Haryana

Panchkula

CC/33/2016

MANOJ KUNDU. - Complainant(s)

Versus

M/S D.L.F HOMES PANCHKULA PVT.LTD. - Opp.Party(s)

SATYAWAN AHLAWAT.

21 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                            

Consumer Complaint No	:	33 of 2016
Date of Institution	:	16.02.2016
Date of Decision	:	21.06.2016

                                                                                          

Manoj Kundu s/o Sh.Pala Ram, R/o House No.3197-98, Block E, Sector-11, Urban Estate, Jind.

                                                                                          ….Complainants

Versus

 

1.       The Director, Sales & Marketing, DLF Universal Ltd., SCO No.190-191-192, Sector 8-C, Chandigarh.

2.       M/s D.L.F., Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Tehsil Kalka, District Panchkula through its Authorized Signatory/Officer.

 

                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Satyawan Ahlawat, Adv., for the complainant. 

                             Mr.Gaurav G.S.Chauhan, Adv., for the OPs.

 

ORDER

(Dharam Pal, President)

1. The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that on 30.09.2010, Sh.Mohit Thukral had booked a flat measuring 1450 sq. ft. bearing Flat No.DVF-E6/20SF alongwith its parking in DLF Valley, Panchkula and an allotment letter was issued to him to this effect. A Buyer Agreement was executed between Sh.Mohit Thukral and the Ops on 07.01.2011. Thereafter, the abovesaid flat was transferred in the name of the complainant on 06.11.2013. After the transfer of flat, the complainant paid all the amount to the sellers and thereafter, the remaining amount as and when claimed by the Ops had been paid to the Ops. The Ops put the construction activity at the project side in abeyance and no further construction activities were carried out. As per clause No.11 (a) of Buyers Agreement, the construction of the flat was likely to be completed within a period of 24 months from the date of booking whereas five years have been elapsed but the construction has not been completed by the Ops on the site. The complainants also paid more than 90% amount of the total sale consideration. As per clause 15 alongwith other clauses of the Buyers Agreement, in case delay in construction of the flat beyond the period as stipulated in clause 11 (a), the Ops should pay to the buyers/complainants in the said project an amount of Rs.10/- per sq. ft. of the super area of the flat per month for the period of delay. Therefore, the Ops are liable to pay the compensation as per clauses of the Agreement to the complainants but the Ops failed to abide by the terms and conditions of the Buyers Agreement and kept on receiving the installments without completing the requisite construction as per schedule. The complainants have booked the flat for his own residence and had availed loan from the financial institution on higher side with the some motive to evade the rent. The Ops have adopted unfair trade practice and due to their act and conduct the complainant suffered mental tension, agony and harassment. The complainant requested several times the Ops to complete the construction and handover the possession of the flat and to abide by the terms & conditions of the buyers agreement but to no avail. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Ops is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Ops have already completed construction of all 222 Independent Floors on 74 Plots and another 1553 built up units are nearing completion. It is submitted that out of 1775 built-up units, occupation certificate has been received for 222 units and as on date 78 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is submitted that the agreement between the parties were executed before 5 to 6 years which was duly signed and executed by each allottee after properly understanding each and every clause contained in the agreement. It is submitted that the terms of the agreement are binding between the respective parties. The complainant does not fall within the ambit of consumer. Further, the Ops have acted in accordance with the terms and conditions of the Buyers Agreement. It is submitted that the complainant was duly informed about the schedule of possession as per clause 11 (a), (b) and (c) of the Apartment Buyers Agreement entered into between the complainant and Ops that the Company endeavored to complete the construction of the said project within 24 months unless there is delay due to a force majeure condition or due to reasons mentioned in 11(b) and 11(c). It is submitted that even though the possession was to be given within a period of two years, there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. It is submitted that the construction activities at the project site had been put in abeyance and no further activities would be carried out and the Ops had informed the complainant about the stay of Hon’ble Supreme Court. It is submitted that the Ops could not be liable to perform any of its obligations or undertakings provided in the agreement if such performance is prevented due to Majeure conditions or continuance of any Force Majeure conditions which stipulated in clause 43 of the agreement that:-

“The Company shall not be liable to perform any of its obligations or undertakings provided in the Agreement if such performance is prevented due to Majeure conditions or continuance of any Force Majeure condition(s).”

