(PER MR. JUSTICE RAM SURAT RAM (MAURYA), PRESIDING MEMBER)

1.      Heard Mr. Savinder Singh Gill, Advocate, for the complainant and Mr. Praveen Bahadur, Advocate, for the opposite party. 

2.      Jamit Kaur alias Jamit Kaur Teji has filed above complaint for directing the opposite party to (i) refund Rs.9661585.66 with interest @18% per annum, from the date of respective deposit till the date of refund; (ii) pay Rs.1000000/- as compensation for mental agony and harassment; (iii) pay Rs.500000/- as litigation costs; and (vi) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that DLF Universal Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project in the name of “Hyde Park Terraces” at village Mullanpur, New Chandigarh, Punjab, in the year, 2012 and made wide publicity of its amenities and facilities. Believing upon the representations of the opposite party, the complainant booked an independent floor on 10.09.2012 and deposited booking amount of Rs.600000/-. The opposite party allotted Unit No.IF-R-1-409-FF, saleable area 1881 sq.ft. + Car Parking P-R-1-E-409-FF, basic sale price Rs.8065049.04/- (inclusive Service Tax, PLC, EDC, IBMS), vide Allotment Letter dated 15.09.2012. Annexure-II of the booking application provides payment plans. The complainant opted for “construction link payment plan”, under which, 95% of consideration was payable with 27 months. The allotment letter mentioned “2.5 years Plan”. The opposite party executed Floor Buyer Agreement (FBA) in favour of the complainant on 06.08.2013. Clause-11(a) of the FBA provides 30 months period from the date of the application, for completion of construction. For timely payment of the instalments, the complainant took a loan of Rs.3000000/- from Housing Development Finance Corporation Limited on 12.03.2014. The complainant paid the instalments on time as per demand of the opposite party and deposited Rs.9720946.15 till July, 2016. There had been mismatch between the amount of instalment as mentioned in Annexure-II of Booking Application and Annexure-III of the FBA with the demand letters issued by the opposite party. Due date of possession expired in March, 2015. The opposite party vide email dated 16.02.2016, informed that they were dispatching offer of possession and registration letter with final statement of account and demanded Rs.2207747.20 towards balance consideration, which included Rs.303677/- as Other charges, Rs.231338/- as Escalation charges, Rs.123804/- as Contingent deposit for VAT, Rs.75000/- as Club charges, Rs.20000/- as Club security deposit. Apart from it, Rs.95000/-, towards IBMS, Rs.8778/- one quarter advance CAM, Rs.1273/- total Rs.105051/- payable to ‘Hyde Park Residents Welfare Society’ were demanded. Demand of Rs.123804/- “contingent deposit of VAT “was not mentioned in the agreement. The opposite party did not give information in respect of deposit of VAT. The opposite party demanded Rs.75525/- for increased area and PLC on it but has not given any basis as to how area has been increased. The opposite party demanded Rs.75000/- as Club charges and Rs.20000/- as Club Security Deposit although construction of club building was not started by that time. The opposite party demanded Rs.303677/- as “Other Charges” but did not provide the details of amount deposited in this head. The opposite party demanded Rs.105051/- for ‘Hyde Park Residents Welfare Society’, which was not mentioned in the agreement. The complainant has paid Rs.270625.51 as ‘service tax’, Rs.123804/- as ‘VAT’ since September, 2012. Swatchh Bharat Cess was levied since November, 2015. The complainant, vide emails dated 10.03.2016 and 15.03.2016, demanded certificate of Charted Accountant in respect of demands made as per Clause-1.12 of the FBA, price index of RBI, for examining escalation of price and delay compensation. The opposite party, vide email dated 10.03.2016, extended the period for deposit of the amount as demanded vide email dated 16.02.2016 till 10.04.2016. The opposite party called upon the complainant to inspect the flat and if there was any snag, to inform to ‘Jones Lang Lasalle’. The complainant inspected the flat on 01.06.2016 and found that basic structure was not done properly. The complainant informed the staff of ‘Jones Lang Lasalle’ in respect of various deficiencies in construction, in writing on 06.06.2016, who assured to remove the deficiencies within 15 days. The complainant also informed about the snags to the opposite party on 06.06.2016 vide email along with its photographs. However, ‘Jones Lang Lasalle’ failed to remove the deficiencies. The complainant again gave an email to the opposite party in this respect on 04.07.2016. The opposite party through email dated 16.07.2017, gave a reminder for deposit of the demanded amount. The complainant replied vide email dated 17.07.2016 that snags be removed then she would take possession. The opposite party, vide email dated 19.07.2016, informed that possession may be taken before registration of the sale deed. The complainant again vide email dated 29.07.2016 requested to remove snags as pointed out on 06.06.2016. In spite of various emails, the opposite party did not respond about rectifying deficiencies in construction, then this complaint was filed on 14.05.2018, for refund, alleging deficiency in service on the part of the opposite party.       

