Chandigarh

StateCommission

CC/114/2015

Dr. Milap Sharma - Complainant(s)

Versus

M/s DLF Homes Panchkula Private Limited - Opp.Party(s)

Devinder Kumar, Adv.

06 Aug 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	114 of 2015
Date of Institution	:	03.06.2015
Date of Decision	:	06.08.2015

 

1. Dr. Milap Sharma  son of Late Sh. K.R. Sharma, aged about 49 years.
2. Dr.  Deepali Sharma wife of Sh. Milap Sharma, aged about 45 years.

Both residents of C-16, Type-5, DRPGMC, Kangra at Tanda Kangra, Himachal Pardesh.

….. Complainants.

Versus

1. M/s DLF Homes Panchkula Private Limited through its Managing Director/Director, SCO No. 190-191-192, Sector 8-C, Chandigarh.
2. M/s DLF Homes Panchkula through its Managing Director/Director SCO No. 101-102, DLF City Centre, I.T Park, Kishangarh, Chandigarh.
3. M/s DLF Homes India Limited through its Managing Director/Director SCO No. 101-102, DLF City Centre, I.T Park, Kishangarh, Chandigarh.

  …..Opposite Parties.

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

SH. DEV RAJ, MEMBER.

Argued by:

 

Sh. Devinder Kumar and Sh. Anil Sharma, Advocates for the complainants.

Sh. Avinit Avasthi, Advocate for the Opposite Parties.

PER DEV RAJ, MEMBER

            The facts, in brief, are that the Opposite Parties through various publications, publicity, assurances, floated a scheme for the allotment of residential apartments under the Project namely DLF Valley, Panchkula. It was stated that vide application dated 26.03.2010, the complainants applied for the residential apartment in the said project and paid a sum of Rs.4,00,000/- towards booking amount vide Cheque No.159369 dated 28.02.2010 and Receipt dated 26.03.2010 (Annexure C-1) was issued by the Opposite Parties. It was further stated that the Opposite Parties informed the complainants that on the basis of draw of lots, they had been allotted an Independent Floor No.DVF-D7/12-FF measuring 1450 sq. ft.  in the Project namely DLF Valley, Panchkula vide allotment letter dated 31.03.2010 (Annexure C-2). It was further stated that the Opposite Parties also issued construction linked payment plan (Annexure C-3) alongwith the allotment letter. It was further stated that vide allotment letter dated 31.03.2010, the Opposite Parties also gave benefit of rebate equivalent to interest @10% per annum, on advance payment. It was further stated that an Independent Floor Buyer’s Agreement was executed between the complainants and the Opposite Parties at the Chandigarh on 07.04.2011 (Annexure C-4).

2.         It was further stated that the complainants also applied for loan and loan amount of Rs.30 Lacs was sanctioned by Kangra Central Cooperative Bank Ltd. vide sanction letter dated 13.05.2010 (Annexure C-5). It was further stated that the lien on the property, in question, was made in favour of the aforesaid Bank and a letter dated 15.07.2010 (Annexure C-6) was issued in this regard by the Bank. It was further stated that the complainants paid Rs.27,30,606/- excluding EPR (Early Payment Rebate of Rs.2,72,661/-) on 7.12.2014 and the Opposite Parties supplied copy of the customer ledger for the period from 26.10.2010 to 31.03.2015, (Annexure C-7) as per which, they had received Rs.30,05,789/- from the complainants. The payments made by the complainants from time to time in accordance with the payment plan, are tabulated hereunder:-

 

Sr. No.	Date	Amount (Rs.)
1.	26.03.2010	4,00,000.00
2	15.05.2010	2,58,323.00
3.	07.07.2010	3,29,347.00
4	26.08.2010	4,11,384.00
5.	06.10.2010	4,24,067.00
6.	07.03.2012	3,29,176.00
7.	13.09.2013	25,286.00
8.	30.09.2013	1,31,100.00
9.	20.01.2014	43,615.00
10.	06.11.2014	49,369.00
11.	07.12.2014	3,28,939.00
	Total	27,30,606.00

 

3.         It was further stated that according to Clause No.11(a) of the Independent Floor Buyer’s Agreement dated 07.04.2011, the Opposite Parties were bound to complete construction of the said Independent Floor within a period of 24 month from the date execution of the Agreement. It was further stated that as per Clause No.15, in case, the Opposite Parties failed to deliver possession beyond 24 months, then they were under obligation and liable to pay penalty/compensation to the complainants @Rs.10/- per sq. ft. per month for the period of delay beyond 24 months. It was further stated that as per the Agreement, the Opposite Parties were to construct the same and deliver possession of the same latest by 07.04.2013, but they failed to offer the same till date. It was further stated that the complainants approached the Opposite Parties a number of times with a request to deliver possession of the apartment, but they failed to give reply and delayed the matter, on one pretext or other. It was further stated that the complainants sent email/letters to the Opposite Parties for delivering possession of the apartment, but till today, possession has not been delivered to them (complainants), and, as such, they (complainants) were entitled to compensation/penalty till possession, for the period of delay as per Clause 15 of the Agreement. It was further stated that the in response to the letters/emails, the Opposite Parties exchanged correspondence with the complainants (Annexure C-24  to C-35).

