Chandigarh

StateCommission

CC/935/2016

Amrit Lal Gupta - Complainant(s)

Versus

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

Brijender Kaushik, Adv.

25 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	935 of 2016
Date of Institution	:	19.12.2016
Date of Decision	:	25.07.2017

 

 

1. Amrit Lal Gupta son of Sh. Sadhu Ram Gupta,
2. Kiran Gupta wife of Amrit Lal Gupta,

Both resident of Flat No.501/2, Tower No.02, Royal Estate No.2, Peer Muchhalla, NAC Zirakpur, District SAS Nagar, Mohali.

 

                                            .........Complainants.

                                 Versus

 

 

1. M/s DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh through its Manager.
2. Managing Director, M/s DLF Homes Panchkula Pvt. Ltd., Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana.

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

Argued by:

 

Sh. Brijender Kaushik, Advocate for the complainants.

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

 

Consumer Complaint	:	868 of 2016
Date of Institution	:	30.11.2016
Date of Decision	:	25.07.2017

 

Mukesh Kumar S/o Sh. Jagdish Chand, 27 P, New Model Town, Kathmandi Tohana, Distt.Fatehabad-125120.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh, U.T., Pin-160009.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana.

 

 

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

Argued by:

 

Sh. Mukesh K. Sharma, Advocate for the complainant.

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

 

 

Consumer Complaint	:	936 of 2016
Date of Institution	:	19.12.2016
Date of Decision	:	25.07.2017

 

Narinder Kumar Sapra son of Sh. Inder Mohan Sapra, resident of 5441/2, Category-II, Modern Housing Complex, Manimajra, Chandigarh.

                                            .........Complainant.

                                 Versus

 

1. M/s DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh, U.T., Pin-160009, through its Manager.
2. Managing Director, M/s DLF Homes Panchkula Pvt. Ltd., Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana.

 

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

Argued by:

 

Sh. Brijender Kaushik, Advocate for the complainant.

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

 

 

Consumer Complaint	:	937 of 2016
Date of Institution	:	19.12.2016
Date of Decision	:	25.07.2017

 

Ashok Kumar Raina son of Sh. Jawahar Lal Raina, resident of 669N, First Floor, Omaxe Silver Birch, Omaxe Township, Mullanpur, New Chandigarh, District SAS Nagar, Mohali.

 

                                            .........Complainant.

                                 Versus

 

1. M/s DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh through its Manager.
2. Managing Director, M/s DLF Homes Panchkula Pvt. Ltd., Registered Office: DLF Gateway Tower, Second Floor, DLF City, Phase-III, Gurgaon – 122002, Haryana.

 

 

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

Argued by:

 

Sh. Brijender Kaushik, Advocate for the complainant.

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

 

Consumer Complaint	:	13 of 2017
Date of Institution	:	6.1.2017
Date of Decision	:	25.07.2017

 

Vinod Kumar Gaba S/o Sh. Jaswant Rai R/o flat No.404, GH-67, Sector-20, Panchkula

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., through its Managing Director, 12^th Floor, DLF Gateway Tower, DLf City Phase-III, NH-8, Gurgaon.
2. The Regional Manager, DLF Homes, Panchkula Private Limited, SCO 190-191-192, Sector-8C, Chandigarh.

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

Argued by:

 

Sh. Abhineet Taneja, Advocate for the complainant.

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

 

Consumer Complaint	:	50 of 2017
Date of Institution	:	18.1.2017
Date of Decision	:	25.07.2017

 

 

Hardev Singh, House No.82, Kalgidhar Avenue, P.O. Mithapur, Jalandhar, Punjab.

 

                                                   .........Complainant.

                                 Versus

 

DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
Sector 8-C Chandigarh-UT. Pin-160009, through its Managing Director.

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

Argued by:

 

Sh. Saurabh Gautam, Advocate for the complainant.

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

 

Consumer Complaint	:	126 of 2017
Date of Institution	:	13.2.2017
Date of Decision	:	25.07.2017

 

Lt. Col. Sameer Chaudhary S/o Sh. Attar Singh Chaudhary, R/o H.No.540, Sector-15 A, Hissar – 125001.

 

                                            .........Complainant.

                                 Versus

 

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

 

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

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

 

Consumer Complaint	:	127 of 2017
Date of Institution	:	13.2.2017
Date of Decision	:	25.07.2017

 

 

Lt. Col. Gaurav Kapur S/o Sh. Bhupinder Kapur, 268, ENGR. REGT., C/o 56 APO, India.

 

                                            .........Complainant.

                                 Versus

 

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

 

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainant.

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

 

Consumer Complaint	:	128 of 2017
Date of Institution	:	13.2.2017
Date of Decision	:	25.07.2017

 

1. Col. S.S. Kingra S/o Sh. Pritam Singh,
2. Jagwinder Kaur W/o Col. S.S. Kingra,

Both R/o H.No.660, Amrawati Enclave, P.O. Chandimandir, Panchkula.

 

                                            .........Complainants.

                                 Versus

 

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

 

 

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainants.

