Chandigarh

StateCommission

CC/583/2017

Sh Surinder Singh - Complainant(s)

Versus

M/s DLF Homes Panchkula Pvt Ltd. - Opp.Party(s)

Rajvir Singh Sihag, Adv.

16 Jul 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	583 of 2017
Date of Institution	:	2.08.2017
Date of Decision	:	16.7.2018

 Sh.  Surinder Singh S/o Sh. Gulab Singh r/o flat No.401, GHS-7A, Sector 24, Panchkula (Haryana).

…….Complainant.

Versus

 M/s  DLF Homes Panchkula Pvt. Limited, SCO 190-191-192, Sector 8, Chandigarh 160009 through its Managing Director.

..........Opposite Party.

 

Argued by:        Sh. Rajvir Singh Sihag, Adv. for the complainant.

                             Sh. Shiv Kumar, Advisor (Legal) of the Opposite                                     Party.

 

Consumer Complaint	:	812 of 2017
Date of Institution	:	23.11.2017
Date of Decision	:	16.7.2018

 

1.      Lt. Col. Rajvir Singh S/o Lat Sh. Shankar Lal

2.      Kanta Devi W/o Lt. Col. Rajvir Singh

          Both are residents of floor No.E-7/20GF, DLF Valley Panchkula.

 

…….Complainants.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8-C, Chandigarh U.T., Pin-160009, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

 

2. DLF Homes Panchkula Pvt. Ltd., Registered Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India, through its Manager/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

..........Opposite Parties.

Argued by:Sh. Naveen Sheokand, Adv. for the complainants.

                   Sh. Shiv Kumar, Advisor (Legal) of the Opposite                                     Parties. 

 

 

 

Consumer Complaint	:	96 of 2018
Date of Institution	:	1.03.2018
Date of Decision	:	16.7.2018

 

Sh. Rajesh Kumar Jindal S/o late Sh. D.R. Jindal r/o E-18, 2^nd floor, Greater Kailash-II, south Delhi, New Delhi 110048..

…….Complainant.

Versus

 

1. DLF Homes Panchkula Pvt. Ltd. through its Managing Director/Director, SCO No. 190-191-192, Sector 8-C, Chandigarh.

 

2. DLF Homes Panchkula Pvt. Ltd. having its Registered Office  at 12^th floor DLF Gateway Tower, DLF City, Phase-III National Highway 8, Gurgaon, Haryana through its Managing/Authorized Signatory/Officer-in-Charge/ Director Sales and Marketing.

 

3. DLF Homes Panchkula Pvt. Ltd. through its Managing Director/Director, SCO No.101-102, DLF City Centre, I.T. Park, Kishangarh, Chandigarh.

..........Opposite Parties.

 

Argued by: Sh. Ammish Goel, Adv. for the complainant.

                   Sh. Shiv Kumar, Advisor (Legal) of the Opposite Parties.

  

 

 

 

Consumer Complaint	:	160  of 2018
Date of Institution	:	16.4.2018
Date of Decision	:	16.7.2018

 

Mrs. Jyoti Raj, W/o Dr. Rajbir Singh R/o House No.15, DCR University, Science & Technology, Murthal, Sonepat.

…….Complainant.

Versus

1. DLF Homes Panchkula Pvt. Ltd., through its Director(s)/Authorized representative, SCO 190-191-192, Sector 8-C, Chandigarh 160009.

 

2. Shri Surojit Basak, Director of DLF Homes Panchkula Pvt. Ltd SCO 190-191-192, Sector 8-C, Chandigarh 160009.

 

3. Shri Gurbir Singh Madan, Director of DLF Homes Panchkula Pvt. Ltd SCO 190-191-192, Sector 8-C, Chandigarh160009,.

..........Opposite Parties.

Argued by: Sh. Surjeet Bhadu, Adv. for the complainant.                                         Sh. Shiv Kumar, Advisor (Legal) of the Opposite parties.

 

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

  

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

 

PER DEV RAJ, MEMBER

            By this order, we propose to dispose of aforesaid four consumer complaints bearing Nos. 583 of 2017, 812 of 2017, 96 of 2018 and 160 of 2018..  

2.           At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price, amount received, DLI etc. and further the date when possession was offered etc., which was taken on record.

3.         Arguments were heard in common. After hearing arguments on 3.07.2018, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid four complaints could be disposed of, by passing one consolidated order.

4.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.583 of 2017, titled as ‘Surinder Singh   Vs. DLF Homes Panchkula Pvt. Ltd.’.

