Per Mrs. M. Shreesha,Member

This Consumer Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainant against the Opposite Party seeking the following reliefs:-

“i. Direct the respondents to immediately hand over the physical possession of the flat in question duly furnished in all respects as per agreement immediately;

ii. Direct the respondents to provide on time payment rebate of Rs.1500/- per sq. ft. on the total area of the flat in a manner as may be deemed just and equitable by the Hon'ble commission;

iii. To adjust/refund as the position emerges, an amount of parking charges of ₹22,50,000/- wrongfully and illegal collected against the provisions of law.

iv. Direct the opposite party to provide to the complainant the complete calculations and details  of GST benefit granted to flat owners based on the complete audit done by the state statutory auditor and make a copy of such certificate available to the complainant and accordingly adjust/refund the final amount.

v.         Direct the respondent to provide refund/adjustment on account of all other claims prayed  for including refund adjustment of amount paid as Service Tax/ VAT/ GST;

vi.         Direct the opposite party not to insist on execution of any undertaking for handing over possession of  the flat and handover the possession without undertaking or obtain revised undertaking as may be proved by the Hon'ble commission.

vii.        Direct the respondents to pay a sum of ₹1,00,000/- towards cost of litigation;

viii.       Direct to pay compensation of Rs. 25,00,000/- towards mental and physical agony suffered by the complainant.

ix          Declare that terms and conditions more specifically delineated in Annexure with this petition is arbitrary, unfair and unreasonable and strike down from the agreement.

2.       Briefly stated, the facts of the case are that the first Opposite Party  is a public limited Company incorporated and registered under the provisions of the Companies Act, and having its registered office at 3rd Floor Shopping Mall, Arjun Marg DLF City, Phase-I GURGAON; second to seventh Opposite Parties  are the Whole Time Directors of the first Opposite party and are responsible for day to day affairs of the first Opposite Party Company (hereinafter collectively referred to as "DLF Ltd."); Eighth opposite party is a public limited company incorporated and registered under the provisions of the Companies Act and is a land owning party to the execution of Apartment Buyer's Agreement; ninth opposite party is a Confirming party to the Apartment Buyer's Agreement.

3.       It is averred that DLF Ltd. claimed to have obtained license from the Director, Town and Country Planning Haryana, for construction and development of a residential project which comprises of inter-alia flats, known as “DLF CREST" situated in Sector-54 DLF Phase V Gurgaon, Haryana; based on the assurances and promises made by the DLF Ltd. the Complainant applied for allotment of a residential flat in their project known as "DLF CREST situated in Sector-54 DLF Phase –V Gurgaon, by filing an Application and also made payment of ₹25,93,000/- vide cheque No.267119 dated 16.5.2013. This payment was acknowledged by DLF Ltd. and the date of application was intimated as 21.5.2013; that DLF Ltd. forwarded an Apartment Buyers Agreement for execution; the Agreement was executed for flat No CTC-183 in the project DLF CREST" and the terms and  conditions along with payment schedule formed part of the buyers agreement; till which time DLF Ltd. had already collected a huge amount of ₹132 lacs from the complainant; the total cost of the flat was estimated to be ₹6.5 crores; the conditions of the Agreement on a plain reading clearly demonstrate unreasonable conditions imposed by DLF Ltd. on unsuspecting consumers who have no recourse except to sign the Agreement;  the Complainant on Receipt of the Agreement found that there were numerous clauses in the Agreement which were totally one sided, unreasonable i.e. Clause 17(i) of the Agreement provided that  if the Agreement was not signed on the dotted line and returned within 30 days of receiving the Agreement, an amount of approximately ₹132 lakh paid till that time by the Complainant would be forfeited by DLF Ltd. and hence the Complainant was left with no option but to sign the Agreement and send it back; that the contract of  DLF Ltd. is a standard form of pre-printed contract; the amount agreed was ₹1000/- per sq. ft. for 3479 sq. ft. which was the agreed area of the flat at that time; that DLF Ltd. vide its letter dated 16.2.2015 raised the amount of on time payment rebate from earlier ₹1000/- per sq. ft. to ₹1500- per sq. ft.; DLF Ltd. through its letter dated 12.11.2014 informed that they wished to make changes in the layout; the Complainant sought a written commitment from DLF Ltd. that this change would not adversely affect the interest of the Complainant; DLF Ltd. vide its letter dated 12.11.2014 confirmed that the Complainant would in no way be affected by the modification in the size, location of the property; DLF Ltd. never informed the Complainant about any increase in the area even before the date of last demand dated 19.1.2018; the Complainant made all the payments to the opposite party as per the demands raised from time to time with or without interest; on 8.11.2017 the Complainant received a confirmation from DLF Ltd. that all the payments, including interest are paid which were due till that date; that on 30.12.2017 the Complainant received a letter from DLF Ltd.  informing him that the project has been completed and they were working on the final touches; it was also mentioned that they intended offer possession in a phased manner from a future date;  on 19.1.2018 DLF Ltd. sent a letter to complete the payment formalities along with submission of various documents and outstanding payments as per the demand letter; the Complainant observed the following anomalies in the demand letter and also in the documents attached with the demand letter:-

I.          That the opposite party has not supplied any occupancy certificate to the complainant in order to prove that the project is complete in all respects and all necessary approvals are in place;

II.         That the opposite party is collected for parking charges over and above the Rate while such charges are held to be illegal in view of the Supreme Court order;

III.       That an undertaking is required to be given to DLF Ltd. before taking over the possession confirming that the flat owner will not raise any claim of any nature whatsoever towards the company. Such restrictive clause is clearly a restraint on the legal rights of the flat owner which despite being an unfair practice is also bad in law;

IV         That DLF Ltd.  was not providing the credit of on time payment rebate which was committed to the complainant.  DLF Ltd. after receiving near full consideration blatantly refused to extend on time payment rebate on the ground that some of the installments on few occasions was delayed for few days without appreciating that substantial number of installments were paid on or before due date. Wherever the delays are these delays are attributable to the actions of the DLF Ltd. All payments have been made including interest at the rate which was higher than the percentage of interest paid by the opposite party on borrowings thus the opposite party was neither in any way adversely affected by the delay, if any, nor it in any manner hampered the development of the project. It is due to reasons attributable to DLF Ltd. that the Complainant was prevented from making payment on time;