4.      The opposite party has filed its written reply on 29.08.2018, in which, booking of the floor, allotment of the floor and execution of the FBA, have not been disputed. The opposite party stated that the complainant had delayed payment of instalments dated 10.03.2013 by one day, 10.09.2013 by 59 days, 10.11.2013 by one day, 10.01.2014 by 24 days, 10.03.2014 by 2 days, 10.09.2014 by 346 days, 22.08.2015 by 5 days  and 15.03.2016 by 66 days. The period of 30 months as provided in clause-11(a) of the agreement was subject to timely payment of the instalments and force majeure. The complainant had delayed payment of instalments as such she was not entitled for delay compensation. Clause-11(a) of the agreement provides that the opposite party ‘endeavours to complete construction within 30 months’ as such it was not a fixed period. For small period of delay, the buyers will not be entitled for delay compensation particularly when the buyer herself delayed payment of the instalments. The project “Hyde Park Terraces” is a part of “Hyde Park Estate” a residential plotted colony. The opposite party obtained mandatory approvals, clearance, NOC from various departments and developed basic amenities such as road, sewerage, drainage, drinking water, electricity, street light etc. and obtained ‘Partial Completion Certificate’ on 10.09.2014. The opposite party completed the project “Hyde Park Terraces” and obtained ‘occupation certificate’ on 18.08.2015. Thereafter, the opposite party started offering possession to the buyers and offered possession to the complainant on 15.02.2016 and gave reminders on 29.07.2017 and 16.02.2018. The opposite party vide email dated 16.06.2016, requested to make balance payment. As per clause-1.1 of the agreement total price was Rs.7736860/- (excluding other charges). The complainant has deposited total Rs.9099813.97 (including TDS credit of Rs.59360.49) and not Rs.9720946.15 as alleged. It has been denied that contingent deposit for VAT is not mentioned in the agreement. “Taxes and Cesses” are defined in the agreement. Liability under Punjab VAT comes to Rs.65.15 per sq.ft. The opposite party demanded Rs.123804/- as contingency deposit towards proportionate VAT. It has been agreed for variation of area up to 15% under clause-15 of the agreement. In the present case, increase in area was within 15%. Club Building is common for “Hyde Park Terraces” which is a part of “Hyde Park Estate” and had already been constructed and functional. Demand in the head of ‘club charge’ was in fact ‘club membership charge’. Demands for ‘Hyde Park Residents Welfare Society’ and IBMS are in accordance with clauses-16, 17 and 18 of the agreement. Escalation charges are detailed in Annexure-X of the agreement. All the demands in Final Statement of Account were according to the terms of the agreement. The opposite party removed all the snags and deficiencies in construction as pointed out by the complainant on 06.06.2016, however, the complainant, instead of verifying it on the spot, malafide started to find out the way to wriggle out of the contract. The opposite party did not commit any deficiency in service. The complaint has been filed malafide with an object of undue enrichment which proves that she is an investor in real estate with speculative purpose and not a consumer. The complaint raises complicated issues of facts, which require trial by civil court. 

