Chandigarh

StateCommission

CC/122/2016

Ms. Amandeep Kaur - Complainant(s)

Versus

DLF Universal Ltd. - Opp.Party(s)

Parveen Gupta,Adv.

18 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                     UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	122 of 2016
Date of Institution	29.03.2016
Date of Decision	18.08.2016

 

 

Ms. Amandeep Kaur w/o Late Sh.Sikanderjit Singh, r/o H.No. 350, Sector 22-A, Chandigarh.

                                                       .…Complainant

                           Versus

 

1. DLF Universal Ltd. (Earlier known as DLF India Ltd.), through its Director/Head/General Manager, SCO No.190-192, Sector 8-C, Chandigarh.
2. DLF Universal Ltd., (Earlier known as DLF India Ltd.) through its Managing Director, Regd. Office : Shopping Mall, 3^rd floor, Arjun Marg, DLF City, Phase I, Gurgaon.

                                                …. Opposite Parties.

 

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

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

             

Present:  Sh. Parveen Gupta, Advocate for the complainant alongwith Ms. Amandeep Kaur, complainant in person.

              Ms. Ekta Jhanji, Advocate for the Opposite                       Parties alongwith Sh. Shiv Kumar, Authorised                      Representative.

               

PER PADMA PANDEY, MEMBER

              In brief, the facts of the case, are that initially plot bearing No.HPE-R1-A112, Hyde Park, New Chandigarh measuring 292.64 meters was allotted by the Opposite Parties vide allotment letter dated 31.03.2011 on payment of the initial booking amount of Rs.12 lacs (Annexures C-1 & C-2). After the allotment, the complainant came to know that the said plot was preferential plot, therefore, preferential charges i.e. Rs.9 lacs was required to be paid, whereas, there was no request from the complainant for the allotment of preferential plot. So, the complainant represented vide letters dated 31.05.2011, 07.06.2011 and 02.08.2011 and requested to withdraw the demand of preferential charges. In the meanwhile, the Plot Buyer’s Agreement in respect of the aforesaid unit was executed between the parties. Thereafter, on the repeated requests of the complainant, the Opposite Parties issued a revised allotment letter dated 12.04.2012 (Annexure C-3), vide which, plot was changed from plot No.HPE-R1-A112 to plot No.HPE-R1-E 307 and breakup of the amount “Under Down Plan” of two years is as under :-

Head	Description	Comp rate	Due amount
BSP	Basic Sale Price	30,498.00	89,24,934.72
EDC	External Development Charges	1641.00	4,80,222.24
MSE	Maintenance security	598.00	1,74,998.72
DWN	Down payment rebate		(-) 8,03,244.00
	Total		87,76,911.68

  

In the aforesaid letter, it was specifically mentioned that all the payments already made by the complainant would stand transferred in the new account and a foot note was also there that club charges of Rs.76,000/- are to be paid extra but no mention of the time as when it is to be paid. So, in the absence of any stipulation of time of its payment, the complainant assumed that the club charges are to be paid when the club is made operational. Out of the total amount of Rs.87,76,911.68, the complainant paid an amount of Rs.86,46,832/- (Annexures C-2 to C-8). Subsequently, second Plot Buyer’s Agreement in respect of new plot No.HPE-R1-E307 was executed between the parties on 25.07.2012 (Annexure C-9). It was further stated that the date of execution of the Agreement was mentioned as 25.07.2012, whereas, the allotment of the plot was made by the Opposite Parties on 31.03.2011 i.e. after a delay of 16 months from the date of allotment of the plot. It was further stated that the deliberate delay of 16 months in signing the revised Plot Buyer’s Agreement is an unfair trade practice to cover up its own negligence and delay because the Opposite Parties mentioned in the Agreement that possession of the plot would be given after 24 months of the signing of the same (Agreement). It was further stated that threatening letters were also sent to all the allottees that if the Agreement was not signed by the specified date, the allotment of the plot would be cancelled and the entire amount paid would be forfeited. It was further stated that the Opposite Parties were under obligation to allot the plot within 24 months of the allotment letter dated 31.03.2011 instead of on the basis of the Agreement dated 25.07.2012.