V.         That Demand raised on account of increase in area is not proper to the effect that the complainant will in no way be affected by the modifications in the size, location of the property. Notwithstanding with that, DLF ltd. failed to provide any evidence specifically showing that the increase in area is in which part of the flat. It would be appreciated that in case the increase is not in the internal areas, the question of any charge will not arise. More so in the case of complainant DLF Ltd.  confirmed that there will no additional burden on the complainant if there is any increase in size;

VI.        That Demand of charges on account of additional expenses on the pretext of "other charges". The nature of demand does not even indicate that the claim is of any kind of charges but only claim is that the opposite party has not been able to obtain credit of certain payments. There is no such provision in the agreement to raise any such claim on the complainant in the guise of "Other Charges";

VII.       That Providing a meager amount as refund on account of GST benefit, based on incomplete and standard draft certificate obtained from a Chartered Accountant, and not even from the statutory Auditor without any satisfactory evidence”

4.       It is pleaded that having noticed these discrepancies the Complainant wrote a detailed letter dated 7.2.2018 and further exchanged several emails to the opposition parties raising the said anomalies; he sent a letter dated 7.2.2018 to DLF Ltd. reiterating the objections /issues to which the Complainant has not received any reply; the Complainant did not make any  further payment as no amount was due and in fact the Complainant is entitled to get refund of huge amount which had been unlawfully collected by DLF Ltd.  The cost of the flat is shown as ₹6,73,80,423/- as per the last demand letter dated 19.1.2018 as against  the same Complainant has already paid an amount of ₹6,18,34,595/-. The Complainants claim that adjustment/refund of parking charges and payment rebate alone is ₹75,43,500/-  and thus  the complainant is entitled for refund of an estimated amount of ₹20 lac.

5.       It is stated that in view of the demands made by DLF Ltd., they are not going to hand over the possession to the Complainant till the conditions of its letter dated 19.1.2018 are fully complied; that the complainant has already paid an amount of more than ₹6.18 crore to the opposite party and grave injustice would be done if the Complainant is forced to accept the illegal demands of the opposite party in the guise of withholding the possession.  Hence the present Complaint seeking the afore-noted reliefs.

6.       The  Opposite Parties filed a common Written Statement stating therein that Opposite Party No. 2 to 9 are not necessary parties in the instant Complaint; the Complainant is not a ‘Consumer’ as defined under Section 2(1)(d) (i) of the Act and the controversy involved in the Complaint is not a "Consumer Dispute” as the Complainant is an investor and he applied for allotment of property in question in order to obtain better returns and appreciation in value, which he expected at the time of booking of the Apartment; that the Complainant has deliberately concealed the material facts before this Commission which are essential for proper and fair adjudication of the instant Complaint; it is submitted that the Complainant has deliberately concealed the facts regarding the number of properties he owns; it is submitted that the Complainant has merely invested in a property located in Gurgaon for speculative gains; the Complainant has virtually challenged the mutually agreed, concluded and binding Agreements entered into more than 5 years ago, which is evidently beyond the limitation period; the Complainant has made baseless allegations of unfair trade practice  with an ulterior motive to amend/modify or re-write any concluded Agreement contract duly executed between the parties purely to invoke jurisdiction of this Commission;  that this Commission cannot adjudicate upon a matter where the prima facie prayers are for modification of the Clauses of the Agreement; this Commission has  no power or jurisdiction under the Act to direct modification of any Clause of the Agreement; the Agreement was entered into between parties individually and as such the parties are bound by the terms and conditions mentioned in the respective Agreement and the said Agreement was duly signed and executed by each Allottee/Complainant after properly understanding each and every clause contained in the Agreement and the same has been acted upon true to its intent.

7.       It is averred that the Complainant was neither forced nor was influenced by DLF Ltd. to sign the said Agreement; in the Complaint there is no averment that the said Apartment has been booked by the Complainant for residential purpose; the Complainant is seeking additional benefits by seeking modification of the Agreement; the fixing of ‘Price’ is the prerogative of the Developer; DLF Ltd.  vide letter dated 20.12.2017 informed the Complainant that construction of the Apartment would be completed and the Opposite Party would start handing over possession in in a phased manner; that the possession of the said Apartment was completed within the stipulated time and  possession was offered as per the terms of the Agreement within the stipulated time vide letter dated 19.01.2018 along with Final Statement of Accounts; a bare perusal of Clause 11.1 of the said Agreement makes it evident that the Opposite Party was to complete construction of the said Apartment by 21.05.2018 and thus there is no delay in offering possession;  DLF Ltd. has strictly adhered to the timeline stipulated in the Apartment Buyer's Agreement; Clause 1.6 of the said Agreement stipulated for Timely Payment Rebate of Rupees One Thousand per sq. ft.; DLF Ltd. vide letter dated 16.02.2015 revised the Timely Payment Rebate to Rs. 1500 per sq. ft. as a gesture of goodwill;  sending of letter to the said effect to the Complainant  does not imply that the Complainant was eligible for timely payment rebate; the Complainant has falsely averred that letter dated 16.02.2015 was sent to the Complainant because he was entitled to the benefit of Timely Payment Rebate; as per Clause 16, the Complainant shall only be entitled to Timely Payment Rebate subject to the condition that there is no breach of any Clause by him; Clause 1.6 of the Agreement explicitly stipulates that no timely rebate shall be applicable if the Complainant has defaulted in making payments; as per Clause 1.6 even if the Complainant made the payment along with delayed interest beyond the due date, he shall not be eligible  for the Timely Payment Rebate benefit; the Complainant is in breach of the said Clause wherein timely payment is the essence of the Agreement; the Complainant has defaulted in payment of 12 installments and hence is not eligible for Timely Payment Rebate as per the terms of the Agreement executed  between the Parties; that the Complaint has miserably failed to  prove any Deficiency in Service or Unfair Trade Practice on the part of DLF Ltd.; the instant Complaint filed by the Complainant is an abuse of the process of law since there is no cause of action qua DLF Ltd.; the Complainant has breached the terms and conditions of the Application Form and Apartment Buyers Agreement by not remitting the demand raised vide the Final Statement of Account and DLF Ltd. and has acted in strict accordance with the terms and conditions of the Agreement and all the requisite payments were demanded as per the agreed terms between the parties and as per Clause 55 of the said Agreement dated 10.10.2013, it was mutually agreed between the parties that all disputes arising out of the Agreement shall be settled amicably, failing which, they shall be referred to Arbitration.

