Haryana

StateCommission

CC/428/2017

COL.AMIT SOOD - Complainant(s)

Versus

DLF UNIVERSAL LTD. - Opp.Party(s)

DILPREET SINGH GANDHI

23 Feb 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:11.07.2017

                Date of final hearing:23.02.2024

                                                Date of pronouncement:23.02.2024

 

Consumer Complaint No.428 of 2017

 

IN THE MATTER OF

 

Col. Amit Sood, HW Technical Group, EME Delhi Cantt. 110010, Delhi.

                                                                             .….Complainant.

Through counsel Mr. Dilpreet Gandhi, Advocate

 

Versus

 

1.    The Authorized Signatory, DLF Universal Ltd., having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon, 122002.

2.    The Branch head/Authorized Signatory, DLF Homes, Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh.

3.    Head of Customer Service, DLF Homes, Panchkula Pvt. Ltd., SCO 190-191-192, Sector-8C, Chandigarh.

….Opposite parties.

Through counsel Mr. Shekhar Verma, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. Dilpreet Gandhi, counsel for the complainant.

Ms. Rupali Shekhar Verma, counsel for opposite parties.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that opposite parties (“OPs”) floated a housing project under the name and style of “DLF Valley, Panchkula” situated at village Bhagwanpur, Islam Nagar, Panchkula (Haryana). On 13.02.2010, complainant alongwith his wife Mrs. Vandana Sood being joint applicant had applied for one independent floor in the said project by paying an amount of Rs.4,00,000/-. Thereafter, OPs vide their letter dated 03.04.2010 allotted the independent floor E-5/5, 1^st Floor in the abovementioned project and it was two years construction linked plan. It was alleged that the complainant deposited the initial payments of approximately Rs.10,51,906/- till February, 2010 as per demand letters of OPs, but the Floor Buyer’s Agreement was sent by them for signatures on 02.11.2010 and the same was returned by complainant on 12.11.2010 to the OPs. It was further alleged that the complainant had requested the OPs on 11.06.2010 to supply certain documents which were required for approval of home loan from AGIF (Army Group Insurance Fund), but the same were supplied by OPs vide their letter dated 20.01.2011 after repeated reminders. It is pertinent to mention here that the complainant had signed the Floor Buyer’s Agreement in November, 2010, but in the documents supplied by OPs to complainant the date of agreement was mentioned as 27.12.2010. It was further alleged that as a result of inordinate delay in sending the signed documents to complainant, the sanctioning of loan from AGIF was delayed for over 18 months. It is pertinent to mention here that during this period, complainant regularly received demand notices from OPs including enhanced EDC charges etc.

2.                Thereafter, vide letter dated 11.05.2012, complainant was intimated that the Hon’ble Supreme Court of India vide order dated 19.04.2012, passed in SLP No.21786-88 of 2010 has stayed all the construction activities of the housing project. However, the OPs demanded payments from complainant vide their demand notices dated 20.01.2012 and 23.02.2012, which were absolutely illegal. The stay order was vacated by the Hon’ble Apex Court vide order dated 12^th December, 2012 i.e. after less than 8 months of stay, but officials of OPs very cleverly manipulated and intimated the complainant after 6 months vide communication dated 05.06.2013 that the stay on construction activity was operating for a period of 12 months. It was further alleged that the complainant suffered unnecessarily over a period of around 4-6 years by the OPs and paid the complete amount under protest. OPs offered the possession vide letter dated 10.10.2016. Moreover, the possession of the flat was not offered within the stipulated period as mentioned in the agreement and there were large number of defects in the flat which were reported by the complainant on 01.11.2016.

3.                It was further alleged that as per the agreement, complainant is entitled to get compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1450 sq. ft. per month, which now stands increased to 1575 sq. ft. Meaning thereby, the complainant is entitled to get compensation of Rs.15,750/- per month from January, 2013  to 10.10.2016 i.e. 34 months, when the possession was offered to complainant by OPs. Complainant also sent a legal notice and repeated representations to OPs with regard to settle his claim, but OPs did not bother about the same. Complainant also requested the OPs to refund the service tax with interest @ 6% which was paid in July, 2010 on all the payments made by complainant. Apart from this the complainant also requested the OPs for compensation on account of inordinate delay in completion of project because the complainant had to pay additional interest on housing loan, but to no effect. It was further alleged that complainant also claimed interest on the payments made by him upto December, 2013 because those demands were raised by OPs on account of the fact that possession was to be delivered as per agreement, but there was inordinate delay in handing over the possession of flat. Apart from this the complainant is also entitled for compensation on account of mental and physical agony, but the demands of complainant were not settled by OPs and thus, OPs are deficient in rendering the services. Thus, complainant prayed for allowing of present complaint and other reliefs as prayed for.