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

 

Consumer Complaint	:	130 of 2017
Date of Institution	:	13.2.2017
Date of Decision	:	25.07.2017

 

1. Naveen Kumar S/o Sh. Joginder Pal,
2. Amit Garg S/o Sh. Jagdish Lal,

Both R/o Aggarwal Comsec Pvt. Ltd., Near Aggarsain Chowk, Patiala road, Samana, Distt. Patiala-147101.

 

                                            .........Complainants.

                                 Versus

 

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

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

Argued by:

 

Sh. Narender Yadav, Advocate for the complainants.

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

 

Consumer Complaint	:	155 of 2017
Date of Institution	:	20.2.2017
Date of Decision	:	25.07.2017

 

Mr. Om Parkash Singal S/o Late Sh. Sunder Dass R/o House No.1545, Sector-7, Kurukshetra, Haryana.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh, through its authorized representative.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

 

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

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainant.

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

 

Consumer Complaint	:	157 of 2017
Date of Institution	:	20.2.2017
Date of Decision	:	25.07.2017

 

1. Mrs. Barnali Bhuyan, Wife of Maj. Gen. Ananta Bhuyan, House No.T-19/5, Kandhar Lines, Delhi Cantt, New Delhi 110010.
2. Maj. Gen. Ananta Bhuyan, S/o Sh. Sidhan Bhuyan, House No.T-19/5, Kandhar Lines, Delhi Cantt, New Delhi 110010.

 

                                            .........Complainants.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh, through its authorized representative.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

 

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

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainants.

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

 

 

Consumer Complaint	:	158 of 2017
Date of Institution	:	20.2.2017
Date of Decision	:	25.07.2017

 

Lt. Gen.(Retd.)Anil Kumar Ahuja, S/o Sh. Jawahar Lal Ahuja, 1601B, Sky Terraces, Palm Drive, Sector 66, Gurgaon – 122002, Haryana.

 

                                            .........Complainant.

                                 Versus

 

1. DLF Homes Panchkula Pvt. Ltd., SCO 190-191-192,
   Sector 8-C Chandigarh, through its authorized representative.
2. DLF Homes Panchkula Pvt. Ltd., Registered Office at 12^th Floor, DLF City, Phase-III, National Highway-8, Gurgaon through its Managing Director.

 

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

Argued by:

 

Sh. Ashim Aggarwal, Advocate for the complainant.

Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, 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 13 consumer complaints bearing Nos.935, 868, 936 & 937 all of 2016 and 13, 50, 126, 127, 128, 130, 155, 157 & 158 all of 2017.

2.          At the time of arguments, Counsel for the Opposite Parties placed on record a detailed chart duly signed, showing in each case detail of the property, date of Agreement, total price and amount received etc. and further the date when possession was offered etc., which was taken on record. It was stated by the Counsel that the facts given in the chart were correct, as per                their record.

3.          Arguments were heard in common. At the time of arguments on 07.07.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, are the same, and therefore, the aforesaid 13 complaints can be disposed of, by passing one consodated order.

4.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.935 of 2016, titled as ‘Amrit Lal Gupta & Anr. Vs. M/s. DLF Homes Panchkula Pvt. Ltd. & Anr.’.

5.          In brief, the facts are that the complainants, being husband and wife, in order to settle in and around Chandigarh, after retirement of complainant No.1, applied for an independent floor measuring 1550 sq. ft. in the project of the Opposite Parties, namely, DLF Valley, Panchkula and paid Rs.4 Lacs as booking amount. They were allotted independent floor bearing No.DVF-B1/56 in the said project vide allotment letter dated 15.03.2010, measuring 1550 sq. ft, the tentative price whereof was Rs.35,37,099.72. An Independent Floor Buyer’s Agreement was executed between the parties on 27.12.2010. As per Clause 10 of the Agreement, in case of increase/decrease of saleable area of the allotted unit, more than 15%, the consent of the complainants was necessary. It was further stated that the price of the dwelling unit included all the charges to be levied or imposed but the allottee was liable to pay the increase in cost/charges, which may be levied by the government/statutory authorities. The allotment was made under 2 years construction linked payment plan, as per which, the possession of the unit, in question, complete in all respects, was to be offered within a period of 24 months from the date of execution of the agreement. It was further stated that the complainants paid the amounts as and when demanded by the Opposite Parties.

6.          It was further stated that in May 2012, the complainants were apprised about the stay on construction activity in DLF Valley, Panchkula by the Hon’ble Supreme Court of India and subsequently, the stay was immediately vacated. It was further stated that after vacation of stay, the construction did not start, which was then started after much objections and representations.  It was further stated that the construction of the houses/flats/independent floors was also outsourced to some other contractors. It was further stated that on seeing/inspecting the construction of the unit, the same was found to be of poor quality/ substandard.