4.         It was further stated that the Opposite Parties collected huge amount from the complainants, towards price of the apartment by making false promise that the physical possession of the apartment would be handed over within a period of 24 months from 07.11.2011, complete in all respects, as per the specification and Agreement, but they did not abide by their commitment. It was further stated that the amount of the complainants was utilized by the Opposite Parties for a long number of years, as a result whereof, they (complainants) suffered huge financial loss and underwent tremendous mental agony, physical harassment and inconvenience on account of non-delivery of actual physical possession of the apartment. It was further stated that the complainants are residing at Kangra being medical practitioners and had purchased the apartment, in question, for the purpose of their permanent residence but all their hopes shattered as the Opposite Parties did not bother to deliver physical possession of the apartment, in question, as per the Buyer’s Agreement.   

5.         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 complainants, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to deliver physical possession of the apartment; pay penalty @Rs.10/- per sq. yards per month from 07.04.2013 as promised date of delivery of possession, till date; interest @12% on the amount deposited by the complainants; Rs.5 Lacs as compensation for mental agony and physical harassment and Rs.55,000/- as litigation cost.

6.         The Opposite Parties, put in appearance, on 09.07.2015. They filed their joint written reply on 21.07.2015. In their written version, the Opposite Parties, took up certain preliminary objections to the effect that the complainants were not consumers and rather speculators, who purchased the property, in question, in order to obtain profits out of real estate speculation; and that this Commission was having no jurisdiction to entertain the complaint due to the existence of Arbitration clause No.35 (In fact Clause 55) in the Agreement.

7.         On merits, it was stated that till date, the complainants have made payment of Rs.27,30,606/-, whereas the total price of the said independent floor was Rs.33,63,999.75Ps. It was admitted that Independent Floor Buyer’s Agreement was executed between the parties on 07.04.2011 and the complainants opted for installment payment plan. It was also admitted that as per Clause 11(a) of the said Agreement, possession was to be given within a period of 24 months from the date of execution of the said Agreement. It was further stated that there was delay in construction of the said independent floor because of stay on construction of the project at DLF Valley Panchkula, granted by Hon’ble Supreme Court of India from 19.04.2012 till 12.12.2012. It was further stated that due to the aforesaid force majeure condition, the Opposite Parties could not be held liable for delay in construction and handing over possession for the reasons beyond their control.

8.         It was further stated that Clause 15 of the Agreement was not applicable in the case of the complainants as the construction of the said project is in full swing and the Opposite Parties are in the process of offering possession to the customers. It was further stated that DLF valley Project at Panchkula was developed in phases and the complainants shall be given compensation as per Clause 19 of the application for allotment at the time of possession. It was further stated that presently, construction of the said project is in full swing and the Opposite Parties had not abandoned the project. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

9.         The complainants, in support of their case, submitted the affidavit of Dr. Milap Sharma, complainant No.1, by way of evidence, alongwith which, a number of documents were attached.

10.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Shiv Kumar, their Authorised Signatory, by way of evidence, alongwith which, a number of documents were attached. 

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

12.       It is evident that the complainant, applied for the allotment of an independent residential floor, in the project of the Opposite Parties and Independent Floor No.DVF/D7/12-F#2317 in DLF Valley, Panchkula was allotted to complainant No.1 vide allotment letter dated 21.03.2010 (Annexure C-2), for which, Independent Floor Buyer’s Agreement was executed on 07.04.2011 at Chandigarh (Annexure C-4.). The total price payable for the said independent floor, as depicted in the schedule of payment (Page 169), was Rs.33,63,999.75 and as admitted by the Opposite Parties, the complainants made payment in the sum of Rs.27,30,606/-. The Opposite Parties in Para 7 of their written statement have clarified that a sum of Rs.30,05,789.25Ps statedly paid  by the complainants included the early payment rebate. As such, an amount of Rs.6,33,393.75 (i.e. Rs.33,63,999.75 - Rs.27,30,606.00)  minus early payment rebate, is still due to be paid by the complainants towards the total cost of the flat, in question. 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.

13.       The first objection of the Opposite Parties that   the complainants are not the consumers under Section 2(1)(d) of the Act is not on sound footing. It is not the case of the Opposite Parties that the complainants booked/purchased the floor, in question, for carrying on some commercial activity or they booked/purchased more than one floor in their same project. Moreover, it is a residential floor, and the complainants, in Para 13 of the complaint, stated that they purchased the flat, in question, for the purpose of their permanent residence, as they are presently residing at Kangra. As such, this objection being devoid of merit, is not sustainable and the same is rejected.