4.                Notice of the complaint was issued against the OPs, upon which they appeared and filed their written statement and submitted therein that the complainant purchased an apartment bearing No. E-5/5, 1^st Floor in the housing project of OPs under the name and style of “DLF Valley, Panchkula” situated at village Bhagwanpur, Islam Nagar, Panchkula (Haryana). It was submitted that the complainant is not consumer and the present complaint is not maintainable as the complainant is an investor who applied for unit in question for earning benefits and not for the residential purpose of his own. It was further submitted that the occupation certificate was already received by OPs, possession of flat was offered to complainant on 10.10.2016 and complainant had already taken the possession on 27.03.2017. Floor Buyer’s Agreement was executed between the parties on 27.12.2010. The price of said flat as per SOP was Rs.35,81,499/- plus service tax for Rs.1450/- per sq. ft. However, due to increase in area the total price comes to Rs.43,37,392/- plus service tax for an area of 1575 sq. ft. The increase in value was due to increase in area of the floor as per clause 9 & 10 of the agreement and the complainant had full knowledge about the said agreement. As per clause 13 & clause 53 of the said agreement, events of defaults and consequences, complainants seeking quashing of agreement as is envisaged from the prayer clauses. It was further submitted that the said project is cost escalation free and complainant has been getting benefit of escalation on account of construction material/labour/land holding cost and also of price appreciation of the floor of more than Rs.20,00,000/-. It was further submitted that the complainant also benefitted from price appreciation as is envisaged from the circle rates fixed up by the Haryana State for the said property of Rs.5200/- PSFF & the complainant purchased the said property @ Rs.1850/- thus he benefitted by Rs.3350/- per sq. ft.

5.                It was further submitted that complainant had already taken the possession of flat on 27.03.2017 and is seeking compensation @ Rs.15,750/- per month for the period January, 2013 to February, 2017 along with Rs.7,71,750/- as compensation towards delayed possession. Further, the complainant seeks refund of service tax with interest @ 6%  from July, 2010 as well as interest on the business loan alongwith compensation of Rs.3,80,000/- with Rs.1,00,000/- as compensation of harassment. In this regard it is pertinent to mention here that the delay was occurred due to stay on construction ordered by Hon’ble High Court and thereafter by Hon’ble Supreme Court of India due to third party involving the acquisition proceedings of the land of litigants therein in the year, 2010 & 2012.

6.                It was further submitted that the OPs have acted as per terms and conditions mentioned in the agreement dated 27.12.2010 and as per clause 1.6 of the said agreement, the building plans/layout plan were subject to change and were not yet approved. Further, as per clause 11 (a) (b) & (c) of the said agreement, the complainant was duly informed about the schedule of possession and as per clause 11 (a), the OPs have to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to reasons mentioned in 11(b) & (c). However, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012. Thereafter, OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. Further, it was submitted that delay in delivery of possession was occurred due to force majeure i.e. pending litigation before the Hon’ble Supreme Court of India and thus, there was no deficiency in service on the part of OPs.

7.                It was further submitted that all the requisite documents for approval of loan was duly provided to complainant, however it was only AGIF who failed to process the documents on time. All the demands were raised in accordance with the agreement. Moreover, the charging of EDC is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.  It was further submitted that as per clause 15 of the agreement, the allottee shall not be in default of any term and condition of the agreement in order to avail compensation, but in the present case in hand, the complainant was in default of making payments. Other allegations made in the complaint were also denied. Thus, there was no deficiency in service on the part of the OPs and prayed for dismissal of the complaint.

8.                When the complaint was posted for recording evidence of the parties, complainant has tendered in evidence his affidavit as Ex.CW-1 vide which he has reiterated all the averments taken in the complaint and further tendered the documents, Ex.C-1 to Ex.C-8 and closed the evidence.

9.                On the other hand, learned counsel for OPs has tendered into evidence affidavit of Shri Shiv Kumar, Authorized Signatory of OPs as Ex.RA alongwith other documents Ex.R-1 to Ex.R-13 and closed the evidence on behalf of OPs.

10.              The arguments have been advanced by Mr. Dilpreet Gandhi, learned counsel for the complainant and Mrs. Rupali Shekhar Verma, learned counsel for OPs. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint have been properly perused and examined.

