Haryana

Ambala

RBT/CC/237/2023

Ojasv Sethi s/o Brig. Harmesh Sethi - Complainant(s)

Versus

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

Jyoti Rani

18 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	CC/354/2020 in RBT/CC/237/2023
Date of Institution	:	18.11.2020/08.06.2023
Date of decision	:	18.03.2024

 

Ojasv Sethi S/o Brig. Harmesh Sethi, 402, Godrej CGHS Flats, Plot No.14, Sector-10, Dwarka, New Delhi-110075.

……. Complainant

Vs.

1. M/s DLF Homes Panchkula Private Limited, through Managing Director/ Director/Authorized Representative, SCO No.190-191-192, Sector-8C, Chandigarh.
2. M/s DLF Homes Panchkula Private Limited, through its Managing Director/Director/Manager/Authorized Representative, DLF Office, DLF Enclave, DLF The Valley Sector-3 (Amravati) Panchkula, Haryana.

 

….…. Opposite Parties

Before:       Smt. Neena Sandhu, President.

                    Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Sunidh Kashyap, Advocate, counsel for the complainant.                                                                                                                           Shri Pushkar Sharma, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund the entire amount deposited by the complainant from time to time with 18% interest p.a. from the date of deposit till realization of the same. Or in alternative, the complainant shall be awarded compensation @18% interest PA on the amount deposited till the possession of alternate structurally safe flat is delivered to the complainant.
2. To hold that there is no increase in the area of the flat and OPs are not entitled to any amount.
3. To hold that the OPs are not entitled for any alleged delayed interest.
4. To hold that the OPs are not entitled for any amount demanded by them.
5. To hold that the OPs are not entitled for holding charges of the flat.
6. To pay Rs.5 Lakh as compensation on account of mental torture, physical harassment and extra costs for repeated visits caused to the complainant on various grounds/facts mentioned in the complaint.
7. To pay Rs 2 Lakhs on account of litigation expenses and other misc charges.
8. To pay Rs.1 lakh as the cost of complaint for pursuing the complaintOR

Grant any other relief, this Hon’ble Commission may deems fit.

 

