Chandigarh

StateCommission

CC/491/2016

Dr. Shruti Aggarwal - Complainant(s)

Versus

DLF Universal Limited - Opp.Party(s)

Narender Yadav, Vineet Yadav, Adv.

06 Dec 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	491 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	06.12.2016

 

Dr. Shruti Aggarwal W/o Dr. Ashish Aggarwal, R/o G-128, GH-2, Shikhar Appartments, Sector-5, MDC, Panchkula.

…… Complainant

Versus

1. DLF Universal Ltd., (earlier known as DLF India Limited) having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002, Haryana, through its Chairman/Managing Direcor/Director/Authorized Signatory.
2. DLF Universal Ltd., (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh – 160009 through its Chairman/Managing Director/Director/Authorised Signatory.

....Opposite Parties.

Argued by:- Sh. Narender Yadav, Advocate for the complainant.

Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates for the Opposite Parties.

 

Complaint case No.	:	492 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	06.12.2016

 

1. Kamaldeep Singh S/o Sh. Tarlochan Singh,
2. Loveleen Kamal W/o Kamaldeep Singh,

Both R/o Opposite St. Thomas School, Mission Road, Pathankot, Punjab -145001.

…… Complainants.

Versus

1. DLF Universal Ltd., (earlier known as DLF India Limited) having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002, Haryana, through its Chairman/Managing Direcor/Director/Authorized Signatory.
2. DLF Universal Ltd., (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh – 160009 through its Chairman/Managing Director/Director/Authorized Signatory.

....Opposite Parties.

Argued by:- Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates for the Opposite Parties.

 

Complaint case No.	:	493 of 2016
Date of Institution	:	22.08.2016
Date of Decision	:	06.12.2016

 

1. Japtej Singh S/o Sh. Kamaldeep Singh,
2. Ashneet W/o Japtej Singh,

Both R/o Opposite St. Thomas School, Mission Road, Pathankot, Punjab – 145001.

…… Complainants.

Versus

1. DLF Universal Ltd., (earlier known as DLF India Limited) having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon-122002, Haryana, through its Chairman/Managing Direcor/Director/Authorized Signatory.
2. DLF Universal Ltd., (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh – 160009 through its Chairman/Managing Director/Director/Authorised Signatory.

....Opposite Parties.

 

Argued by:- Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji and Sh. Parveen Jain, Advocates for the Opposite Parties.

 

 

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

 

 

BEFORE:     JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                   MR. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY, MEMBER.

 

 

PER DEV RAJ, MEMBER            

             By this order, we propose to dispose of, following three consumer complaints:-

1	CC/491/2016	Dr. Shruti Aggarwal	Vs	DLF Universal Limited & Anr.
2	CC/492/2016	Kamaldeep Singh & Anr.	Vs	DLF Universal Limited & Anr.
3	CC/493/2016	Japtej Singh & Anr.	Vs	DLF Universal Limited & Anr.

2.          At the time of arguments, on 17.11.2016, it was agreed between Counsel for the parties, that the issues in law and facts involved in the above complaints, by and large, are the same, and therefore, these three complaints can be disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.491 of 2016, titled as ‘Dr. Shruti Aggarwal Vs. DLF Universal Limited & Anr.’

4.          The facts in brief are that the complainant, who is a doctor by profession and working with a Charitable Hospital, alongwith Swarn Kanta Jain booked a flat in the project of the Opposite Parties i.e. “Hyde Park” situated at Mullanpur, New Chandigarh on 22.08.2012 and paid Rs.3 Lacs each on 23.08.2012 and 24.08.2014 respectively. She was allotted independent floor bearing No.R2-E 803 FF, measuring 1881 sq. ft., at the total price of Rs.77,37,400.04 and payment was to be regulated by construction linked payment plan. An Independent Floor Buyer’s Agreement was executed between the complainant and the Opposite Parties on 22.05.2013. The complainant, in all, paid an amount of Rs.87,19,302.86 to the Opposite Parties. The co-allottee Swarn Kanta Jain gave her 50% share in the unit to the complainant vide letter (Annexure C-4) and the Opposite Parties charged Rs.22,500/- as transfer fee from the complainant. As per clause 11(a) of the Agreement, possession of the unit, in question, was to be delivered within 30 months from the date of booking i.e.22.08.2012 but the Opposite Parties failed to do so within the stipulated period.