11.              As per the basic averment raised in the complaint and including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get compensation of the amount alongwith the interest which he had prayed for or not? 

12.              While unfolding his arguments, it has been argued by Mr. Dilpreet Gandhi, learned counsel for the complainant that OP No.1 has started a housing project under the name and style of “DLF Valley, Panchkula” situated at village Bhagwanpur, Islam Nagar, Panchkula (Haryana). On 13.02.2010, complainant alongwith his wife Mrs. Vandana Sood being joint applicant had applied for one independent floor in the said project by paying an amount of Rs.4,00,000/-. Thereafter, OPs vide their letter No.DLF/CS/UNQ/217/001274/A09703 dated 03.04.2010 allotted the independent floor E-5/5, 1^st Floor in the abovementioned project and it was two years construction linked plan and the complainant deposited the initial payments of approximately Rs.10,51,906/- till February, 2010 as per demand letters of OPs, but the Floor Buyer’s Agreement was sent by them for signatures on 02.11.2010 and the same was returned by complainant on 12.11.2010 to the OPs. He further argued that complainant communicated with OPs on 21.02.2011 as per which the date of signing of agreement was mentioned as 27.12.2010, whereas more than 25% of total payment due to DLF was already made by the complainant to DLF upto November, 2010. Therefore, the OPs deliberately changed the date of signing of agreement to 27^th December, 2010, whish is more than 8 months later than the date of first payment made in February, 2010. He further argued that the complainant, in his application applied for an independent floor with saleable area of 250 sq. mtr./1550 sq. ft., but as per the agreement, saleable area was reduced from 1550 sq. ft. to 1450 sq. ft. Thereafter, OPs vide their letter dated 22.10.2014 demanded additional amount of Rs.2,82,953/- on account of increase in saleable area of 124 sq. ft., which was objected to by the complainant.  He further argued that OPs offered the possession of flat vide letter dated 10.10.2016 and again sought additional amount of payment on account of increased area, upon which complainant obtained occupation certificate from OPs through e-mail dated 12.02.2021 as per which the area of allotted flat was approximately 1260 sq. ft., meaning thereby, the OPs have charged excess amount from complainant.

13.              Learned counsel for complainant has further argued that complainant had requested the OPs on 11.06.2010 to supply certain documents which were required for approval of home loan from AGIF (Army Group Insurance Fund), but the same were supplied by OPs vide their letter dated 20.01.2011 after repeated reminders as a result of inordinate delay in sending the signed documents to complainant, the sanctioning of loan from AGIF was delayed for over 18 months. It is pertinent to mention here that during this period, complainant regularly received demand notices from OPs including enhanced EDC charges etc. Thereafter, vide letter dated 11.05.2012, complainant was intimated that the Hon’ble Supreme Court of India vide order dated 19.04.2012, passed in SLP No.21786-88 of 2010 has stayed all the construction activities of the housing project. However, the OPs demanded payments from complainant vide their demand notices dated 20.01.2012 and 23.02.2012, which were absolutely illegal. The stay order was vacated by the Hon’ble Apex Court vide order dated 12^th December, 2012 i.e. after less than 8 months of stay, but officials of OPs very cleverly manipulated and intimated the complainant after 6 months vide communication dated 05.06.2013 that the stay on construction activity was operating for a period of 12 months. He further argued that the complainant suffered unnecessarily over a period of around 4-6 years by the OPs and paid the complete amount under protest. OPs offered the possession vide letter dated 10.10.2016. Moreover, the possession of the flat was not offered within the stipulated period as mentioned in the agreement and there were large number of defects in the flat which were reported by the complainant on 01.11.2016. He further argued that as per the agreement, complainant is entitled to get compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1450 sq. ft. per month, which now stands increased to 1575 sq. ft. Meaning thereby, the complainant is entitled to get compensation of Rs.15,750/- per month from January, 2013  to 10.10.2016 i.e. 34 months, when the possession was offered to complainant by OPs. Complainant also sent a legal notice and repeated representations to OPs with regard to settlement of his claim, but OPs did not bother the same. Complainant also requested the OPs to refund the service tax with interest @ 6% which was paid in July, 2010 on all the payments made by complainant. Apart from this complainant also requested the OPs for compensation on account of inordinate delay in completion of project because the complainant had to pay additional interest on housing loan, but to no effect. He further argued that the complainant also claimed interest on the payments made by him upto December, 2013 because those demands were raised by OPs on account of the fact that possession was to be delivered as per agreement, but there was inordinate delay in handing over the possession of flat. Apart from this complainant is also entitled for compensation on account of mental and physical agony.