8.         The Complainant in support of his case got proved the following documents marked as Exhibits by way of Evidence:- Relevant Extracts of the agreement as Annexure CW-1/1; relevant extract of the order in Belaire Case as Annexure CW-1/2; relevant extract of the order in Belaire Case as Annexure CW-1/3; statement of payments made as Annexure CW-1/4; Copy of the letter dated 07.02.2018 as Annexure CW-1/5; copies of mails exchanged as Annexure CW-1/6; letter dated 19.02.2018 as Annexure CW-1/7 and list of documents already exhibited as CW-1/8 i.e. payment receipt on application made dated 21.05.2013 at page 29A of the Complaint; copy of Standard Apartment Buyers Agreements at pages 30-66 of the Complaint; copy of letter dated 16.10.2014 inviting objections on building plans at page 82 of the Complain; copy of letter dated 05.11.2014 relating to revision in building plans at pages 83-84 of the Complaint; copy of letter dated 12.11.2014 relating to building plan changes at page 85 of the Complaint; copy of letter dated 16.02.2015 informing about increase in “on time payment rebate” at page 86 of the Complaint; letter received from DLF informing that project is completed at page 90 of the Complaint; letter dated 19.01.2018 raising final payment demand at pages 91-102 of the Complaint and Draft of undertaking provided by the opposite party at pages 116-118 of the Complaint.

9.         DLF Ltd. in support of thier case got proved the following documents marked as Exhibits by way of Evidence:- Copy of Occupation Certificate as Ex. OPW-1/1; Copy of the last orders passed in the Narender Gupta Vs. M/s Emmar MGF Land Limited – Consumer Case No. 2028 of 2017, Narender Gupta Vs. M/s Ansal Properties & Infrastructure Ltd. & 3 Ors. – Consumer Case No. 578 of 2018 and Narender Gupta vs. Ansal Townships Infrastructure Ltd. & Anr. – Consumer Case No. 2278 of 2018 as Collectively Ex. OPW1/5; copy of the demand notices sent to the Complainant along with reminders and final notices as Ex. OPW1/10; copy of the earlier tentative layout plan and the final revised layout plan, along with Super Area calculations of the revised plans in relation to the Apartment of the Complainant collectively as Ex. OPW1/12; copy of the calculation chart indicating the taxes, other charges and cesses incurred by the Opposite Party No. 1 Company collectively as Ex. OPW-1/13; copy of the Chartered Account Certificate indicating the VAT Charges recoverable from each and every allottee as collectively Ex. OPW1/14 and copy of note on review computation of benefit to be passed on under anti-profiteering provisions under GST for the Project – DLF the Crest collectively as Ex. OPW-1/14.

10.     Heard both Counsels at length.

11.     At the outset, we address to the contention of the Learned Counsel that purchase of more than one flat would construe commercial purpose and, therefore, Complainant does not fall within the ambit of the purview of the Consumer Protection Act. This commission in a catena of judgements has laid down that onus shifts to the opposite party to establish by way of documentary evidence that the Complainant who has purchased more than one flat is dealing in real estate which is his main occupation, by making profits on purchase and sale of apartments. In the instant case no such documentary evidence has been produced by DLF Ltd. to discharge their onus. This commission in M/s Ireo Fiveriver Pvt. Ltd. Vs. Surinder Kumar Singla, 2016 SCC OnLine NCDRC 2351 has observed as follows:-

“In the instant matters, counsel for the appellant has failed to show any cogent evidence which may indicate that the respondents complainants or any one of them has been indulging in sale purchase of the properties or that complainants or any one of them had booked the subject plots in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for profit.  Thus, the question raised by counsel for the appellant is answered in the negative.”

12.     Keeping in view the facts and circumstances of the case viewed from any angle the purchase of the subject flat that cannot be said to be for commercial purpose.

13.     Learned Counsel appearing for the Complainant submitted that the amount initially agreed as per the Apartment Buyers Agreement dated 21.05.2013  was ₹3479/- per sq. ft., and that DLF Limited vide a letter dated 16.02.3015 raised the amount of on time payment rebate from ₹1000/- to ₹1500/- per sq. ft. He submitted that this letter was sent to those flat purchasers who were entitled for the benefit and the Complainant had received this letter. It is also contended that the Complainant sought a written commitment from DLF Ltd. that the changes will not affect the complainant by way of size or location of the property, when he was informed vide a letter dated 12.11.2014 that they wished to make some changes in the layout.

14.     For better understanding of the case the letter dated 16.10.2014 addressed to the Complainant is reproduced as hereunder:-

 “This is in reference to your booking of Apartment No. CTC  183 in The Crest in DLF5, Sector 54, Gurgaon. 

We would like to inform you that the building plans earlier approved for the said Group Housing Scheme, being developed in DLF5, Sector 54, Gurgaon, Haryana, are now proposed to be revised.

And whereas, the office of Director General, Town and Country Planning, Haryana, Chandigarh has in principle approved the revision of the building plans, however with pre-condition of seeking of objection/suggestion against the revision of the building plans, if any, for allowing such revision in the building plans.

Accordingly vide this notice, objection/suggestion, if any, are hereby invited on the proposed revision of the building plans of the said group housing scheme.  A  copy of the earlier approved building plans bearing memo. No. ZP-17/JD(BS)/2013/29196 dated 22/01/2013 and the building plans now proposed to be revised bearing memo. no. ZP-927/AD(RA)2014/23858 dated 10/10/2014, are available for perusal on our website (www.dlf.in). The said building plans can also be perused at the office of DLF Ltd., Coordination department, 3^rd floor, C-wing, Shopping Mall, Arjun Marg, DLF City Phase-1, Gurgaon – 122002, as well as in the office of Senior Town Planner (STP), at HUDA Complex, Sector 14, Gurgaon, Haryana.

