Chandigarh

StateCommission

CC/344/2016

Raj Kumar Lekhwani - Complainant(s)

Versus

DLF Universal Limited - Opp.Party(s)

Savinder Singh Gill, Adv.

26 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	344 of 2016
Date of Institution	:	11.07.2016
Date of Decision	:	26.09.2016

 

Raj Kumar Lekhwani S/o Sh. Keshav Lakhwani r/o 6A/1804, Sapphire Heights, Lokhandwala, Kandiwali East, Mumbai, Maharashtra, Presently residing at Procter and Gamble Nigeria Limited Landmark House (Wing A), 52/54 Isaac John Street, GRA Ikeja, Lagos, Nigeria.

…… 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 Director/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. Savinder Singh Gill, Advocate for the complainant.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	351 of 2016
Date of Institution	:	13.07.2016
Date of Decision	:	26.09.2016

 

1. Mr. Bhagwant Singh son of Shri Joginder Singh, Resident of A224, Sector 46, Noida – 201303.
2. Mrs. Deepti Kaur wife of Shri Bhagwant Singh, resident of A224, Sector 46, Noida, 201303.

…… Complainants

Versus

1. M/s DLF Universal Limited having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon – 122002, Haryana, through its Managing Director.
2. M/s DLF Universal Limited having its regional office at SCO No.190-191, Sector 8-C, Chandigarh, 160009, through its Authorised Signatory.

....Opposite Parties.

 

Argued by:- Sh. Sanjiv Pabbi, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	358 of 2016
Date of Institution	:	18.07.2016
Date of Decision	:	26.09.2016

 

1. Sh. Nitin Goyal, Aged 40 years.
2. Sh. Nishant Goyal, Aged 36 years,

Both resident of House No.329, Phase-I, Urban Estate, Patiala.

…… Complainants.

Versus

 

1. DLF Universal Limited, SCO No.190-192, Sector 8C, Chandigarh through its Authorized Signatory.
2. DLF Universal Ltd., Regd. Office Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon, Haryana – 122002.

....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.

 

Argued by:- Sh. Devinder Kumar, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

PER DEV RAJ, MEMBER            

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

1	CC/344/2016	Raj Kumar Lekhwani	Vs	DLF Universal Ltd. & Anr.
2	CC/351/2016	Bhagwant Singh & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
3	CC/358/2016	Nitin Goyal & Anr.	Vs	DLF Universal Ltd. & Anr.

 

2.          At the time of arguments, on 16.09.2016, it was agreed between Counsel for the parties, that facts involved in the above complaints, by and large, are virtually the same, and therefore, these three complaints can be disposed of, by passing a consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.344 of 2016, titled as ‘Raj Kumar Lekhwani Vs. M/s DLF Universal Ltd. & Anr.’

4.          The facts in brief are that ‘the complainant applied for an independent floor on 20.08.2012 in the project of the Opposite Parties in the name and style of “Hyde Park Terraces” situated at New Chandigarh, Mullanpur, Punjab and paid Rs.6 Lacs as booking amount. Vide allotment letter dated 31.08.2012, the complainant was allotted independent floor 1F-R2-F715-FF with car parking No.P-R2-F715  in the said project measuring 1881 sq. ft., @Rs.3,800/- per sq. ft., at the sale price of Rs.74,07,685.02, which included basic sale price of Rs.71,47,800/-, External Development Charges of Rs.1,59,885.02, parking charges of Rs.1,00,000/-. The complainant opted for construction linked payment plan. An Independent Floor Buyer’s Agreement (Annexure C-2) was executed between the parties on 09.08.2013. As per Clause 11(a) of the said Agreement, physical possession of the said apartment was to be handed over by the Opposite Parties within a period of 30 months from the date of the application dated 20.08.2012, i.e. by 19.02.2015. The complainant had paid an amount of Rs.73,11,992.25Ps to the Opposite Parties by February, 2015 but despite payment of 95% payment, possession was not offered by the stipulated date.