2.           Brief facts of the case are that the OPs floated residential flats and commercial project at Amravati Enclave named as 'DLF Valley' and published brochure of the same, claiming   various amenities like Commercial and Retail space, Convenience stores, Medical facilities, Nursery School, Primary School, and Creche; Easy access to airport, railway station and vital business hubs; Individual rain-water pits for every home proposed over; 10 acres of greens forest recycling of water for irrigation of gardens and serving the flushing requirements; Designed to enable homes to stay cool in summer and warm in winters; Azure water for the swimming pool, swank club-house, sumptuous restaurants; Tennis courts, squash courts etc. The OPs have already included the price of above-said amenities to be provided, while working out the price per-square-feet of the flat and charged the price of development. The complainant applied for the allotment of one independent floor flat consisting of three bedrooms, two bathrooms, a kitchen, a balcony, servant room with bathroom and dedicated terrace (roof top sit out) with the  OPs  at 'DLF Valley', Amravati Enclave, Panchkula and paid the booking amount of Rs.4,00,000/- on 03.03.2011, vide Receipt dated 19.03.2011. The complainant was allotted an Independent Floor bearing No. D4/14 FF vide letter DLF/CS/UNQ/217/001857/000521 dated 23.03.2011, Annexure C-3. Vide the said letter, a schedule of payments based on "2 Years Construction Linked Payment Plan", Annexure C-4. As per this payment schedule, first three installments, total amounting to Rs.17,82,277.94 (29.62 % of total cost of Rs.60,17,100.00) were to be paid within 4 months and the balance in 7 installments linked to 'identified stages' of construction till possession. Vide paragraph 3 of the same letter, it was also intimated that 10% interest would be paid by OPs  as 'Early Payment Rebate' (EPR) for amount received earlier than due date. The OPs issued two drawing/site plan of the said flat to the complainant. In these plans, dimensions of the covered area and the cantilever/balcony are given. In the revised plan, issued after 3 years of original plan, the OPs cunningly indulged in unfair trade practices by enhancing the saleable area within the same plot size by way of increasing the size of verandah/cantilever/balcony by approx. 200 sq. ft., thus with malafide intentions and charging huge sum of Rs.7,05,135.60 (amounting to additional 11.87% of the stated price of the flat). This was without issuing any prior notice of increase of the area as per Clause 10 of the agreement, though, it was vaguely (in fact cunningly) communicated vide their letter dated 13.06.2013, Annexure C-7, stating "Layout plan now proposed to be revised bearing drawing no.DGTCP-3917 dated 10.06.2013 is available for perusal on website www.dlf.in. Incidentally, the said drawing is not available on the specified website. The above letters, as well as the revised layout plan, later obtained from DLF office do not give clear specifications or indications of specific increase in area. Verandah/cantilever/balcony is only an extension of linter and not a 'covered area' as the same is neither supported by the walls, columns and beams nor includes fixtures/fitments like doors and windows etc. Therefore, charging at the same rate as covered area for extended balconies only highlights the malafide intentions and premeditated cunningness on the part of the OPs. An agreement was executed between the complainant and the OPs on 10.02.2012, Annexure C-8. As per this agreement -paragraph 1.1, the total price (basic sale price +EDC/IDC + interest) of the said flat was Rs.59,39,600.00. This amount is at variance to the total price mentioned in the 'Schedule of Payment'. The OPs illegally narrated the component of interest of Rs.4,15,772/- in the price of the flat which is illegal, null and void, as the  OPs  had not explained the logic of charging interest. Therefore, the price of the flat should be Rs 59,39,600-4,15,772 = Rs 55,23,828/-. Therefore, the complainant is well within his rights to claim the refund of entire amount with 18% interest from the OPs and compensation for harassment. As per Clause 11 of the 'Buyers Agreement', the OPs  were to hand over possession of the flat within 24 months 8 months due to Force Majeure' conditions of stay on construction activity by Hon'ble Supreme Court from 09.4.2012 to 12.12.2012, DLF letter dated 28.12.2012, Annexure C-9, which works out handing over flats by November 2013. Any delay in offer of possession by  OPs  beyond this date, amounts to serious breach of agreement and therefore entitles the complainant to refund of entire amount with 18% interest as per their own policy and also due compensation for harassment and mental agony and costs. As evident from the calculations of the OPs, though 86.05% of the stated price of the flat was paid till 2014 and despite six years having lapsed thereafter, yet the OPs have miserably failed to offer a possession of flat to the complainant till date. The OPs adopted a cunning methodology to demand installments in excess and before due date. Since, after first three time based installments, the balance installments were linked to the progress and identified stages of construction, the OPs kept sending frivolous progress of construction and false promises of soon handing over, with dubious intention of extracting construction linked installments. The OPs raised frivolous demands to be paid at short notice; raised illegitimate demand and later on revoking the same; different departments raised undue demands; illegitimate demands were raised based on CA’s certificate etc.  Number of letters were written by the complainant to the OPs in the matter but they never paid any heed to the same.  