Binoy Kumar, Member

1. The present Consumer Complaint has been filed under Section 21(a) (i) of the Consumer Protection Act, 1986 (for short “the Act”) by Mr. Vikas Mittal (hereinafter referred to as the Complainant) against the Opposite Parties, M/s DLF Universal Limited and Another(hereinafter referred to as the Opposite Parties) seeking delay compensation @12% per annum for delay in delivery of possession of the Apartment.
2. The brief facts leading upto the present Complaint are that the Complainant booked an Apartment (hereinafter referred to as the Unit) in the Project of the Opposite Party “DLF Capital Greens” situated at phase –II, Shivaji Marg, New Delhi. The Complainant paid Rs. 7,50,000/- as the booking amount as per application form dated 29.09.2009 and thereafter he was allotted Unit- CGM-074, 7^th floor, Block M vide allotment letter dated 05.10.2009. The Opposite Party No. 1 i.e. DLF Universal Limited (hereinafter referred to as the OP-1) and the Complainant executed an Apartment Buyer’s Agreement dated 27.10.2010 (hereinafter referred to as the Agreement) wherein the total consideration of the Unit was mentioned as Rs.1,05,26,250/-. As per clause 11(a) of the Agreement the Unit was to be delivered within 36(thirty-six) months from the date of Application Form i.e. by 29.09.2012. The relevant portion of Clause 11(a) reads as under:

“ The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the Said Apartment within a period of thirty  six(36) Months from the date of Application unless there shall be delay or failure due to Force Majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of allottees to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the Allottee to abide by all or any of the terms and conditions of this Agreement”

3. The Complainant submitted that after collecting substantial amount, OP-1 vide letter dated 19.07.2012 extended the time period by 16(Sixteen) months and consequently clause 11(a) of the Agreement was revised from 36 months to 52 months. Therefore, the revised proposed date of possession become 29.01.2014. However, possession was not offered even on the revised proposed date of possession. The Complainant further stated that OP-1 also gave him option to exit the project and claim refund with interest but he chose to continue.
4. The Complainant stated that the OP-1 vide letter dated 28.02.2013 informed him that total saleable area of the Unit stood increased to 1565.74 sq. ft. In the circumstances, the total consideration of the Unit also stood increased by an amount of Rs.3,42,478/-. The Complainant paid an amount of Rs.1,26,85,022/- towards the consideration of the Unit. Therefore, no dues remained payable by him towards the Unit. The DLF Home Developers Limited (hereinafter referred to as the OP-2)  vide letter  dated 29.06.2017 informed him that Occupation Certificate has been received by it and he was requested to complete the remaining formalities to enable it to handover the possession of the Unit.
5.  The Complainant stated that in response to letter dated 29.06.2017 of OP-2 the Complainant vide e-mail dated 15.07.2017 sought clarifications in order to pay the balance dues to take possession. However, no response was received from OP-2. Thereafter the Complainant visited the office of Opposite Parties and deposited 10% of the balance amount. The Complainant further stated that Vide e-mail dated 01.12.2017, OP-2 admitted to delay in handing over the possession and stated that the possession could only be issued post the receipt of the clearance of account. The OP-2 vide e-mail dated 07.12.2017 informed the Complainant that the approval for the discount is in place and the possession letter for the Unit has also been issued. However, when the Complainant did not receive the possession letter, he requested Opposite Parties to share the Possession letter. The Opposite Parties vide email dated 15.12.2017 apologized for its inability to issue the possession letter and stated that the same is subject to submission of requisite documents and also stated that the physical possession of the Unit could be taken on 27.01.2018.
6. The Complainant submitted that though timely payment by the Allottee was made an essential prerequisite condition in the Agreement, timely delivery of possession by the Opposite Parties has not been dealt with similar importance
7. The Complainant averred that he kept visiting the office of the opposite parties. Finally, after a delay of 17(seventeen) months, the Opposite Parties informed him that the Unit is complete in all respects and ready for possession. Thereafter, the Complainant vide e-mail dated 01.04.2019 again sought confirmation as regards any pending dues and the completion of the flat.  OP-2 belatedly offered possession of the Unit on 09.05.2019 i.e. after delay of 5(five years) by sharing a back-dated letter offering possession dated 07.12.2017. The receipt of the said letter by the Complainant by way of his signature clearly shows that on the offer of possession was only received by him on 09.05.2019. Subsequently, possession was delivered to the Complainant only on 08.06.2019.
8. The Complainant averred that the Opposite Parties have wrongfully charged maintenance charges from January 2018 till April 2019 from the Complainant, when the possession of the Unit was in fact been offered only in May 2019. The maintenance charges should have been collected by the Opposite Parties only when the possession had been offered to the Complainant. The Opposite Parties have also wrongfully charged the Complainant towards club charges and car parking since as per the Agreement, the definition of super area does not include the car parking area or the club area and forms a part of common area.
9. Thus, aggrieved by the delay in possession of his flat, the Complainant has filed this Complaint with the following prayer to:
   1. “Direct the Opposite Party (s), jointly and severally, to pay delayed compensation equivalent to interest @12% per annum on the amount deposited by the Complainant with the Opposite Party(s), from 29.09.2012 i.e. the date of delivery promised under the Agreement till 09.05.2019 i.e. the date when the possession letter of the Unit was offered by opposite Party No. 2 to the Complainant;
   2. Direct the Opposite Party(s), jointly and severally, to refund a sum of Rs. 4,00,000/-(Rupees Four Lakh Only) towards the car parking charge and club charges paid by the Complainant along with interest @9 % per annum from the date of receipt of each payment;
   3. Direct the Opposite Party(s), jointly and severally, to refund an amount of Rs. 88,362/- ( Rupees Eighty Eight thousand Three Hundred and Sixty Two Only) towards the maintenance charges from January 2018 to April 2019 paid by the Complainant;
   4. Direct the Opposite Party(s), jointly and severally, to pay compensation of Rs. 5,00,000/-( Rupees Five Lakh only) to the Complainant for mental agony, harassment, discomfort and undue hardships caused to the Complainant as a result of the above acts and omissions on the part of the Opposite Party(s);
   5. Direct the Opposite Party(s), jointly and severally, to pay a sum of Rs. 1,00,000/- (Rupees One Lakh Only) to the Complainant towards litigation costs; and
   6. That any other and further relief in favour of the Complainant as the Hon’ble Commission may dem fit and proper in the fact and circumstances of the case.