5.          It was further stated that surprisingly, the Opposite Parties sent letter dated 15.02.2016 (Annexure C-3) i.e. after a period of more than one year of the stipulated date for possession and illegally demanded Rs.23,03,748.95 from the complainant. It was further stated that club charges, electricity, sewerage, water etc., escalation charges, stamp duty charges including other demands were illegally demanded by the Opposite Parties in the aforesaid letter. It was further stated that the Opposite Parties in a very arbitrary manner asked the complainant to deposit the aforesaid amount by 15.03.2016. The complainant thereafter made some payment under protest and requested the Opposite Parties to specify the other illegal charges. The complainant vide emails (Annexure C-4 colly.) requested the Opposite parties to show the completion certificate and whether the flat was complete in all respects and whether the facilities as per brochure have been provided. It was further stated that in the absence of such information, the complainant could not take possession and requested the Opposite Parties to refund his money. It was further stated that the complainant has obtained loan of Rs.32 Lacs from ICICI Bank. It was further stated that the complainant till date has paid an amount of Rs.83,11,992.25 to the Opposite Parties i.e. more than 95% of the sale consideration and now it was not possible for him to pay such a huge demand. 

6.          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 refund of Rs.85,38,914.25 alongwith interest @24% per annum; Rs.5 Lacs as compensation for harassment and mental agony and Rs.1 Lacs as litigation expenses.

7.         The Opposite Parties in their written statement took up certain preliminary objections to the effect that in the face of arbitration clause contained in the Agreement, dispute if any, was required to be referred to an Arbitrator, 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 Foras are summary, in nature, this Commission is not competent to adjudicate this complaint.

8.          On merits, it was admitted that the complainant had purchased the unit, in question, from Opposite Parties. It was also admitted that the Opposite Parties received an amount of Rs.83,11,826.25 from the complainant. It was stated that the offer of possession of the floor was to be understood within the provision of the Agreement i.e. Clauses 11(a), 11(b) and 11(c) and the complainant was provided only the tentative schedule of possession. It was further stated that the offer of possession was sent to the complainant vide letter dated 15.02.2016 alongwith Final Statement of Account and it was the complainant who requested to extend the possession period up-to 31.08.2016. It was further stated that once, the complainant was ready to take possession as he had asked for extension of time for taking possession, seeking refund by him showed malafide on his part. It was further stated that the demand raised vide Final Statement of Account was legal and in accordance with terms and conditions of the Agreement. It was further stated that the Opposite Parties have received partial completion certificate and occupation certificate from the competent authority. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

9.          The complainant filed rejoinder, wherein he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

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

11.        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. 

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

13.        Admittedly, vide allotment letter dated 31.08.2012 (Annexure C-1), the complainant was allotted Independent Floor No.IF-R2-F-715 (First Floor) with parking space No.P-R2-F715-FF, measuring 1881 Sq. ft., in the project of the Opposite Parties, total price whereof, including External Development Charges, Parking and Maintenance Security was Rs.75,01,735.02 and Rs.2,23,962.00 as service tax on the said amount. In addition to total price and other charges mentioned in the Application/Agreement, Annexure-III to the Agreement, the complainant was to pay other amounts, charges security amount etc. as mentioned at internal page 7 of the Independent Floor Buyer Agreement from Sr. No.(i) to (xiii) i.e. IBMS, wealth tax, government rates, tax on land, fees or levies of all and any kind by whatever name called on the said project/said building/said independent floor, stamp duty, registration and incidental charges as well as expenses with regard to the Agreement and conveyance deed etc., taxes and cesses, club membership and subscription charges, as applicable, cost for providing power back up including that of equipments, DG set, cabling, installation etc., all deposits and charges paid/payable by the Company to Punjab State Power Corporation Ltd. (PSPCL) or any other body, proportionate share towards the cost incurred by the Company for construction/installation of sub-station/power house/transformers/equipments, etc., charges/costs for providing connection from feeder pillars upto the said independent floor including any deposits and cost for meter installation, charges/costs for providing sewer, storm and water connection, including cost for meter installation, to the said independent floor from the main line serving the said building/said plot, escalation charges, charges and taxes in terms of Clauses 1.6, 1.12, 1.13 and 1.16 of the Agreement, and any other charges that may be payable by the allottee as per the other items of the Agreement and such other charges as may be demanded by the Company.  Independent Floor Buyer’s Agreement was executed between the parties on 09.08.2013 (Annexures C-2/R-3) at Chandigarh. The Opposite Parties vide letter dated 15.2.2016 (Annexure C-3) offered possession, wherein it was informed 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.96,15,741.20, they (Opposite Parties) had received an amount of Rs.73,11,992.25 from the complainant and still an amount of Rs.23,03,748.95 remained to be paid by the complainant to them and Rs.1,05,051/- remained to be paid to Hyde Park Residential Welfare Society. The payment was to be regulated by construction linked payment plan opted by the complainant. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete construction of the floor, in question, by 19.02.2015 i.e. within 30 months from the date of the application, which was 20.08.2012. Admittedly, possession offered vide letter dated 15.02.2016 was late by one year, beyond the stipulated period. It is also evident from record that the complainant did not make complete payment of the demand raised vide letter dated 15.02.2016 and made part payment only. 

