Chandigarh

DF-I

CC/401/2023

SUMEET SINGHA - Complainant(s)

Versus

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

NAVEEN SHEOKAND

04 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

[1]

 

Consumer Complaint No.	:	CC/401/2023
Date of Institution	:	08/08/2023
Date of Decision	:	4/11/2024

 

Sumeet Singha son of Sh. Naresh Singha, r/o Floor No.A-1/26-SF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.

… Complainant

V E R S U S

1.   M/s DLF Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Sector-3, Pinjore-Kalka Urban Complex, Panchkula-134107 through its authorised signatory/Officer.

2.   Director General, Department of Town and Country Planning Haryana, Plot No.3, Madhya Marg, Chandigarh 160018.

… Opposite Parties

 

[2]

 

Consumer Complaint No.	:	CC/400/2023
Date of Institution	:	08/08/2023
Date of Decision	:	4/11/2024

1. Jatin Sharma r/o Floor No.B-1/78-SF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.
2. Richa Paul w/o Jatin Sharma r/o Floor No.B-1/78-SF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.

… Complainants

V E R S U S

1.   M/s DLF Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Sector-3, Pinjore-Kalka Urban Complex, Panchkula-134107 through its authorised signatory/Officer.

2.   Director General, Department of Town and Country Planning Haryana, Plot No.3, Madhya Marg, Chandigarh 160018.

… Opposite Parties

 

[3]

 

Consumer Complaint No.	:	CC/402/2023
Date of Institution	:	08/08/2023
Date of Decision	:	4/11/2024

Neeraj Mehta son of Sh. Ranvir Mehta r/o Floor No.A-1/58-SF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.

… Complainant

V E R S U S

1.   M/s DLF Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Sector-3, Pinjore-Kalka Urban Complex, Panchkula-134107 through its authorised signatory/Officer.

2.   Director General, Department of Town and Country Planning Haryana, Plot No.3, Madhya Marg, Chandigarh 160018.

… Opposite Parties

[4]

Consumer Complaint No.	:	CC/403/2023
Date of Institution	:	08/08/2023
Date of Decision	:	4/11/2024

1. Lalit Goyal son of Sh. Ved Parkash Goyal r/o Floor No.B-1/47-FF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.
2. Jyoti w/o Lalit Goyal r/o Floor No.B-1/47-FF, DLF Valley, Sector 3, Pinjore-Kalka Urban Complex, Panchkula.

… Complainants

V E R S U S

1.   M/s DLF Homes Panchkula Pvt. Ltd., DLF Valley, Pinjore, Sector-3, Pinjore-Kalka Urban Complex, Panchkula-134107 through its authorised signatory/Officer.

2.   Director General, Department of Town and Country Planning Haryana, Plot No.3, Madhya Marg, Chandigarh 160018.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                               

ARGUED BY	:	Sh. Naveen Sheokand, Advocate for complainant.
	:	Ms. Tanika Goyal, Advocates for OP-1
	:	OP-2 ex-parte

Per Pawanjit Singh, President

1. By this order, we propose to dispose of the captioned consumer complaints, filed by the respective complainants, in which common questions of law and facts are involved. The facts, apart from minor variation here and there, are also almost analogous. The complainants in the above complaints have sought the relief of refund of the illegal demand/ additional charges alongwith interest and compensation etc. As such, during arguments, it was agreed upon by the parties that captioned consumer complaints can be disposed of by passing a consolidated order.
2. To dictate the order, facts are being taken from Consumer Complaint No.401 of 2023-Sumeet Singha Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.
3. It transpires from the allegations, as projected in the consumer complaint, that OP-1/company/builder had developed a residential group housing project under the name and style of “The Valley” situated in Sector 3, Kalka-Pinjore Urban Complex (hereinafter referred to as “subject project”).  On being allured through web and news advertisements of OP-1, the original allottee-M/s Beasera Interiors and Builders Pvt. Ltd. had booked a floor bearing No.A-1/26, SF (hereinafter referred to as “subject unit”) and the complainant got the same transferred in his name vide letter dated 5.4.2018 (Annexure C-1).  OP-1 had offered physical possession of the subject unit vide letter dated 19.6.2017 (Annexure C-2) by asking the complainant to deposit an illegal and arbitrary amount of ₹25,05,908.14.  The complainant was shocked to see the aforesaid letter whereby he was informed that the final area of subject unit is increased to the extent of 164 sq.ft. and he was asked to deposit an amount of ₹4,83,800/-. Thereafter the complainant approached OP-1 and enquired about the demand raised in the name of increased area and at that time OP-1/ builder informed him that the same was raised as per occupation certificate and sanction given by the Country Town Planning Department Haryana. Accordingly, complainant took possession of subject unit vide possession certificate dated 26.7.2018 (Annexure C-3), by paying the whole amount as asked by the OP. Upon request of complainant, OP vide email dated 13.7.2023 supplied soft copy of documents and in the occupation certificate (Annexure C-4), the area of complainant’s floor was mentioned as just 208.385 sq. meters which comes to 2243.037 sq.ft. and not 2809 sq.ft. as mentioned in the possession letter dated 19.6.2017 (Annexure C-2).  In this manner, it was found that OP-1 unilaterally and contrary to the occupation certificate issued by the competent authority had increased the saleable area according to its whims and fancies and the said act of OP-1 amounts to unfair trade practice. Even the Hon’ble State Commission, Chandigarh in CC/7/2021 titled as Shivrop Sidhu Vs. DLF Homes Panchkula Pvt. Ltd. has observed as under :-

“It has been observed by this Commission that it has become a common practice of the builders/developers, just with a view to extract extra money from the gullible allottees at the stage, when they cannot quit the deal, as their substantial amount is locked with the company and they are about to take possession. This inaction on the part of opposite parties no.1 to 4 needs to be deprecated. A similar question, as to whether, the builder can charge for excess area, without giving any justification in that regard, fell for determination before the Hon’ble National Commission in Pawan Gupta vs Experion Developers Pvt. Ltd., consumer complaint bearing no.286 of 2018, decided on 26 August, 2020, which was answered in favour of the allottees by holding that by increasing the area at the final stage of possession, without any justification is an unfair trade practice on the part of the builder/developer. Relevant part of the said order reads as under:-

                        “…..The complaints have been filed mainly for two reasons.  The first is that the opposite party has demanded extra money for excess area and second is the delay in handing over the possession.  In respect of excess area, the complainant has made a point that without any basis the opposite party sent the demand for excess area and the certificate of the architect was sent to the complainant, which is of a later date.  The justification given by the opposite party that on the basis of the internal report of the architect the demand was made for excess area is not acceptable because no such report or any other document has been filed by the opposite party to prove the excess area.  Once the original plan is approved by the competent authority, the areas of residential unit as well as of the common spaces and common buildings are specified and super area cannot change until there is change in either the area of the flat or in the area of any of the common buildings or the total area of the project (plot area) is changed.  The real test for excess area would be that the opposite party should provide a comparison of the areas of the original approved common spaces and the flats with finally approved common spaces/ buildings and the flats.  This has not been done.  In fact, this is a common practice adopted by majority of builders/ developers which is basically an unfair trade practice.  This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession.  There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage.  There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings.  Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas.  In my view, until this is done, the opposite party is not entitled to payment of any excess area.  Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required…...

Civil Appeal No(s).3312/2020 filed by the builder against the order dated 26.08.2020 aforesaid passed by the Hon’ble National Commission was dismissed by the Hon’ble Supreme Court of India, while holding that the complainant is entitled to get refund of the amount paid towards the excess area.”

In this manner, as OP-1 has taken the occupation certificate only for 2243.037 sq. ft. whereas it has offered possession of the subject unit measuring 2809 sq. ft. regarding which it was not having occupation certificate of the increased area, the overcharging of ₹4,83,000/- by OP-1 from the complainant under the pretext of sale of increased area proves the fact that OP-1 has cheated the complainant and other large number of people and the aforesaid acts amount to deficiency in service and unfair trade practice on its part. OP-1 was requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.

4. OP-1 resisted the consumer complaint and filed its written version, inter alia, taking preliminary objections of maintainability, jurisdiction, limitation and concealment of facts.  On merits, admitted that the subject unit was transferred in the name of complainant from the name of original allottee and the payments were made as per payment schedule.  It is alleged that the occupation certificate was received on 21.10.2016 and the possession of the subject unit was offered to the previous allottee on 31.5.2017, who transferred the same in favour of the complainant on 5.4.2018 and the complainant took the possession of the same on 26.7.2018.  It is further alleged that as it is an admitted case of the parties that the possession of the subject unit was offered to the previous allottee on 31.5.2017 by OP-1 and on the very same day, cause of action had accrued and as limitation to file the consumer complaint had already expired on 31.5.2019 and the complainant has filed the present consumer complaint after delay of 4 years and 2 months, the same is barred by limitation.  It is further alleged that in a similar case, the Hon’ble State Commission in R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., CC/79/2019 decided on 12.7.2019 dismissed the consumer complaint filed after five months of offer of possession being time barred.  OP-1 has further relied upon various judgments on point of limitation.  In fact, in cases of increase in saleable area of independent floor, parties are bound by the terms and conditions of agreement which specifically says that in case of increase in saleable area, price of the said independent floor shall be calculated on the basis of its saleable area as mentioned in clause 1.7. Since the saleable area was increased, said payment was claimed from the complainant by the answering OP and the same was deposited by him.  Not only this, after completion of construction, saleable area was also audited and computed by renowned external experts “GAA Advisory” and thereafter the said report was further audited and certified by “School of Planning and Architecture, New Delhi” and the relevant extract of the aforesaid report is extracted below for ready reference :-

Respondent particulars (Property No.)	A	B	C	D
	Original saleable area (Sq.mt)	Final Saleable Area (sq.mt)	Percentage of change in area	Final Saleable Area
				D1	D2
				Specific area	Common area
(DVF-A1/26-SF)	245.73	260.96	6.20%	236.817	24.181

 

In the case in hand, as the percentage of change in area of the subject unit was found to the extent of 6.20% (164 sq.ft.), to that extent complainant was asked to pay the demanded amount.  Even in various judgments, the Hon’ble National Commission has held that the builder can claim the price of increased saleable area.  Moreover, the complainant has not suffered anything in the present case and the consumer complaint of the complainant is false that he has suffered on account of act of the OP. The complainant was duly informed about the schedule of possession as per the relevant clauses of the Apartment Buyer’s Agreement entered into between the parties. Since the complainant has not approached this Commission with clean hands, the consumer complaint of the complainant is liable to be dismissed.  It is further alleged that the complainant has booked the subject unit for investment purposes and he is not a consumer.  On merits, the facts as stated in the preliminary objections have been reiterated.  The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.

5. OP-2 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 20.10.2023.
6. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.
7. In order to prove their case, the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
8. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the subject unit was transferred in the name of the complainant from its previous allottee vide letter dated 5.4.2018 (Annexure OP-4) and after obtaining the occupation certificate dated 21.10.2016 (Annexure C-4) from the competent authority, possession of the same was offered to the previous allottee vide offer of possession letter dated 19.6.2017 (Annexure C-2) and after transfer in his name, the complainant took the possession of the subject unit vide possession certificate dated 26.7.2018 (Annexure C-3), the first and foremost question for determination before this Commission is if the consumer complaint of the complainant is barred by limitation, as alleged by the OPs in the preliminary objections taken by the OPs in their written version.
   2. In order to determine the question of limitation, it would be worth to tabulate the relevant particulars i.e. date of offer of possession/demand for the subject amount made by the OPs from each complainant, as mentioned by the complainants themselves in their respective consumer complaints, as under :-

S.No.	CC No.	Date of offer of possession made by OP	Date on which  limitation expired under CPA 2019
	CC/401/2023	19.06.2017	19.06.2019
	CC/403/2023	15.11.2016	15.11.2018
	CC/400/2023	15.11.2016	15.11.2018
	CC/402/2023	15.11.2016	15.11.2018

3. Section 69 of the Consumer Protection Act deals with limitation for filing of the consumer complaint and the same is reproduced below for ready reference :-

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

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

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

 