14.       The next objection, raised by the Opposite Parties, is regarding the existence of arbitration clause No.55 in Independent Floor Buyer’s Agreement dated 07.04.2011. 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 document, aforesaid, 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. In this view of the matter, this objection of the Opposite Parties, being devoid of merit, must fail, and the same stands rejected.

15.          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 complainants. Clauses 11(a) and 11(b) of Independent Floor Buyer’s Agreement dated 07.04.2011 (Annexure C-4), 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.”

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 07.04.2011 i.e. by 06.04.2013. However, as admitted by the Opposite Parties themselves, they failed to offer possession within the aforesaid stipulated period of 24 months and vide letter dated 15.04.2013 (Page 214) informed the complainants that they (Opposite Parties) would endeavor to complete the project subject to the delay of 12 months, which allegedly occurred due to stoppage of the work because of stay on construction activities. In this letter, the Opposite Parties also informed the complainants that 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 passed by it (Supreme Court) not to undertake further construction at the project land, stood vacated. There is weight in the submission of the complainants that in the absence of cogent evidence viz. copy of the order of Hon’ble Supreme Court, the Opposite Parties are not entitled to extension of time for the period 19.04.2012 to 12.12.2012. The Opposite Parties in their letter dated 15.4.2013 also offered that in case the complainants did not agree for additional time, they will cancel the allotment and refund the amount paid by them (complainants) alongwith interest calculated @9% per annum. The complainants did not avail of the offer of refund alongwith interest @9% per annum. The Opposite Parties failed to deliver possession of the floor, in question, complete in all respects, to the complainants, till date. Even till the date of filing the complaint, which was filed on 03.06.2015, the possession had not been offered by the Opposite Parties to the complainants, what to talk of compensation, as envisaged under Clause 15 of the Independent Floor Buyer’s Agreement dated 07.04.2011. Nothing has been placed, on record, by way of documentary evidence, to this effect. The complainants had made payments in the sum of Rs.27,30,606/- to the Opposite Parties, which was undoubtedly their hard earned money. The complainants are, therefore, entitled to possession and compensation for delayed possession w.e.f. 07.04.2013 @Rs.10/- per sq. ft. of the saleable area per month in terms of Clause 13 of Independent Floor Buyer’s Agreement dated 07.04.2011 (Annexure C-4). By not handing over possession by the stipulated date and by not paying the compensation, the Opposite Parties were deficient in rendering service.

16.         The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation or not. The complainants deposited their hard earned money, in the hope that they will have a house to live in. The Opposite Parties failed to deliver possession to them (complainants) within the stipulated period of 24 months. Admittedly, possession has not been offered by the Opposite Parties till date. On account of non-delivery of possession of the floor, in question, by the Opposite Parties, to the complainants, complete in all respects, within the stipulated period, or even till the filing of the complaint, the complainants have certainly suffered physical harassment and mental agony at their hands, for which, they need to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,00,000/-, if granted,  would be just and adequate, to meet the ends of justice.          

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

18.          For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Parties are jointly and severally held liable and directed in the following manner:-

1. To hand over legal physical possession of Independent Floor No.DVF-D7/12-FF, complete in all respects, to the complainants, within three months, from the date of receipt of a certified copy of this order, on payment of Rs.6,33,393.75 less early payment rebate by the complainants, as indicated above.

(ii)  To pay delay chargers/compensation @Rs.10/- per sq. ft. of the saleable area per month to the complainants, from 07.04.2013 onwards in terms of Clause 13 of Independent Floor Buyer’s Agreement dated 07.04.2011 (Annexure C-4).

(iii) To pay compensation, in the sum of Rs.1,00,000/- (Rupees One Lac only), to the complainants on account of deficiency in rendering service, adoption of unfair trade practice by the Opposite Parties, mental agony and physical harassment, caused to them (complainants), at their hands.

(iv)  To pay cost of litigation, to the tune of Rs.20,000/-, to the complainants.

(v)   Compensation, granted to the complainants, as mentioned in Clause (ii), which has fallen due up-to 31.07.2015, shall be paid by the Opposite Parties, within three months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 07.04.2013, till realization.

(vi)  Delay charges/compensation accruing due @Rs.10/- per sq. ft. of the saleable area per month,  w.e.f. 01.08.2015, onwards, shall be paid by the 10^th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.

(vii) Compensation granted, in favour of the complainants, on account of deficiency in rendering service, unfair trade practice, mental agony and physical harassment, to the tune of Rs.1,00,000/-, as mentioned in Clause (iii) above,  shall be paid, within a period of three months, from the date of receipt of a certified copy of the order, failing which they (Opposite Parties) shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.

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

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

Pronounced

August 06, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

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