14.        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.213 of 2016 titled ‘Gobind Paul Vs. Emaar MGF Land Limited & Another’ decided on 16.08.2016. Paras 8 to 15 of the said order, inter-alia, being relevant, are extracted hereunder:-

                    “8……….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.”

9.                 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.

10.               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.”

 

11.               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.

12.               Now, we will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis-à-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.

13.               We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. As in the present case, the complainant have spent his life savings to get a unit, for their residential purpose. His hopes were shattered. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take up-to 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.

14.               The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, they failed to get possession of the unit, in question, in a developed project. As per ratio of the judgments in the case of Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

15.               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.””

15.        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.

16.        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 plot, 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”

17.        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 him, as he 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.

18.        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 and whether the demand raised while offering possession was tenable. As is evident from record, the complainant submitted application dated 20.08.2012 for allotment. The unit was allotted on 31.08.2012 and Independent Floor Buyer’s Agreement was executed between the parties on 09.08.2013. 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 19.02.2015. The possession of the unit, in question, was offered vide letter dated 15.02.2016, meaning thereby that there was 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. There is, thus, delay in offering possession of the allotted unit.

19.        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.3,63,399.19
	EDC (External Development Charges)	Rs.11,092.25
	Parking Charges	Rs.5,000.00
(b)	Change in Area & PLC	Rs.72,200.00
	Service Tax	Rs.15,964.00
(c)	Delayed Interest, if any.	979.51
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)	2,21,496.00
	Service Tax (as applicable)	Rs.8,029.00
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.8,34,755.00
	Balance Payable by Raj Kumar Lekhwani in favour of DLF Universal Limited	Rs.23,03,748.95
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 Raj Kumar Lekhwani in favour of Hyde Park Residents Welfare Society.	Rs.1,05,051.00

[

 

The total demand raised, while offering possession vide letter dated 15.02.2016, is Rs.23,03,748.95 + Rs.1,05,051.00 = Rs.24,08,799.95. In possession letter, payment made by the complainant is shown as Rs.73,11,992.25. In Para 10 of his complaint, the complainant has stated that the Opposite Parties collected a sum of Rs.83,11,992.25. As per copy of account statement (Annexure C-5), payment by the complainant is Rs.83,11,992.25. The Opposite Parties, in their written statement, have admitted in Para 10, receipt of payment of Rs.83,11,826.25. It is, thus, clear that after receipt of offer of possession vide letter dated 15.02.2016, the complainant made payment in the sum of Rs.10/12 Lacs. The complainant has challenged the offer of possession and demand raised stating that as of today, major part of the project is as good as jungle and the Opposite Parties have offered paper possession by raising illegal demands. They have termed the demand to be arbitrary. It may be stated here that the total price of the unit in the sum of Rs.75,01,735.02 was exclusive of taxes and other charges as is evident from the provisions for the same in various clauses of the Agreement briefly discussed in Para 13 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.8,34,755/- which obviously has to be in addition to the price of the unit, in question. A sum of Rs.3,63,399.19 on account of balance basic sale price, Rs.72,200/- on account of change in area, Rs.2,21,496.00 on account of escalation charges, and other amounts are also in accordance with the terms of the Agreement. The complainant on receipt of offer of possession sent emails dated 18.03.2016, 02.06.2016 and 04.06.2016, which read thus:-

“Email dated 18.03.2016:

Dear CRM Team,

My Brother in Law (Manish Dalwani) visited the site and share the snag list with JLL also what he realize that it will take at least 3 months to complete the activities. Hence I am not too sure whether you guys are ready to give the possession in one month’s time. Also I asked about the compensation detail of delay in possession in my last communication, can you pl share the details.

Thanks,

Raj.”

“Email dated 02.06.2016:

HI Anupama

I am now confused and lost in overall calculation you guys are making. Attach is the demand letter where it was specified for the amount of Rs.23,03,749 to be paid (which was surprise to me since I had already paid 90% payment earlier to you guys.) Now you are saying I have to pay overall 2408799.95 and balance I have to pay 1181878. Account statement is specifying I have to pay balance 1,390,545.33. I am not sure which amount I should refer for final payment. This is getting more tough for me to arrange funds and also creating mental pressure. I have taken loan from ICICI Bank on which I am paying huge interest now you are asking extra money. I am going through with mental tension and pressure from this.