5.         In brief, the facts are that ‘.  complainant applied for allotment of an independent floor on 5.3.2010 in DLF Valley, Panchkula  project of the Opposite Party by depositing Rs. 6.00  lac alongwith  application.   Thereafter vide allotment letter dated  16.3.2010 (Annexure C-1) the complainant was allotted independent floor No. DVF-A 1/68-GF#217 with attached parking.  . The complainant deposited Rs.5,78,100/- and Rs.5,90,000/- on 5.5.2010 and 5.7.2010 respectively  Independent Floor Buyer’s Agreement was executed on 24.01.2011 (Annexure C-2). It was further stated that as per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement i.e. on or before 23.01.2013.  It is averred that  the Opposite Party vide letter dated 16.3.2010 allowed rebate equivalent to interest @10% per annum on advance payment made to the DLF for the Advance period.  Therefore,  encouraged with this, the complainant made a payment of Rs.27,00,000/- on 25.7.2011 out of the sale proceeds of his plot sold by him at Manesar but he was never apprised the period for which the aforesaid benefit was given..   It is alleged that despite making substantial payment towards the price of the floor, the  Opposite Party failed to offer possession within the stipulated period of  2 years from the date of execution of the agreement.  On the contrary, to the utter shock of the complainant, the Opposite Party as per accounts statement (Annexure C-5) showed the complainant defaulter of payment. The complainant vide his letter dated 07.01.2016 informed Opposite Party about change of his residential address and enquired about specific date and time of handing over possession. Despite noting change in address vide email dated 7.1.2016 (Annexure C-7) the Opposite Party sent communication dated 8.1.2016 (Annexure C-8) at the old address of the complainant.  The complainant vide letter dated 26.01.2016  (Annexure C-9)  requested Opposite Party  for handing over possession of the floor and compensation for delay.  The Opposite Party vide Annexure C-10  intimated the tentative date of possession as August 2016.  It is alleged that despite numerous requests the Opposite Party failed to offer possession of the floor in question.  . Ultimately the complainant got a legal notice dated 01.02.2017 (Annexure C-16) served upon the Opposite Party. .   After exchange of further correspondence, only on 19.5.2017 for the first time, the complainant was intimated by the OP that possession stood offered to him vide letter dated 15.11.2016, which was actually never received by the complainant.  As such the OP offered possession after substantial delay of 4 years. The complainant has termed the increase in area, levying of Rs.35,502 on account of deposit of VAT and Rs.18000/- towards expenses of Advocate fees to be unilateral amounting to unfair trade practice and deficiency in service. Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking  therein various reliefs.

6.         The Opposite Party, in its preliminary submissions in the written statement stated that complaint has been filed in total disregard to the terms of Floor Buyer’s Agreement executed between the parties. It was further stated that offer of possession was sent on 15.11.2016 but the complainant neither came forward to take the possession nor paid the due amount as per FSA, dated 15.11.2017.  It was further stated that complainants are backing out from the executed contract.. It was further stated that the complainants had full knowledge about the terms of Agreement dated 24.01.2011 executed between the parties. It was further stated that the project is cost escalation free and the complainants are getting benefit of cost escalation on account of construction material/labour, land cost  etc. It was further stated that the complainants prayed for unfounded demands, which were not as per executed terms of the Agreement and thus, the Opposite Party has prayed to allow 31% cost escalation of construction as well as 47% of the land holding cost. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon’ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012.  It was further stated that the complaint has become infructuous as the offer of possession was sent to the complainant on 15.11.2016 but the complainant himself did not take the possession nor has paid the due amount.  

7.            In the preliminary objections, it was stated that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission  It  was further stated that the complainant was himself a defaulter in  making timely payment.  It was further stated that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement;  It was also stated that complainant is not a consumer. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 06.04.2010 to 23.07.2010 and from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 9 of the preliminary objections, it was stated that approvals regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, were received on 06.09.2013 and 14.08.2014 respectively.  .

8.       On merits, it was stated that as per Clause 11(a) of the Agreement, the Company was to endeavor to complete the construction of the said project within 24 months (2 years) unless there was no delay due to a force majeure condition or due to reasons mentioned in Clauses 11(b) and 11(c) of the Agreement. The factum of execution of Independent Floor Buyer’s Agreement on 24.01.2011 has been admitted. It was further stated that the schedule of payment was provided to the complainant alongwith the allotment letter and the same was also part of the Agreement. .  It was further stated that the complainant opted for construction linked plan and applicable discount has already been credited to the complainant. It was further stated that the opposite Party has already offered possession to the complainant on 15.11.2016  but he himself did not take possession for the reasons known to him and did not make payment as per schedule.  It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

          The Opposite Party also moved miscellaneous application No. 1052 of 2017 under Section 8 of the Arbitration and Conciliation Act, 1996 in Consumer Complaint bearing No.583 of 2017. The aforesaid application was disposed of by this Commission holding that the applicability of the arbitration process would be seen at the time of final arguments.                  

9.       The complainant, in support of his case, submitted affidavit, by way of evidence, alongwith which, a number of documents were attached.

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

11.              Rejoinder has also been filed on behalf of the complainant reiterating therein the pleas taken by him in the complaint and rebutted the contents of written statement of the Opposite Party.

12.       We have heard the Counsel for the complainant and Advisor (Legal) of the OP, and have gone through the evidence and record of the case, carefully. 