The OPs kept on raising demands on the basis of wrong calculations and also charged delayed interest and other charges like electricity, water, sewerage, illegally. At the time of receipt of offer of possession letter dated 08.06.2016, Annexure R-2 the complainant was in South Africa and requested his father Brigadier Harmesh Sethi to visit the project site. Complainant's father visited the project site in last week of June 2016 and found that the said block D4 / 14 was still not completed in all respects. This block being the last in the line, there were fields on two sides and the boundary wall was not constructed. DLF was trying to acquire additional land adjoining the block and waiting for the outcome. Hence complainant's father was advised to come after 2 months. The complainant himself came from South Africa in the end of August 2016 and after telephonic confirmation of readiness, on 02.09.2016, visited the project site office along with his parents. JLL staff in charge expressed surprise questioning as to who had originated possession letter for the said block, since it was not ready. However the complainant was aghast to see the condition of the flat and surroundings, almost three months after offer of possession. Labour was working in the block and construction of boundary wall was at foundation level. Pathway tiles were being fixed. There were open fields on two sides, which was a major security risk. The other amenities/ facilities as promised by the OPs Builder at the time of advertisement and included in brochure, were at a nascent stage. The complainant duly filled a three page "Customer Observation Form", Annexure C-41, highlighting major defects/anomalies i.e.a) Polishing painting not completed (Point 3). b) Abundant seepage all around (Point 4). c) Bathroom fitting incomplete and no provision for geyser (Point 6 857) d) Uneven flooring There was stagnant water in the drawing room. A bucket of water was sprayed in the balcony, the whole water flew into the drawing room. Obviously, the leveling of floor was faulty (Point 2). e) Skirting around the floor was broken (Point 1). Rooftop/Open Terrace was unfinished (Point 11). g) Cracks on wall (Point 9). Most serious of these observations/ defects were security issues marked "General Concern-Serious". These observations/ defects list were handed over in writing to DLF and confirmed by DLF vide their email dated 17.09.2016, Annexure C-42. The complainant found that flat in question was not complete, project was not developed and unfit for human habilitation, therefore under compelling circumstances, he decided to withdraw the allotment and seek for the refund of his entire amount deposited with the OPs with interest by him, by way of sending letters and email dated 17.09.2016 (Annexure C-48), 13-09-2016 (Annexure C-49)  and 10-10-2016 (Annexure C-52) followed by various communciations but to no avail.  Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version wherein they raised preliminary objections to the effect that this complaint is barred by limitation; in view of arbitration clause in the agreement this complaint is not maintainable under CPA; the complainant is not consumer but investor; the complainant has no cause of action; the complainant has approached with unclean hands and suppressed material facts; delay in delivery of possession was caused due to force majeure circumstances faced by the OPs i.e. stay on the  project by Hon’ble Supreme Court and High Court; this Commission is not having jurisdiction to entertain this complaint; etc. On merits, it has been stated by the OPs that upon receipt of occupation certificate dated 01.03.2016, possession of the unit was offered to the complainant on 08.06.2016 but the complainant failed to take over the same and also failed to make pending payment, despite the fact the number of reminders were sent to him in the matter.  In recent judgment the Hon'ble Supreme Court in D.S. Dhanda SLP No. 3623-3654 of 2019 held that terms and conditions of agreement have to be followed as it is executed by both the parties. Payments made by the complainant includes the amount of taxes i.e. EDC, IDC etc.. Construction of Project was delayed due to stay on construction ordered by the Hon'ble High Court and thereafter by the Hon'ble Supreme Court of India, due to third party litigation involving the Acquisition Proceedings of the land of litigants therein, in the year 2010 and 2012. A Writ Petition bearing No. 6230/2010 was also filed before the Hon'ble Punjab and Haryana High Court and vide order dated 06.04.2010 the Hon'ble Court had restrained the OPs from creating any third parties right and had also directed to ensure that the nature of land shall neither change nor any further construction activity shall be carried out. An appeal assailing the order dated 06.04.2010 of the Hon'ble Punjab and Haryana High Court was filed before the Hon'ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by Hon'ble Supreme Court on 23.07.2010. Thus, the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon'ble Supreme Court. Special Leave Petition bearing No. 21786-88/2010 was filed before the Hon'ble Supreme Court of India and vide its order dated 19.4.2012, the Hon'ble Supreme Court stayed the construction activities at the project site in abeyance and the OPs were compelled to not carry out any further construction at the site in pursuance to the directions that led to delay in handing over the possession, the same being entirely beyond the control of the OPs. The project was launched in four phases and on the date of passing of the aforesaid stay order, approximately 40 percent work at the site stood completed for the First Phase and a little less than that for the remaining