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Smt. Jamit Kaur alias Jamit Kaur Teji and documentary evidence. The opposite party filed Affidavit of Evidence of Shiv Kumar and documentary evidence. Both the parties have filed written synopsis.    

6.      We have considered the arguments of the parties and examined the record. The opposite party, vide email dated 16.02.2016, offered possession with final statement of account and demanded Rs.2207747.20 towards balance consideration and Rs.95000/- towards IBMS, Rs.8778/- one quarter advance CAM, Rs.1273/- towards Service Tax and Rs.105051/- payable to ‘Hyde Park Residents Welfare Society’. The complainant, vide emails dated 10.03.2016 demanded certificate of Charted Accountant in respect of demands made as per Clause-1.12 of the FBA, price index of RBI, for examining escalation of price and delay compensation. Main objection of the complainant was in respect of demand of Rs.123804 as contingent deposit for VAT, Rs.303677/- as “Other Charges” and Rs.105051/- for ‘Hyde Park Residents Welfare Society’, which was not mentioned in the agreement. The opposite party did not provide the details of amount demanded in these heads.

7.      So far as delay compensation is concerned, the opposite party has denied its liability to pay delay compensation. The opposite party submitted that clause-11(a) of the agreement provides that the opposite party ‘endeavours to complete construction within 30 months’ as such it was not a fixed period for handing over possession. The opposite party completed the project “Hyde Park Terraces” and obtained ‘occupation certificate’ on 18.08.2015. Thereafter, the opposite party started offering possession to the buyers and offered possession to the complainant on 15.02.2016. For small period of delay, the complainant will not be entitled for delay compensation particularly when she, herself delayed payment of the instalments. This argument is not liable to be accepted. So far as delayed payment of instalments is concerned the opposite party had charged interest on delayed instalment. This Commission, in FA/1340/2016 Vineet Kumar Vs. M/s. DLF Universal Limited and other connected appeals arising out of the same project, (decided on 13.02.2019) directed the opposite party to pay delay compensation, in similar circumstances. The opposite party demanded Rs.105051/- for “Hyde Park Resident Welfare Society”. Supreme Court in Utpal Trehan Vs. DLF Home Developers Limited, (2022) 10 SCC 409, held such demand is illegal and consequently offer of possession was not valid.

8.      Other main objection of the complainant is that the opposite party called upon the complainant to inspect the flat and if there was any snag, informed to ‘Jones Lang Lasalle’. The complainant inspected the flat on 01.06.2016 and found that basic structure was not done properly. The complainant informed the staff of ‘Jones Lang Lasalle’ in respect of 17 deficiencies in construction, in writing on 06.06.2016, who assured that the deficiencies would be removed within 15 days. But these deficiencies were not removed. The complainant informed the opposite party also vide email dated 04.07.2016, in respect of the deficiencies in construction. However, the opposite party gave reminder dated 16.07.2016, to deposit balance amount and take possession. Then the complainant again reminded the opposite party for rectifying the deficiencies in construction through email dated 17.07.2017. The opposite party again vide email dated 19.07.2016, asked to deposit balance amount. The opposite party did not care for removal of the deficiencies in construction as pointed out through email dated 06.06.2016. There is nothing on record that the opposite party or its contractor ‘Jones Lang Lasalle’ ever informed the complainant that the deficiencies in construction as pointed out vide email dated 06.06.2016 had been rectified till filing of the complaint. Due date of possession was March, 2015 and the complaint was filed 14.05.2018. Although possession was offered on 16.02.2016, but the opposite party did not rectify the deficiencies in construction as pointed out vide email dated 06.06.2016 and offer was illegal due to unauthorised demand and not providing delay compensation. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Limba, (2018) 5 SCC 442, Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, (2019) 5 SCC 725, Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 (6) SCALE 462 and has held that the buyer cannot be made to wait for indefinite period for possession.   

ORDER

In view of aforesaid discussions, the complaint is partly allowed. The opposite party is directed to refund entire amount deposited by the complainant, with interest @9% per annum from the date of respective deposit till the date of refund, within a period of two months from the date of this judgment.