Haryana

StateCommission

A/1104/2016

DLF HOME PANCHKULA PVT.LTD. - Complainant(s)

Versus

HARBHAJAN SINGH BAINS - Opp.Party(s)

GAURAV G.S.CHAUHAN

21 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No.    1104 of 2016

Date of Institution:  18.11.2016

Date of Decision:    21.03.2018

 

 

1.      M/s DLF Homes, DLF Valley Panchkula, through its MD, SCO No.190-192, Sector 8-C, Chandigarh.

 

2.      M/s DLF Limited, DLF Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase 1, Gurgaon.

 

 

…..Appellants-Opposite Parties

 

Versus

 

1.      Harbhajan Singh Bains son of Captain Sadhu Singh, resident of House No.122, Shivalik Enclave, NAC, Chandigarh-1660101.

 

2.      Priya Bains wife of Shri Alok Kumar, resident of House No.122, Shivalik Enclave, NAC, Chandigarh-166010.

 

 

……Respondents-Complainants

 

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

                  

   

 

 

Present:     Shri Gaurav G.S. Chauhan, counsel for the appellants.

                   Shri Hitender Kansal, proxy counsel for Shri Abhineet Taneja, counsel for the respondents.

                  

                            

O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

          It be borne in mind that consumer court must be motivated with a desire to pull consumer’s chestnuts out of fire. It is no part of its duty to cause more harassment and mental agony to helplessness consumers when they face big builders whose coffins are filled with hard earned money of allottees.

2.      Falling prey to green pastures shown by opposite parties (in short ‘OPs’) complainants applied for allotment of independent floor and paid Rs.4,00,000/- on 28.03.2010 as booking amount. Vide letter dated 03.04.2010 floor No.E-2/11-SF valuing Rs.34,59,599.74 was allotted. It was promised by OPs at that time that possession would be delivered within 02 years i.e. 28.03.2012. They paid installments in time as and when demanded by OPs. At the time of floating this scheme OPs were not having necessary sanctions and approvals from competent authorities to proceed with construction. Due this reason they did not execute an agreement almost for one year, but, kept receiving installments regularly, which amounted to cheating and unfair trade practice. Just to delay possession they executed agreement on 25.01.2011 wherein it was mentioned that possession would be delivered within 24 months thereof, whereas according to allotment letter possession was to be delivered within 24 months from the date of booking. As 50% amount of total sale price was already paid, they were left with no alternative except to sign agreement and submit to terms and conditions of OPs. At that time, DLF Homes Panchkula-OP No.1 was not even exclusive owner of this project. M/s Gavel Builders Construction Private Limited, M/s Kenya Builders, M/s Jasen Builders, M/s Morgan Builders, Sh. Ghanshyam, Sh. Vivek Singh, Sh. Rajpal, Sh. Mehar Singh and Sh. Nirmal Singh were also partners. OPs extended date of delivery of possession on frivolous and extraneous grounds. At one time it was informed that there was stay from Hon’ble Supreme Court, but, the said order was dated 30.04.2012 i.e. much after the commitment of delivery of possession which was 28.03.2012. Ultimately OPs offered possession vide letter dated 03.02.2016 after a period of 06 years. They delayed project by 04 years causing financial loss and harassment etc. to them. OPs also used to collect EDC etc. from them as well as other allottees, but, the same was not deposited with concerned authorities. They also demanded interest from them as mentioned in Annexure-3 i.e. Rs.2,42,171.98, Rs.16,274.94 and Rs.7233.02. When they paid all the installments in time there was no reason to charge interest from them. It was alleged by OPs that they delayed payments in the months of November, 2011 and January, 2013 and unilaterally condoned delay upto 30 days without explaining why not 46 days. OPs demanded service tax from them to be deposited with the Government, but, the same was payable after handing over possession in time and not otherwise. They applied for a floor measuring 1550 square feet, but, OPs demanded Rs.4,02,000/- plus taxes, for additional area without obtaining their consent about increase. They applied for allotment directly with OPs and not through any property dealer, but, they charged brokerage from them. It came to their knowledge that OPs diverted this commission either to some agency created by them or into the companies created by their employees named as Avni Estates. Vide letter dated 03.02.2016 OPs alleged that Rs.44,12,708.93 were payable against the initial cost of Rs.34,59,000/- showing huge increase of Rs.10,00,000/-. They also added Rs.1,59,394/- as other charges and Rs.1,32,143/- as electricity, sewerage connection charges etc. These charges were levied without any justification. As OPs delayed possession, they were liable to pay interest @ 15% per annum on the amount deposited by them from the agreed date of delivery of possession i.e. 28.03.2012 till offer of possession besides compensation @ Rs.10/- per square feet of tower area as mentioned in agreement. OPs be directed to compensate as mentioned below:

“(i)     To pay Rs.17,510/- per month from 28.03.2012 till the date of possession.

(ii)      To pay interest @ 15% per annum (the rate of interest which DLF Homes charges) on amount paid by complainants to respondent before 28.03.2012 (the date when the respondent was to complete the project from 28.03.2012) till date of offer of possession for delaying the project abnormally. And also to pay interest @ 15% on the installments received by DLF Homes from complainants after 28.03.2012 from the date of payment till date of offer of possession.