     10 The Opposite Party ( DLF Home Developers Limited) has filed its written version and resisted the Complaint by taking objections as under:

1. The present Complaint is barred by limitation. Possession has been offered on 27.06.2017 and on receipt of entire payment possession letter was issued on 07.12.2017.  The Complaint was filed on 17.03.2020.  The Complainant did not take possession for a period of two years.  The Complainant ceases to be consumer after possession is offered, and not taken by him for a period of 2 years.
2. The Complainant is not a consumer but an investor who has purchased the property in order to obtain better return and appreciation in value.
3. This Commission has no jurisdiction.
4. Complainant is liable to pay parking charges being part of total price agreed at the initial time of booking the apartment. The Complainant is also liable to pay club Charges.
5. The Opposite Parties vide letter dated 19.07.2012 had informed the Complainant about delay of 16 months in obtaining approvals and exit option was given to all these allottees with refund of amount paid along with interest @9 % per annum. The delay was due to delay caused by the concerned competent authorities in providing the necessary approvals and force majeure circumstances.
6. The dispute if any be referred to arbitration and in its absence such can be tried only in civil court.
7. The possession was offered to the Complainant on 27.06.2017, however after making the balance payment and completion of formalities, the possession letter was issued to him on 07.12.2017. It is due to delay on the part of the Complainant himself that physical possession of the Unit was not taken by him.
8. As per clause 16 and 17 of the Agreement the Complainant was liable to pay maintenance charges from the date of receipt of Occupation certificate.

In view of the aforesaid facts and circumstances the Opposite Party has prayed this Commission to:

1. Dismiss the instant complaint with costs; and
2. Pass any such other Order/Orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the present case.

11.       The Complainant in his rejoinder submitted that even after having taken possession of the Unit, the Complainant does not cease to be a consumer and this Hon’ble Commission has the jurisdiction to adjudicate the present Complaint and the Act is squarely applicable. The Complainant cited Wg. Cdr.  Arifur Rahman Khan v. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512 decided on 24.08.2020 which has categorically held and observed as under:

“36… The Developer in the present case has undertaken to provide a service in the nature of developing residential flats with certain amenities and remains amenable to the jurisdiction of the Consumer Fora. Consequently, we are unable to subscribe to the view of the NCDRC that flat purchasers who obtained possession or executed Deeds of Conveyance have lost their right to make claim for compensation for the delayed handing over of the flats.

12. We have heard the learned Counsel for both the Parties and have gone through the Complaint and material available on record.
13.  The Objection that the Complaint is barred by limitation and that the Complainant is not a consumer as possession was offered has no merit. In this regard, we would like to rely on the Order of Hon’ble Supreme Court in Wg. Cdr.  Arifur Rahman Khan v. DLF Southern Homes(Supra) wherein it was held that flat purchaser who obtained possession or executed deeds have right to claim compensation for the delayed handling over of the flats.
14.  The objection raised by the Opposite Party was that the Complainant is an Investor as he has purchased the said Flat for commercial purpose.  In this regard, it would be proper to draw attention to this Commission’s Order in the case of Sanjay Rastogi v. BPTP Limited & Anr (CC No. 3580 of 2017 decided on 18.06.2020) which was upheld by Hon’ble Supreme Court. It has observed as under:

       “13….One, the Complainant has clarified in the very first para of his plaint that he is not buying the unit for any commercial purpose. It is for the OP to prove otherwise. Two, commercial purpose requires that the Complainant be shown to be in the business of buying and selling flats. No attempt has been made to prove this.”  