5.          It was further stated that Opposite Party No.1 vide letter dated 15.02.2016 (Annexure C-6) offered physical possession of the unit, in question, while admitting the fact of receipt of the occupation certificate. The complainant was asked to deposit an amount of Rs.21,92,071.73 within one month, failing which, the complainant was liable to pay holding charges @Rs.10 per sq. feet per month in terms of Clause 13 of the Agreement. The complainant has challenged the demands raised on account of other charges; main power supply, power back-up; escalation charges + service tax; contingent deposit of vat; club charges + service tax; club security deposit; deed writer charges; parking charges and interest bearing maintenance security and CAM charges, totaling Rs.11,40,609/-. 

6.          It was further stated that the Opposite Parties did not pay compensation as per Clause 14 of the  Agreement, @Rs.10/- per sq. ft. for the delay in handing over the possession, which is around more than one and half year. It was further stated that the Opposite Parties were supposed to give possession on 22.02.2015. It was further stated that the Opposite Parties did not provide the facilities/amenities, as detailed in Para 24 of the complaint. It was further stated that the Opposite Parties gave false promises and assurances with the motive to cheat and extract money on various illegal grounds from the complainant. 

7.          It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency in providing service and adoption of unfair trade practice. Hence, this consumer complaint was filed by the complainant, 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; pay interest calculated @15% per annum on the deposited amount from the date of delay in handing over the possession till possession is handed over; withdraw illegal demand/additional charges of Rs.11,40,609/- plus consequential taxes & interest levied; provide all basic and promised facilities within specified time; refund Rs.1,00,000/- charges as parking fee;  pay Rs.5 Lacs as compensation for causing financial risk, hardship, mental agony, harassment and emotional disturbance and Rs.70,000/- as litigation expenses.

8.         The Opposite Parties in their written statement under the caption ‘PRELIMINARY SUBMISSIONS’ stated that the possession of the floor, in question, has already been offered on 15.02.2016 to the complainant, who is a defaulter as she has neither taken possession nor cleared the final statement of account since 15.02.2016. It was further stated that the complainant has also been in default in paying holding/maintenance charges and is seeking amendment in executed application dated 22.08.2012 and Floor Buyer’s Agreement dated 22.05.2013. It was further stated that the complainant, by paying installments, despite the alleged delay in possession, has consented to the delay in possession and, therefore, now alleging delay is not proper, both in law and equity. It was further stated that the Opposite Parties got the partial completion certificate from the competent authority on 10.09.2014 (Annexure R/7) subject to fulfillment of certain conditions and on receipt of occupation certificate, possession was offered to the complainant.

9.          The Opposite Parties also took up certain preliminary objections to the effect that the complainant filed purported complaint to evade holding and other charges; that in the face of arbitration clause contained in the Agreement, dispute, if any, was required to be referred to an Arbitrator and, as such, the consumer complaint was not maintainable; that the parties are bound by the terms and conditions mentioned in the Agreement and that since the proceedings before the Consumer Fora are summary, in nature, this Commission is not competent to adjudicate this complaint. A separate miscellaneous application bearing No.354 of 2016, under Section 8 of Arbitration and Conciliation Act, 1996 for referring the matter to the sole arbitration, was also filed by the Opposite Parties, which was disposed of vide order dated 18.10.2016 observing that the question qua arbitration would be considered at the time of final arguments in the main case.  