2.           It was further stated that possession of the plot was supposed to be given by the Opposite Parties within 24 months from the date of allotment and in the present case, the allotment letter was issued on 13.03.2011, the possession was supposed to be given latest by 31.03.2013 but the Opposite Parties offered possession vide letter dated 03.07.2015 i.e. after a delay of 28 months. It was further stated that the basic amenities like 24 hours water and electricity supply, car parking, ATM, club house, pool side café, tennis and billiard court, internal spine roads etc. are missing even till the date of filing of the complaint. Further, the Opposite Parties failed to get Final Completion Certificate from GMADA till the date of offer of possession i.e. 03.07.2015. So, in the absence of the basic amenities and the completion certificate from GMADA, the offer of possession given by the Opposite Parties is just a symbolic and paper possession only. It was further stated that the Opposite Parties vide letter dated 03.07.2015 (Annexure C-10) offered the conditional possession of the plot after registration of the conveyance deed, payment of stamp duty, electric charges, club membership etc. and as per the statement of account attached with the said letter, the Opposite Parties further demanded an amount of Rs.20,41,614.26 latest by 31.07.2015. It was further stated that how the Opposite Parties could expect the complainant to arrange payment of Rs.20.42 lacs in 15-20 days because the said letter dated 03.07.2015 was received after 10.07.2015 and the last date for the payment was 31.07.2015. It was further stated that the possession letter also showed that amount paid by the complainant till the date of issue of possession letter is Rs.89,96,970.16. It was further stated that on receipt of the possession cum registration letter dated 03.07.2015, the complainant sent a letter dated 31.07.2015 (Annexure C-11) to Opposite Party No.1, vide which, it was informed that the balance basic amount of Rs.4,46,246/- is being paid and regarding the delayed payment charges of Rs.47,782/-, it was stated that there is never any delay in the payment. After receipt of the amount of Rs.4,46,246/- on 31.07.2015, the complainant was shocked when the Opposite Parties further demanded an amount of Rs.40,123/-  (Rs.32,737.89 towards interest on delayed payment and Rs.7385.11 towards pending External Development Charges). Therefore, the complainant also paid an amount of Rs.40,123/- on 31.07.2015 (Annexure C-8). It was further stated that the Opposite Parties were charging penal interest @18% even for 2-3 days of the delay in making payment of the quarterly installments. So, for the delay of 28 months in offering possession of the plot, the Opposite Parties should pay interest @18% on Rs.81.60 lacs paid by the complainant from 2013. It was further stated that the Opposite Parties vide letter dated 03.07.2015 demanded remittance of balance basic amount with penalty for the delay, registration of conveyance deed, maintenance charges, club house charges, deed writer fees alongwith the registration charges. It was further stated that no amount of club membership could be claimed without providing the services and the complainant is supposed to pay the dues when the club is made operational and, as such, the demand of club membership and other expenses is unjustified. It was further stated that all the other charges i.e. electricity charges, club security, maintenance, stamp duty etc. need to be paid after actual physical possession of the plot and when the construction is to be started. Ultimately, the complainant sent a legal notice dated 25.09.2015 (Annexure C-12) through Regd./Speed Post to the Opposite Parties, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short the Act only), was filed.

3.           The Opposite Parties, in their joint written statement, took up certain preliminary objections, to the effect, that the complaint could not be adjudicated under summary jurisdiction ; disputes are to be settled through Arbitration.