If, you have any objection/suggestion on the revised building plans, may file the same in the office of Senior Town Planner (STP) at HUDA Complex, Sector-14, Gurgaon, Haryana, within 30 days of the issuance of this notice, failing which it shall be assumed that there are no objection/suggestion to the proposed revision in the building plans.”    

15.     A perusal of the letter dated 05.11.2014 shows the revised building plans as compared to the earlier approved building plan with respect to apartment size,  floor plans and elevations. It is pertinent to mention that in the letter dated 12.11.2014 addressed to the Complainant DLF Limited has clearly stated that the Complainant would not be affected by the modification in the size, location or shape of the swimming pool and that the change in the sale area, which can be informed finally at the end of the completion of the project, would remain within the exercisable percentage variation as indicated in the agreement. On 16.02.2018 an email was addressed to the complainant stating that the old area of 3479 square feet has now been increased to the new super area of 3529 and increase in the area is as per the terms of the apartment agreement and the same will be charged at the original sale price. Other charges refers to the recovery of expenses on account of payments made towards labour welfare cess, service tax, swachh bharat cess and WCT paid to the work contactors on a pro rata basis as per the agreement. It is also stated in this email that the GST benefit being passed on to the customers as per the audit done by external chartered accountant firm. It is relevant to mention that in this email dated 26.02.2018 specific mention has been made that the Timely Payment Rebate (TPR) has not been provided for the Complainant’s unit as there have been multiple delays in the payment of various instalments, which was a prerequisite for provision of the TPR. Clause 1.6 of the Apartment Buyer Agreement states as hereunder:-

The Allottee (s) agrees and understands that time is of essence with respect to the payment of the Total Price and other charges, deposits and amounts payable by the Allottee as per the Agreement. The Company shall give a timely payment rebate under the construction linked payment plan and down payment plan only if availed and not to the subvention scheme subject to the Allottee (s) strictly fulfilling all its obligations including but not limited to making timely payments on or before the due dates of the inalallments as per the payment plan attached with the Agreement and all other payments under this Agreement. The allottee agrees and confirms that no timely payment rebate shall be applicable to the allottees who have availed the subvention scheme.

The Allottee(s) agrees and confirms that any delay in making the payments beyond the due date as set out in the schedule of payment shall not entitle the allottee to avail and claim timely payment rebate. For the purpose thereof it is further clarified that even in case the Allottee makes the payment alongwith delayed interest  beyond the due date, the said payment alongwith delayed interest shall not be considered for the purpose of allowing the allottee to claim the Time Payment Rebate.” (Emphasis supplied).

16.     It is clear from the afore-noted clause that TPR would not be applicable unless all the payments are made on time before the due date. The statement of account evidences that the Complainant had paid some of the installments belatedly but with interest. Though it is the case of the Complainant that the amount, with exorbitant interest charged by the opposite party, has been paid by him, which shall construe that the delay is condoned,  the fact remains that the clause clearly specifies that even after the allottee makes the payment along with delayed interest it shall not be considered for the purpose of allowing the allottee to claim Timely Payment Rebate.

17.     The letter dated 13.07.2016 shows that the 17 installment was what the company had asked for. A reminder was sent on 04.08.2016. The delay in the payments by the Complainant is noted in the statement of accounts as follows:-

 18.    As the Project was on schedule it is the submission of the Learned Counsel appearing for DLF Limited that they had waived the escalation of 12 lakhs on their own volition. The statement of account evidences that there was some delay by the Complainant though he has paid the same with the entire interest. The clause relating to TPR specifically states that if there is any delayed payments the flat buyers is not entitled to the benefit of the incentive of TPR.

19.     We also find force in the contention of the Learned Counsel appearing for DLF Limited that in the letter dated 16.02.2015 the last line says all other terms and conditions remains the same and that for esteemed customers, who have opted for other construction linked or down payment, as a gesture of goodwill the TPR has been raised and this letter was a general letter issued to all the allottees to intimate them about the new benefit. Further it is also an admitted fact that the Complainant was an allottee under construction linked payment plan and not under subvention scheme or the down payment scheme. For all the afore-noted reasons, this prayer of the Complainant is not allowed.

20.     With respect to charges for increase in area it is an admitted fact that vide  letter dated 19.01.2018 DLF limited has raised ₹8,52,500/- for an increase in the super area of the apartment in question. Learned Counsel appearing for DLF Limited drew our attention to clause 10 of the Apartment Buyer Agreement in which it is stated as follows

"In case of any major alteration/ modification resulting in 10% change in the super area of the Said- Apartment any lime prior to and/or upon the grant of occupation certificate by the competent Authority, except for minor area variations due to compounding on application and/or grant of occupation certificate,  the Allottee(s) will be informed in writing by the Company of such change and the difference in Total Price of the Said Apartment to be paid by him or refunded to him by the Company as the case may be. The Allottee agrees to inform the Company in writing his consent of his objections if any to the changes within thirty (30) days from the date of such notice failing which the Allottee shall be deemed to have given his consent to all the alterations/modifications. If the Allottee(s) objects to such changes in writing within the permitted period and the Company decides to go ahead with the changes, then the Company may accede to the request of the Allottee(s) within 90 days of the receipt of such notice/objection and cancel the allotment and the company shall be liable only to refund such amounts alongwith simple interest per annum calculated from the date of realization of respective amount paid by the Allottee(s) after deduction of Non Refundable Amounts. Upon dispatch of such refund by registered post, the Company shall be released and discharged from all its obligations and liabilities under this Application/Agreement and the Allattee(s) shall be left with no such right, title, interest, lien or claim of any nature whatsoever on the Said Apartment/Parking Space(s). The Allottee(s) agrees that any increase or reduction in the Super Area of the Said Apartment shall be payable or refundable (without any interest) at the rate on which much areas were sold / charged.”

21.     For better understanding of the case the definition with respect to super area, as defined in Annexure II, is  reproduced as under:-

“DEFINITION OF SUPER AREA

Super Area for the purpose of calculating the sale price in respect of the Said Apartment shall be the sum of Apartment Area of the Said Apartment. Its pro-rata share of Common Areas in the entire Said Building and pro-rata share of other Common Areas outside apartment building earmarked for use of all apartment allottees in “The Crest” which include the exclusive community building with swimming pool, toilets/change room, multipurpose hall, gymnasium & other facilities, etc.

Whereas the Apartment Area of the Said Apartment shall mean entire area enclosed by its periphery walls including area under walls, columns, balconies, deck, AC ledges, cupboards and lofts etc. and half the area of common walls with other premises/apartment, which form integral part of the Said Apartment and Common areas shall mean all such parts/areas in “The Crest” which the Allottee shall use by sharing with other occupants of “The Crest” including entrance lobby, porch, lift lobbies, lift shafts, electrical shafts, fire shafts and service ledges on all floors, common corridors and passages, staircases, mumties, driver’s/common toilets, services area including but not limited to lift machine room, overhead water tanks, UG water tanks and pump room, electric substation,  D.G. room, laundromat, maintenance offices/stores,  security/fire control rooms, exclusive community building and architectural features, if provided.

Super Area of the Apartment provided with exclusive open terrace(s) shall also include area of such terrace(s), Allottee however, shall not be permitted to cover such terrace(s) and shall use the same as open terrace only and in no other manner whatsoever.

It is specifically made clear that the computation of Super Area of the Said Apartment does not include the following:-

a)         Sites/building/area of community facilities/amenities like nursery/primary/ higher secondary school, club (excluding the exclusive community building for “The Crest”)/community centres, dispensary, creche, religious building, health centres, police posts, electric sub-station, dwelling units for economically weaker sections/services personnel.

b)         Roof/top terrace above apartments excluding exclusive terraces allotted to apartment/penthouses.

C)         Covered/open car Parking Spaces within/around buildings for allottees/visitors of The Crest.

It is further clarified that the Super Area mentioned in the Agreement is tentative and for the purpose of computing sale price in respect of the Said Apartment only and that the inclusion of common areas within Said Building, for the purpose of calculating Super Area does not give any right, title or interest in common areas to Allottee except the right to use Common Area by sharing with other occupants/allottees in the Said Building subject to timely payment of Maintenance Charges.

Tentative percentage of Apartment Area to Super Area varies 82.0% to 85.0% approximately depending on the size and location of the apartment, Super Area and the percentage of Apartment Area to Super Area may undergo changes during construction of Said Building/Said Complex and final Super Area shall be confirmed upon completion of construction of Said Building/Said Complex.”

22.     It is also relevant to see Clauses 1.7 and 1.8 detailed as follows:-

1.7        The Allottee(s) agrees that the Total Price of the Said Apartment is calculated on the basis of its Super Area and that the Super Area of the Said Apartment as stated in the Agreement is tentative.  The final Super Area of the Said Apartment shall be confirmed by the Company and only after the construction of the Said Apartment is completed and the occupation certificate is granted by the competent authority(ies). Total Price payable for the Said Apartment shall be recalculated and upon confirmation by the Company, and any increase or decrease in the Super Area of the Said Apartment shall be payable by or refundable to the Allottee(s), as the case may be without any interest at the same per sq. ft. rate without any kind of rebates allowed/Payment Plan opted for.

(i) Any increase in the Super Area during the construction but prior to the completion of the Said Building shall be documented accordingly and intimated by the Company within 15 days of such determination.  Upon intimation by the Company, the differential amount @ Rs……………../- per sq. mtr. (Rs……………. Per sq. ft. approx..) of the differential Super Area shall be payable by the Allottee(s) within 15 days of such documentation.

(ii) Any increase or decrease in the Super Area upon completion of the Said Building and receipt of the certificate for occupation and use from the Competent Authority shall, be documented accordingly and intimated by the Company within 15 days of such determination.  Upon such intimation by the Company, the differential amount @ Rs. ………………./- per sq. ft. (Rs. ………………../- per sq. mtr.) for the differential Super Area of the Said apartment shall be payable by the Allottee(s) refundable by the Company within 60 days of such intimation subject to and after the Allottee(s) has made all payments as provided in the payment plan attached as Annexure-III.

(iii) That the Super Area and Apartment Area shall be subject to change till the construction of the Said Building is complete and receipt of the certificate for occupation and use from the Competent Authority, (the computation of Super Area which is more clearly described by the Company in Annexure-II which forms part of this Said Agreement) is hereby accepted by the Allottee(s).  The Allottee(s) confirm(s) that he/she/they has/have read, understood and agree(s) has/have assured the Company that after having agreed to the definition of Super Area given in Annexure-II as the basis for the purchase and payment of sale price of the Said Apartment, the Allottee(s) shall not raise any dispute or make any claims etc. at a later date in this regard.

1.8        For  avoidance of any doubt, it is clarified that Total Price of the Said Apartment is based on Super Area which is tentative and subject to change. The Super Area, Apartment Area and percentage (%) of the Apartment area to the Super Area is tentative and liable to change and the Allottee(s) shall have no right to raise any  kind of objections, dispute, claim due to change in the Apartment Area, Super Area and/or percentage (%) of Apartment Area to Super area, as the Said Apartment is being sold only on the basis of the Super Area and the Allottee(s) accordingly shall be liable to pay as per the Super Area. The definition of Super Area Apartment Area and the percentage of the Apartment Area to the Super Area as on the date of execution of this Agreement are described by the Company in Anne -II, which forms part of this Agreement and the same is understood by the Allotee(s) and the Allotee(s) affirms that the Allottee(s) shall have no right to raise any kind of objection/ dispute claim at any time with respect to the basis of charging the Total Price or any change in the Super Area. It is further clarified that the terms and conditions mentioned in clause 1.8 hereinabove shall be subject to clause 10.