phases. Thereafter, vide order dated 12.12.2012, the Hon'ble Supreme Court while dismissing the aforesaid Special Leave Petition, vacated the stay order dated 12.12.2012, subsequent to which the OPs made an endeavor to immediately resume the construction at the project site. On the date of the passing of stay order, nearly 2000 workers were deployed on the site for completion of the project. However, there was considerable difficulty for the OPs to gather the work force and to resume construction activity in the said project. The OPs took several months for gathering the requisite work force and for resuming the construction work in full swing and thus possession of the unit was offered vide 08.06.2016 yet it was not taken over by the complainant. Rest of the averments of the complainant were denied by OPs and prayed for dismissal of the present complaint with heavy costs.
4.           Rejoinder was filed by the complainant, in which he has reiterated his averments and rejected those of the opposite parties.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-87 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavit of Shri Vinod Kumar, Authorized Signatory of OPs-Company-DLF Homes Panchkula Pvt. Ltd., having its office at DLF Valley, Panchkula Sector-3, Pinjore, Haryana-134107 as Annexure R-A alongwith documents as Annexure R-1 & R-2 and closed the evidence on behalf of OPs. 
6.           We have heard the learned counsel for the parties and have carefully gone through the case file and also gone through the written arguments filed by the complainant.
7.           Learned counsel for the complainant submitted that by neither providing all the basic amenities at the project site; nor offering possession of the unit in question within the committed period nor refunding the amount paid alongwith interest against the unit for which paper possession was offered vide letter dated 08.06.2016, Annexure R-2, the OPs are deficient in providing service and adopted unfair trade practice.  
8.           On the other hand, learned counsel for the OPs while reiterating the objections taken in the written version contended with vehemence that legal and valid possession of the unit in question was offered to the complainant vide letter dated 08.06.2016, Annexure R-2, yet, he failed to come forward to make the remaining payment and also to take over possession, despite the fact that reminders were sent to him in the matter. He further submitted that the complaint filed by the complainant is barred by limitation.  
9.           Before going into the merits of this case, the main question that arises for consideration is whether this complaint is filed within limitation or not i.e. whether this complaint has been filed within a period of 2 years from the  date of cause of action or not. It may be stated here that it is clearly coming out from the record that vide letter dated 08.06.2016, Annexure R-2, possession of the unit in question was offered to the complainant. This letter of possession, Annexure R-2 is accompanied by Occupation Certificate dated 01.03.2016 which has been issued by the Senior Town Planner-cum-Chairman, Panchkula. Though, in his complaint, the complainant has leveled various allegations qua non completion of basic amenities at the project site, defective construction, arbitrary increase in area of the unit in question etc. and  his counsel has vehemently contended that the possession was offered was a paper possession, yet, we are restraining ourselves to enter into these issues because of the reason that the cause of action arise in favour of the complainant  in the year 2016 itself i.e. on 07.06.2018 after completion of period of 2 years from the date of offer of possession letter dated 08.06.2016 but this complaint has been filed on 18.11.2020, which is clearly barred by limitation. Mere exchange of emails or letters between the parties after expiry of period of limitation will not extend the period of limitation.
10.           The Supreme Court while pacing reliance on its decision in Major (Retd.) Inder Singh Rekhi v. Delhi Development Authority . AIR 1988 SC 1887, was of the opinion that a dispute arises when there is a claim/assertion by one side and denial/repudiation of the same by the other and such accrual of cause of action cannot be delayed or postponed by indefinite discussions/negotiations. On 15-3-2021, the Supreme Court of India, in Secunderabad Cantonment Board v. B. Ramachandraiah  and  Sons made a prominent judgment and cleared the air on the fundamental issue of whether reminders and letters by the aggrieved party to the other will have any effect on the period of limitation, that is, if the correspondence between parties will extend the period of limitation and to what extent. In this case, it was clearly held by the Hon’ble Supreme Court that issuance of letters/ correspondences would not extend the period of limitation
11.           Because it has been held above that this complaint is barred by limitation, as such, in our considered opinion, even then if we proceed further on merits of this case, it would be nothing but commission of an illegality on the part of this Commission. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court in the case of State Bank Of India vs M/s. B.S. Agricultural Industries (I), CIVIL APPEAL NO. 2067 of 2002, decided 20 March, 2009,   wherein it was held as under:-           
    • ………If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside……”

 

12.           For the reasons recorded above, this complaint stands dismissed being barred by limitation, with no order as to costs. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.                

Announced:- 18.03.2024.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President