14.              On the other hand, Mrs. Rupali Shekhar Verma, learned counsel for OPs has argued that DLF Valley, in which the property is located is developed by DLF Homes, Panchkula Pvt. Ltd. (OP No.2) and DLF Universal Ltd. (OP No.1) have no concern with respect to the project and neither any contract was signed by OP No.1 with the complainant with respect to the property and it is misjoinder of party. She further argued that the complainant purchased an apartment bearing No. E-5/5, 1^st Floor in the housing project of OP No.2 under the name and style of “DLF Valley, Panchkula” situated at village Bhagwanpur, Islam Nagar, Panchkula (Haryana). She further argued that complainant is not consumer and the present complaint is not maintainable as the complainant is an investor who applied for unit in question for earning benefits and not for the residential purpose of his own. She further argued that the Floor Buyer’s Agreement was executed between the parties on 27.12.2010. Occupation certificate was already received by OPs, possession of flat was offered to complainant on 10.10.2016 and complainant have already taken the possession on 27.03.2017, however the present complaint was filed on 22.05.2017. She further argued that the price of said flat as per SOP was Rs.35,81,499/- plus service tax for Rs.1450/- per sq. ft. However, due to increase in area the total price comes to Rs.43,37,392/- plus service tax for an area of 1575 sq. ft. The increase in value was due to increase in area of the floor as per clause 9 & 10 of the agreement and the complainant had full knowledge about the said agreement. As per clause 13 & clause 53 of the said agreement, events of defaults and consequences, shall be deemed to be events of defaults liable for consequences stipulated therein. Said project is cost escalation free and complainant has been getting benefit of escalation on account of construction material/labour land holding cost and also of price appreciation of the floor of more than Rs.20,00,000/-. Complainant also benefitted from the price appreciation as is envisaged from the circle rates fixed up by the Haryana State for the said property of Rs.5200/- PSFF & the complainant purchased the said property @ Rs.1850/- thus benefitted by Rs.3350/- per sq. ft.

15.              She further argued that complainant seeking compensation @ Rs.15,750/- per month for the period January, 2013 to February, 2017 along with Rs.7,71,750/- as compensation towards delayed possession. Further, the complainant seeks refund of service tax with interest @ 6%  from July, 2010 as well as interest on the business loan alongwith compensation of Rs.3,80,000/- with Rs.1,00,000/- as compensation of harassment. In this regard, she argued that the delay was occurred due to stay on construction ordered by Hon’ble High Court and thereafter by Hon’ble Supreme Court of India due to third party involving the acquisition proceedings of the land of litigants therein in the year, 2010 & 2012. However, OPs have acted as per terms and conditions mentioned in the agreement dated 27.12.2010 and as per clause 1.6 of the said agreement, the building plans/layout plan were subject to change and were not yet approved. Further, as per clause 11 (a) (b) & (c) of the said agreement, complainant was duly informed about the schedule of possession and as per clause 11 (a), the OPs had to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to reasons mentioned in 11(b) & (c). However, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012. Thereafter, OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. Further, it was argued that delay in delivery of possession was occurred due to force majeure i.e. pending litigation before the Hon’ble Supreme Court of India.

16.              She further argued that all the requisite documents for approval of loan was duly provided to complainant, however it was only AGIF who failed to process the documents on time. All the demands were raised in accordance with agreement. Moreover, the charging of EDC is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.  It was further argued that as per clause 15 of the agreement, the allottee shall not be in default of any term and condition of the agreement in order to avail compensation, but in the present case in hand, complainant was in default of making payments.

17.              In view of the above submissions and after careful perusal of the entire record, it stands proved that upon floating a project by the OPs under the name and style of “DLF Valley, Panchkula” situated at village Bhagwanpur, Islam Nagar, Panchkula (Haryana), on 13.02.2010, complainant alongwith his wife Mrs. Vandana Sood being joint applicant had applied for one independent floor in the said project and OPs vide their letter dated 03.04.2010 allotted the independent floor E-5/5, 1^st Floor in the abovementioned project and it was two years construction linked plan. Floor Buyer’s Agreement dated 27.12.2010 also stands proved. As per the complainant, said agreement was sent by OPs for signatures to him on 02.11.2010 and the same was returned by him on 12.11.2010. The date of signing of the agreement was mentioned as 27.12.2010, meaning thereby, there is a gap of more than one month and that too on the part of OPs. In this regard, it is pertinent to mention here that since it is a procedural communication, which may take some time, so this plea of learned counsel for complainant is without any basis. Secondly, as per the complainant he requested the OPs to supply certain documents in time which were required for approval of home loan from AGIF (Army Group Insurance Fund) due to which the sanctioning of loan from AGIF was delayed for over 18 months. However, learned counsel for OPs vehemently argued that the OPs supplied the documents vide their letter dated 20.01.2011 and it was AGIF, which failed to process the documents in time.