(iii)     To quash the demand of Rs.2,00,724.98 and Rs.16,274.97 and Rs.7,233.02 and taxes on them if any, which are included as interest components.

(iv)    To quash the demand of Rs.4,02,000/- and taxes on them for additional area.

(v)     Not to charge any amount from complainant on account of service tax.

(vi)    Pay 2% of cost of floor (as amount paid to dealer) for submitting the application for allotment of floor directly, as it is wrong on the part of DLF Homes to receive different net amount for the same type of floor.

(vii)    To pay provide full justification of charging for electrical, sewerage etc. infrastructure, before demanding the amount for these items and only demand actual spent on these inputs.

(viii)   Not to charge any amount for club till the club starts functioning.

(ix)    Not to charge any amount for substituting the name of one of the applicant by the name of his wife being a family member.

(x)     To charge reasonable expenses for getting the floor registered and not Rs.20,000/-.

(xi)    To pay Rs.50,000/- as compensation towards mental agony, harassment, resulting into anxiety and hypertension.

(xii)    To refund the excess amount of EDC/IDC and interest charged thereon from the complainants alongwith 15% from the respective date of payment till its actual realization.

(xiii)   To pay punitive damages to the extent of Rs.50,000/-.

(xiv)  To pay Rs.11,000/- as cost of litigation.”

 

3.      In reply allotment of floor and execution of agreement etc. were admitted by OPs as alleged by complainants, but, denied their liability to pay any compensation on the ground that possession was not to be delivered within 02 years from the allotment letter dated 03.04.2010, but, as per Clause 11(a) of Buyer’s Agreement dated 25.01.2011 subject to force majeure as mentioned in this clause or due to failure of allottees to pay total price and other charges in time. They did not deposit amount regularly and that is why reminders dated 09.12.2011 and 06.11.2014 were issued. It was wrongly alleged that they coaxed them to make payments even without getting necessary sanctions because it was clearly mentioned in allotment letter dated 03.04.2010 that the construction will commence after necessary approvals from competent authorities and if they would not get approvals and sanctions within one year from the date of allotment, the amount would be refunded. As per orders of Hon’ble Supreme Court dated 19.04.2012, construction activities were put in abeyance. When said order was vacated by Hon’ble Supreme Court on 12.12.2012, construction was started immediately. The delay was not caused due to any fault on their part. As per agreement allottees were liable to pay extra price in case of increase in area and prior consent was not required. As per agreement if allottees were not ready to accept increased area, objections were to be filed within 30 days otherwise consent was to be deemed. When there was no objection, demand for extra area was raised. Out of Rs.1,59,394/- demanded vide letter dated 03.02.2016, Rs.80,866/- were already paid by complainants and Rs.78,528/- were due. Complainants were liable to pay taxes, service charges and charges for electricity lines etc. as per agreement and there was no deficiency in service on their part. Objections about maintainability of complaint, relationship of consumer and service provider etc. were also raised and requested to dismiss complaint.  

4.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Panchkula (in short ‘District Forum’) allowed the complaint vide impugned order dated 27.09.2016 and directed as under:

“(i)     To hand over physical possession of the unit, allotted in favour of the complainants, complete in all respects, to the complainants within a period of 30 days, from the date of balance payment is made by the complainants.

(ii)      Execute and get registered the sale deed in respect of the unit, in question within one month from the date of possession is handed over to the complainants. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainants.

(iii)     To pay compensation, by way of interest @ 12% p.a., on the deposited amount, to the complainants, from 25.01.2014 till 30.09.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry penal interest @ 15% p.a., instead of 12% p.a., from the date of default, till realization.

(iv)    To pay compensation by way of interest @ 12% p.a. on the deposited amounts, due to the complainants w.e.f. 01.10.2016, onwards (per month), till possession is delivered, by the 10^th of the following month, failing which, the same shall also carry penal interest @ 15% p.a., instead of 12% p.a., from the due to default, till payment is made.

(v)     To pay compensation of Rs.1,50,000/- to the complainants on account of mental agony and physical harassment to them, within 45 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @ 12% p.a., from the date of filing the complaint till realization.

(vi)    To pay an amount of Rs.50,000/- to the complainants, as litigation costs, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount shall carry interest @ 12% p.a., from the date of filing the complaint till realization.”

 

5.      Feeling aggrieved therefrom, OPs have preferred this appeal.

6.      Arguments heard. File perused.

7.      Learned counsel for the appellants/OPs vehemently argued that when the floor in question was allotted to complainants and agreement (Annexure C-5) was executed, they were well aware about stay order passed by Hon’ble Supreme Court. As per terms and conditions of agreement (Annexure C-5) it is clear that possession was to be delivered within 02 years from the date of execution of agreement subject to terms and conditions mentioned in Clause 11(a) i.e. force majeure etc. So, it cannot be alleged that they were not aware about the litigation and were entitled any type of compensation. Learned District Forum failed to take into consideration this aspect and allowed the complaint. So impugned order be set aside and complaint be dismissed.