10.        On merits, it was stated that the complainant has not deposited the total sale price of the unit, in question. It was further stated that demands raised as per Final Statement of Account were as per the terms and conditions such as Clauses 1.12 and 1.16 of the Agreement executed between the parties. It was further stated that parking charges of Rs.1,00,000/- have been demanded on the basis of terms and conditions of the application, in particular Clause 18. It was admitted that as on 07.04.2016, the complainant has paid an amount of Rs.80,71,560/-. It was further stated that the Opposite Parties only endeavored to offer possession of the unit, in question, within 30 months from the date of execution of the application. It was further stated that possession was delayed on account of force majeure conditions, which were entirely beyond the control of the Opposite Parties. It was further stated that the Opposite Parties have already completed construction of 351 independent floors on 86 plots and another 1517 built up units are near completion. It was further stated that out of 1775 built up units, occupation certificates for 351 (86 plots) units have been received and as on date, possession of 86 units had been offered to the owners. It was further stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL). It was further stated that at this stage, the complainant is backing out from the executed contract, by not adhering to the terms and conditions of the Agreement. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into any unfair trade practice. The remaining averments, made in the complaint, were denied.

11.        The complainant, in support of her case, submitted her affidavit, by way of evidence alongwith which, a number of documents were annexed. However, the complainant did not file any rejoinder to the reply filed by the Opposite Parties.

12.        The Opposite Parties, in support of their case, submitted joint affidavit of Sh. Shiv Kumar and Sh. Vinod Kumar, authorized signatories, by way of evidence, alongwith which, a number of documents were annexed. 

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

14.        Admittedly, initially Independent Floor No.R2-E-803 (First Floor) with parking space No.P-R2-E-803, measuring 1881 Sq. ft. in the project of the Opposite Parties, was allotted in favour of the complainants. Independent Floor Buyer’s Agreement was executed between the parties on 22.05.2013 at Chandigarh. Subsequently, Swarn Kanta Jain, co-allottee of the said unit, vide letter (Annexure C-4) requested the Opposite Parties to transfer her 50% share in favour of the complainant, which was done. As per the Agreement, total price, including Preferential Location Charges and External Development Charges, was Rs.77,37,400.04. In addition to total price and other charges mentioned in the application/agreement, the applicant was to pay amounts towards the club facility alongwith other charges, taxes and cesses, security deposits etc., IBMS, maintenance charges, cost for providing power backup, charges paid/payable by the Company to PSPCL, proportionate share of cost incurred for construction/ installation of sub-station and stamp duty, registration charges etc. in terms of Clauses 1.2, 1.4, 1.6, 1.9, 1.12, 1.13, 1.16, 10 and 18 etc. The payment was to be regulated by construction linked payment plan. As per Clause 11(a) of the Independent Floor Buyer’s Agreement, possession was to be delivered within 30 months from the date of application. The date of application being 22.08.2012, 30 months period expired on 21.02.2015. Admittedly, possession offered vide letter dated 15.02.2016 (Annexure C-6, at Page 150 of the complaint) was delayed by one year, beyond the stipulated period. The Opposite Parties while offering possession, informed the complainant that final area of the independent floor was 1900 sq. ft. (increase of 19 sq. ft.) and as per Final Statement of Account as on 15.02.2016 annexed with possession letter, against the payable amount of Rs.97,87,782.77, they (Opposite Parties) had received an amount of Rs.75,95,711.04 from the complainant and still an amount of Rs.21,92,071.73 remained to be paid by the complainant to them, besides Rs.1,05,051/- payable to ‘Hyde Park Residential Welfare Society’. As is evident from zimini order dated 24.08.2016, subsequently, the complainant paid Rs.7,00,000/- to the Opposite Parties and thus, the dispute remained only qua balance amount of Rs.14,92,071.73 + Rs.1,05,051.00. Further excluding stamp duty and registration charges in the sum of Rs.6,97,475/-, the dispute remained only qua Rs.7,94,596.73. Subsequently, on 22.09.2016, Counsel for the complainant stated that by depositing an amount of Rs.8,09,696.10 on 31.08.2016, the complainant had discharged her liability. Thus, the complainant, in all, has paid an amount of Rs.91,05,407/- to the Opposite Parties. As stated during arguments, possession was delivered to the complainant on 22.10.2016.