              On merits, it was admitted that plot bearing No.R1-A/112 was allotted to the complainant but on the request of the complainant vide letter dated 07.06.2011, the plot of the complainant has been transferred to another location i.e. R1-E307 and she was sent a new allotment letter and payment schedule. It was denied that the club charges of Rs.76000/- has been wrongly charged by the Opposite Parties and the same was demanded, as per Clause 6 of the Agreement. It was further stated that all the demands were fully explained to the complainant at the time of signing of the Agreement and she opted for Down Payment Plan. It was admitted that two Agreements were executed between the parties. It was further stated that the complainant after signing of the Agreement made a request for change of plot location and due to this process, the signing of 2nd Agreement got delayed. It was admitted that an offer of possession of the plot was sent to the complainant on 03.07.2015 and the possession of the said plot was to be given in 24 months from the signing of the Agreement and not from the application form. It was denied regarding the delay of 28 months. It was further stated that offer of possession was sent to the complainant alongwith final statement of accounts, in which, Rs.20,41,614.26 was demanded from the complainant, vide which, balance payment, EDC, taxes, electrical charges, registration charges etc. were indicated and every demand has been fully explained in the Agreement that these charges were to be paid at the time of handing over of possession. It was further stated that in total price & other components & one quarter advance of CAM (Common Area Maintenance) service tax have been fully explained in the Agreement and nothing has been concealed from the complainant. It was further stated that the complainant herself was not releasing the final payments. It was further stated that about 320 allottees have already taken possession and paid the final payment and thereafter executed the sale deed. It was further stated that possession of the unit could only be handed over on payment/settling of the final statement of account. It was further stated that the complainant did not visit the office of the Opposite Parties even once. It was further stated that possession has been offered by the Opposite Parties and the same has not been taken by the complainant, which is attracting holding charges as per Clause 32 and also DLI as per the Agreement, which is fully explained to her at the time of signing of the Agreement. It was further stated that the complainant has deposited the payment of Rs.4,46,246/- post receiving the final demand and discussed all the quarries of demand in the office of the Opposite Parties. It was further stated that the complainant wanted to shift the location of the plot, which she was allotted and signing of the Agreement was again done, due to which, possession was delayed. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

4.           The complainant filed rejoinder to the written statement of the Opposite Parties, wherein she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.           The parties led evidence in support of their case.  

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

7.           It is evident that initially, the complainant was allotted plot No.HPE-R1-A112 in Hyde Park Estate, New Chandigarh (Mullanpur Planning Area) District SAS Nagar, Punjab vide letter dated 31.03.2011 (Annexure C-1). After the allotment of the aforesaid plot, the complainant came to know that the said plot was preferentially located, for which, Rs.9 lacs was required to be paid as preferential charges. So, on the request of the complainant, the plot was changed and new plot bearing No.HPE-R1-E307 was allotted, as is evident from Annexure C-3. Thereafter, Plot Buyer’s Agreement dated 25.07.2012 (Annexure C-9) was also executed between the parties. As per Clause 32 of the Agreement, possession of the plot was endeavoured to be delivered within a period of 24 months from the date of execution of the Agreement or within any extended period or periods. If the period of 24 months were counted from 25.07.2012 (date of execution of the Agreement), the possession was to be delivered latest by 24.07.2014. It is also the admitted fact that vide letter dated 03.07.2015 (Annexure C-10) the Opposite Parties offered possession for plot No.HPE-R1-E307, Block E, Pocket R1 in “Hyde Park Estate”, New Chandigarh (Mullanpur PA), Punjab to the complainant and alongwith the possession letter, the Opposite Parties sent final statement of account as on 01.07.2015, vide which, they (Opposite Parties) demanded an amount of Rs.20,41,614.26.

8.           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 Arbitration Act 1996, this Commission has no jurisdiction to entertain the present complaint. It may be stated here that the objection raised by the Opposite Parties, in this regard, deserves rejection, in view of the judgment passed by this Commission in Abha Arora Vs. Puma Realtors Pvt. Ltd. and another, consumer complaint No.170 of 2015, decided on 01.04.2016, wherein this issue was dealt, in detail, while referring various judgments of the Hon'ble Supreme Court of India; the National Commission, New Delhi, and also Section 3 of the Consumer Protection Act, 1986. Ultimately it was held by this Commission that even 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 jurisdiction to entertain the consumer complaint. It was also so said by the National Commission, recently, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.” 

