Delhi

StateCommission

CC/1192/2017

SAREENA KOCHER - Complainant(s)

Versus

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

AKASH GARG

09 Oct 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

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

Date of Arguments :09.10.2017

Date of Decision :12.10.2017

Complaint No.1192/2017

IN THE MATTER OF:

 

Smt. Sareena Kochar,

W-1B/11, Wellington Estate,

DLF Phase V,

Gurgaon-122009.                                                                                        ……Complainant

                                                                        Versus

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

Having his registered office at

DLF Centre, Sansad Marg,

New Delhi-110001.

Through its Director Mr. Rajiv Singh

and 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-110055.

Through its Director Mr. Satish Kumar Tyagi Director

And Mr. Nilesh Ramjiyani Director                                                     ….Opposite Parties

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

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

 

Present:        Shri Akash Garg, counsel for the complainant.

                        None for the respondent.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Smt. Sareena Kochar, resident of Gurgaon, has filed this complaint before this Commission under Section 17 of the Consumer Protection Act, 1986 (for short complainant) against M/s. DLF Home Developers, hereinafter  referred to as opposite party, alleging deficiency  of service and unfair trade practice for the delay done in handing over the possession of the flat and praying for the relief as under:

a)      Declare that the opposite party has committed an unfair trade practice and to direct them to discontinue the unfair trade practice.

b)      Declare that the services of the opposite parties are deficient and direct them to remove the deficiency of service.

c)      Grant an amount of Rs.22,59,316/- with future interst @18% from the date to the complainants which includes the amount of compensation and Rs.1,00,000/- for the mental agony and harassment suffered at the hands of the opposite party being in the dominant position and legal expense of Rs.20,000/- to each complainant.

d)      Grant refund of Rs,3,80,238/- and Rs.3,00,000/- with future interest @18% paid by the complainant towards unilateral increase of 5% of super area and stilt/ open parking charges,

e)      Award interest @18% p.a. from the date is was payable/ deposited by the complainant till the date the amount is actually paid to the complainant by the opposite party.

f)       May pass any other order in the interest of justice.

Facts of the case, necessary for the disposal of the complaint, are these.

 The complainant responding to the advertisement made by the  opposite party with respect to launching of the residential project under the name, and style of `New Town Heights’ at Sector 86, New Gurgaon had applied for a flat by paying the consideration as demanded and as a consequence thereof the complainant was allotted an apartment in the said project at Building M, 20^th Floor, Sector-86, Gurgaon. Apartment Buyer Agreement was executed between the complainant and the opposite parties on 01.11.2008. As per clause 11 of the said agreement, the opposite parties were required to deliver the possession of the constructed flat with all the amenities within 36 months from the date of the agreement which means, the agreement having been executed on 01.11.2008, on or before 01.11.2011. The relevant potion of the agreement is reproduced below:-

Schedule for possession of the said apartment.

DHDL/ company based on the present plans and estimates and subject to all just exceptions endeavors to complete construction of the said building/ said apartment within a period of 36 months from the date of execution of this agreement unless there shall be delay or failure due to force majeure conditions including but not limited to reasons mentioned in clauses 14 and 15 o due to failure of allottee to pay in time the total price and other charges and dues/ payments mentioned in this agreement or any failure on the part of the allottee to abide by all or any of the terms and conditions of this agreement.

This clause 11 may have to be read with clause 14 and 15 of the agreement indicated hereinafter:

Delay due to reasons beyond the control of DHDL

If the handing over of possession of the said apartment is delayed due to force majeure conditions then the allottee agrees that DHDL shall be entitled to the extension of time for delivery of possession of the said apartment. DHDL as a result of such a contingency arising reserves the right to alter or vary the terms and conditions of this agreement, or if the circumstances so warrant, the company may also suspend the construction and development for such period as is considered expedient and the allottee shall not have a right to claim compensation of any nature whatsoever during the period of such suspension.