15.        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 Consumer Complaint No.339 of 2016 titled ‘Sandeep Goyal Vs. M/s Puma Realtors Private Limited’ decided on 07.10.2016. Paras 13 to 20 of the said order, inter-alia, being relevant, are extracted hereunder:-

“13.        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.

                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.”

                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.”

14.        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.

15.        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.”

16.        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.

17.        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.

18.       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. 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.

19.      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. In the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite party, in the manner explained above. He is now running behind the opposite party to get his amount, legally due to be paid to him, as it failed to deliver possession of the unit, even till date. 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.

20.       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.”

                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.”

16.        In view of the above, the objection raised by Counsel for the Opposite Parties that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected. Accordingly, all the miscellaneous application(s) under Section 8 of the Arbitration and Conciliation Act 1996 also stand dismissed.

17.        Another objection raised by Counsel for the Opposite Parties was that since the complainant sought enforcement of the Agreement, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. It may be stated here, that the complainant hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the unit, in question, within a period of thirty months, from the date of Application. 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”

18.        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 a remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

19.        The next question, which falls for consideration, is, whether a sum of Rs.1,00,000/- on account of parking charges is payable by the complainant. It may be stated here that perusal of Annexure relating to Payment Plan (Page 125 of written statement) clearly indicates that parking charges in the sum of Rs.1,00,000/- are payable by the complainant. The complainant had already paid a sum of Rs.95,000/- as is evident from statement of account annexed with offer of possession letter dated 15.02.2016. Therefore, the grievance of the complainant is after thought and is not sustainable.  

20.        As regards complainant’s allegation qua very poor construction quality and lack of promised services/amenities/facilities to be provided, no cogent evidence by way of report of an Engineer/Architect has been brought on record. The Opposite Parties, in their written statement in Paras 23-24, have denied the allegation regarding use of poor quality material in construction. In reply, it has been stated by the Opposite Parties that proper water connection and electricity is in place and full house keeping and maintenance services are being provided through leading multinational company, namely, Jones Lang Lasalle and tie-ups with International Companies to maintain the project are being done, which clearly project their clear intention as the Opposite Parties are bound by the terms mentioned in the Agreement. This point was also not pressed during arguments.

21.        The next question, which falls for consideration, is, as to whether there was delay in offering possession of the unit, in question, beyond the period stipulated in the Independent Floor Buyer’s Agreement. As is evident from record, the complainant submitted application dated 22.08.2012 for allotment. The unit was allotted on 31.08.2012 and Independent Floor Buyer’s Agreement was executed between the parties on 22.05.2013. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 30 months from the date of the application unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, deposits, securities etc. and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In the instant case, 30 months period from the date of application expired on 21.02.2015. The possession of the unit, in question, was offered vide letter dated 15.02.2016 (Annexure C-6), meaning thereby that there was clear delay of complete one year in offering possession. No reason or circumstances, which were beyond the control of the Opposite Parties for such delay, have been explained.