            In view of the above, and also in the face of ratio of judgments, referred to above, passed by the National Commission and this Commission, the arguments raised by Counsel for the Opposite Parties, stands rejected.

9.           Another objection was raised by Counsel for the Opposite Parties that the complainant has disputed certain charges arising out of the Agreement, which could not be dealt by the Consumer Foras, so 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 plot, in question, in the manner, referred to above. According to Clause 32 of the Agreement, the offer of possession was to be given within a period of 24 months from the date of execution of the Agreement. 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”

10.         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, for specific performance, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by her, as she falls within the definition of a consumer. 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.

11.         It is to be seen that whether there was any delay in delivery of possession of the plot to the complainant. According to the complainant, possession of the plot was supposed to be given by the Opposite Parties within 24 months from the date of allotment and in the present case, the allotment letter was issued on 31.03.2011, so, the possession was supposed to be given latest by 31.03.2013 but the Opposite Parties offered possession vide letter dated 03.07.2015 i.e. after a delay of 28 months. After going through the record, we are not agree with the contention of the complainant because in the present case initially the plot bearing No.HPE-R1-A112 was allotted to the complainant but on the request of the complainant herself, the plot bearing No.HPE-R1-E307 was allotted in favour of the complainant, as is evident from Annexure C-3. It is also the admitted fact that Plot Buyer’s Agreement dated 25.07.2012 (Annexure C-9) was executed between the parties, in respect of the new plot, in question. As per Clause 32 of the Agreement, possession of the plot was to be delivered within a period of 24 months from the date of execution of the Agreement and if the period of 24 months counted from 25.07.2012, the possession was to be delivered latest by 24.07.2014. In the present case, the Opposite Parties offered possession of the plot to the complainant vide letter dated 03.07.2015 (Annexure C-10) i.e. after a delay of about 11 months instead of 28 months, as alleged by the complainant.

12.         It is an admitted fact that the Opposite Parties offered possession of plot No.HPE-R1-E307 to the complainant vide letter dated 03.07.2015 (Annexure C-10) alongwith demand of Rs.20,41,614.26, as is evident from final statement of account, annexed with the possession letter. The complainant, in para No.5 of her complaint, has prepared the table regarding demand of Rs.20,41,614.26, which reads thus :-

Sr. No.	Particulars	Amount to be paid by 31.07.2015.
I	Balance basic cost + EDC + delayed interest in terms of schedule of payment annexed to Plot Buyers agreement.	5,34,152.55
II	Other charges vide clause No.7 of the “Plot Buyers Agreement.	48,153.99
III	Electrical charges vide clause No.22 of the “Plot Buyers Agreement	4,92,715.00
IV	Club charges (50% of membership fee) Club security and service tax	48,500.00
V	Interest bearing maintenance security	1,74,998.72
VI	One quarter advance CAM and service tax	5889.00
VII	Stamp duty, bank charges, Regd. Charges	7,37,205.00
VIII	Less Compensation, if applicable	NIL
	TOTAL Payable	20,41,614.26

             

It is to be seen whether the aforesaid demand of Rs.20,41,614.26 raised by the Opposite Parties is genuine or not. It is pertinent to note that possession of the plot, in question, was handed over to the complainant on 31.05.2016, as is reflected from the zimini order dated 03.06.2016. At the time of arguments, Ms. Ekta Jhanji, Counsel for the Opposite Parties placed on record calculation sheet, vide which, it shows that out of the amount of Rs.20,41,614.26, the amount of Rs.3,89,935.19 is still to be paid by the complainant, which reads thus :-

