Chandigarh

StateCommission

CC/553/2016

Smt. Roma Sangwan - Complainant(s)

Versus

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

Pavinder Singh Bedi, Adv.

09 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	553 of 2016
Date of Institution	:	07.09.2016
Date of Decision	:	09.01.2017

 

Smt. Roma Sangwan w/o Sh. Kalyan Singh, Aged 61 years, R/o House No.105, Sector 2, Panchkula.

 

                                            .........Complainant.

                                 Versus

 

M/s DLF Homes Panchkula Pvt. Ltd., Shop No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh through its Director.

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

Argued by:

Sh. Parvinder Singh Bedi, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Party.

 

Consumer Complaint	:	471 of 2016
Date of Institution	:	17.08.2016
Date of Decision	:	09.01.2017

 

1. Vinod Gupta S/o Late Sh. Beni Prashad Gupta;
2. Madhu Gupta W/o Sh. Vinod Gupta;

Both residents of Meridian Medicare Ltd., Shamti, Rajgarh Road, Solan, Himachal Pradesh – 173212.

Through their Special Power of Attorney Holder, Naveen Kumar Gupta S/o Sh. Raj Kumar Gupta,

Resident of Meridian Medicare Ltd., Shamti, Rajgarh Road, Solan, Himachal Pradesh.

 

                                            .........Complainants.

                                 Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, 12^th Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/Director Sales & Marketing.

 

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

 

Argued by:

 

Sh. Arjun Sheoran, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties.

 

Consumer Complaint	:	554 of 2016
Date of Institution	:	07.09.2016
Date of Decision	:	09.01.2017

 

Mr. Kalyan Singh S/o Sh. Ishar Singh, Age 74 years R/o House No.105, Sector 2, Panchkula.

 

                                            .........Complainant.

                                 Versus

 

M/s DLF Homes Panchkula Pvt. Ltd., Shop No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh through its Director.

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

 

Argued by:

 

Sh. Parvinder Singh Bedi, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Party.

 

 

Consumer Complaint	:	611 of 2016
Date of Institution	:	21.09.2016
Date of Decision	:	09.01.2017

 

 Mrs. Harjinder Kaur wife of S. Joginder Singh, aged about 51 years, House No.146, Sector 8-A, Chandigarh.

 

                                            .........Complainant.

                                 Versus

1. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, through its Chairman/Managing Director/ Director/Authorized Signatory/Representative.
2. DLF Homes Panchkula Pvt. Ltd. SCO No.190-191-192, Sector 8-C, Chandigarh – 160009, through its Managing Director/Director/Authorized Signatory/ Representative.

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

Argued by:

 

Ms. Harjinder Kaur, complainant in person.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties.

 

 

Consumer Complaint	:	629 of 2016
Date of Institution	:	23.09.2016
Date of Decision	:	09.01.2017

 

 D. R. Kairon S/o Late Sh. Tara Chand, earlier R/o #926, Sector-7-B, Chandigarh currently residing at V.P.O. Deoban, Tehsil & Distt. Kaithal, Haryana.

 

                                            .........Complainant.

                                 Versus

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

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

Argued by:

 

Sh. Sukaam Gupta, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Party.

 

Consumer Complaint	:	657 of 2016
Date of Institution	:	30.09.2016
Date of Decision	:	09.01.2017

 

 Narender Kumar s/o Sh. Jai Singh r/o 200/3, Park road, Gohana, Sonipat, Haryana.

 

                                            .........Complainant.

                                 Versus

 

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

 

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

Argued by:

 

Sh. Savinder Singh Gill, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Party.

 

Consumer Complaint	:	658 of 2016
Date of Institution	:	30.09.2016
Date of Decision	:	09.01.2017

 

1. Raj Kumar Gupta S/o Late Sh. Faquir Chand,

Resident of House No.2623/10, Kumhar Gali, Nahan, District Sirmaur, Himachal Pradesh.

2. Naveen Kumar Gupta S/o Sh. Raj Kumar Gupta,

Resident of Meridian Medicare Ltd., Shamti, Rajgarh Road, Solan, Himachal Pradesh.

                                            .........Complainants.

 

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, 12^th Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

 

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

Argued by:

 

Sh. Arjun Sheoran, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties.

 

Consumer Complaint	:	661 of 2016
Date of Institution	:	03.10.2016
Date of Decision	:	09.01.2017

 

1. Asha Bhardwaj W/o Col. Ajit Singh Rana,
2. Col. Ajit Singh Rana S/o Sh. Voham Singh Rana,

Both R/o #605, Block B, Vikarm Vihar, AWHO Complex, Sector 27, Panchkula.

 

                                            .........Complainants.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

 

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

Argued by:

Sh. Narender Yadav, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties.