23.     From the afore-noted Clause it is clear that there are major alterations resulting in plus minus 10% change in the super area and the allottee should give his consent within 30 days failing which his consent will be considered to be in the positive. In the instant case though the letter was admittedly addressed to the Complainant with respect to changes in the plan the Complainant did not resort to object to any changes primarily on the ground that in the letter dated 12.11.2014 an assurance was given to him that he would not be affected by the modification in the size, location or shape of the property. However, perusal of this letter shows that the last line says “you will be nowhere be affected by the modification in the size, location or shape of the swimming pool.” Hence it cannot be said that any such assurance as claimed by the Complainant was given by DLF Limited and moreover the Complainant is bound by Clause 10 of the Agreement. It is also relevant to mention that the difference in the area is 1.44%, around 50 square feet and cannot be said to be a phenomenal/substantial or major change in the super area which would affect the price considerably. With respect to other charges it is the case of the Complainant that there is no provision in the agreement to raise any such claim on the pretext of other charges; that providing a meagre amount as refund on account of GST benefits based on incomplete and standard drafted certificate obtained from a chartered accountant and not from any statutory auditor amounts to unfair trade practice. Learned Counsel appearing for the Complainants vehemently argued that the other charges at ₹217 per square feet demanded under clause 1.12 of the Agreement was an account of not availing credit of taxes paid to the contractors. Clause 1.12 clearly stipulates that in addition to total price the allottee shall be liable to pay all taxes and cesses which is as follows:-

iii. A sum equivalent to the proportionate share of Taxes and cesses, shall be paid by the Allottee(s) to the Company.  The proportionate share shall be the ratio of the Super Area of the Said Apartment to the total Super Area of all the apartments, shops, community center, school, convenient shopping to be constructed in the said Complex.

iv.  The Company shall periodically intimate to the Allotee(s) herein, on the basis of certificates from a Chartered Engineer and/or a Chartered Accountant, the amount payable as stated above which shall be final and binding on the Allottee(s) and the Allottee(s) shall make payment of such amount within 30(thirty) days of such intimation.

24.     It was argued that collections of benefit being offered on account of GST should be shared transparently. Learned Counsel appearing for DLF Limited submitted that as per clause 1.12, they are entitled to recover from each allottee the proportionate share of taxes and cesses  in proportion to the ratio of the super area of the respective departments. A perusal of the definition of taxes and cesses under the booking application as well as under the Agreement shows it includes taxes payable by the company and/or contactor, consultants by way of state sales tax, central sales tax, service tax, VAT, education cess and welfare cess etc.  It is significant to mention that certificate dated 02.01.2018 has been addressed to by DLF limited to the Complainant which includes the assessment given by the international accounting/audit firm PWC. A perusal  of the possession letter dated 19.01.2018 shows that the GST benefit has been clarified and an amount of discount has also been clearly stated. A chartered accountant certificate dated 30.11.2017 specifies the charges which needs to be paid. Keeping in view  all the afore-noted certificates and the documents on record read together with clause 1.12 of the ABA, we are of the considered view that the other charges payable by the Complainant is as per the terms of the Agreement and demanding of the same does not construe as unfair trade practice.

25.     Now we address ourselves to the contention of the Learned Counsel for the Complainant that he was forced to sign the Agreement since he has already paid ₹1.2 crores out of ₹6 crores at that point of time.  It was strongly rebutted by the Learned Counsel for DLF Ltd. that Application Form was physically given to the Complainant prior to his payment and the terms of contract are available on the website and being an intelligent consumer he could have accessed the terms on the website and there was never any coercion for the Complainant to have signed the Agreement. Taking into consideration the peculiar facts of this case,  that the Complainant is a past employee of DLF Ltd. and has some knowledge of the terms and conditions his contention that he was forced to sign the terms cannot be sustained.

26.     Now we address ourselves to the contention of the Complainant that car parking is a part of common area facility as observed by the Honorable Supreme Court in Nahalchand Laloochand Pvt. Ltd. Vs.  Panchali Cooperative Housing Society Limited (2010) 9 SCC 536 and has sought refund of the parking charges.  He further contended that the clause with respect to parking charges as arrayed  in the booking application is different from clause 1.11 of the Apartment Buyer Agreement which deals with car parking. Learned Counsel appearing for DLF Limited vehemently contended that there was absolutely no difference in both the Clauses and that the Complainant had agreed to the terms that car parking would be additionally charged over and above the price paid for the super area. For better understanding of the case the definition of ‘Apartment’, ‘common areas and facilities’ and ‘Car and parking’  as defined in the Agreement are detailed as under:-

“Apartment Act” means the Haryana Apartment Ownership Act, 1983 and the Rules and/or any other statutory enactment or modifications thereof.”

“Common Areas and Facilities” means such common areas and facilities within the Said Building/Said Complex earmarked for common use of all the allottee(s) and mentioned in Part A, Part B and Part C of Annexure-IV of the Agreement.”

“Said Apartment” means the apartment allotted to the Allotee(s) (along with an exclusive right to use the Parking Space(s), details of which have been set out in clause no. 1.1 of this Agreement, the typical apartment plan, floor plan and layout plan are given in Annexure-VI and the Specification of the same are given in Annexure-V and includes any alternative apartment allotted in lieu of the Said Apartment.”   

27.     It is relevant, at this juncture, to reproduce clause 1.1 which deals with the price payable for the said apartment:

“Price payable for the Said Apartment

1. In accordance with and subject to the terms and conditions set out in this Agreement, the Company agrees to sell to the Allottee(s) and the Allottee(s) hereby agrees to purchase the said Apartment in the Said Complex, as detailed bellow:-

   Said Apartment No. CTC 183 Floor18 Block No. C

   Apartment Area 274.632 Sq. ft.(2956 Sq.mtr. approx.)

   Super Area 323.242 Sq. ft.(3479 sq. mtr. approx.)

   Rate @ Rs.166742 per sq. ft. (Rs. 15500 per sq. ft. approx.)/of Super Area.

   Basic Sale Price (Super Area):@ Rs. 166842/- per sq. ft. (Rs15500/- per sq. ft.) aggregating to Rs. 5,39,24,500/-. (Rupees Five Crore Thirty Nine Lakhs Twenty Four Thousand Five Hundred only)

   PLC, as applicable.

   PLC attributes:

2. Corner Apartment.

3. Apartment facing East/South East.

4. Apartment facing internal landscape/green.

5. Apartment facing pool/Water bodies/Community Centre/Club(this attribute shall be distinct form item No. 3 attribute and wherever it is applicable it shall be addition to attribute mentioned in item no. 3).

    

   PLC applicable:-

   One Attribute-                  10.0% of Basic Sale Price.

   Two Attributes-                17.5% of Basic Sale Price.

