.11.2016 | 30.01.2017 | Yes |
6. | 980/2016 | 07.02.2011 | 06.02.2014 | 15.11.2016 | 06.02.2017 | Yes |
7. | 51/2017 | 30.12.2011 | 29.12.2014 | 29.10.2016 | 08.02.2017 | Yes |
8. | 54/2015 | 07.12.2010 | 06.12.2013 | 15.11.2016 | 30.01.2017 | Yes |
34. In the aforesaid 8 complaint cases, at Sr. Nos.1 to 8, in the above Table-I, possession of the units, in question, was offered by the Opposite Parties to the complainant(s) in October/November 2016.
35. It was stated by Counsel for the Opposite Parties that after receipt of payment from the complainants and submission of documents, communication(s) have been sent to the complainants to take possession. It was further stated that wherever snags/deficiencies were pointed out by the complainants, intimation so sent was after removing the snags.
36. As per offer of possession letters placed, on record, in the aforesaid cases, six months’ time was given to the complainant(s) to complete the formalities and make the payment. Ms. Ekta Jhanji, Advocate alongwith Sh. Parveen Jain and Ms. Sapna Seth, Advocates, Counsel for the Opposite Parties, on instructions, stated that the Opposite Parties are not insisting upon contingent deposit of Vat at this stage, subject to furnishing of an affidavit by the allottee(s) to make the payment as and when demanded by the Government. While offering possession, no demand on account of stamp duty and registration charges has been raised. It was further stated that the complainants need not pay Advocate charges. The stamp duty and registration charges shall be payable by the complainants, at the time of executing of sale deed and incidental expenses shall also be borne by the complainants.
37. In all above complaint cases, except complaint case bearing No.953 of 2016, in terms of order dated 06.03.2017 passed by this Commission, the amount towards the demand raised (minus) contingent deposit of vat, stood deposited by the complainants on respective dates, mentioned, against each of these cases, in Column ‘F’ of above Table-I. Further, except in complaint cases No.953, 958 & 960, the requisite documents have also been submitted by the complainant(s) to the Opposite Parties in rest of the complaint cases. In complaint cases No.958 and 960 both of 2016, it was stated that the requisite documents shall be submitted by the complainant(s) to the Opposite Parties immediately.
38. It may be stated here that in complaint case No.953 of 2016, though in the possession letter dated 10.10.2016, the complainants were given six months time to deposit the amount, Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates, Counsel for the Opposite Parties, on instructions, stated that in case, allottee(s) is/are eager to get possession, they will complete formalities and deposit the amount before the period of six months and as and when amount is deposited and necessary documents are submitted, within 3 weeks thereafter, possession will be handed over, to the complainant(s).
39. In complaint case No.958 of 2016, as admitted by the Counsel for the Opposite Parties, only an amount of Rs.2,000/- remains to be paid by the complainant and as stated above, the entire amount, minus contingent deposit of vat and Rs.2,000/-, stood deposited. The balance amount of Rs.2,000/- shall be deposited by the complainant immediately.
40. In complaint cases No.980 of 2016 and 51 & 54 both of 2017, as is apparent from orders dated 06.03.2017 passed by this Commission, the snags in the construction of the unit(s), in question, have been removed and the same are ready for possession.
41. However, the fact is that in all the above mentioned eight complaints, possession of the units, in question, has not been delivered by the Opposite Parties.
42. Therefore, in all aforesaid complaints, the complainants are entitled to compensation by way of grant of 12% interest, for the delayed period, up-to the date of offer of possession plus 2 months (30 days for making payment + 30 days grace period), as under:-
Sr. No. | Complaint No. | Date of offer of possession | Date up-to which entitled to compensation |
1. | 953/2016 | 10.10.2016 | 09.12.2016 |
2. | 958/2016 | 10.10.2016 | 09.12.2016 |
3. | 960/2016 | 15.11.2016 | 14.01.2017 |
4. | 975/2016 | 15.11.2016 | 14.01.2017 |
5. | 976/2016 | 15.11.2016 | 14.01.2017 |
6. | 980/2016 | 15.11.2016 | 14.01.2017 |
7. | 51/2017 | 29.10.2016 | 28.12.2016 |
8. | 54/2015 | 15.11.2016 | 14.01.2017 |
43. If after deposit of amount minus contingent deposit of vat and submission of requisite documents, possession is not delivered, for delay beyond 30 days, the complainants shall be further entitled to compensation by way of interest @12% p.a. on the deposited amount.