Pl clarify and also share the scan copy of agreement so that I will go through all the clauses.

Raj Kumar Lekhwani

+234-8172121604”

 

“Email dated 04.06.016:

I booked an independent floor vide application dated 20-08-2012 in DLF project Hyde Park situated at Mullanpur, New Chandigarh and was subsequently allotted independent floor no.R2-F715-FF. That as per the agreement the total sale consideration was Rs.74,07,685.02/-. As per Clause 11 of the agreement, the possession was to be delivered within 30 months from the date of application; possession should have been given to me by Feb 2015.

Moreover on 15^th February, 2016, I received a letter demanding ~Rs.23 lakhs which were to be payable within a month. The demand included a lot of unreasonable charges. I was informed of the change in area at the time of last demand raised it was never been shared with me earlier. There were other unreasonable charges as well.

The Final demand statement did not even talk of any compensation for the late offer of possession i.e. for a year. Till date I have already paid around 80 lakhs (More than the original base value of the flat). At the time of offer of possession, no completion and occupation certificate has been shown to me. How come I can believe the possession offered to me is complete or not?

The dealing of the Company has been unreasonable. Moreover, there are no basic facilities on the site and it has not been indicated whether all the facilities as per the brochure has been provided or not.

The one sided monopolistic demands have forced me to withdraw from the said project. I request you to kindly refund my money with 18% interest.

Moreover I got mail from your representative recently asking for additional amount of ~2 lakhs over and above the 23 Lakhs, which I am not clear. Also the account statement shared with me showing different outstanding amount vs what is being shared in final demand letter and email sent by DLF representative. I am going through with a mental pressure because to unnecessary charges and extra demand every time from DLF. Hence wants to withdraw from the project.

Please I request to refund my money with 18% interest as soon as possible.

Thanking you,

Yours Faithfully,

Raj Kumar Lekhwani

Principal DLF Hyde Park Property

HPE-IF-R2-F715-FF”

 

             Another email dated 05.06.2016 was also sent by the complainant withdrawing from the project and seeking refund. Relevant paras of the said email are extracted hereunder:-

“The dealing of the Company has been unreasonable. Moreover, there are no basic facilities on the site and it has not been indicated whether all the facilities as per the brochure has been provided or not.

The one sided monopolistic demands have forced me to withdraw from the said project. I request you to kindly refund my money with 18% interest.

 

Moreover, I got mail from your representative recently asking for additional amount of ~2 Lakhs over and above the 23 Lakhs, which I am not clear. Also the account statement shared with me showing different outstanding amount vs. what is being shared in final demand letter and email sent by DLF representative. I am going through with a mental pressure because to unnecessary charges and extra demand every time from DLF. Hence wants to withdraw from the project.

 

Please I request to refund my money with 18% interest as soon as possible.”

 

             The contents of aforesaid emails clearly depict that he (complainant) withdrew from the project and sought refund terming the demands unreasonable. The demands are in accordance with the terms of the Agreement. The averments in the complaint that major part of the project was jungle and possession offered was a paper possession, when correlated with contents of the emails aforesaid, are apparently afterthought. The averments are also not supported by any cogent evidence. The Opposite Parties vide Annexure R-6 have placed on record partial completion certificate issued vide GMADA Memo No.ACA/GMADA/2014/82 dated 10.09.2014 and occupation certificate vide GMADA Memo dated 21.10.2015 in respect of Unit No.R2F-715 which proves completion of the unit, before offer of possession on 15.02.2015.

20.        As already submitted above, there has been delay of around one year in offering possession. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. The Counsel for the Opposite Parties, argued that seeking refund would amount to rescinding the contract and earnest money was forfeitable. Had the Opposite Parties offered possession to the complainant before the stipulated period in the Agreement, we would have accepted the contention of the Opposite Parties but the same is not the situation in the instant case. By not delivering the possession by the due date stipulated in the Agreement, without existence of any force majeure condition(s), the Opposite Parties were deficient. Not only this, by not giving benefit of compensation for delay in offering possession at the time of raising demand, the Opposite Parties indulged into unfair trade practice.