          It is not out of place to mention here that the complainant had moved an  Miscellaneous Application No. 910/2017 for placing on record  Annexure C-22 &C-23(Colly)) the correspondence exchanged between the complainant and Opposite Party,, regarding the outstanding amount, payable by him (complainant), and the copies of cheques vide which the payment was made to the Opposite Party.  The application was allowed vide order dated 3.7.2018 and the documents were taken on record.

13.       It is evident that vide allotment letter dated 16.3.2010 (Annexure C-1), the complainant was allotted Independent Floor No.DVF-A1/68-GF#217 in  DLF  Valley,  Panchkula   and  Independent Floor Buyer’s Agreement was executed between complainant and the Opposite Party on 24.01.2011 [Annexure C-2]. The total price of the said independent floor, as depicted in Independent Floor Buyer’s Agreement  was Rs.58,90,059.76P, The complainant was also liable to pay due to increase in saleable area and other charges as specified in clause 1.2. As per chart placed on record by the Opposite Party during arguments, the total price came to be Rs.71,38,529.67P.  In all, a sum of Rs.56,30,634.25 has actually been paid to the Opposite Party. as mentioned in the Chart showing details of the property etc., in question, placed on record, under the signatures of the Counsel for the Opposite Party, and as admitted at the time of arguments on 3.07.2018. As per Clause 11(a) of the Agreement, the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. It may be stated here that in view of stay by Hon’ble Supreme Court, the Opposite Party gave option on 02.04.2013 to the complainant to seek refund alongwith 9% interest or to continue with the allotment by agreeing to extend one year period for delivery of possession (Annexure R-3 at Page 83 of the written statement). It is a fact that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 (Annexures R-8 & R-9), which in turn, delayed the completion of the project. The Opposite Party has claimed that this being a force majeure condition, it is entitled to benefit of delay of one year. The possession of the unit, in question, was offered by the Opposite Party to the complainant vide offer of possession letter dated 15.11.2016 (Annexure C-18), which was sent at the old address of complainant, despite the fact that the complainant got his new address updated with the OP, as was confirmed by the OP vide
Annexure C-7.  In view of this, the averment of the complainant that he received possession letter on 19.5.2017 is correct. The instant complaint has been filed on 2.8.2017.

          The complainant in his complaint asserted that the OP unilaterally increased the area of the unit in question. Regarding increase in area,  the Opposite Party in possession letter inter alia mentioned as under:-

“Kindly note that post compounding, the final area of the plot is 2,440.00 sq. ft. (226.57 Sq. mt.) which is an increase/decrease in area/PLC of 185.00 sq. ft. (17.18 Sq. mt.) and the differential cost payable by you/refundable to you as the case may be. Any increase/decrease in area is necessitated  to improve upon the original tentative plan of the super area and is covered under clause No.10 of the independent Floor Agreement. Any increase/Decrease in PLC (Preferential Location Charges)  is charged as per Clause 1.10 of the agreement.”

Admittedly, the complainant was duly informed about the increase in area while offering possession vide letter dated 15.11.2016. The demand raised by the Opposite Party included Rs.4,34,750/- on account of change in area as per clause 1.2 for PLC and clause 10 for change in area. It may be stated that clause 10 of the Independent Floor Buyer Agreement stipulated that if there is increase or decrease in area more than 15% in the saleable area of the Independent Floor, then only the Opposite Party will intimate the complainant/allottee in writing and obtain his/her  consent. In the instant case the total increase in the saleable area being less than 15%, the Opposite Party was not bound to seek any consent of the complainant/allottee. It may also be stated here that saleable area of the unit in question as per the agreement is 2255 Sq.ft. While offering possession, in the final statement of account annexed with the possession letter dated  15.11.2016 there is increase in area from 2255 sq.ft. to 2440 sq. ft. Thus there was increase of 185 sq. ft only. Compared to original area of the unit, the increase is much less of 15%. The complainant came to know about the change in area when possession was offered to him. In case the complainant had grievance regarding increase in area he could take up the issue with the OP within reasonable time or till filing of the complaint.  The increase is clearly in terms of agreement. The complainant has also not adduced any evidence by way of report of any architect/Engineer   that increase in area did not exist. .  Thus this plea of the complainant is not tenable.  

          The plea of the complainant that he was not given early payment rebate also seems to be devoid of merit.  Perusal of  possession letter (Annexure C-18/R-1 (colly) clearly reveals that early payment rebate of Rs.4,40,512.13p. besides corporate discount of Rs.2,86,700.49p and change in IDC-Rs.3084.98P were credited.

14.        The Opposite Party, in preliminary submissions, has prayed to allow it 31% cost escalation of construction as well as 47% of the land holding cost, totaling 76% of the sale price. There is a clear and specific stipulation in Clause 1.2 of the Agreement that price of the unit is escalation free. Since the Opposite Party failed to complete construction and deliver possession within stipulated period and extended one year period, it (Opposite Party) itself is responsible for delay and deficiency in service. Their prayer amounts to seeking amendment   of the terms and conditions of the Agreement and the same being devoid of merit, must fail, and the same stands rejected.