4. In the light of Section 69 of the Act, one thing is clear on record that the District Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen except where the complainant satisfied the commission that he/she had sufficient cause for not filing the complaint within such period and the delay in filing the consumer complaint can be condoned.
5. In the case in hand, as it stands proved on record from the table extracted above that the offer of possession was made by the OPs between the years 2016 to 2017 i.e. much before the filing of the present consumer complaints, it is safe to hold that the consumer complaints of the complainants, which were filed in the year 2023, are patently barred by limitation.
6. The Hon’ble National Commission, in similar circumstances, in the case of Avtar Singh Chauhan vs. DLF Home Developers Ltd. & Anr., CC/789/2020 decided on 2.3.2023, has held that limitation period would start from ‘the date of offer of possession’ and compensation for delayed delivery of possession would be tenable till the date of offer of possession after receiving the occupation certificate and not till ‘the date of delivery of possession’. Relevant portion of the said order is reproduced below for ready reference:-

“13.   On an overall consideration of the ratio in all the decisions referred to above, it becomes crystal clear that any claim on account of delayed possession would be tenable only till the date of ‘offer of possession’, but of course, after the Occupancy Certificate has been received by the Builder/Developer.  There is no entitlement of an allottee for such compensation "till the date of delivery of possession" as the Builder's liability ends once he makes the offer of possession. Further, as we have already seen, some orders which had directed that such delayed compensation was payable till the date of actual possession, were themselves modified not only by the Hon'ble Apex Court, but also by the Principal Bench of this Commission, and the compensation was found payable only "till the date of offer of possession" after having received the Occupancy Certificate.  This would mean that the cause of action qua the Complainants would commence from the date of offer of possession and not from any subsequent date such as that of the actual delivery of possession.  It is also to be noted that the objection on the ground of limitation bar did not arise in any of the aforesaid decisions.

14.    But in the present case, a specific objection in this regard has been raised.  It is undeniable that in the present case, the Occupancy Certificate was received by the Opposite Party on 21.2.2017, and only after that the offer of possession was made to the Complainants on 23.3.2017.  Consequently, the period of limitation starting from the latter date would end on 23.3.2019.  Any Complaint filed after that date would per se be beyond limitation…….xxxxxx

16.    For the aforesaid reasons, we are of the considered view that the present Complaints are manifestly barred by limitation, since the same were filed more than three years after the offer of possession was made to the Complainants in the month of March, 2017.”

7. Further, the Hon’ble National Commission in its latest order passed in DLF Homes Panchkula Pvt. Ltd. vs. Satish Goyal & Anr., FA/303/2021 decided on 07.10.2023 has held that State Commission erred in not considering the fact of limitation and further there was no application for condonation of delay and still the State Commission proceeded to adjudicate the matter without addressing the fundamental issue of delay. Relevant portion of said order is reproduced as under:-

"16.  The complaint was barred by limitation before the State Commission. The State Commission also erred in not considering the fact that there was no application for condonation of delay and proceeded to adjudicate in the matter without addressing the fundamental issue of delay."

8. Not only this, even our own Hon’ble State Commission, U.T., Chandigarh in R.S. Malik Vs. DLF Homes Panchkula Pvt. Ltd., CC No.79 of 2019 decided on 12.07.2019 has held as under :-

“8.     Even though, no cause of action had accrued in favour of the complainant to file the instant complaint as there was no grievance of his put forth at the time of taking over the possession, still if we exclude two years limitation period to file the complaint from the date of offer of possession, the complaint is barred by limitation as there is a delay of five months in filing the same. In our opinion, the complaint deserves outright dismissal as the same is hopelessly time barred. The complaint deserves dismissal as the same does not assign any reason or ground for inordinate deliberate delay in filing the complaint after lapse of five months and even no application has been filed for condoning the unexplained, deliberate, hopeless delay in filing the complaint.

9. The Hon'ble Apex Court in Civil Appeal No.2067 of 2002 - State Bank of India Vs. B.S. Agricultural Industries (I) (AIR 2009 SC 2210), wherein the Complaint was dismissed as time-barred, has observed as under :-

"Consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing.”

9.  In view of the foregoing discussion and the law settled on this point the present consumer complaint alongwith all the other consumer complaints, mentioned above, stand dismissed being time barred.
10.   A certified copy of this order be also placed on the file of the other consumer complaints, mentioned above, which shall form part and parcel of that file.
11. Pending other miscellaneous application(s), if any, also stands disposed of accordingly.
12. Certified copies of this order be sent to the parties free of charge. The file be consigned.

4/11/2024			[Pawanjit Singh] President
			[Surjeet Kaur] Member
			[Suresh Kumar Sardana] Member