 

Consumer Complaint	:	677 of 2016
Date of Institution	:	05.10.2016
Date of Decision	:	09.01.2017

 

Rishipal son of Sh. Dharam Singh Resident of C/o House No.3548 Block/D, Urban Estate Jind (Haryana), Permanent resident of Village Budha Khera, Teh. Safidon, Distt. Jind (Haryana).

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192, Sector 8C, Chandigarh – UT. Pin – 160009 through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.
2. DLF Homes Panchkula Pvt. Ltd., Regd. Office DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana, India through its Manager/Authorized Signatory/Officer-in-charge/ Director Sales & Marketing.

 

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

Argued by:

 

Sh. Sandeep Malik, Advocate for the complainant.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for the Opposite Parties.

 

 

Consumer Complaint	:	699 of 2016
Date of Institution	:	17.10.2016
Date of Decision	:	09.01.2017

 

1. Monika Balhara D/o Late Sh. I. S. Balhara,
2. Sunil Chaudhary son of Retd. Maj. Bishambar Dayal,

Both Residents of #902, Adhunik Apartments, Plot No.8, Sector-52, Gurgaon, Haryana.

 

                                            .........Complainants.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd. having office at SCO 190-191-192, Sector 8 C, Chandigarh through its Managing Director.
2. DLF Homes Panchkula Pvt. Ltd. having Regd. Office DLF Gateway Tower, 12^th Floor, DLF City, Phase III, Gurgaon 122002, Haryana, India through its Vice Chairman.

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

Argued by:

 

Sh. Sanjeev Sharma, Advocate for the complainants.

Ms. Ekta Jhanji & Sh. Parveen Jain, Advocates for 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 the aforesaid 10 consumer complaints bearing Nos.553/2016, 471/2016, 554/2016, 611/2016, 629/2016, 657/2016, 658/2016, 661/2016, 677/2016 and 699/2016.

2.          At the time of arguments on 20.12.2016, it was agreed between Counsel for the parties, that issues in law and facts involved in the above complaints, by and large, are the same, and therefore, these complaints can be disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.553 of 2016, titled as ‘Smt. Roma Sangwan Vs. M/s DLF Homes Panchkula Private Limited’.

4.          In brief, the facts are that the Opposite Party, a limited company developed the project at Village Bhagwanpur, Tehsil & Distt. Kalka, Panchkula, Haryana and advertised the said project through various medias. On 22.03.2010, the original allottee, namely, Sh. Suresh Kumar Mittal booked an independent floor No.DVF-B1/76-GF in the project of the Opposite Party, namely, ‘DLF Valley, Panchkula, by depositing an advance amount of Rs.4 Lacs, against the total sale price of Rs.42,34,599.72. On 13.08.2010, Sh. Suresh Kumar Mittal appointed and nominated Sh. Randeep Sangwan S/o Mr. Kalyan Singh Sangwan (son of complainant) as his lawful attorney and executed General Power of Attorney in his favour, which was registered at Sr. No.701 dated 05.08.2010 (Annexure – E). He was allotted the said flat and subsequently, an Independent Floor Buyer’s Agreement was executed between Sh. Suresh Kumar Mittal through his GPA and the Opposite Party on 25.01.2011 (Annexure – J) at Chandigarh. Sh. Suresh Kumar Mittal paid all the first six installments up-to 14.03.2012 including service tax, EDC, IDC and PLC etc. and he was also given advance payment rebates for remitting the timely/advance installments. Sh. Suresh Kumar Mittal/through his GPA also deposited installments as also service tax and, in all, an amount of Rs.28,67,157.26 was deposited with the Opposite Party up-till 14.03.2012.

5.          Subsequently, the unit, in question, was transferred by Sh. Suresh Kumar Mittal in the name  of the complainant on 10.05.2013 vide document at Page    27 of the paper-book (Annexure – J). The complainant therafter paid 7^th, 8^th and 9^th installments to the    Opposite Party and, up-till 31.07.2016, the total amount of Rs.42,70,557.32 stood paid to the Opposite Party. It was stated that the complainant purchased the unit, in question, to settle her son in the said flat but all her dreams shattered when the Opposite Party failed to give possession of the said unit within the stipulated       period. It was further stated that as per the Agreement, possession of the unit, in question, was to be         offered by the Opposite Party within a period of 24 months from the date of execution of the Agreement      but till the date of filing of the complaint, despite    number of visits by the complainant to the office of the Opposite Party, it failed to hand over possession. It was further stated that the Opposite Party was lingering the matter on one pretext or other by stating that the project was under progress. It was further stated that the complainant has suffered immense losses despite having paid for the unit.

6.          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 directions to the Opposite Party, to hand over the physical possession of unit, in question, immediately; pay interest @15% per annum on the deposited amount for the delayed possession; pay compensation of Rs.15,00,000/- on account of harassment and mental agony suffered by the complainant; pay Rs.2,00,000/- as cost of proceedings; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.