                  The Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 24.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), as such, the averment of the Opposite  Party that Hon’ble Punjab & Haryana High Court had restrained them from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010) (Annexure R-6 & R-7), is not relevant.

15.        To defeat the claim of the complainant an objection was raised by the Opposite Party in its written statement that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It may be stated here that this issue has already been dealt with, by this Commission, in a case titled as ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, while relying upon ratio of judgments of the Hon’ble Supreme Court, titled as Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013), Secretary, Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha (2004) 1 SCC 305 and United India Insurance Co. Ltd. Vs. M/s Pushpalaya Printers, I (2004) CPJ 22 (SC),  and LIC of India and another Vs. Hira Lal, IV (2011) CPJ 4 (SC), and held that even in the face of existence of arbitration clause in an Agreement/Allotment Letter, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint. Recently, the larger Bench of the National Commission in a case titled as Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, vide order dated 13.07.2017, has held that an Arbitration Clause in the Agreements between the complainants and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018.

            In view of the above, the objection raised by the Opposite Party, in this regard, being devoid of merit is rejected.

16.       In regard to other preliminary objections raised by the Opposite Party, in its written statement,  the following questions fall for consideration:-

(i)           Whether as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It may be stated here that this issue has already been dealt with in detail by this Commission in case titled “Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’, 2017 (3) CPJ 8, wherein in Para 21 and 22, this Commission held as under:-

“21. ……..It was stated that since the project of the Opposite Parties is situated in District Panchkula and possession of the floor was to be delivered in Panchkula, a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to him. Clearly, application for allotment of Unit (Page 80 of written statement) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Independent Floor Buyer's Agreement (Annexure C-2) was also executed between the parties on 03.02.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., v. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Fora. It was further held, in the said case, that there is a difference between Sections 11/17 of the Act, and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines v. Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) : VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

22. In Cosmos Infra Engineering India Ltd. v. Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others v. D. Adhilakshmi & Anr I (2013) CPJ 169 (NC) the agreements were executed, between the parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi and Hyderabad. The National Commission, in the aforesaid cases, held that such a condition, incorporated in the agreements, executed between the parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. The principle of law, laid down, in the aforesaid cases, is fully applicable to facts of the instant case. It may also be stated here, that even if, it is assumed for the sake of arguments, that the complainants had agreed to the terms and conditions of the agreement, limiting the Jurisdiction to the Courts, referred to above, the same could not exclude the Jurisdiction of this Commission, at Chandigarh, where a part of cause of action accrued to the complainants, to file the complaint. The submission of the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.”

              In the instant case also, application for allotment of Unit (Annexure R-4, at Page 84 of the written statement) was made by the complainant at Chandigarh address of the Opposite Parties viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh and as admitted, Independent Floor Buyer’s Agreement was also executed between the parties on 24.01.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. The objection raised by the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

(ii)         The next objection raised by the Opposite Party is that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission and further the complainant was virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. This issue has also been dealt with by this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Paras 23 and 24, which read thus:-

“23.  …….It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines 'service' as under:-

"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"

24. From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. v. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board v. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a 'consumer', as stated above. In the instant case, the complainants are seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainants are trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

                      The objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

(iii)       Another objection raised by the Opposite Party is that since the complainant purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. Qua this issue, this Commission in Kapil Kumar Khosla & Ors. Vs. DLF Homes Panchkula Private Limited & Ors.’s case (supra), in Para 25 held as under:-

“25.  ……….It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. Rather, the complainants in their complaint, have clearly stated that they purchased the flat, in question, solely for residential purposes. Otherwise also, in a case titled as Kavita Ahuja v. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja's case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited v. Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as "Aashish Oberai v. Emaar MGF Land Limited", Consumer Case No. 70 of 2015, decided on 14 Sept. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

"In the case of the purchase of the house which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house. Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose. In fact, this was also the view taken by this Commission in Rajesh Malhotra & Ors. v. Acron Developers Pvt. Ltd. & Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015."

The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.”

 

          The  complainant is seeking possession. Before filing complaint, when there was delay in delivering possession, as is evident on record, he (complainant) vide his letters dated 7.1.2016, 26.1.2016, 16.2.2016, 4.3.2016 and 18.3.2016 Annexure C-6,9,11,12 &13) has been requesting and seeking possession.  

            Undoubtedly, the complainant purchased the flat, in question, for his residential purposes..

            In view of above, the complainant falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act and as such, the objection raised by the Opposite Party, in its written reply, being devoid of merit, is rejected.

17.        The next question, that falls for consideration, is, as to whether, there is delay in offering/delivering possession of the flat, in question. Clauses 11(a) & 11(b) of Independent Floor Buyer’s Agreement dated 24.01.2011 read thus:-

“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……..”

          As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site.