44. In two consumer complaints bearing Nos.979 and 981 both of 2016, particulars of which are given in Table-II hereunder, in terms of orders passed by this Commission, possession of the units, in question, stands delivered to the complainants on 24.02.2017 and 27.02.2017, after deposit of the amounts on 18.01.2017 and 12.01.2017 respectively, towards demands raised vide offer of possession letters, minus the demand qua component of contingent deposit of vat. This was admitted by the Counsel for the parties during arguments.
TABLE – II
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 on which possession taken | Compensation, if any, credited. (Rs.) | DLI if any (Rs.) |
1. | 979/2016 | 21.07.2014 | 20.07.2016 | 10.10.2016 | 24.02.2017 | - | 50,721.00 |
2. | 981/2016 | 02.12.2010 | 01.12.2013 | 05.10.2016 | 27.02.2017 | - | - |
45. In complaint case No.979 of 2016, counsel for the complainant argued that since the unit, in question, was allotted to the complainant in the year 2010 and the agreement was executed between the parties on 21.07.2014, there is a delay of approximately 4 years in executing the agreement. It was further argued that since the agreement was executed in July, 2014, therefore, the Opposite Parties cannot take advantage of 12 months on account of stay by Hon’ble Supreme Court of India for the period April, 2012 to December 2012. In this case, the unit, in question, was booked by the complainant in March 2010. The complainant paid substantial amount of Rs.35,38,670/- uptil 26.03.2014 (during the period 26.03.2010 till 26.03.2014), as is apparent from the table given in Para No.6 of the complaint and the Opposite Parties executed the Agreement only on 21.07.2014. Thus, in the instant complaint case, despite payment of substantial amount of Rs.35,38,670/-, agreement was not executed till 21.07.2014. This Commission has held in number of cases that if Agreement is not presented for signing within a reasonable time, from the date of receipt of earnest money, it would amount to adoption of unfair trade practice on the part of a builder. It was so said by this Commission, in a case titled as ‘Sudesh Rani Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. & Anr., Complaint Case No.178 of 2016, decided on 16.08.2016. Relevant paras of the said order, reads thus:-
“10. As per admitted facts on record, the complainant purchased the plot, in question, and deposited an amount of Rs.13.50 lacs, on 04.12.2010. Thereafter, she again made payment of amount of Rs.8.10 lacs on 15.06.2011. On receipt of huge amount, Agreement was not got signed. To cover the delay, one allotment letter was issued on 12.12.2011, showing provisional allotment of plot no.974, measuring 321 square yards to the complainant. Agreement in the shape of Allotment Letter was got signed on 27.04.2012 i.e. after a period of 16 months, on receipt of first payment of Rs.13.50 lacs on 04.12.2010. This Commission has held in number of cases that if Agreement is not presented for signing within a reasonable time, from the date of receipt of earnest money, it would amount to adoption of unfair trade practice on the part of a builder. It was also earlier so said by this Commission, in a case titled as Usha Kiran Ghangas Vs DLF Homes Panchkula Private Limited, Complaint Case No.93 of 2016, decided on 02.06.2016. Relevant portion of the said case, reads thus:-
“The opposite parties are also guilty of adoption of unfair trade practice. It is on record that the complainant booked the unit, in question, in the project aforesaid, on 16.02.2011. She was allotted unit, vide letter dated 23.02.2011, on which date, she had paid an amount of Rs.4 lacs. Buyer’s Agreement was not put for signing in a reasonable time, say two to three months. She continued to make payment and when Buyer’s Agreement was got signed, on 18.08.2011, she had already paid an amount of Rs.21,68,524/-. By not offering Buyer’s Agreement, for signing in a reasonable time, the opposite parties also committed unfair trade practice. The complainant is a widow. Her interest needs to be protected”.
11. In the present case, Allotment Letter/Agreement was got signed after about 16 months of receipt of huge amount. By doing so, the opposite parties have indulged into unfair trade practice, for which the complainant is entitled to reasonable compensation, as per prayer made at the time of arguments.”
In the present case, Agreement was got signed after about 4 years of receipt of huge amount of Rs.35,38,670/-. The fact that there was stay by Hon’ble Supreme Court of India during the period April 2012 to December 2012 cannot be overlooked. As is evident from letter dated 15.04.2013 (Annexure R-3), consent of the complainant was sought 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. The Opposite Parties are, therefore, entitled to benefit of this period. Besides, there was stay by Hon’ble High Court from 06.04.2010 till 23.07.2010 restraining the Opposite Parties from creating any third party rights. Even by giving benefit to the Opposite Parties for the aforesaid reasons, there was undue delay in execution of the Agreement. Therefore, by inordinately delaying execution of the Agreement, the opposite parties have indulged into unfair trade practice. In the totality of circumstances, the complainant is held entitled to compensation in the sum of Rs.2,00,000/- on account of acts of omission and commission of the Opposite Parties in inordinately delaying execution of the Agreement, thereby indulging into unfair trade practices and mental agony and physical harassment to the complainant and deficiency in rendering service.