7.          The Opposite Party, in its preliminary submissions in the written statement submitted that the complainant is a subsequent purchaser as the unit, in question, was initially allotted to Sh. Suresh Kumar Mittal on 26.03.2010; Floor Buyer’s Agreement was executed with him on 25.01.2011 and subsequently, the said unit was transferred in favour of the complainant on 10.05.2013. It was further stated that Occupation Certificate was received on 02.05.2016 (Ann. R/1) and possession would be offered soon. It was further stated that the complainant had the full knowledge about the executed terms of Agreement dated 25.01.2011. It was further stated that at this stage, the complainant was backing out    of the executed agreement. It was further stated that 31% cost escalation of the construction as well 47% of the land holding cost, totaling 76% of the sale price of the allotted floor be allowed. It was further stated that the project was cost escalation free as the complainant shall get the possession of the floor on the same price as committed by the Opposite Party at the time of allotment on 26.03.2010. It was further stated that construction of the project got delayed due to stay on construction activity 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.

8.          The Opposite Parties have further stated that occupation certificate(s) of 1479 units had already been received and offer of possession to the allottees has already been started. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company namely Jones Lang Lasalle. Further, under the caption “FACTS OF THE COMPLAINT”, it was stated that Sh. Suresh Kumar Mittal booked the flat No.DVF-B1/76-GF measuring 1550 sq. ft. through application form for allotment dated 04.02.2010 and paid an amount of Rs.4 Lacs as earnest money. It was further stated that the original allottee entered into Floor Buyer’s Agreement with the Opposite Party on 25.01.2011 and the price of the unit was Rs.43,12,099.72 plus other taxes as applicable. It was further stated that the unit, in question, was transferred to the complainant vide transfer letter dated 10.05.2013. It was stated that the complainant has deposited a sum of Rs.38,63,451.89.

9.          In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; 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 parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainant is not consumer as the floor, in question, was booked by her for investment purposes and earning profits. 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 Party could not be made liable for delay caused due to force majeure condition, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India 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 8, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively.

10.        In some of the connected complaints, it was also stated that when given the option to exit, the complainant(s) agreed to continue with allotment and delay and, as such, the complainant(s) voluntarily waived of his/their right to raise any grievance.

11.        The Opposite Parties also moved miscellaneous applications under Section 8 of Arbitration and Conciliation Act, 1996 for referring the matter to the sole arbitration in complaints No.471/2016, 611/2016 and 554/2016. [These applications were disposed of by holding that the question qua arbitration would be considered at the time of final arguments in the main case].  

12.        On merits, it was denied that the total price of the unit was Rs.42,34,599.72. It was stated that in-fact the total price of the unit as per SOP was Rs.43,12,099.72. It was further stated that GPA dated 25.04.2013 was executed between the original allottee Suresh Kumar Mittal and Mr. Randeep Sangwan. It was further stated that the complainant having purchased the property in 2013 itself knew well in advance that the above project has been delayed. It was further stated that all the demands under the head of other charges, are strictly in terms of Clause 1.11 of the Agreement. It was further stated that charging of EDC is purely a transparent transaction between the Opposite Party and the State Government and the same is levied as per the notifications issued by the competent authority (Annexure R/16).  It was further stated that all the demands have been raised by the Opposite Party in terms of the Floor Buyer’s Agreement and the customer was given an early payment rebate of Rs.4,08,106.89. It was stated that the complainant’s husband had already been allotted an independent Floor No.B-1/10-FF in the said project and property, in question, has been purchased to earn profit out of real estate speculations. It was admitted that as per clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainant within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Party. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions, which were beyond the control of Opposite Party. It was further stated that SLP No.21786-88/2010 was filed, wherein the Hon’ble Apex Court stayed the construction activities at the project vide order dated 19.04.2012, which was vacated on 12.12.2012 only. It was further stated that after vacation of stay, the construction work again resumed and, therefore, delay in handing over possession was due to force majeure conditions. It was reiterated that the complainant till date had paid only an amount of Rs.38,62,451.89 to the Opposite Party. It was reiterated that occupancy certificate of the floor, in question, was received on 02.05.2016 and possession would be soon offered to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor did it indulge into any unfair trade practice. The remaining averments, were denied, being wrong.

13.        The complainant filed rejoinder, wherein she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Party.

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

15.        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. 

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

17.        It is evident that Sh. Suresh Kumar Mittal, the original allottee, was allotted Independent Floor No.DVF B-1/76-GF in DLF Valley, Panchkula by the Opposite Party and Independent Floor Buyer’s Agreement between him and the Opposite Party was executed at Chandigarh on 25.01.2011 (Annexure - J). The said unit was transferred in the name of the complainant on 10.05.2013 vide letter at Page 167 of the file. The total price of the said independent floor, as depicted in the Agreement, was Rs.42,34,599.72, besides other charges, securities, deposits and taxes etc. as specified in the Application/Agreement. It is also evident from record that the complainant, in all, paid a sum of Rs.38,62,451.89 as mentioned in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Party(ies), at the time of arguments on 20.12.2016. Early payment rebate (EPR) of Rs.4,08,106.89 was also given by the Opposite Party. 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 is also on record that vide letter dated 15.04.2013 (at Page 168 of the file), it (Opposite Party) sought further time of 12 months, in addition to 24 months, to complete the construction work. Vide that letter, option was also given by the Opposite Party to seek refund alongwith 9% interest. However, the complainant agreed to a further period of 12 months in handing over of possession. As admitted by Counsel for both the parties, as also stated in the aforesaid Chart, given at the time of arguments, possession of the unit, in question, has been offered by the Opposite Party to the complainant on 29.10.2016 after receipt of occupation certificate on 02.05.2016, during the pendency of the instant complaint filed on 07.09.2016.  

18.        Qua the objection regarding poor construction quality of the unit(s), it has been categorically stated by the Opposite Party in the written statement(s) filed, that it has hired the services of professionals of international and national level companies to complete the project and all the facilities, amenities are on the verge of completion. No cogent evidence by way of report of an Engineer/Architect in support of allegation(s) of the complainant(s) in regard to poor quality of construction, has been brought on record. In the absence of cogent evidence, such a bald assertion cannot be given any cognizance. These points were also not pressed during arguments.

19.        The Opposite Party, in preliminary submissions, have 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. The Opposite Party failed to complete construction and deliver possession within stipulated period and extended          one year period. The Opposite Party is itself            responsible for delay and deficiency in service and        its prayer for allowing it escalation cost amounts           to  seeking amendment of the terms and conditions of the

Agreement. The plea, being devoid of merit, must fail, and the same stands rejected.

20.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 25.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Party that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010, is not relevant.

21.           The first question, that falls for consideration, is, as to whether, 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. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.339 of 2016 titled ‘Sandeep Goyal Vs. M/s Puma Realtors Private Limited’ decided on 07.10.2016. Paras 13 to 20 of the said order, inter-alia, being relevant, are extracted hereunder:-

“13.        The next question, that falls for consideration, is, as to whether, 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.

                To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), 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.”

                It is also desirable to reproduce unamended provisions of Section 8 of 1996 Act, which reads thus:- 

“8. Power to refer parties to arbitration where there is an  arbitration agreement.—

(1) A judicial authority before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.

(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.”

14.        Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of 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) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

15.        In the year 2015, many amendments were effected in the provisions of 1996 Act. After amendment, Section 8 of 1996 Act, reads as under:-

“8. Power to refer parties to arbitration where there is an arbitration agreement.—

(1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

16.        Now it is to be seen, whether, after amendment in Section 8 of the principal Act, any additional right has accrued to the service provider(s), to say that on account of existence of arbitration agreement, for settling the disputes through an Arbitrator, the Consumer Foras have no jurisdiction to entertain a consumer complaint. As has been held by Hon'ble Supreme Court of India, in various cases, and also of the National Commission, in large number of judgments, Section 3 of the 1986 Act, provides additional remedy, notwithstanding any other remedy available to a consumer. The said remedy is also not in derogation to any other Act/Law.

17.        We will have to see what difference has been made by the amendment, in the provisions of Section 8 of 1996 Act. After amendment, it reads that a Judicial Authority is supposed to refer the matter to an Arbitrator, if there exists an arbitration clause in the agreement, notwithstanding any judgment, decree, order of the Hon'ble Supreme Court of India, or any other Court, unless it finds that prima facie, no valid arbitration agreement exists. The legislation was alive to the ratio of the judgments, as referred to above, in earlier part of this order. Vide those judgments, it is specifically mandated that under Section 3 of 1986 Act, an additional remedy is available to the consumer(s), which is not in derogation to any other Act. As and when any argument was raised, the Hon'ble Supreme Court of India and the National Commission in the judgments, referred to above, have made it very clear that in the face of Section 8 of 1996 Act and existence of arbitration agreement, it is still opened to the Consumer Foras to entertain the consumer complaints. None of the judgments ever conferred any jurisdiction upon the Consumer Foras to entertain such like complaints. Only the legal issues, as existed in the Statute Book, were explained vide different judgments. If we look into amended provisions of Section 8 of the principal Act, it explains  that judicial Authority needs to refer dispute, in which arbitration agreement exist to settle the disputes notwithstanding any judgment/decree or order of any Court. That may be true where in a case,  some order has been passed by any Court, making arbitration Agreement non-applicable to a dispute/parties. However, in the present case, the above said argument is not available. The jurisdiction of Consumer Foras to entertain consumer complaints, in the face of arbitration clause in the Agreement, is in-built in 1986 Act. It was not given to these Foras, by any judgment ever. The provisions of Section 3 of 1986 Act interpreted vide judgments vis a vis Section 8 of un-amended 1996 Act, were known to the legislature, when the amended Act 2015 was passed. If there was any intention on the part of the legislature, then it would have been very conveniently provided that notwithstanding any remedy available in 1986 Act, it would be binding upon the judicial Authority to refer the matter to an Arbitrator, in case of existence of arbitration agreement, however, it was not so said.

18.       We can deal with this issue, from another angle also. If this contention raised is accepted, it will go against the basic spirit of 1986 Act. The said Act (1986) was enacted to protect poor consumers against might of the service providers/multinational companies/traders. Litigation in the Consumer Fora is cost effective. It does not involve huge expenses and further it is very quick. A complaint in the State Commission can be filed, by making payment between Rs.2000/- to Rs.4000/- (in the present case Rs.4000/-). As per the mandate of 1986 Act,  a complaint is supposed to be decided within three months, from the date of service to the opposite party. In cases involving ticklish issues (like the present one, maximum not more than six months to seven months time can be consumed), whereas, to the contrary, as per the principal Act (1996 Act),  the consumer will be forced to incur huge expenses towards his/her share of Arbitrator’s fees. Not only as above, it is admissible to an Arbitrator, to decide a dispute within one year. Thereafter, the Court wherever it is challenged may also take upto one year and then there is likelihood that the matter will go to the High Court or the Hon'ble Supreme Court of India. Such an effort will be a time consuming and costly one. Taking note of fee component and time consumed in arbitration, it can safely be said that if the matter is referred to an Arbitrator, as prayed, in the present case, it will defeat the very purpose of the provisions of 1986 Act.

19.      The 1986 Act provides for better protection of interests and rights of the consumers. For the said purpose, the Consumer Foras were created under the Act. In Section 3 of 1986 Act, it is clearly provided that the said provision is in addition to and not in derogation of any provisions of any other law, for the time being in force. The 1986 Act is special legislation qua the consumers. The poor consumers are not expected to fight the might of multinational companies/traders, as those entities have lot of resources at their command. In the present case, the complainant has spent his entire  life earnings to purchase the unit, in the said project, launched by the opposite party, in the manner explained above. He is now running behind the opposite party to get his amount, legally due to be paid to him, as it failed to deliver possession of the unit, even till date. As per ratio of the judgments in the case of 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), the consumers are always in a weak position, and in cases where two interpretations are possible, the one beneficial to the consumer needs to be accepted. The opinion expressed above, qua applicability of Section 8 (amended) of 1996 Act, has been given keeping in mind the above said principle.

20.       Not only this, recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No.346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

                In view of the above, the plea taken by the opposite party, 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, being devoid of merit, is rejected.”

22.        In view of the above, the objection raised by Counsel for the Opposite Party 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, being devoid of merit, is rejected. Accordingly, the miscellaneous applications under Section 8 of the Arbitration and Conciliation Act 1996 stand dismissed.

23.        The next objection raised by Counsel for Opposite Party was 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. It was further stated that 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. It may be stated here, that the complainant hired the services of Opposite Party, 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 Party, it was 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. Vs.  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 Vs. 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 complainant has 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 her, as she falls within the definition of a ‘consumer’, as stated above. In the instant case, the complainant is seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Party and its deficiency in rendering service. It, therefore, cannot be said that the complainant is trying to rewrite/modify the terms of the agreement. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

25.        To defeat claim of the complainant, the next objection raised by the Opposite Party was that since the complainant had 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, she would not fall within the definition of consumer, as defined by Section 2 (1) (d) (ii) of the Act. It was stated that the complainant’s husband had already been allotted an independent Floor No.B-1/10-FF in the said project and property, in question, was purchased to earn profit out of real estate speculations. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. Further, the complainant has specifically, stated in Para 7 of the complaint that she purchased the property, in question, with the motive to settle her son. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as  Kavita Ahuja Vs. 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 complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 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. vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No.1287 of 2014 decided on 05.11.2015.”

 

The complainant, thus, falls within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.  

26.        In some of the connected complaints, an objection has been raised by the Opposite Parties that the complainants, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, they waived of their right to raise any grievance. This plea of the Opposite Parties is not well based. While seeking option in 2013, the complainants were informed of delay and extension of one year was sought. One year extended period expired in 2014 whereas the possession was offered in October 2016 and November 2016. Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. in 2014, position would have been different and in that situation, it would have been accepted that the complainants had waived of their right to raise grievance. The plea being devoid of merit is not tenable.  

27.         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 25.01.2011 [Annexure - J] 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 Party, it was 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 complainant was 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 an admitted fact, that by making reference to above fact of granting stay, which resulted into  delay in construction at the site, consent of the complainant was sought, vide letter dated 15.04.2013, to complete construction within further 12 months. Option was also given to the complainant, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment(s) thereafter and as admitted by the Counsel for the parties, at the time of arguments, the complainant has made payments in the sum of Rs.38,62,451.89. Taking into account 12 months extension, the Opposite Party was required to deliver possession on or before 24.01.2014, but not later than that. As stated in the written statement, permission for occupation of the unit, in question, was received on 02.05.2016. By making a misleading statement, that possession of the unit, was to be delivered within  maximum period of 24 months from the date of execution of the Agreement and within further extended period of 12 months i.e. latest by 24.01.2014, and by not abiding by the commitment, made by the Opposite Party, it was not only deficient, in rendering service, but also indulged into unfair trade practice. The argument of the Opposite Party that delay in handing over possession of independent floor was attributable due 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 25.01.2011 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 (almost 2 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. Clearly, there is inordinate delay of around three years beyond initial stipulated period of two years and one year extended period in offering possession of the unit, in question to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Party.

28.         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. As stated above, 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 25.01.2011 i.e. by 24.01.2014. There is, thus, inordinate delay of around 3 years, even beyond the extended period. Possession of the unit, in question, was offered by the Opposite Party on 29.10.2016 i.e. during the pendency of the complaint. The 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, held in Para 16 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.

29.        Recently 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.

(3)   No separate compensation would be payable to the complainants either towards the rent if any paid by them or for the mental agony and harassment which they have suffered on account of the failure of the opposite party to perform its contractual obligation.”

30.        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.  

31.        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, grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, till delivery of possession of the unit, would meet the ends of justice.

32.         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 her, for inordinate delay in delivering physical possession of the unit to her, by the Opposite Party, by the promised date in the Agreement or latest by 24.01.2014 i.e. within the extended period. Admittedly, the possession of unit, in question, has been offered to the complainant on 29.10.2016. The compensation in the sum of Rs.15 Lacs claimed by the complainant is highly exaggerated. The complainant has been adequately compensated by granting 12% interest for the delay period. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. Under these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainant, due to the acts of omission and commission of the Opposite Party, if granted, to the tune of Rs.1,50,000/- shall be reasonable, adequate and fair. The complainant, is, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

33.        Similarly, in the following six complaints bearing No.554/2016, 611/2016, 629/2016, 658/2016, 661/2016 and 699/2016 (particulars of which are indicated in Table-A below), the possession of the unit(s) has been offered by the Opposite Parties:-

TABLE – A

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Whether original allottee?	Date on which possession offered.	Date of receiving Occupation Certificate.
1.	554/2016	23.12.2010	Yes	15.11.2016	29.06.2016
2.	611/2016	02.02.2011	Yes	26.10.2016	02.09.2015
3.	629/2016	27.12.2010	Yes	15.11.2016	09.09.2016

 

 

 

 

4.	658/2016	23.12.2010	Yes	26.10.2016	19.07.2016
5.	661/2016	31.01.2011	Yes	26.10.2016	09.06.2016
6.	699/2016	09.02.2011	Yes	05.10.2016	09.06.2016

 

34.        In the instant case as also in six other connected cases, as indicated above in Table-A, it was stated at bar that possession has been offered during October 2016 and November 2016 i.e. during the pendency of the said complaints, subject to furnishing of affidavits/documents and making the balance payment. In these cases, as per the offer of possession letters placed, on record, in CC/611/2016, CC/658/2016, CC/661/2016 & CC/699/2016, six months’ time has been given to the complainants to complete the formalities and make the payment without delayed interest. Ms. Ekta Jhanji, Advocate, Counsel for the Opposite Parties, on getting instructions from the Opposite Parties stated that in case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months and as and when amount is deposited and other necessary documents are submitted, within 15 days thereafter, possession will be handed over, to the complainant(s). She further stated that contingent Vat deposit will not be insisted upon at this stage, subject to furnishing of an affidavit by the allottee to make the payment as and when demanded by the Government. In cases relating to this project, earlier the Opposite Parties, at the time of offering possession, were also raising demand   on   account   of  stamp  duty  and  registration charges but now while offering possession, no demand on account of stamp duty and registration charges has been raised.