18.       The Opposite Party has specifically pleaded that there was stay by the Hon’ble Apex Court from 19.04.2012 up-to 12.12.2012 (Annexures R-8 & R-9), which in turn delayed the project. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 23.01.2014. No justification whatsoever for delay in offering possession beyond 23.01.2014 has been explained by the Opposite Party. The argument of the Opposite Party that delay in handing over possession of independent floor was attributable to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 24.01.2011 and before execution thereof, the Opposite Party ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Party and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Party. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (admittedly received by the complainant on 19.05.2017), clearly, there is inordinate delay (around 3 years and more than 4 months) in offering possession of the unit, in question, to the complainant from the due date of 24.1.2014 (2 years + 1year). Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Party.

19.       While offering possession vide letter dated 15.11.2016 (Annexure C-18) (received by the complainant on 19.05.2017), the Opposite Party raised a demand of Rs.19,21,591.82 plus Rs.1,28,222/- on account of Valley Resident Welfare Society. The demand raised also included   contingent deposit of Vat of Rs.35,502/. It is on record that the complainant vide his letter dated 7.1.2016 (Annexure C-6) intimated the Opposite Party regarding change in his address, which was updated by the Opposite Party as confirmed by it vide email Annexure C-7.   However, possession letter dated 15.11.2016 was sent at the old address of the complainant. The Opposite Party in corresponding para 23 of its written statement has not specifically contradicted averment of the complainant regarding receipt of  possession letter by the complainant on 19.5.2017. Therefore, the contention of the complainant that he received the possession letter on 19.5.2017 being correct, deserves acceptance.    It is also on record that the complainant also deposited a sum of Rs.10,84,200/- vide  cheques dated 28.8.2017 in favour of DLF Home Panchkula Pvt. Ltd. (Annexure C-23)  The complainant also deposited a sum of Rs.1,28,222/- through cheque No.017736 dated 28.8.2017 in favour of Valley Residents Welfare Society.(Annexure C-23). During the pendency of the complaint vide this Commission order  dated 1.12.2017 possession of the floor in question was handed over to the complainant. While ordering handing over the possession to the complainant within 10 days from the date of order, this Commission had observed that dispute qua payment due, if any, shall be decided while disposing of the complaint. As admitted during arguments possession stands delivered to the complainant on 20.12.2017. During arguments it was agreed by the Counsel for the complainant and Legal Advisor of the Opposite Party that a sum of Rs.9,35,918 is due and payable by the complainant.   The complainant is therefore, duty bound to deposit the aforesaid balance amount within 30 days from the date of receipt of certified copy of this order, failing which he shall be liable to pay interest @12% per annum till payment is made to the Opposite Party

20.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions.In the instant case, the Opposite Party did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 24.01.2011 i.e. by 23.01.2014. As already stated above, possession of the unit, in question, though offered by the Opposite Party on 15.11.2016, but the letter was received by the complainant on 19.05.2017 only. There is, thus, inordinate delay of more than 3 years  and 4 months, even beyond the extended period, in offering possession on account of which, the complainant deserves to be compensated. It may be stated here that a two Judges Bench of Hon’ble National Commission in the case of Shri Suman Nandi & Anr. Vs. M/s Unitech Limited & Anr., Complaint No.277 of 2013, decided on 17.12.2015, where there was delay in delivering possession, in Para 16 held as under:-

  “16.       On perusal of the Buyer’s Agreement and the affidavits filed by the parties it is clear that the complainants had booked the subject apartments on the expressed promise extended by the opposite parties that subject to Force Majeure, the opposite parties would deliver the possession of the apartments complete in all respect within 30-36 months, as the case may be, of the execution of the Buyers Agreement and being influenced by the said promise the complainants entered into the contract. No doubt in the Buyer’s Agreement some scope for delay due to unavoidable circumstances was kept in mind for which clause 4.a. for compensating the complainants for delay was incorporated but it does not mean that the intention was that even in the event of inordinate delay in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.5/- per sq. ft. per month which is much less than the bank rate for loan or fixed deposit. Therefore, in our considered view clause 4.a. was meant for computing compensation in case of a minor delay in delivery of possession.   If the argument of the opposite party is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder who might utilize the consideration amount meant to finance the project by the buyer for his other business venture at nominal interest of 2-3 per cent as against much higher bank lending rates.  This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.”

The National Commission granted 12% interest as compensation from the date of default in delivery of possession.

            Also in Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon’ble National Commission, directed the opposite party/builder to pay interest on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order read thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated  in  the  Buyers  Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.

 

21.         No doubt, in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainant for delay, but it does not mean that the intention was that even in the event of inordinate delay, in completing the construction and delivering the possession, the complainant would be entitled to meagre compensation of Rs.10/- per sq. ft. per month, which is much less than the bank rate for loan or fixed deposit.  Therefore, in our considered view, Clauses 11(a) and 15 were meant for computing compensation, in case of a minor delay in delivery of possession.  