22.        While offering possession vide letter of possession dated 15.02.2016, the Opposite Parties raised demand on account of the following:-

1.(a)	Basic Sale Price	Rs.3,57,341.73
	PLC (Preferential Location Charges)	Rs.16,458.75
	EDC (External Development Charges)	Rs.11,092.25
	Parking Charges	Rs.5,000.00
(b)	Change in Area & PLC	Rs.75,525/-
	Service Tax	Rs.18,621.00
(c)	Delayed interest, if any.	0.00
II.	Other charges vide clause no.1.12 of the Floor Buyer’s Agreement @Rs.159.83 per sq. ft.	Rs.3,03,677.00
	Service Tax @14.50%	Rs.44,033.00
III.	Main Power Supply, Power Back-Up, Electricity, Sewer & Water Connection Changes etc. as per relevant clauses of the Floor Buyer’s Agreement Proportionate cost of expenditure @Rs.88.92 per sq. ft.	Rs.1,68,948.00
	Service Tax @14.50%	Rs.24,497.00
IV.	Escalation charges, as applicable (Refer clause no.1.2 of the Floor Buyer’s Agreement)	2,31,338.00
	Service Tax (as applicable)	Rs.8,386.00
V.	Contingent Deposit for VAT @Rs.65.16 per sq. ft.	Rs.1,23,804.00
VI.a)	Club Charges (50% of membership Fees)	Rs.75,000.00
	Add:- Service Tax @14.50%	Rs.10,875.00
b)	Club Security Deposit	Rs.20,000.00
VII.	Stamp Duty, Registration Charges & Others	Rs.6,97,475.00
	Balance Payable by  Uma shanker Trivedi in favour of DLF Universal Limited	Rs.21,92,071.73
IX.	Interest Bearing maintenance Security & CAM Charges.
(a)	Interest Bearing Maintenance Security (IBMS) @Rs.50/- per sq. ft.	Rs.95,000.00
(b)	1 Quarter Advance CAM @Rs.1.54 per sq. ft. per month.	Rs.8,778.00
	Add:- Service Tax @14.50%	Rs.1,273.00
	Balance Payable by Uma Shanker Trivedi in favour of Hyde Park Residents Welfare Society.	Rs.1,05,051.00

 

The complainant has challenged the demand stating that the same has been arbitrarily increased. It may be stated here that the total price of the unit in the sum of Rs.77,37,400.04 was exclusive of taxes and other charges as is evident from the provisions for the same in various clauses of the Agreement such as Clauses 1.2, 1.4, 1.6, 1.9, 1.12, 1.13, 1.16, 10, 18 etc. and briefly mentioned in Para 14 above. It is noted that the major amount in the demand so raised, is on account of stamp duty and registration charges in the sum of Rs.6,97,475/-, which obviously has to be in addition to the price of the unit, in question. A sum of Rs.3,57,341.73 is on account of balance basic sale price, Rs.75,525/- on account of increase in area, and other amounts are also in accordance with the terms of the Agreement. The complainant has failed to explain as to how the demand(s) raised were arbitrary and not in accordance with the terms of the Agreement. 

23.        During arguments, the Counsel for the parties were in agreement that stamp duty and registration charges, shall be payable at the time of execution of the sale deed of the unit, in question, after possession is handed over; charges on account of advocate fee etc. would not be payable by the complainant, but incidental expenses, which may be incurred at the time of registration of sale deed, shall be borne by the complainant. In regard to contingent deposit of VAT also, it was agreed that same shall be payable by the complainant as and when the same is paid by the Opposite Parties to the Government. Thus, at this stage, the complainant is held liable to pay the demand raised minus contingent vat, stamp duty, registration charges and advocate charges, within 15 days from the date of receipt of certified copy of the order.

24.        It may be stated here that on 22.09.2016, the Counsel for the complainant stated that by depositing Rs.8,09,696.10 on 31.08.2016, the complainant had discharged her liability. Further, the Counsel for the Opposite Parties, on getting instructions, had undertaken that possession would be handed over to the complainant within next 15 days after making minor repairs/ corrections in the unit. Counsel for both the parties, during arguments, stated that possession has been handed over to the complainant.

25.         The question, which now arises 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 30 months from the date of the application. As stated above, in the instant case, the Opposite Parties offered possession vide letter dated 15.02.2016 (Annexure C-6). 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 14 were meant for computing compensation, in case of a minor delay in delivery of possession.  If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 percent, 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.