The allottee agrees and confirms that in the event of DHDL’s abandoning the construction and development of the said complex this  agreement shall stand terminated as if it has been terminated with mutual consent, then subject to allottee not being  in default of any of the terms of this agreement and DHDL shall refund by registered post/ courier, the amounts attributable to the said apartment (after deducting non refundable amounts) that have been received from the allottee by DHDL without any interest or compensation of whatsoever nature and upon dispatch of such refund by registered post/ courier, the allottee agree that he/ she shall not have any rights, claims etc. against DHDL and that DHDL shall be released and discharged from all its obligations and liabilities under this agreement.

After the execution of the agreement, the opposite party revised a part thereof as contained in their letter of 26.03.2009 (placed at  page 139 of the paper book). The amended portion regarding the effective date would be three years from the date of booking. The relevant portion of the amended agreement is

We  have amended this clause to “3 years from the date of booking” instead of 3 years from the date of agreement, which was the earlier commitment.

The effect of the revised agreement was that the date of delivery qua the complainant would be 31.05.2011. The complainant had made the necessary payment to the opposite party as and when demanded by the opposite party.

Finally on receipt of the occupancy certificate on 28.02.2013, the possession of the flat was handed over on 25.12.2013. The said property was finally registered on 14.08.2015.

The specific gravaman of the complainant is the delay done in handing over the possession of the flat in question. Compensation has been prayed for by the complainant for the delay done.

The complaint was listed before us for admission hearing on 09.10.2017 when the ld. Counsel for the complainant appeared and advanced his arguments. We have perused the records of the case.

In the first instance we find that the complaint so filed is barred by limitation as prescribed under Section 24A of the Consumer Protection Act, 1986. The said provision of law envisage that the complaint to be entertainable has to be filed within two years from the date cause of action arose, unless the delay is condoned by the Consumer Fora after being  satisfied with the sufficient cause having been advanced for the purpose.

The said provisions of law posits as under:

24.A. Limitation period – (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

(2) Notwithstanding anything contained in sub-section(1), a complaint may be entrained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint          within such period:

Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.)

The term cause of action used under Section 24(A) has not been defined in the Act and thus the same has to be interpreted keeping in view the context in which it has been used. According to Section 24 A there should have been an application filed within two years from the date of the cause of action.  Cause of action in the given case arose on 25.12.2013 the date on which the possession of the flat was delivered but the complaint has been filed on 15.07.2017. No application has been filed praying for condonation of delay.

We have given a careful consideration to the matter.

In the matter of DDA vs. Krishna Lal – IV (2010) CPJ 7 (SC) – their Lordships did not condone the delay of 199 days since sufficient cause for the delay were not shown.

Similarly,

The Hon’ble NCDRC in the matter of Nilesh Goyal Vs. Symphony Infrastructure Pvt. Ltd. – IV(2016) CPJ 678 (NC) – did not condone the delay of 209 days in the absence of any satisfactory explanation.

 Keeping in view the provision of law read with the judgment of the Hon’ble Apex Court and Hon’ble NCDRC, we are  of the considered view that the complaint being barred by the limitation cannot be entertained and accordingly we order dismissing it in limine with no order as to costs.

There is another aspect to look into the matter. The complainant having taken over possession of the flat is no longer a consumer as per the law settled by the Hon’ble Apex Court and thus he is not entitled to raise a consumer dispute. In the given case the possession of the flat has already been taken over. The  Hon’ble NCDRC in the matter of Harpal Arya vs Housing Board Haryana – II (2016) CPJ 36 NC – has held:

“Once petitioner has taken over possession with open eyes and without any precondition, he ceases to be a consumer”

Similar view was taken by the Hon’ble NCDRC in the matter of Smita Roy vs. Excel Construction – IV(2012) CPJ 204 (NC)

This is yet ground the complaint is not entertainable.

We order accordingly.

Let a copy of this order be sent to both the parties free of cost as statutorily required.

          File be consigned to Record Room.

                            

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)