22.       Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 24.01.2014 up-to + 2 months from the date of offer of possession. However, since possession letter was received  by the complainant on 19.05.2017, the complainant shall be entitled to compensation up-to plus 2 months from 19.05.2017 i.e. up-to 18.07.2017 (30 days for making payment + 30 days grace period). Since the complainant did not deposit the entire amount as demanded in the offer of possession letter, delay beyond two months, as above, is clearly attributable to him and not the Opposite Party. Still a sum of Rs.9,35,918/- as stated in the preceding para 19 above,  is due against the complainant. The possession stands delivered to the complainant on 19.12.2017.  The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above, i.e. upto 18.07.2017.  

23.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to him, for inordinate delay in delivering physical possession of the unit to him, by the Opposite Party, by the date promised in the Agreement and within one year extended period. The complainant has been compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. There is DLI of Rs.1,32,831.71P in remitting installments, which has a bearing on the completion of the project.      In the facts and circumstances of the case, grant of compensation in the sum of Rs.1,00,000/-, would serve the ends of justice.

24.       In  connected complaints bearing Nos. 812 of 2017 and 96 of 2018, , the possession of the unit(s), in question, has been given to the complainant(s). However, in complaint bearing No.160 of 2018, the complainant has sought refund of the deposited amount. The details of date of agreement, due date for possession, date on which possession offered, whether amount deposited after offer of possession and documents submitted etc., are given in the following table:-
 

Complaint Nos.
Sr. No.		812/2017	96/2018	160/2018
1.	Date of Independent Floor Buyer’s Agreement.	19.01.2011	14.01.2011 (Transferred on 30.8.2014)	25.01.2011
2.	Amount paid as per Chart (Rs.).	Rs.33,97,131/-	Rs.48,07,464.21	Rs.45,93,450.95
3.	Due date for possession after 2 years plus 1 year extended period.	18.01.2014	13.01.2014	24.01.2014
4.	Date on which possession offered.	19.06.2017	29.10.2016	5.10.2016
5.	Whether amount deposited after offer of possession.	Yes	Yes on 27.6.2017 and 21.9.2017	Not deposited
6.	Whether documents submitted after offer of possession.	Yes on 18.8.2017	Yes in October, 2017	Pending
7.	Date on which possession delivered.	18.8.2017	3.10.2017	-
8.	Date of Occupation Certificate.	12.01.2017 (R-2 Colly.)	02.05.2016 (R-1 Colly.)	02.05.2016 (R-2 Colly.)
	Remarks	-	-	Seeking refund

  

25.       As is evident from details in the above table, in two complaints i.e.812/2017 and 96/2018,  the possession stands delivered on 18.8.2017 and 3.10.2017 respectively.  . In complaint bearing No.160 of 2018, the complainant has sought refund of the deposited amount.

26.       It was stated and agreed by Legal Advisor for the Opposite Party that the stamp duty and registration charges would be payable by the complainant at the time of execution of sale deed. Besides, incidental expenses for execution of sale deed shall also be borne by the complainant. It was agreed that Advocate Charges in the sum of Rs.18,000/- shall not be payable by the complainant.

27.       Therefore, in the aforesaid complaints i.e. CC Nos.812/2017, 96/2018 also , (except Complaint bearing No.160 of 2018 wherein the complainant has sought refund of the amount deposited), the complainants are held entitled  to  compensation  @ 12%  p.a.  interest  on    the deposited amount(s) for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession.

28.        The complainant(s), in the aforesaid complaint bearing  No.812/2017 and complaint No. 96 of 2018 are, also entitled to compensation for mental agony, harassment and deficiency in rendering service.  Compensation of Rs.1,50,000/- in each case, if granted, would serve the ends of justice.

29.        In complaint bearing No.160 of 2018, the complainant has sought refund of the deposited amount of Rs.45,93,497/-  alongwith interest @15% p.a. from the date of payment till refund of  the entire amount.; compensation of Rs.5 Lacs on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused and Rs.75,000/- as litigation expenses.  

                The Opposite Party(s) also moved Miscellaneous Application Bearing No. 341 of 2018 in above complaint  under Order 1 Rule 10 (2) of Code of Civil Procedure for striking off the names of Opposite Parties No. 2&3 from the array of the Parties. In the application it has been stated that neither any averment against Opposite Party No.2&3 who are Directors of Opposite Party No.1-Company, has been made by the complainant nor the complainant has claimed any relief against the said Opposite Parties viz. opposite parties  No.2&3. It was further stated that the Directors perform acts and duties for the benefit of the Company and are agents of the Company to the extent that they have been authorized to perform certain acts on behalf of the company and as such they owe no fiduciary or contractual duties or any duty of care to third parties who deal with the Company. It has been prayed that they not being a necessary and proper party, their names be struck off from the array of the parties.  It may be stated here that similar question arose for consideration in Consumer Complaint No.595 of 2017 decided on 23.4.2018 by this Commission.   In  Para No.22 thereof  it was held as under:-   

“22…………………….. It may be stated here that Opposite party No.1 being a private limited company was not to act itself and was to act through its Managing Director and/or Directors.