26.        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 reads 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.”

27.        Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the case, referred to above, and position stated above, grant of compensation in the form of simple interest @10% p.a. on the deposited amount for the period of delay, would serve the ends of justice.

28.        As stated by the Counsel during arguments, possession of the unit, in question, has been delivered to the complainant on 22.10.2016. The possession of the unit, in question, was offered vide letter dated 15.02.2016. The payment against the demand raised was not made by the complainant immediately. The complainant made only part payment in the sum of Rs.7 Lacs and payment towards remaining major part of the demand was made on 31.08.2016. There is, thus, delay on the part of the complainant in making payment towards the demand raised, in the absence of which, the Opposite Parties rightly did not hand over possession. The complainant, instead of making payment immediately or within reasonable period of 30 days, made the payment belatedly on 31.08.2016. Since, the demand(s) raised, by and large, have been held to be justified, the delay in making payment beyond 30 days from the date of offer of possession is clearly on the part of complainant. The Opposite Parties, after payment by the complainant on 31.08.2016, took 1 month 22 days in delivering possession. This delay is attributable to the Opposite Parties. Thus, besides compensation from 22.02.2015 till 15.02.2016, beyond 15.02.2016, when possession was offered, the complainant is entitled to compensation for delayed period for one month (30 days) plus 1 month 22 days. In this manner, the complainant is entitled to compensation up-to 07.05.2016.  Therefore, in all fairness, the complainant is held entitled to interest @10% for the delayed period, up-to 07.05.2016. However, the Opposite Parties would not be entitled to levy holding charges till 22.10.2016 when possession was actually delivered.

29.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her, for delay in delivering physical possession of the unit to her, by the Opposite Parties, by the promised date in the Agreement i.e. by 21.02.2015. The complainant purchased the unit, with the hope that she will have a house to live in. As already held above, the possession of unit, in question, so offered vide letter dated 15.02.2016 has been delayed by complete one year. 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 10% interest for the delay period. 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.2,00,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.2,00,000/-.

30.        A sum of Rs.1,05,051/- is on account of IBMS and CAM charges. As agreed during arguments, the complainant shall deposit the same within 15 days from the date of receipt of certified copy of this order. Though the complainant could deposit contingent Vat amount as and when the same was paid by the Opposite Parties to the Government but the complainant has already deposited the same. In fact, as per Statement of Account, annexed with possession letter, and thereafter, the complainant has made the following payments:-

I	Total payable as per Statement of Account excluding Stamp Duty & Registration Charges.		=	Rs.90,90,307.77
II	a)	Amount deposited by complainant as per Statement of Account	=	Rs.75,95,711.04
	b)	Amount deposited after receipt of possession letter	=	Rs.7,00,000.00
	c)	Amount deposited on 31.08.2016	=	Rs.8,09,696.10
	Total		=	Rs.91,05,407.14

 

Against the payable amount of Rs.90,90,307.73, the complainant has deposited a sum of Rs.91,05,407.14, meaning thereby that a sum of Rs.15,099.37 has been made in excess by the complainant, as is evident from the position stated above. The complainant, is, therefore, directed to deposit IBMS charges in the sum of Rs.89,951.63 (Rs.1,05,051.00 – Rs.15,099.37) within 30 days. The contingent Vat deposit has been held to be payable as and when the same is deposited by the Opposite Parties to the Government but the complainant has already made the payment. Till such time the same is paid by the Opposite Parties to the Government, the complainant shall be entitled to interest on the Vat deposit amount of Rs.1,23,804.00 @10% per annum. 