   Three Attributes-               22.5% of Basic Sale Price.

   Four or more Attributes     25.0% of Basic Sale Price.

   Total PLC 10% of basic sale price.

   Rs.53,92,450/-(Rupees Fifty Three Lakhs Ninety Two Thousand and Four Hundred Fifty only) Parking Space No. PB-C-3039, P.B.C. -3040 and PBC –C-3041

   Charges for exclusive right to use the Parking Space(s) Rs 22,50,000/-.(Rupees Twenty Two Lakhs Fifty Thousand Only).”

   Total price payable for the Said Apartment Rs. 6,15,66,950/- (Rupees Six Crore Fifteen Lakhs Sixty Six thousand Nine Hundred Fifty only).

   NOTE: The Company has taken the conversion rate of 10.764 Sq. Ft. per Sq. Mtr. for the purpose of this Agreement.

   1.2 The Allottee has applied under the construction linked payment plan and requested the Company to allot an apartment in The Crest under the construction linked payment plan offered by the Company.  The Allottee also understands that the Company has entered into an arrangement with certain Bank(s)/NBFCs for a subvention scheme and shall offer the same to the Allottee.  The Company has also provided the benefit of subvention scheme.   

    

    

   28.     Learned Counsel appearing for DLF Ltd., drew our attention to Clause 16 of the Booking Application and Clause 1.11 of the ABA which are detailed as hereunder:-

   “16. The Applicant(s) agrees and understands that the Parking Space(s) mentioned in this Application are intended to be used on an exclusive basis by the Applicant(s)/owner of the Said Apartment together with the Said Apartment and the same shall not have independent legal entity detached from the Said apartment. It is further clarified and understood by the Applicant(s) that the right to use the said Parking Space(s) is an integral part of the Said Apartment and the same cannot be sold/dealt with independently of the Said Apartment and the Parking Space(s) alongwith the Said Apartment form one single indivisible unit.  The Applicant(s) undertakes not to sell/transfer/deal with the parking space independent of Said apartment. The Applicant(s) undertakes to park his/her vehicles in the Said Parking Space(s) and not anywhere else in the Said Complex.  All clauses of the Application pertaining to allotment, possession, cancellation etc. shall apply mutatis mutandis to the Parking Space(s) so allotted, wherever applicable.”

    

   “1.11. The Allottee(s) agrees and understands that the Parking Space(s) mentioned in this Agreement are intended to be used on an exclusive basis by the Allottee(s)/owner of the Said Apartment together with the Said Apartment and the same shall not have independent legal entity detached from the Said Apartment.  It is further clarified and understood by the Allottee(s) that the right to use the said Parking Space(s) is an integral part of the Said Apartment and the same cannot be sold/dealt with independently of the Said Apartment  and the Parking Space(s) alongwith the Said Apartment form  one single indivisible unit.  The Allottee(s) undertakes not to sell/transfer/deal with the parking space independent of Said Apartment.  The Allottee(s) undertakes to park his/her vehicles in the Said Parking Space(s) and not any where else in the Said Complex.  The liability to pay for the maintenance and unkeep charges as may be levied from time to time by the Maintenance agency on such Parking space(s) shall be the responsibility of the Allottee(s) and such rights are co-terminus with the discharge of all the obligations as mentioned in the Agreement.  All clauses of the Agreement pertaining to allotment, possession, cancellation etc. shall apply mutatis mutandis to the parking Space(s) so allotted, wherever applicable.”

    

             The sum and substance of both the Clauses is one and the same regarding exclusive use of the parking space by the owner.  Hence the submission of the Complainant that Clause 16 of the Booking Application and Clause 1.11 of the ABA are substantially different, is rejected.  

   29.     In Nahalchand Laloochand case, though it was passed in the context of Maharashtra Ownership of Flats Act (MOFA), 1963, the ratio in that judgement has to be considered in the present case, as the Court in that case has examined the Clause in relation to parking and clearly discussed issues with respect to whether stand-alone garage provided by the Builder as an independent unit by itself was a flat; if slit parking spaces and/or open parking space of a building regulated by MOFA is a garage; whether such a parking in such a building is part of ‘common areas and facilities.’ 

   30.     It is clear that the Hon’ble Supreme Court in the afore-noted judgement has stated that car parking falls within the definition of common areas and facilities; open to the sky parking or stilted portion used as parking space is not a garage and not saleable independently as a flat or along-with flat.  In Nahalchand Laloochand case the Hon’ble Apex Court observed that if the Developer does not fully disclose the details of the common areas and facilities and does not include the car parking charges, he does so at his own peril.  It was also noted that stand-alone parking spaces would not cease to be a part of common areas only because the Developer has not detailed the same as such in the advertisement or agreement with the flat purchasers. 

   31.     At this juncture it is relevant to go through the provisions of Haryana Apartment Ownership Act, 1983 which deals with the subject matter in hand. Section 3(a) defines Apartments as follows:-

    (a) “apartment” means a part of a property, intended for any type of independent use, including building having one or more rooms with enclosed spaces located on one or more floors or any part or parts thereof, to be used for residence, office or for practicing any profession or for carrying on any occupation, trade, business or manufacturing or other uses relating to Information Technology or for such other type of independent use, as may be prescribed, with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the colonizer/owner of such property for use by the owner of such apartment for parking any vehicle or for the residence of any person employed in such apartment, as the case may be. (Emphasis supplied).

    

   32.     Section 3(f) defines common areas and facilities unless otherwise provided in the declaration of lawful amendments as follows:-

   “(f) “common areas and facilities” unless otherwise provided in the declaration or lawful amendments thereto, means:-

   (1) the land on which the building is located;

   (2) the foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stair ways, fire escapes and entrances and exits of the buildings;

   (3) the basements, cellars, yards, gardens, parking area and storage spaces;

   (4)        the premises for the lodging of janitors or persons employed for management of the property;

   (5)        installation of central services such as power, light, gas, hot and cold water, heating, refrigeration, air conditioning and incinerating;

   (6)        the elevators, tanks, pumps, motors, fans, compressors, ducts and in general all apparatus and installations existing for common use;

   (7)        such community and commercial facilities as may be provided for in the declaration; and

   (8)        all other parts of the property necessary or convenient to its existing maintenance and safety or normally in common use;” (Emphasis supplied).