“In Sanjay K. Malviya Vs Sidhharth Enterprises & Anr. I (2008)CPJ 74(NC), it was held that the provisions under Section 27 of the Act could be applied to the Directors of the Companies, notwithstanding the absence of specific provision, for action against those in-charge of the  affairs of the Company.  It was further held that impleadment of the Directors of the Company, as parties, in addition to the Company, in the consumer complaint was not necessary.  It was further held that the orders passed by the Foras below, against the Company were binding on the Managing Director and the Directors of the Company.

      In  Mr. Tonse N.M. Pai Vs. All Goa Manipal Finance Group of Companies Creditors Association, 2013 (1) CCC 420 (NS) a similar question, arose for decision,. The National Consumer Disputes Redressal Commission, New Delhi, held that a Company acts through its Board of Directors, at the meetings. It is managed through its Managing Director or its Directors. It was held that he cannot contend, in the proceedings under Section 27 of the Act, that only the Company was liable to be penalized. It was further held that contrary view could only defeat the provisions of Section 27 (1) of the Act, which was enacted for greater protection of the interests of the consumers, by way of additional remedy.

              In Byford Leading Ltd. Vs. Union of India (57) (1995) DLT 623, which was followed in Ravikant and another Vs. National Consumer Disputes Redressal Commission and others (1997 (2) CPR 65), a Division Bench of the Delhi High Court, held that under Section 27 of the Act, the Chairman and the Managing Director of the Company can be proceeded against, they being in-charge of the management and in control of the affairs of the Company. In Ravikant and another's case (supra), a Division Bench of the Delhi High Court, referred to the un-amended Contempt of Courts Act, 1962 and the decision of the Apex Court, in The Aligarh Municipal Board vs Ekka Tonga Mazdoor Union and Ors (AIR 1970 SC 1767) and held that a penal provision in Section 27 of the Act, which is  applicable to a Company, must be treated as applicable to those whose are officially responsible for the conduct of its affairs. In Ravikant and another's case (supra), there were two petitioners, who were the Directors of each of the Companies. Under these circumstances, it was held that the penal provisions of Section 27 of the Act, could be applied to the Directors of the Companies, notwithstanding the absence of the specific provision, for action against those in charge of or in control of the affairs of the Company. This conclusion could also be reached by invoking the principle of lifting of corporate veil.

              Further, in Ashish Ramesh Chandra Birla & Ors.Vs Murlidhar Rajdhar Patil & Ors. I (2009) CPJ 200 (NC), a consumer complaint was filed against Siddhi Vyankatesh Urban Co-operative Credit Society Ltd. Jalgaon, that some amount was invested with it, in a Scheme launched by it, but it failed to pay the same, on maturity.  The National Consumer Disputes Redressal Commission, held that the Directors of the Society, were jointly and severally liable to pay the amount of maturity and were rightly held to be deficient, in rendering   service, by the Foras below. The principle of law, laid down, in the aforesaid cases, is fully applicable to the instant case. 

              Not only this, in case titled M/s India Bulls Real Estate & Wholesales Services Ltd. & Ors. Vs. Vemparalasrikant & Anr., First Appeal No.797 of 2017, Hon'ble National Consumer Disputes Redressal Commission, New Delhi while dismissing the said appeal on 16.08.2017, held in Para 5, interalia, as under:-

“5.    From the material on record, it is evident that the OP-2 is the Chairman of the Company whereas the OP-3 is the Chief Executive Officer-cum-M.D. of the said company.  Evidently, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the company.  By virtue of their office, they can directly influence any decision regarding relief to be granted to the complainant, as asked for in the consumer complaint.  It is held, therefore, that the State Commission has rightly dismissed the interim application, rejecting the plea of the appellants to delete the name of OP-2 & OP-3 from the array of parties……..”

 

              It clearly emerges from the ratio of aforesaid judgments that the Managing Director and/or Directors are responsible and can be penalized under Section 27 of Consumer Protection Act, 1986.

              In the instant case, the complainanthave only impleaded Opposite Parties No.2 & 3 as a party and by doing so, they (Opposite Parties No.2 & 3) have been afforded an opportunity to project their defence. By moving this application, raising hollow and technical pleas, an attempt has been made to wriggle out of their liability and responsibility. The fact of Opposite Parties No.2 & 3, being Directors of the Company, has neither been disputed nor has it been pleaded that they are not the active Directors of the Company. In view of aforesaid position, for failure of Opposite Party No.1, they (Opposite Parties No.2 & 3) are also equally responsible. The objection raised, thus, being not sustainable, stands rejected. Accordingly, the aforesaid applications also stand dismissed.”

 

              In view of the above, the instant application stands rejected and the same is accordingly dismissed. .

30.       Now coming to relief qua refund of the deposited amount. In the Chart submitted by the Counsel for the Opposite Parties, during arguments, and as tabulated in the aforesaid chart, receipt of above amount of Rs.45,93,497/-  has been admitted by the Opposite parties.