It is submitted that the complainant was also informed that the Company would endeavor to complete the project subject to delay of 12 months which has occurred due to the stoppage of the work and the complainant was also given an exit option that in case they did not agree to the additional time to be taken for completion of the construction & the Ops would cancel the allotment and refund the amount paid by them alongwith simple interest @ 9% p.a. It is submitted that the complainant applied for the Independent Floor in the project of the Ops in the month of Januray, 2011. Subsequently, a writ petition bearing No.6230/2010 was filed before the Hon’ble Punjab and Haryana High Court and vide order dated 06.04.2010, the Hon’ble High Court restrained the Ops from creating any third party right and had also directed to ensure that the nature of the land shall neither change nor any further construction activity should be carried out. It is submitted that an appeal assailing the order dated 06.04.2010 of the Hon’ble High Court was filed before the Hon’ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by the Hon’ble Supreme Court on 23.07.2010. It is submitted that the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon’ble Supreme Court. Thereafter, a Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide its order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activities at the project site in abeyance and the Ops were compelled to not carry out any further construction at the site in pursuance to the directions that led to delay in handing over possession, the same being entirely beyond the control of the Ops. It is submitted that the Hon’ble Supreme Court vide order dated 12.12.2012 dismissed the Special Leave Petition and vacated the stay order & to which the Ops made an endeavor to immediately resume the construction at the project site. It is submitted that there was considerable difficulty for the Ops to gather the work force and to resume construction activity in the project. It is submitted that the complainant was also informed about the clause 18/19 of the application for allotment in accordance to which in case of delay by the Appellant Company in completion of construction, the Ops should pay compensation at Rs.10/- per sq. ft. per month of the saleable area to the complainants, however, the complainant did not avail of the refund alongwith interest offered by the Ops. It is submitted that the Ops sought approval regarding revision in layout plan on 11.03.2013 which were received on 06.09.2013 after constant follow upon with the concerned authorities. Thereafter, the Ops vide its letter dated 20.05.2013 sought approval with respect to service plans which received on 14.08.2014 to the Ops. It is further submitted that the complainant has waived off his right by not opting for exit policy, therefore, the Ops cannot be held liable for any deficiency in service or unfair trade practice. Moreover, the complainant has not approached this Forum with clean hands and is trying to raise such type of issues at belated stage. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-3 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-11 and closed his evidence.
4. We have heard the learned counsel for the parties and have also perused the record and have also considered the written arguments submitted by the counsel for the Ops.
5. When the case was fixed for filing written statement, the counsel for the Ops has filed an application u/s 8 of the Arbitration & Conciliation Act, 1996 for rejecting/referring the complaint to the Arbitrator. Reply to the application filed by the counsel for the complainant.
6. It is evident that Sh.Mohit Thukral had booked a flat measuring 1450 sq. ft. bearing Flat No.DVF-E6/20-SF alongwith its parking in DLF Valley, Panchkula and thereafter the complainant purchased the said unit, in question, which was later on transferred in his name vide letter dated 06.11.2013 (Annexure C-3). It is also admitted that Independent Floor Buyer’s Agreement was executed on 07.01.2011. The total price payable for the said independent floor, as depicted in Agreement, was Rs.40,16,500/- and as admitted by the Opposite Parties, the complainant made payment to the tune of Rs.26,12,250.47/-(Annexure R-11) to Sh.Mohit Thukral, being first allottee after purchasing the same from him as the first allottee had paid the sum of Rs.26,12,250.47 to the Company. As per pleading of the complainant, he had availed for loan from financial institution in order to evade the rent but he has not placed on record any document. Further as per Clause 11(a), the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement.
7. The first objection of the Opposite Parties that   the complainant is not the consumer under Section 2(1)(d) of the Act is not on sound footing. The mere fact that it was a residential floor is sufficient to prove that the same was to be used by the complainant after purchasing the same from original allottee i.e. Sh.Mohit Thukral. The complainant has even obtained loan from financial institute for making part payment towards price of the floor. As such, this objection being devoid of merit, is not sustainable and the same is rejected.
8. The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.35 in Application Form. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Act is made, which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of an arbitration clause, in the application form/Agreement, would not oust the jurisdiction of the Consumer Fora, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385  and  C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233. Not only this, recently also, a similar view was taken by the National Commission, in a case titled as DLF Limited Vs Mridul Estate (Pvt.) Ltd., Revision Petition No.412 of 2011 (alongwith other 11 connected cases), decided on 13.05.2013. Vide that judgment many Revision-Petitions were decided. Feeling aggrieved against the order dated 13.05.2013, passed by the National Commission, Rosedale Developers Private Limited/ Opposite Party challenged that order in the Hon’ble Supreme Court. In the case of Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), the Hon’ble Supreme Court of India, while dealing with various judgments, including Magma Leasing and Finance Limited and another Vs. Potluri Madhavilata and another (2009) 10 SCC 103 (the one reliance on which has been placed by the opposite parties in present case also)  observed that the same (judgments) have no bearing on the issue, as to whether in the face of an Arbitration Clause, Jurisdiction  can be exercised by a Consumer Fora or not. It was further observed that the observation made in that judgment that Section 8 of the 1996 Act, is mandatory, cannot lead to an inference that the Consumer Fora is bound to refer to the Arbitral Tribunal. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

9. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to the Opposite Parties in handing over possession of the flat, in question, to the complainant. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 07.01.2011 being relevant, are extracted hereunder:-

“11(a) Schedule for possession of the said Independent Floor:-

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent Floor within a period of twenty four (24) months from the date of execution of the Agreement 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 Allottee 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.

11(b) Delay due to reasons beyond the control of the company:-

If the possession of the said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension………..”

10. No doubt, as per the afore-extracted clauses, the Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of execution of the Agreement dated 07.01.2011 i.e. by 07.01.2013. However, as admitted by the Opposite Parties themselves, they failed to offer possession within the aforesaid stipulated period of 24 months. As per para 2 of the preliminary objections made by the Ops in their reply have stated that Ops have already completed construction of all 222 independent floors on 74 plots and another 1553 built up units are nearing completion. It is stated that out of 1775 built up units, occupation certificate has been received for 222 (74 plots) units and as on date 78 units have been offered for the possession to the owners. It is stated that proper water connection and electricity supply is in place and full housekeeping and maintenance services are being provided through leading multinational company namely Jones Lang Lasalle (JLL).  But the Ops have failed to point out whether the possession of the flat allotted to the complainant has been offered or not. It is the case of the Opposite Parties that due to force majeure conditions, delay in completing the project partly occurred due to stoppage of work because of stay on construction activities by the Hon’ble Supreme Court of India. In support of their contention, the Opposite Parties placed on record copies of orders of the Hon’ble Supreme Court of India. The operative part of order dated 19.04.2012, interalia, reads as under:-

“….With a view to avoid further complications in the mater, we direct the State of Haryana and its functionaries and also the impleaded respondents not to undertake further constructions on the land which was acquired vide Notification dated 26.9.2007 read with the declaration dated 25.9.2008. This would mean that all the ongoing construction activities shall be stopped forthwith.”

11. Undisputedly, the Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 not to undertake further construction at the project land, stood vacated. Since there was stay by the Hon’ble Supreme Court from 19.04.2012 to 12.12.2012, the period of delay to this extent falls within the ambit of force majeure conditions. Since, the Opposite Parties were prevented to perform their obligations, they are entitled to 8 months in addition to two years period, stipulated in the Agreement for handing over possession. In other words, the Opposite Parties are not liable to pay any penalty for eight months, there being stay on the construction activities. During arguments, the Counsel for the Opposite Parties admitted the fact that the Opposite Parties have failed to deliver possession of the floor, in question, complete in all respects, to the complainants, till date, what to talk of compensation, as envisaged under Clause 15 of the Independent Floor Buyer’s Agreement dated 07.01.2011. Nothing has been placed, on record, by way of documentary evidence, to this effect. The complainant had made payments in the sum of Rs.26,12,250.47/- to the Opposite Parties, which was undoubtedly their hard earned money.
12. Initially, the apartment was booked by Sh.Mohit Thukral. Floor Buyer Agreement was executed on 07.01.2011. As per the agreement, the possession of the flat was to be handed over to the alltotee within 24 months i.e. upto 07.01.2013. The complainant purchased the flat on 06.11.2013 after expiry of the date of possession. It is not the case of the complainant that he has not visited the site and is not aware about the construction status of the flat and construction activities going on the site. The complainant knew at the time of re-purchase of the flat that there was a delay in handing over the possession and inspite of that he purchased the said flat.  From the conduct of the complainant, it can be easily held that when he acquired the allotment by way of re-purchase he was satisfied with the progress of the construction and development on the site.
13.  The Hon’ble Supreme Court in Haryana Urban Development Authority Vs. Raje Ram, AIR 2009 SC 2030. In that case, HUDA allotted a plot of land to one Madan Lal who deposited the 25% of the cost of the plot. Later, HUDA notified revision of the price and gave an option to the allottees to either accept the revision or receive back the initial deposit with interest.  On the request of the allottee and the respondent the allotment was transferred in favour of the respondent. Since HUDA failed to deliver possession of the plot within the stipulated time, the respondent approached the concerned District Forum expressing grievance against non-delivery of the possession within the stipulate time. HUDA then offered possession of the plot to him and the District Forum disposed of the complaint with a direction to HUDA to pay interest to the respondent at the rate of 18% per annum from the date of deposit till the date of offer of possession. Having been unsuccessful before the Hon’ble State Commission and Hon’ble National Commission, HUDA approached the Hon’ble Supreme Court by way of special leave. It was held by the Hon’ble Supreme Court that the respondent knew at the time the plot was realloted to him that there was delay and in spite of that he took the re-allotment. It was held that the case of the respondent could not be compared to the case of the original allottees. The respondents were aware at the time of purchase that the time for performance was not stipulated as the essence of the contract and the original allottee had accepted the delay. It was, therefore, held that the respondents were not entitled to interest on the amount deposited by them.  The persons who purchased flats more than one year after the date of initial allotment, could foresee that the builder will not be able to deliver the possession of the flat by the stipulated date.  This is not their case that when they acquired the allotment by way of repurchase, they had found that the builder had already completed the development which was expected to complete by that time or that the builder had assured them that it would give possession to them by the original date stipulated in the agreement. Such persons therefore cannot be treated at par with the original allottees or those who acquired the allotment within one year of the initial allotment.
14. The Hon’ble National Commission while deciding the complaint case No.437/2014 titled as Shri Satish Kumar Pandey & Anr. Vs. M/s Unitech Limited alongwith other complaints on  08.06.2015 has held as under:-