 18.              The main controversy involved in the present matter is with regard to delay in handing over the possession of flat in question within the stipulated period. As per the complainant, in view of the terms & conditions of Floor Buyer’s Agreement 27.12.2010, possession of the flat in question would be delivered within a period of two years, whereas the possession was offered by OPs vide letter dated 10.10.2016 and the same was taken by complainant on 27.03.2017. As per the complainant, he is entitled for compensation on account of delay in handing over the possession, but as per the OPs delay in handing over the possession is due to force majeure reasons.

19.              However, it is admitted fact by the parties that there was stay on construction as ordered by Hon’ble High Court and thereafter by Hon’ble Supreme Court of India due to third party involving the acquisition proceedings of the land of litigants therein in the year, 2010 & 2012.  Moreover, as per terms and conditions mentioned in the agreement dated 27.12.2010 and as per clause 11 (a) (b) & (c) of the said agreement, complainant was duly informed about the schedule of possession and as per clause 11 (a), the OPs have to complete the construction of project within 24 months unless there was delay due to force majeure condition or due to reasons mentioned in 11(b) & (c). Since, there was a stay on construction in furtherance to the direction passed by the Hon’ble Supreme Court vide order dated 19.04.2012 and the stay was vacated vide order dated 12.12.2012, so the OPs took several months for gathering the requisite work force and for resuming the construction work in full swing. But, it is also pertinent to mention here that the stay was vacated by Hon’ble Supreme Court of India vide order dated 12.12.2012 and as per the agreement, the complainant is entitled to get compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1450 sq. ft. per month, which now stands increased to 1575 sq. ft. Meaning thereby, the complainant is entitled to get compensation of Rs.15,750/- per month for delayed period and ends of justice would be met, if the Ops are directed to pay compensation for the delayed period from July, 2013 instead of January, 2013  to 10.10.2016 i.e. 39 months, when the possession was offered to complainant by OPs because OPs took several months for gathering the requisite work force and for resuming the construction work in full swing.

20.              As such, there was a clear breach of terms and conditions of the Apartment Buyer’s Agreement on behalf of the OPs. It is the normal trend of the developers that a developer would collect their hard-earned money from the unsuspecting individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard-earned money is not completed.  Resultantly, completion of the project and the delivery of possession is delayed as in the present case.  When the project is not completed in time, as such, this Commission is of the considered opinion that there is deficiency in service on the part of OPs and the complainant is well within his legal rights to seek compensation for delayed possession. Even otherwise also, there is a strong element of physical and mental agony caused to the complainant for their having invested a huge amount and still being deprived of and not being put into possession of the flat and under these constrained circumstances, he had to knock at the door of this Commission for seeking compensation for delayed possession. In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

21.              As far as the question of refund of charging of EDC/IDC is concerned, it is pertinent to mention here that it is a purely transparent transaction between the OPs and State Government and the same were levied as per the notification issued by the competent authority and the said payment was further paid by the developer of the project as per the schedule of payment opted by the buyer.

22.               In the light of the above observation and discussion, complaint stands allowed and the OPs are directed to pay compensation @ Rs.10/- per sq. ft. of the saleable area i.e. 1450 sq. ft. per month, which now stands increased to 1575 sq. ft., which comes to Rs.15,750/- per month from July, 2013 to 10.10.2016 i.e. 39 months, when the possession was offered to complainant by OPs. In case, there is a breach in making payment within the stipulated period of 45 days, in that eventuality, the complainant would be entitled to get the interest on the awarded amount of compensation @ 9% per annum, for the defaulting period. The complainants are also entitled to a sum of Rs.21,000/- (Rs.Twenty one thousand Only) on account of compensation for mental and physical agony. In addition, the complainant is also entitled to an amount of Rs.11,000/- (Rs. Eleven thousand only) as litigation charges. It is also made clear that in case of non-compliance, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

23.               Application(s) pending, if any, stands disposed of in terms of the aforesaid order.

24.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

25.               File be consigned to record room alongwith a copy of this order.

 

Pronounced on 23^rd February, 2024

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III