    

    

   33.     The contention of the Learned Counsel appearing for DLF Limited that the relevant judgement to be considered in the present case is the judgement of the Supreme Court in DLF versus Manmohan Lowe  (2014) 12 SCC 231 wherein the Hon’ble Supreme Court has differentiated the judgement of the case of Nahalchand Laloochand (supra) and held that it was applicable in the context of MOFA and not to Haryana, is unsustainable. The perusal of the judgement relied upon by the Learned Counsel deals with the aspect of ownership rights of the flat owners versus the colonizer regarding ‘community and commercial facilities’  like schools, hospitals, shops, community centres etc. The Learned Counsel appearing for the Complainants submitted that the Supreme Court has observed in Manmohan Lowe(Supra) d that  Nahalchand Laloochand case was delivered in the context of MOFA, in which case the Supreme Court was required to examine as to whether a “stilt parking” can be considered to be a “garage” under the definition of “flat” under MOFA. Therefore the observations made by the Hon’ble Supreme Court in Manmohan Lowe (Supra) was with respect to community and commercial facilities and its ownership right and has nothing to do with stilt parking and hence we are of the considered view that the facts of Manmohan Lowe do not apply to this case.

   34.     IA No. 15287 of 2020 was preferred by the Complainant seeking to file some additional documents which was taken on record. Annexure C-6 is a  copy of reply by the DTCP on the question and Question & Answer of 9 & 10 of the same is reproduced as hereunder:-

   Q:9 Whether the open car parking being (illegible)  though shown in the drawings but falling under FAR arise of the total scheme, can it be sold by the colonizer/builder.

   Ans.      No.

   Q:10 Whether basement car parkings are saleable as per director Town and Country Planning, if yes, the certified copy of the order may be produced.

   Ans.      No.

    

   35.     These answers have been furnished by Director  Town Planner-cum-SMO, o/o Director Town & Country Planning, Haryana Chandigarh.

   34.     It is an admitted fact that the Complainant has paid an amount of ₹21,06,446/- towards car parking charges in addition to the amount paid for super area.  Keeping in view that Section 3 of Haryana Apartment Owners Act, 1983 specifies car parking to be  part of the common area whereas the super area as defined in the Agreement entered into between the parties excludes car parking and the Developer having not specified car parking in the common area, though included under the Haryana Apartment Owners Act, 1983 leads to the conclusion that the Developer cannot in law realize any amount from the purchasers towards car parking.  The Developer himself is liable to bear the

   burnt of not disclosing the area of car parking in the common areas and, therefore, cannot demand proportionate amount of the area of car parking from the Complainant.  The principles laid down by the Hon’ble Supreme court in Nahalchand Laloochand (supra) would squarely be applicable and the Developer does not have any right under law to ask additional demand towards car parking.  

   36.     It is the further contention of the Complainant that Apartment Buyers Agreement evidences that for any delayed payment DLF charges 15% to 18% interest for the delayed period whereas the penalty to be paid for any delay on their behalf is meager and does not balance equities.    This squarely falls within the ambit of unfair trade practice as laid down by the Hon’ble Supreme Court in Pioneer Urban Land and Infrastructure Limited Vs. Govindan Raghavan, (2019) 5 SCC 725 for which the Complainant is entitled to some reasonable costs. The fact remains that delayed payments were paid by the Complainant with interest @ 15% to 18% p.a. yet he could not avail the benefit of the incentive of TPR.  

   37.     Learned Counsel appearing for the Complainants contended that in the offer of possession letter dated 19.01.2018, they were asked to sign an indemnity/undertaking in a standard format prior to taking the possession. It is seen from the record that DLF Ltd. while offering possession of the apartments insisted upon execution of the indemnity/undertaking which required the flat purchasers to confirm that after accepting the offer of possession he would not make any further demands or claims against DLF Ltd. of any nature, whatsoever.  The material on record evidences that the execution of such an undertaking in a standard format prescribed by DLF Ltd. was conditional for the delivery of possession.  The objective of taking such an undertaking was only to prevent genuine flat purchasers from making genuine claim against DLF Ltd. including any claim on account of delay  in delivery of possession or with respect to any kind of discrepancies in the statement of accounts and further any deficiency or defects in the apartment.  Such an undertaking is ultra virus to the provision of Section 23 and 28 of the Indian Contract Act, 1872 and would construe as unfair trade practice as defined under Section 2(r)  of the Consumer Protection Act, 1986. The conduct of the DLF in insisting upon such an undertaking prior to the offer of possession is deprecated. 

   38.     It is observed from the record that this Commission vide order dated 14.09.2018 in IA No. 13420/2018 observed that Opposite Parties No. 8 and 9 are signatories of the Agreement and, therefore, there is no question of their deletion.  Learned Counsel sought permission to withdraw the application and file a fresh application. Thus IA No. 13420/2018 was dismissed as withdrawn.   Thereafter IA No. 18820 of 2018 was filed by Opposite Parties No. 2 to 7 seeking deletion of their names.  For the reasons stated, this Application is allowed as the liability of the Directors arrayed cannot be ascertained at this stage.  However, Complainant is at liberty to proceed against them during execution, if the need arises.  It is observed from the record that the observations of this Commission regarding OPs No. 8 and 9 in the order dated 14.09.2018 has not been challenged.  

   39.     For all the afore-noted reasons this Complaint is allowed in part directing DLF Ltd. to offer peaceful possession of the subject flat, complete in all respects, with the Occupation Certificate. However, keeping in view the peculiar facts of this case, it is clarified that the Developer shall not charge any further charges like maintenance and holding charges from the date of occupation certificate till the actual date of possession.  It is also directed that DLF Ltd. refund the car parking charges collected from the Complainant with interest @ 7% from the date of deposit till the date of realization and not to insist upon any undertaking before the offer of possession.  The rest of the claims made by the Complainants stand dismissed.  Time for compliance within four weeks from the date of receipt of a copy of this order failing which the amount shall attract interest @ 8% p.a. from the date of filing of the Complaint till the date of realization.  We also award costs of ₹50,000/-.