46. Since delay after execution of agreement on 21.07.2014 and offer of possession on 10.10.2016 is not very significant, the complainant is held entitled to compensation @Rs.10/- per sq. ft. per month for the delay period, after 2 years i.e. with effect from 22.07.2016, up-to + 2 months from the date of offer of possession i.e. up-to 09.12.2016.
47. In Consumer Complaints bearing Nos.958, 960, 975, 980 & 981 all of 2016, 51 & 54 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.
48. However, in Consumer Complaints bearing Nos.953 and 976 both of 2016, there has been DLI in the sum of Rs.79,948.00 and Rs.73,116.75 respectively against the complainants. Delay in payment of installments partly contributes to delay in completion of unit(s). Therefore, the complainants, in these cases, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/-, in each case, would serve the ends of justice.
49. No other point, was urged, by the Counsel for the parties, in all the cases.
50. For the reasons recorded above, all the complaints bearing Nos.974, 953, 958, 960, 975, 976, 979, 980, 981 all of 2016 and 51 & 54 both of 2017 are partly accepted, with costs, in the following manner:-
Consumer Complaints bearing No:
974, 953, 958, 960, 975, 976, 980 all of 2016 and 51 & 54 both of 2017 |
In these nine cases, the Opposite Parties have offered possession in October 2016 and November 2016, asking the complainants to deposit the amount(s) within six months. In all these cases, except complaint No.953 of 2016, amount towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges stands deposited by the complainants. The Opposite Parties shall hand over possession after removing the snags.
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, from the date balance payment, if any, is made/documents are completed by the complainant(s). |
(ii) | Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s). |
(iii) | To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 15.02.2014, 22.12.2013, 24.02.2014, 14.12.2013, 22.12.2013, 24.12.2013, 07.02.2014, 30.12.2014 & 07.12.2013 respectively up-till two months from the date of offer of possession i.e. up-to 28.12.2016, 09.12.2016, 09.12.2016, 14.01.2017, 14.01.2017, 14.01.2017, 14.01.2017, 28.12.2016 & 14.01.2017 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. In case, the Opposite Parties fail to deliver possession within 30 days from the date of making payment by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made. |
(iv) | Pay compensation in the sum of Rs.1,50,000/- in each case i.e. [in CC Nos.974, 958, 960, 975 & 980 all of 2016 and 51 & 54 both of 2017], and Rs.1,25,000/- in each case i.e. [in CC Nos.953 & 976 both of 2016] 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. |
Complaint Case No.953 of 2016 has already been dismissed against Opposite Party No.3 in that complaint, vide order dated 06.01.2017.
Consumer Complaint bearing No:
981 of 2016. |
In this case, possession of the unit, in question, stands handed over to the complainant on 27.02.2017.
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 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 02.12.2013 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. For delay in delivering possession, beyond 30 days, after payment, by the complainant, the complainant shall be further entitled to compensation by way of interest @12% p.a. till the date of handing over of possession. |
(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 Complaint bearing No:
979 of 2016. |
In this case, possession of the unit, in question, stands handed over to the complainant on 24.02.2017.
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 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 @Rs.10/- per sq. ft. of the saleable area of the unit, in question, per month, for the period from 22.07.2016 till 09.12.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @12% p.a., from the date of default, till realization. |
(iii) | Pay compensation in the sum of Rs.2,00,000/-, on account of acts of omission and commission of the Opposite Parties in inordinately delaying execution of the Agreement, thereby indulging into unfair trade practices and causing mental agony and physical harassment and deficiency in rendering service and Rs.35,000/- as costs of litigation, 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. |
51. 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).
52. As regards the amount of contingent Vat deposit, the complainant(s) shall furnish an affidavit (if not already furnished) 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.
53. Certified copy of this order, be placed on the file of consumer complaints bearing Nos.953, 958, 960, 975, 976, 979, 980, 981 all of 2016 and 51 & 54 both of 2017.
54. Certified copies of this order be sent to the parties, free of charge.
55. The file be consigned to Record Room, after completion.
Pronounced.
12.04.2017
[JUSTICE JASBIR SINGH (RETD.)]
PRESIDENT
(DEV RAJ)
MEMBER
(PADMA PANDEY)
MEMBER
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