Similar observation was made in the Order of this Commission in the case of Sai Everest Developers v. Harbans Singh Kohli, 2015 SCC OnLine NCDRC 1895 decided on 21.07.2015, in which it was held that “the Opposite Party should establish by way of documentary evidence that the Complainants were dealing in real estate or in the purchase and sale of the subject property for the purpose of making profits.” In the instant case, there is no such evidence filed by the Opposite Party to establish its case that the Said Flat was purchased for the purpose of resale. Therefore, this argument of the Opposite Parties does not hold good.

15.        The objection that this Commission has no jurisdiction and any dispute between the parties shall be referred to arbitration is devoid of merit. Attention is drawn to the Order of the Hon’ble Supreme Court in M/s Imperia Structures Ltd. v. Anil Patni and Another (2020) 10 SCC 783 decided on 02.11.2020 wherein it was held that “remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”, hence this Commission is also competent authority, also, as per section 3 of the act “the provisions of this Act shall be in addition to and not in derogation of any other law for the time being in force”.

Further, attention is drawn to the Order of this Commission in Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017.  which was also upheld by the Hon’ble Supreme court, wherein it was held that:

“Arbitration Clause in the Buyer’s Agreement does not bar the jurisdiction of the Consumer Fora.”

16. The Objection that delay was caused due to delay in getting approvals from the competent authority and due to force majeure circumstances is also devoid of merit.  In this regard, attention is drawn to the order of this Commission in CC 379 of 2013 Sivarama Sarma Jonnalagadda & Anr vs. M/s Maruthi Corporation Limited & Anr decided on 21.09.2021 wherein it was held that:

“the act of the Opposite Party in relying on force majeure clause while retaining the amounts deposited by the Complainant, is not on only an act of deficiency of service but also amounts to unfair trade practice.”

17.  The learned counsel for the Opposite Parties Mr. Pravin Bahadur averred that possession was offered to the Complainant vide letter dated   29.06.2017 and possession letter issued to the Complainant on 07.12.2017 and it is due to delay on the part of the Complainant himself that physical possession of the Unit was not taken by him. This was contested by the learned counsel for the Complainant Mr. Aditya Parolia. He averred that the Complainant time and again requested the Opposite Parties for an update on the status of the Unit. On an inspection of the Unit on 31.01.2018, the Complainant was shocked to find the Unit incomplete and uninhabitable. After continuous representations, the Opposite Parties informed that the Unit was complete.
18. The Hon’ble Supreme Court has dealt with similar facts and circumstances in DLF Home Developers Ltd. v. Capital Greens Flat Buyers Assn., (2021) 5 SCC 537 decided on 14.12.2020 wherein it was held as under:

“Insofar as the parking and club charges are concerned, in view of the decision of the court in Wing Commander Arifur Rahman Khan (Supra), the direction of the NCDRC in that regard shall stand set aside.

Accordingly, we allow the appeals in part to the following extent:

1. The compensation on account of delay in handing over possession of the flats to the flat buyers is reduced from 7% to 6%; and
2. The direction for the refund of parking charges and club charges and interest on these two components shall stand set aside.

         We clarify that the directions of the NCDRC are upheld, save and expect, for the above two modification in term of clauses (1) and (2) above. The payment at the rate of 6% per annum shall be made after making due adjustments for the compensation for delay at the contractual rate…..”

19. We find that there is no doubt to the fact that there has been an unreasonable delay in construction as the Unit which was not completed even as per the revised date of possession i.e. 29.01.2014. The Opposite Parties issued possession letter dated 07.12.2017 after obtaining the Occupancy Certificate. There has been definitely an inordinate delay of more than 3 years from the revised date of possession for obtaining the Occupancy Certificate and offering possession for which the Opposite Parties have not given any reasonable justification. The booking was done on 05.10.2009. The Agreement was signed on 27.10.2010 and possession was to be given by 29.09.2012 as per initial Agreement. Even if the offer of possession on 07.12.2017 is taken into account the delay is more than 5 years. The Occupation Certificate was only received in 2017. The Opposite Party has not given any reasonable justification for this delay also. Therefore, the Complainant is entitled for a fair and reasonable delay compensation
20. The Complainant has paid the entire amount by 21.08.2017 duly informing the Opposite Parties. While a letter of possession was issued on 07.12.2017, the actual possession was taken on 08.06.2019. The Complainant has stated that the Unit was not ready, which has been strongly contested by the Opposite Parties through their learned Counsel. In our considered view, credence to the argument of the Complainant will have to be given credence as it is inconceivable that a person will not like to take physical possession of his Unit after having made the entire payment which was also a substantial amount. Credence may also need to be given to the fact that the receipt of possession letter dated 07.12.2017 was actually received by the Complainant only on 09.05.2019 as evidenced by him.
21. In view of the discussion above, the Consumer Complaint is partly allowed. The Opposite Parties/builder is directed to pay delay compensation @6% per annum to the Complainant on the amount deposited by him from the revised date of possession i.e. 29.09.2014 till 09.05.2019 i.e. the date when the possession letter of the Unit was received by the Complainant within a period of six weeks from this Order.  Any delay beyond this will attract an interest of 9% per annum.