21.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainant. It is not in dispute and rather admitted in Para 10 of the reply, on merits, that an amount of Rs.83,11,826.25 was paid by the complainant to the Opposite Parties, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. In cases of similar nature, where there has been inordinate delay in offering possession, this Commission has been granting interest @12%/15% per annum. In the case titled ‘Sh. Anjan Kumar Bhaduri & Anr. Vs. M/s DLF Universal Ltd. & Anr.’, Consumer Complaint No.207 of 2016 decided by this Commission on 06.09.2016, where delay in offering possession beyond committed period was 8 months, 10% interest was granted. In the facts and circumstances of the instant case, when delay in offering possession was one year, refund of the deposited amount at the rate of 11% per annum would meet the ends of justice.

22.        The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation or not. The complainant deposited his hard earned money, in the hope that he will have a house to live in. As stated above, possession has been offered by the Opposite Parties vide letter dt. 15.02.2016 i.e. after a period of around one year from the date stipulated in the Agreement. On account of non-delivery of possession of the unit, in question, by the Opposite Parties, to the complainant, complete in all respects, within the stipulated period, the complainant has certainly suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, for which, he needs to be suitably compensated. In our considered opinion, compensation in the sum of Rs.2,00,000/-, if granted, would be just and adequate, to meet the ends of justice.

23.        Details of facts viz. Amount deposited; Date of application form; Due date for offering possession; Date of offer of possession; and Delay in offer of possession; are given hereunder, in respect of connected two complaint cases:-

Sr. No.	Description/ Details	Complaint No.351 of 2016	Complaint No.358 of 2016 (Plot)
a)	Amount deposited, (Rs.)	75,12,943.00	89,29,934.00*
b)	Date of application form	10.09.2012	29.03.2011/01.08.2012 **
C)	Due date for offer of possession.	09.03.2015	01.08.2014
d)	Date of offer of possession	15.02.2016	19.11.2014
e)	Delay in offer of possession	11 Months 6 days	3 months 18 days

 

(*) As per Final Statement of Account annexed with the possession letter dated 19.11.2014, the amounts paid by the complainant are Rs.89,79,869.95 plus Rs.39,450.80.

(**) As per clause 32 of the Plot Buyer’s Agreement, which was executed on 01.08.2012, possession of the plot, in question, was to be offered within 24 months from the date of execution of the Agreement i.e. by 01.08.2014. However, Possession was offered on 19.11.2014.

24.       In Consumer Complaint No.351/2016 titled ‘Sh. Bhagwant Singh & Anr. Vs. M/s DLF Universal Ltd. & Anr.’, there is delay of around 11 months and 6 days in offering possession of the unit, in question, as possession was offered on 15.02.2016 as against due date of 09.03.2015. Therefore, in view of the observations made in the preceding paras, the complainants, in this case, are also held entitled to refund of the deposited amount alongwith interest @11% per annum from the dates of respective deposits, plus other reliefs, to which the complainant in Consumer Complaint No.344 of 2016 is held entitled to.

25.       In Consumer Complaint No.358 of 2016 titled ‘Sh. Nitin Goyal & Anr. Vs. DLF Universal Ltd. & Anr.’, a Plot was allotted to the complainants and Plot Buyer’s Agreement was executed between the parties on 01.08.2012. As per Clause 32 of the Agreement, possession of the plot, in question, was to be offered within a period of 24 months from the date of execution of the Agreement. The stipulated period of 24 months expired on 01.08.2014. Admittedly, the possession was offered vide letter dated 19.11.2014 (Annexure C-4). There is delay of 3½ months in offering possession, which is not very significant. However, it is a fact that possession of the plot, in question, was offered beyond the stipulated period of 24 months. As per settled position of law in Emaar MGF Land Limited and another Vs. Dilshad Gill’s case (supra), in case of delay in handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. 