Property                  :     HPE-R1-E307

Reference Code         :     UNQ/275/000435

Customer Name        :     MRS. AMANDEEP KAUR

	PARTICULAR	AMOUNT
Less	DUE AMOUNT AS PER FSA	20,41,614.26
Less	PRC	7,37,205.00
	BALANCE AMOUNT	13,04,409.26
Less	AMOUNT PAID AFTER FSA	4,86,369.00
Less	DLI WAIVER TO BE GIVEN	39,649.07
Less	COMPENSTION TO BE CREDITED	3,88,456.00
	NEW DUE AMOUNT	3,89,935.19

 

However, it is pertinent to mention here that though the possession was offered on 03.07.2015, the complainant herself did not come forward to take possession on various grounds i.e. due to lack of amenities and requisite permissions etc. However, the Opposite Parties stated that they offered possession vide letter dated 03.07.2015 only after receipt of Partial Completion Certificate on 10.09.2014 and the Opposite Parties have not claimed holding charges @Rs.50/- per sq. ft. per month from the date of handing over of possession vide letter dated 03.07.2015 to the actual date of handing over of possession i.e. 31.05.2016. So, we are of the view that out of the earlier demanded amount of Rs.20,41,614.26, now the amount of Rs.3,89,935.19, as demanded by the Opposite Parties vide tabular statement, which was placed on record at the time of arguments, is genuine.

13.         It is very clear from the abovesaid statement that the Opposite Parties have credited an amount of Rs.3,88,456/- being the amount of compensation on account of delayed possession of the said plot @Rs.50/- per sq. mtr. per month of the plot area of 292.64 sq. mtr., which amounts to Rs.14,632/- per month (Clause 32 of the Plot Buyer’s Agreement). In the present case, according to the terms of the Plot Buyer’s Agreement, which was executed between the parties on 25.07.2012, possession of the unit was to be delivered latest by 24.07.2014 i.e. within 24 months from the date of execution of the Agreement. In the instant case, possession of the unit was offered by the Opposite Parties on 03.07.2015 (Annexure C-10) i.e. almost after the delay of 11 months but the Opposite Parties in all their fairness has credited an amount of Rs.3,88,456/-, which works out more than the due amount for a period of 11 months. Accordingly, the final demand raised by the Opposite Parties appears to be genuine.

14.         The next question, which falls for consideration, is, as to whether, the complainant is entitled to any compensation for mental agony and harassment. The complainant deposited her hard earned money, with the hope that she will have a house to live in. In the present case, the Opposite Parties offered possession of the plot to the complainant on 03.07.2015 i.e. after a delay of 11 months. The complainant has faced a lot of problems i.e. due to lack of amenities etc. and, as such, actually possession of the plot, in question, stood handed over to the complainant on 31.05.2016, as is evident from the zimini order dated 03.06.2016.  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.    

15.         Since the complainant was granted sufficient compensation and litigation expenses, so, she is not entitled to any other relief, as claimed by her, in the prayer clause of the complaint.   

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

17.          For the reasons, recorded above, the complaint is partly accepted, with costs, in the following manner:-

(i)    The complainant is directed to make payment of an amount of Rs.3,89,935.19 to the Opposite Parties, as rightly demanded by the Opposite Parties, stipulated from statement of account, in the tabular form, as possession has already been taken by her, within a period of 15 days from the date of receipt of certified copy of this order, failing which, the complainant shall pay the aforesaid amount alongwith interest @ 12% p.a. from the date of this order, till actual payment; 

(ii)   The Opposite Parties are directed jointly and severally to pay an amount of Rs.2,00,000/-  (Rupees Two Lacs only), to the complainant, as compensation for mental agony and physical harassment, within a period of two months from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith interest @15% per annum from the date of filing the complaint till actual payment;

(iii)  The Opposite Parties are directed jointly and severally to pay cost of litigation, to the tune of Rs.1,00,000/-, to the complainant within a period of two months from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum from the date of filing the complaint, till actual payment.

 

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

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

Pronounced.

18.08.2016                                            Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER