Delhi

StateCommission

CC/173/2017

PALLAVI G. MOHAN - Complainant(s)

Versus

M/S DLF HOME DEVLOPERS LTD. - Opp.Party(s)

AKARSH GARG

20 Nov 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :20.11.2019

Date of Decision : 26.11.2019

COMPLAINT NO.173/2017

In the matter of:

Ms. Pallavi G. Mohan,

E-43, DLF City Phase-I,

•  
• ………Complainant

Versus

           

1. M/s. DLF Ome developers Ltd.,Home Developers Ltd.,

Having his registered office at:

DLF Centre, Sansad Marg, New Delhi-110001.

Through its Director Mr Rajiv Singh

& Mr. Trilok Chand Goyal.

 

2. M/s. DLF New Gurgaon Home Developers Pvt. Ltd.,

Having its registered office

At 1-E, Jhandewalan Extension, New Delhi-11005.

Through its Director Mr. Satish Kumar Tyagi,

Director and Mr. Nilesh Ramjiyani, Director.    …..Opposite parties

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The present complaint is being disposed of on the ground that complainant has already received possession before filing of the complaint. The question is as to what is the effect of said fact. In other words whether he still remains a consumer.
2. The complainant has come forward on the allegations that OP launched a residential project ‘New Town Heights’. Apartment  Buyer Agreement was entered into on 11.11.08. OP were required to deliver possession within 36 months. Clause 46 of the agreement provided that in case complainant delayed in making  payment, he was liable to pay interest @15% p.a. for the  first 90 days and thereafter @18% p.a. As compared to it for delay in delivering possession, as per Clause 17, OP was liable to compensate @Rs.5/- per sq. ft. of super area per month. The agreement was modified vide letter dated 26.03.09 to the effect that compensation for delayed possession was Rs.10/- per sq. ft. instead of Rs.5/- per sq. ft. The complainant was intimated vide letter dated 28.02.13 that OP has received occupancy certificate. Actual delivery of flat booked was made on 25.10.13. The complainant sent letter raising concerns with regard to non payment of compensation for delay in delivery and non payment of timely payment rebate by adjustment in the final price `. OP informed that since there was delay on three occasions in payment of instalment, the complainant was not entitled to timely payment rebate and compensation for delay in delivery of possession.
3. The conveyance deed was registered  on 10.09.15. It was assured that discount, rebate and  compensation would be looked into at the time of execution of sale deed but nothing has been paid/ adjusted as promised.
4. Service tax was introduced w.e.f. 01.07.10. 5% increase in super area was made without the consent and knowledge of the complainant and Rs.3,16,553.13/- was charged for the same. The OPs have charged Rs.4,50,000/- for two parking slots. The complainant is entitled to compensation of Rs.29,82,312/- as per calculation shown in chart which is annexure- C/7. Competition Commission of India has held in Belaire Owner’s Association  vs. DLF that the several clauses of agreement are one  sided and amounts to abusing dominant position by the OP. Hence this complaint for said amount with future interest @18% p.a., refund Rs. 3,16,553.13/- and Rs.4,50,000/- with interest @18% per annum paid towards unilateral increase  in super area and parking charges.
5. The OP filed  WS raising preliminary objections that complainant entered into an agreement for purchase of apartment no.GAH 193 and parking no.PH 2013/H2013A in DLF ‘New Town Heights’ in Sector-86, DLF Gurgaon. Compensation for delay in delivery of possession  was payable on in the event the allottee had no default in each and every payment. The complainant is investor and not a consumer. There is no deficiency in service. There is an arbitration clause in the agreement. There is no cause of action. The complaint is barred by limitation.
6. It is strange that complainant has cleverly  concealed sale the price of the flat booked by him. It is only from WS that area can be gathered as 2125 per sq. ft. and basic sale price as Rs.2250 per sq. ft. The total cost comes to Rs.47,81,250/-. The complainant wants compensation of Rs.62 lakhs. In other words he wants to retain flat free of cost.
7. In any event the complainant has admitted in the complaint itself that he has already taken possession and conveyance deed has already been executed before filing the complaint. In these circumstances the complainant does not remain a consumer any more as per decision of National Commission in Smita Roy vs. Excel Constructions II (2012) CPJ 204. The sale deed does not contain any provision that complainant received possession under protest or without prejudice its  right to file a case for delay in handing over possession, charges recovered for enhanced area and car parking. Hence the complaint is dismissed. Complainant will be at liberty to seek his remedies before Civil Court after excluding the time spent in the present proceedings as per decision of Hon’ble Supreme Court in Laxmi Engg Works vs. P.S.G. Industrial Institute 1995 SCC (3) 583.
8. In view of the above discussion the complaint is dismissed in limine.
9. Copy of the order be sent to both the parties free of cost.
10. File be consigned to record room.

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

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