26.        While offering possession, vide Final Statement of Account, the original price of the plot, in question, viz. Rs.81,21,690.72 was enhanced to Rs.1,04,11,024.25, against which, the complainants had already paid an amount of Rs.89,29,934/-. As per Final Statement of Account annexed with possession letter dated 19.11.2014, the complainants have paid                Rs.89,79,869.95  +  Rs.39,450.80.  Vide   letter   dated

19.11.2014, the Opposite Parties raised demand of Rs.31,36,005.21Ps, out of which Rs.9,15,905/- were on account of registration charges and Rs.4,42,147.54 towards balance basic sale price. An amount of Rs.9,80,051.36 were shown on account of increased area but in the written statement, the Opposite Parties in Para 6 have clarified that the said demand of Rs.9,80,051.36 were towards PLC charges. In the Final Statement of Account, the PLC was shown to be zero. During arguments, the Counsel for the Opposite Parties also conceded that the aforesaid charges were on account of PLC as the location of the Plot, in question, was changed from its original location and as such, demand for PLC was raised. It may be stated here that in the Agreement, the Plot allotted was not preferentially located and, therefore, the PLC was not there. Relocating the originally allotted plot to other location without obtaining the consent of the complainants, caused additional financial liability upon the complainants in the sum of Rs.9,80,051.36Ps, which amounted to unfair trade practice on the part of Opposite Parties. They (Opposite Parties) were required to obtain consent of the complainant before relocating the plot allotted to them and had the complainant consented to the same, the matter would have been different. Thus, such a demand in FAS is illegal. It is on record that since 19.11.2014, the complainants did not pay the aforesaid demand raised vide Final Statement of Account. The complainants rather vide letter dated 02.12.2014 (Annexure C-6) challenged the demand and showed their willingness to pay Rs.6,45,256.57 only as per payment plan. Thereafter, the Opposite Parties sent reminder dated 06.01.2015 (Annexure C-7) to remit the demanded amount of Rs.31,36,005.21. The complainants vide letter dated 07.08.2015 (Annexure C-8) again reiterated their grievance of illegal demand raised and requested the Opposite Parties to issue revised demand for Rs.6,45,256.57. Subsequently, the Opposite Parties sent letter dated 04.09.2015 (Annexure C-9) asking the complainants to remit the demanded amount for executing the registration of sale deed for the plot, in question. Since the possession to the complainants was offered after the period stipulated in the Agreement, the complainants, in this case, are also entitled to refund of the deposited amount, @9% p.a., compensation of Rs.1.50 lacs and litigation cost of Rs.50,000/-.

27.        No other point, was urged, by the Counsel for the parties.

28.        For the reasons, recorded above, the complaints bearing No.344 of 2016, 351 of 2016 and 358 of 2016 are partly accepted, with costs, and the Opposite Parties (M/s DLF Universal Limited) are jointly and severally, held liable and directed in the following manner:-

Complaint Case No.344 of 2016 titled as ‘Sh. Raj Kumar Lekhwani Vs. DLF Universal Ltd. & Anr.’.

(i)   To refund the amount of Rs.83,11,992.25 or amount actually paid, alongwith simple interest @11% per annum, to the complainant, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @14% per annum, instead of 11% per annum, from the date of filing the complaint till actual payment;

 (ii) To pay an amount of Rs.2,00,000/-  (Rupees Two Lacs Only) as compensation for mental agony and physical harassment and Rs.50,000/- as cost of litigation, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @11% per annum from the date of filing the complaint till actual payment;

Complaint Case No.351 of 2016 titled as ‘Sh. Bhagwant Singh & Anr. Vs. M/s DLF Universal Ltd. & Anr.’.

(i)   To refund the amount of Rs.75,12,943/- alongwith simple interest @11% per annum, to the complainants, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @14% per annum, instead of 11% per annum, from the date of filing the complaint till actual payment;

(ii)  To pay an amount of Rs.2,00,000/-  (Rupees Two Lacs Only) as compensation for mental agony and physical harassment and Rs.50,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @11% per annum from the date of filing the complaint till actual payment;

Complaint Case No.358 of 2016 titled as ‘Sh. Nitin Goyal & Anr. Vs. DLF Universal Ltd. & Anr.’.

(i)   To refund the amount of Rs.89,79,869.95 + Rs.39,450.80  or amount actually paid, alongwith simple interest @9% per annum, to the complainants, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum, instead of 9% per annum, from the date of filing the complaint till actual payment;

(ii)  To pay an amount of Rs.1,50,000/-  (Rupees One Lac Fifty Thousand Only) as compensation for mental agony and physical harassment and Rs.50,000/- as cost of litigation, to the complainants, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @9% per annum from the date of filing the complaint till actual payment;

29.       However, it is made clear that in case, the complainant(s) have availed loan facility from any financial institution(s), such an institution shall have the first charge on the amount(s) payable, to the extent, the same is due against the complainant(s).

30.       Certified copy of this order be placed on record of Consumer Complaints No.351 of 2016 and 358 of 2016.

31. Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced

26.09.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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