30.        In other two connected complaints bearing No.492 of 2016 and 493 of 2016, particulars of which, are indicated in the Table below, possession of the unit(s) has been offered by the Opposite Parties vide letters dated 15.02.2016 and 15.02.2016 (Annexures C-5) respectively:-

TABLE

Sr. No.	Description	Case No.
		492 of 2016	493 of 2016
1	Date of independent Floor Buyer’s Agreement.	11.11.2013	25.11.2013
2.	Date of application	16.08.2012	16.08.2012
3.	Due date for possession after 30 months from the date of application	15.02.2015	15.02.2015
4.	Date on which possession offered	15.02.2016 (Annexure C-5)	15.02.2016 (Annexure C-5)
5.	Details of demand raised	Rs.23,41,409.17 inclusive of  Rs.8,21,755/- as Stamp Duty & Registration Charges and Rs.1,23,999/-  on account of  contingent vat deposit besides Rs.105217/- on account of IBMS & CAM charges.	Rs.23,81,942/- inclusive of  Rs.8,41,615/- as Stamp Duty & Registration Charges and Rs.1,23,999/-  on account of  contingent vat deposit besides Rs.1,05,217/- on account of IBMS & CAM charges.
6.	Whether original allottee?	Yes	Yes
7.	Date of accepting the possession, so offered.	15.10.2016	15.10.2016
8.	Amount paid by the complainant(s) against the demand raised.	Rs.13,00,000/- on 29.08.2016 excluding stamp duty, registration charges, contingent Vat Deposit/IBMS.	Rs.13,00,000/- on 29.08.2016  excluding stamp duty, registration charges, contingent Vat Deposit/IBMS.

 

31.            The payment in the above two cases, as indicated at Sr. No.8, was made on 29.08.2016. The possession of the unit(s), in question, was delivered/accepted by the complainant(s) on 15.10.2016. There was, thus, delay of 1 month 17 days in delivering possession after payment was made.  

32.        Excluding demand raised on account of contingent vat deposit, stamp duty, registration charges, advocate charges, the payable amount comes to Rs.94,25,323.37 and Rs.96,42,514.10, against which, the complainants have deposited an amount of Rs.92,24,451.20 and Rs.94,20,969.10, which is short in the sum of Rs.2,00,872/- and Rs.2,21,545/- respectively. The complainants are liable to deposit amount(s) in the sum of Rs.2,00,872/- and Rs.2,21,545/- respectively. They are, therefore, directed to remit the same to the Opposite Parties within 15 days from the date of receipt of certified copy of this order, failing which, the amount(s) shall carry interest @10% per annum from the date possession was delivered to them.

33.        The complainants are held entitled to interest @10% p.a. for the delayed period, compensation of Rs.2,00,000/- and litigation cost of Rs.35,000/- in each of the above two complaints. 

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

35.        For the reasons recorded above, all the three complaints bearing Nos.491/2016, 492/2016 and 493/2016 are partly accepted, with costs, in the following manner:-

CC/491/2016	Dr. Shruti Aggarwal	Vs	DLF Universal Limited & Anr.
CC/492/2016	Kamaldeep Singh & Anr.	Vs	DLF Universal Limited & Anr.
CC/493/2016	Japtej Singh & Anr.	Vs	DLF Universal Limited & Anr.

 

              The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-

            

(i)	Execute and get registered the sale deed in respect of the unit(s), in question, within 45 days from the date of receipt of copy of this order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @10% p.a., on the deposited amount(s), to the complainant(s), from 22.02.2015, 16.02.2015 and 16.02.2015 respectively till 07.05.2016, 02.05.2016 and 02.05.2016 respectively, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @13% p.a., instead of 10% p.a., from the date of default, till realization.
(iii)	Pay compensation in the sum of Rs.2,00,000/- on account of mental agony, physical harassment and deficiency in service, and Rs.35,000/- as litigation costs, to the complainant(s), within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @10% p.a., from the date of filing the complaint(s) till realization.

 

36.        In all these three 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). The demand of contingent vat, shall be payable as and when the same becomes payable by the Opposite Parties to the Government.

37.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.492/2016 and 493 of 2016.

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

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

Pronounced.

06.12.2016

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

         MEMBER

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