35.        The Counsel for the parties were further in agreement that stamp duty and registration charges shall be payable at the time of execution of the sale deed of the unit, in question, after possession is handed over; charges on account of advocate fee etc. would not be payable by the complainants, but incidental expenses, which may be incurred at the time of registration of sale deed, shall be borne by the complainants. Thus, at this stage, the complainants are held liable to pay the demand raised minus contingent vat, advocate charges etc. Previously, while offering possession, the Opposite Parties were giving only 30 days’ time to deposit the amount towards demand raised in the letter offering possession but since now the Opposite Parties have, as a goodwill gesture, granted six months’ time to complete the formalities and to deposit the amount towards demand raised, coupled with the fact that there would be no holding charges during this period, as already stated above, the ends of justice would be served if the complainants are granted compensation by way of grant of 12% interest, for the delayed period up-to date of offer of possession plus 2 months (30 days for making payment + 30 days grace period). Thus, the complainants are held entitled to interest @12% for the delayed period. However, if despite deposit of amount towards demand raised, the Opposite Parties fail to hand over possession within 30 days, for delay period beyond 30 days, they shall be liable for making payment of compensation.

36.        In Consumer Complaints No.554/2016, 629/2016 and 661/2016 also, the complainants are held entitled to compensation in the sum of Rs.1,50,000/- in each case.

37.        In Consumer Complaints No.611/2016, 658/2016 & 699/2016, there has been DLI in the sum of Rs.2,08,907.38, Rs.1,11,123.00 & Rs.1,86,082.66 respectively against the complainants. Delay in payment of installments partly contributes to delay in completion of unit. Therefore, in these complaints, the complainants are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/- in each of these cases would serve the ends of justice.

38.        In Consumer Complaint No.471/2016, details whereof are given hereunder in Table B, possession of the unit, in question, has not been offered to the complainants by the Opposite Parties:-

 

TABLE – B

 

1	2	3	4	6
Complaint Case No.	Date of independent Floor Buyer’s Agreement.	Whether original allottee?	Due date for possession after one year extended period	Date of receiving Occupation Certificate.
471/2016	09.02.2011	Yes	08.02.2014	Not received

 

In this case, the occupation certificate of the unit, in question, has not been received by the Opposite Parties. As stated above, possession of the unit, in question, has not been offered/delivered by the Opposite Parties to the complainants. Therefore, in view of observations made in the preceding paras, the complainants, in this case, are entitled to possession of the unit, in question, complete in all respects on payment of amount due. The complainants are held entitled to 12% p.a. interest on the deposited amount for the delayed period beyond three years i.e. from 08.02.2014 till possession is handed over, besides compensation in the sum of Rs.1,50,000/- on account of mental agony, physical harassment and deficiency in service.

39.          In two complaints bearing Nos.657/2016 and 677/2016, particulars of which are indicated in Table ‘C’ below, the complainants have sought refund of the deposited amounts:-

 

TABLE – C

Sr. No.	Description/ Details	Complaint Case No.
		657/2016	677/2016
1.	Amount deposited. (Rs.)	Rs.42,78,732.00(*)	Rs.41,31,344.00(*)
2.	Date of Agreement.	10.01.2011	24.02.2011
3.	Due date for offering possession.	09.01.2014	23.02.2014
4.	Whether possession offered	05.10.2016	10.10.2016
5.	Delay in offer of possession	2 Years 9 Months	2 Years 8 Months
6.	Whether first allottee	Yes	Yes
7.	DLI	Rs.1,27,280.00	Rs.15,846.38

 

(*) During arguments, the Counsel for the Opposite Parties admitted the receipt of the amounts as shown against the Column ‘Amount deposited (Rs.)’ at Sr. No.1 in the table.

 

40.        As is evident from record of these two complaints, the Independent Floor Buyer’s Agreements were executed on 10.01.2011 and 24.02.2011. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 24 months from the date of execution of the agreement unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, 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 the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In these cases, 24 months period plus the extended period of 12 months from the date of execution of the agreements expired on 09.01.2014 and 23.02.2014 respectively. However, the possession of the units, in question, was offered on 05.10.2016 and 10.10.2016 respectively (during pendency of the complaints). No reason or circumstances, which were beyond the control of the Opposite Parties for such delay beyond initial period of two years and one year extended period, have been explained. There is, thus, inordinate delay in offering possession of the allotted unit(s). 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, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. 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  complainants 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. Recently 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 complainants, in these two complaints, are held entitled to refund of the amounts alongwith interest @15% per annum from the dates of respective deposits.

41.        As regards compensation for mental agony, harassment etc., in CC/677/2016, the complainants are held entitled to compensation of Rs.1,75,000/-. Since there is DLI of Rs.1,27,280.00 in CC/657/2016, on account of delay in remittance of installments, which has a bearing on the completion of project, the complainant is not entitled to get the same compensation, which this Commission has been granting in cases pertaining to this project. In the facts and circumstances, the complainant is held entitled to compensation for physical harassment and mental agony to the tune of Rs.1,50,000/-.

42.         No other point, was urged, by the Counsel for the parties, in all the cases.

43.        For the reasons recorded above, all the complaints bearing Nos.553/2016, 471/2016, 554/2016, 611/2016, 629/2016, 657/2016, 658/2016, 661/2016, 677/2016 and 699/2016 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

553/2016, 554/2016, 611/2016, 629/2016, 658/2016, 661/2016  and 699/2016.