8.      This argument is devoid of any force. There is no iota of evidence on the file showing that complainants were aware about the litigation pending before Hon’ble Supreme Court. Neither it is pleaded nor it is proved that complainants were party to that litigation or written information was sent to them. It is well settled proposition of law that a party is supposed to specifically plead and prove a fact. One has to provide facta probanda and facta probantia as opined by Hon’ble Supreme Court expressed in C.P. Sreekumar (Dr.) MS (Ortho) Vs. S. Ramanujam, 2009 (7) SCC 130. There was no reason in believing their version just on his mere ipse dixit.

9.      Further, when this floor was allotted to the complainants vide letter dated 03.04.2010 (Annexure C-2) they were not aware about the litigation pending before Hon’ble Supreme Court. If it was so why OPs promised to complete construction within 02 years thereof. This allotment was not conditional and was a clear offer. It is no where mentioned in the allotment letter that the construction would start after obtaining approvals/sanctions from concerned authorities. Rather the complainants were allured to make construction linked payment for possession within 02 years. For ready reference relevant portion of allotment letter is reproduced as under:

“Please find enclosed herewith your booking receipt for the captioned property along with the “2 years Construction Linked Payment Plan” The payments may be made in favour of “DLF Homes Panchkula Pvt. Ltd. Collection Account”.

 

          Believing this promise of OPs to be true they opted for construction linked payment plan and made payments accordingly. This act and conduct of OPs clearly shows that they were enticing allottees to make payment without having necessary sanctions and it amounts to unfair trade practice. Complainants have rightly alleged that they were left with no alternative except to sign agreement (Annexure C-5) on 25.01.2011 because by that time approximately 50% cost of the unit was already paid. It is admitted fact that complainants are retired government employees. It is very difficult for employees to arrange funds for paying E.M.I. Their entire planning goes haywire. One has to compromise qua so many counts and has to squeegee future plans. After paying such huge amount when a government employee comes to know that possession will be delivered after much delay, he feels cheated and is left with no alternative except to sign such like one sided agreement. Such like act of builder is not less than arm-twisting. It is well settled that a term of contract will not be final and binding if it is shown that the consent to the said term was not really voluntary, but, was given under a sort of compulsion on account of the person giving consent being left with no other choice. When format of the buyer’s agreement is not shown to purchasers at the time of booking apartment and if they refuse to sign the format provided by the builder lateron, not only will they loose booking, even booking amount/earnest money paid will be forfeited by the builder. When 50% of the estimated cost of unit is already paid, retired government employee cannot challenge the might of builder and is left with no option except to toe their line. It shows hidden tactics of builder to get money from the allottees, who are left bewildered after making such huge payment. Such like agreement is to be considered as one sided and it amounts to unfair trade practice as opined by Hon’ble National Consumer Disputes Redressal Commission expressed in Satish Kumar Pandey & anr. Versus M/s. Unitech Ltd., 2015(3) C.P.J. 440 and in Dewan Ashwani & Ors. Versus Unitech Reliable Projects Private Limited, IV(2015) CPJ 136 (NC).  In such a situation it cannot be presumed that two years should be counted from 25.01.2011 rather it should be counted from 03.04.2010. If the clearance was to be obtained and the period qua possession was to be changed in agreement, complainants should have been informed pre-hand. It was also not mentioned in agreement (Annexure C-5) that litigation was pending before Hon’ble Supreme Court. Why they kept mum on this point is no where explained.

10.    Further as per version of OPs, consent was required in case of increase of more than 15% in area, which is very much involved in the present case as discussed by the learned District Forum in the impugned order. Even then they not only demanded that amount, but, also demanded tax etc. Learned District Forum ignored this limit keeping in view very small portion, but, when OPs are stressing upon the terms and conditions of the agreement they should also adhere to the same. However complainants have not preferred appeal against that verdict might be keeping in view that the proceedings may linger on for unlimited period and it may not become unending process and they may not be able to get possession of unit even after spending such huge amount. Keeping in view all the facts and circumstances it is clear that grievances of the complainants were genuine and they were entitled for compensation at least as awarded by learned District Forum.

11.    The compensation awarded by learned District Forum is very much justified and there is no reason to disturb impugned order dated 27.09.2016. Resultantly appeal fails and same is hereby dismissed.

12.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the respondents against proper receipt and identification in accordance with rules.

 

 

Announced 21.03.2018 D.R.

(Urvashi Agnihotri) Member, Addl. Bench

(R.K. Bishnoi) Judicial Member, Addl. Bench

 

 

 

 

 

 

 

 

F.A. No.1104 of 2016

 

Present:     Shri Gaurav G.S. Chauhan, counsel for the appellants.

                   Shri Hitender Kansal, proxy counsel for Shri Abhineet Taneja, counsel for the respondents.

                  

                  

                  

Delay of 15 days in filing the appeal is condoned for the reasons stated in the application for condonation of delay.

 

21.03.2018

(Urvashi Agnihotri) Member, Addl. Bench

(R.K. Bishnoi) Judicial Member, Addl. Bench