23.    For the reasons stated herein above, the complaints are disposed of with the following directions:-

(a)     The opposite party shall deliver possession of the respective flats of the complainants to them on or before the last date stipulated in its letter dated 27.05.2015;

(b)     The opposite party shall pay to (i) the original allottees and (ii) to those who acquired the allotment by way of repurchase, within one year of the date of the initial Agreement of their respective flats, compensation in the form of simple interest at the rate of 12% per annum with effect from 36 months from the date of the initial Agreement till the date possession is delivered to them.  The interest payable till 31.08.2015 shall be paid by 10.09.2015, in three equal instalments, by the 10^th of each month i.e. by 10^th July, 2015, 10^th August, 2015 and 10^th September, 2015.  Thereafter, compensation in the form of interest, in terms of this order, shall be paid on monthly basis by the 10^th of each succeeding month.

(c)     Such of the complainants, who acquired allotment of the flat by way of repurchase more than one year after the date of the initial allotment of their respective flats, shall be paid compensation by way of simple interest at the rate of 12% per annum, with effect from 36 months from the date of repurchase by them, till possession is delivered to them.  They will also be paid compensation at the rate of Rs.5/- per square foot of the super area of their respective flat for the period between 36 months from the date of the initial Buyers Agreement of their respective flats and 36 months from the date of repurchase of the flat by them.

(d)     The increase in service tax with effect from 01.06.2015 shall be borne by the opposite party, in all these cases.

(e)     If the opposite party fails to deliver possession by the last date stipulated in its letter dated 27.05.2015, it shall pay compensation to all the complainants in the form of simple interest at the rate of 18% per annum, for each day there is delay, beyond the date stipulated in the said letter dated 27.05.2015, in delivering possession to the complainants.

(f)      The opposite party shall pay Rs.5,000/- as the cost of litigation in each complaint.

15. In the present case the original allottee Sh.Mohit Thukral had booked the flat DVF-E6/20-SF. The complainant purchased the same which was transferred in his name on 06.11.2013 (Annexure C-3). It is also admitted that independent floor buyer agreement was executed on 07.01.2011 between the original allottee and Ops. As per the decision of the Hon’ble National Commission in the above cited case the complainant falls under clause C of the above decision.
16. Since the plot in question has been transferred in the name of the complainant on 06.11.2013, therefore, he is entitled for the compensation after 32 months (24 months as per clause 11 (a) plus 8 months due to stay on construction by the Hon’ble Supreme Court) from the date of repurchase by him, till possession is delivered to him. He will also be entitled compensation at the rate of Rs.10/- per square foot of the super area of their respective flat after 32 months from the date of repurchase of the flat by him.
17. Keeping in view the above discussed facts and circumstances, we allow the present complaint and the Ops are directed as under:

(i)     To pay compensation by way of simple interest @ 12% per annum, after 32 months from the date of repurchase by him i.e. 06.11.2013, till possession is delivered to him. The Ops shall also pay compensation at the rate of Rs.10/- per square feet of the super area of the flat after 32 months from the date of repurchase of the flat by him (i.e.) 06.11.2013.

 (ii)      The opposite parties shall pay Rs.5,000/- as the cost of litigation complaint.

18. Let the order be complied with within 30 days from the receipt of certified copy of this order. A copy of this order be sent to the parties free of costs. File be consigned to records after due compliance.

 

Announced           (S.P.Attri)             (Anita Kapoor)          (Dharam Pal)

21.06.2016           Member                 Member                      President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Dharam Pal                                                                                                President