31.      As per Clause 11(a), (b) & (c) of the Agreement, 24 months period plus the extended period of 12 months (on account of stay by the Hon’ble Supreme Court from 19.04.2012 till 12.12.2012) from the date of execution of the agreement expired on 24.01.2014. Possession was offered on 5.10.2016. There has been, thus, inordinate delay in offering possession. The complainant however, filed the complaint after 1½ years from the date possession was offered. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, wherein, there was inordinate delay, in the light of law settled by Hon’ble National Commission in such cases, held that the complainant is entitled to refund of the amount deposited with the Opposite Party. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainant was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

 

 

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. Further in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No.70 of 2015 decided on 14 Sep 2016, under similar circumstances, the National Commission negated the plea taken by the builder while holding as under:-

“I am in agreement with the learned senior counsel for the complainant that considering the default on the part of the opposite party in performing its contractual obligation, the complainant cannot be compelled to accept the offer of possession at this belated stage and, therefore, is entitled to refund the entire amount paid by him alongwith reasonable compensation, in the form of interest.”

 

Therefore, the complainant, in this complaint, is held entitled to refund of the amount alongwith simple interest@12% per annum from the date of deposit till the payment is made..

32.       As regards compensation for mental agony, harassment etc., the complainant is held entitled for compensation of Rs.1,50,000/- which would serve the ends of justice.

33.       No other point, was urged/pressed, by the Counsel for the parties, in all the cases.

34.      For the reasons recorded above, all the complaints bearing Nos.583  and, 812 of 2017 and 96 and 160 of 2018 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

Nos.583 and  812 of 2017 and 96 of 2018

 

35.       In these complaints, possession of the unit(s), in question, stands  delivered to the complainant(s) on 20.12.2017, 18.08.2017 and 3.10.2017 respectively after deposit of  due amount(s) and submission of  documents. 

                   However, in complaint bearing No.583 of 2017, amount of Rs.9,35,918/- is still due against the complainant. The complainant shall pay the same to Opposite Party (s) within 30 days from the date of receipt of certified copy of this order failing which he shall be liable to pay interest @12% per annum till payment is made.

            The Opposite Party(ies), in each of these cases, are, jointly and severally, directed as under:-

(i)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within one month from the date of receipt of certified copy of this order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 24.01.2014,19.01.2014 and 14.01.2014 respectively up-till two months from the date of offer of possession i.e. upto 18.7.2017,17.8.2017 and 28.12.2016, [w.e.f. due date(s) of possession in respect of deposits made up-to the said due date and from respective dates of deposits in respect of amount(s) paid after the said due date],within 45 days, from the date of receipt of a certified copy of this order.           Since in complaint case NO.812 of 2017 the Opposite Parties have credited compensation in the sum of Rs.6,71,158.97 (as indicated in chart given during arguments), the same shall be reduced from the compensation amount arrived at by way of interest @12% for delay period, as per clause (ii) above.
(iii)	Since the possession stands delivered, the compensation amount shall be calculated for the period of delay as per direction  (ii) above and shall be paid to the complainant (s) within 45 days from the date of receipt of certified copy of this order, failing which the amount so calculated/arrived at shall start getting 9% interest, after expiry of 45 days, till payment is made.
(iv)	Pay compensation in the sum of Rs.1,00,000 (in cc/583/2017) and Rs.1,50,000/- each in Complaint No. 812/2017 and 96/2017 on account of mental agony, physical harassment and deficiency in service and litigation costs  of Rs.35,000/-, in each case, to the complainant(s), 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(s) till realization

 

36.       As agreed between the parties, the Advocate Charges shall not be charged by the Opposite Parties. The actual expenditure for registration of Sale Deed(s) besides Stamp duty and Registration charges, shall, however, be borne by the complainant(s).

Consumer Complaint bearing No:

160  of 2018.

 

37.       The Opposite Parties, in this case, are jointly and severally, held liable and directed as under:-

1.   To refund the amount of Rs.45,93, 450.95P  alongwith  simple interest @12%per annum, to the complainant, for the  amount(s) paid from the respective dates of deposits, within a period of 45 days, from the date of receipt of a certified copy of  this order, failing which, the Opposite Parties shall pay the  aforesaid amounts alongwith simple interest @15%per annum,  from  the date of default i.e. after expiry  of  45  days  period,  till  actual payment;

 

2.  To pay an amount of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, to the complainant, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amounts alongwith simple interest @12% per annum, from the date of filing the complaint till actual payment.

 

38.         However, it is made clear that in case, the complainant has availed loan facility from any financial institution(s), such an Institution shall have the first charge on the amount payable, to the extent, the same is due against the complainant.

39.       Certified copy of this order, be placed on the file of consumer complaints bearing Nos.812/2017, 96/2018 and 160/2018,

40.       Certified copies of this order be sent to the parties, free of charge.

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