 

 

             In these seven cases, the Opposite Parties have offered possession during the pendency of the complaints i.e. in October 2016 and November 2016. In case, any allottee is eager to get possession, he/she will complete formalities and deposit the amount before the period of six months, and pay the amount towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges, and as and when, amount is deposited and other necessary documents are submitted, possession will be handed over to complainant(s), by the Opposite Parties within 30 days.

             The Opposite Parties, in each of these cases, are, jointly and severally, directed as under:-

(i)	To hand over physical possession of  the unit(s), allotted in favour of the complainant(s), complete in all respects, to the complainant(s), within a period of 30 days, from the date  balance payment is made/documents are completed  by the complainant(s).
(ii)	Execute and get registered the sale deed in respect of the unit(s), in question, within one month from the date of handing over of possession to the complainant(s). The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainant(s), with effect from 25.01.2014, 23.12.2013, 02.02.2014, 27.12.2013, 23.12.2013, 31.01.2014 & 09.02.2014 respectively up-till two months from the date of offer of possession i.e. up-to 28.12.2016, 14.01.2017, 25.12.2016, 14.01.2017, 25.12.2016, 25.12.2016 and 04.12.2016 respectively or up-to the date on which possession is actually handed over, whichever is earlier, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.              In case, the Opposite Parties fail to deliver possession within 30 days from the date of making payment by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/- [In CC/553/2016, CC/554/2016, CC/629/2016 & CC/661/2016 in each case], [In CC/611/2016, CC/658/2016 & 699/2016  - Rs.1,25,000/- in each case] on account of mental agony, physical harassment and deficiency in service and Rs.35,000/- as litigation costs, 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.

 

 

 

             If, in any of these cases, the Opposite Parties have given, benefit/credit on account of delay compensation while offering possession, the same shall be deducted from the compensation amount by way of interest @12% for delay period

            In all these complaints, 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).

             As agreed, the amount of contingent Vat deposit will not be insisted upon at this stage, subject to furnishing an affidavit by the allottee to make the payment as and when demanded by the Government. The amount of contingent vat, shall be payable by the complainant(s) as and when the same becomes payable by the Opposite Parties to the Government. The complainant(s) shall deposit contingent vat within three weeks from the date the same is paid by Opposite Parties to the Government and the complainant(s) are informed of this fact. Delay beyond three weeks from the receipt of notice shall attract simple interest @12% per annum.

             Since the demand(s) raised have, by and large, been held to be justified, in cases wherever, there is delay in making payment towards demand raised beyond two months, period taken beyond two months shall be excluded for the purpose of payment of 12% interest compensation on delayed period.

Consumer Complaint bearing No:

 

471/2016.

 

 

             The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), are jointly and severally, held liable and directed as under:-

(i)	To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, to the complainants, within four months from the date  of receipt of a certified copy of this order, on payment of the amount, by the complainants, due against them.
(ii)	Execute and get registered the sale deed in respect of the unit, in question, within one month from the date of handing over of possession to the complainants. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainants.
(iii)	To pay compensation, by way of interest @12% p.a., on the deposited amounts, to the complainants, with effect from 09.02.2014 till 31.01.2017, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.
(iv)	To pay compensation by way of interest @12% p.a. on the deposited amount, to the complainants w.e.f. 01.02.2017, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
(v)	Pay compensation in the sum 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 complainants, within 45 days from the date of receipt of a certified copy of the order, failing which, the said amount(s) shall carry interest @12% p.a., from the date of filing the complaint till realization.

 

Consumer Complaints bearing No:

 

657/2016 and  677/2016.

 

             The Opposite Parties, in each of these cases, are jointly and severally, held liable and directed as under:-

 (i)  To refund the amounts of Rs.42,78,732.00 (in CC/657/2016) and Rs.41,31,344.00 (in CC/677/2016), alongwith simple interest @15% per annum, to the respective complainant(s), from the respective dates of deposits, till realization, within 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 @18% per annum, instead of 15% per annum, from the date of default till actual payment;

 (ii) To pay an amount of Rs.1,50,000/- (in CC/657/2016) and Rs.1,75,000/- (in CC/677/2016) as compensation for mental agony, physical harassment & deficiency in service and Rs.35,000/- as litigation costs, in each case, to the complainant(s), 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 amount alongwith simple interest @15% per annum from the date of filing the complaint till actual payment;

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

45.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.471/2016, 554/2016, 611/2016, 629/2016, 657/2016, 658/2016, 661/2016, 677/2016 and 699/2016.

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

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

Pronounced.

09.01.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

 

(DEV RAJ)

MEMBER

 

 

 

(PADMA PANDEY)

MEMBER

 

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