7.          It was further stated that after a lapse of 6 years from execution of the agreement, possession was offered on 29.10.2016, whereby demand of Rs.3,18,591.34 was raised to be paid up-to 29.04.2017. It was further stated that possession offered is without there being any basic amenities like electricity, water etc. at the site and still construction activity is going on in some of the portion. It was further stated that the electricity supply inside the dwelling unit is not as per norms and is laid in haphazard manner and the workmanship is also of poor quality. It was further stated that the demand raised towards External Development Charges, Internal Development Charges & change in area is without any basis as the increase of 201 sq. ft. shown in the area of the unit,        in question, is totally wrong and without any basis. It   was further stated that since the complainants had already paid maintenance charges at the time of execution of agreement, demand qua the same at this stage, is wrong and illegal. It was further stated that the complainants invested their hard earned money and wanted to settle in peaceful area, for which, they have made the present investment with the said purpose but they are not getting the returns. It was further stated that the complainants made total payment of Rs.35,40,018.02 as on date and are paying interest thereon.

8.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to pay interest @18% compounded p.a. on the deposited amount from the date of deposit till actual physical possession is delivered after completion of development in all respects; pay compensation of Rs.8 Lacs for 48 months delay in offer of possession; withdraw illegal demand of Rs.3,18,591.34 & also withdraw demand on account of increase in area, advocate charges; award compensation of Rs.2.5 Lacs on account of mental and physical harassment and pay Rs.50,000/- on account of litigation expenses.

9.          The Opposite Parties, in their preliminary submissions in the written statement stated that the complaint filed is in total disregard to the terms and conditions of the Agreement executed between the parties. It was further stated that at this stage, the complainants were backing out from the executed contract. It was further stated that the complainants had the full knowledge about the executed terms of agreement dated 27.12.2010. It was further stated that occupation certificate has already been received on 19.07.2016 and offer of possession already sent to the complainants on 29.10.2016 (Annexure R-1 colly.). It was further stated that the complaint has become infructuous as the complainants themselves are not taking possession and thus, are liable to pay holding charges. It was further stated that an amount of Rs.6,06,854.83 has already been credited to the complainant’s account as compensation on account of delay, which has been duly accepted by the complainants. It was further stated that the complainants prayed for unfounded demands which were not as per executed terms and Agreements and thus, the Opposite Parties pray to allow 31% cost escalation of construction as well as 47% of the land holding cost. It was further stated that the project was cost escalation free, as the complainants shall get the possession of the floor on the same price as committed by the Opposite Parties through application form and allotment letter dated 15.03.2010. It was further stated that all the losses/cost, escalation on many count like building material cost, labour cost, land cost etc. have been borne by the Opposite Parties. It was further stated that construction of the project got delayed due to the stay on construction ordered by the Hon’ble High Court and thereafter by the Hon’ble Supreme Court of India due to third party litigation involving the acquisition proceedings of the land of litigants therein, in the year 2010 and 2012.

10.        As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received and the offer of possession is under process. 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.

11.        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 complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the 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 and that the complainants are not consumers as they did not disclose the purpose for which the property was purchased. Another objection raised in the written statement is that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account  of stay by Hon’ble Punjab & Haryana High Court

 

and thereafter by 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 9 of preliminary objections, it was stated that approvals regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, were received on 06.09.2013 and 14.08.2014 respectively. It was also stated that when given the option to exit vide letter dated 08.07.2013, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance. Apart from above objections, the territorial jurisdiction of this Commission to entertain and try the complaint has been challenged on the ground that since the property, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District, only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint.

12.        The Opposite Parties also moved miscellaneous applications under Sections 5 and 8 of Arbitration and Conciliation Act, 1996 in the following consumer complaints, for referring the matter to the sole arbitration:-

 

Sr. No.	Complaint Case No.	Miscellaneous Application No.
1.	935/2016	243/2017
2.	868/2016	231/2017
3.	936/2016	244/2017
4.	937/2016	245/2017
5.	13/2017	486/2017
6.	50/2017	481/2017
7	126/2017	372/2017
8.	127/2017	368/2017
9.	128/2017	480/2017
10.	130/2017	479/2017
11.	155/2017	362/2017
12.	158/2017	364/2017

 

The aforesaid applications were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.  

13.        On merits, the factum regarding allotment of unit, in question, and execution of Independent Floor Buyer’s Agreement, has not been disputed. It was stated that the price of the property as per Schedule of Payment (SOP) was Rs.39,33,889.04 plus service tax. It was further stated that since area of the unit was increased from 1550 sq. ft. to 1750 sq. ft., the price of the unit also stood increased to Rs.44,31,635.19 plus service tax. It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainants within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that delivery of possession of the unit, in question, was delayed on account of force majeure conditions. 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 further stated that the complainants were given an exit option vide letter dated 08.07.2013 (in fact 02.04.2013) (Annexure R-3), either to continue with the allotment or to take refund the amount paid alongwith simple interest @9%, however, they chose to continue with the allotment and agreed to the delay  in completing the construction.

14.        It was further stated that the Opposite Parties being a highly reputed company are in the process of delivering a world class project. It was further stated that the construction is almost complete and the possession is being delivered. It was stated that the amount received from the complainants till date is Rs.33,70,480.35. It was further stated that as per Clause 10 of the Agreement, increase/decrease in area up-to 15% is permissible and where the increase in area is above 15% of the total saleable area, permission has to be sought from the allottees. It was further stated that in the present case, the increase in area is within the terms and conditions of Clause 10 of the Agreement. It was further stated that as per final demand raised vide letter dated 29.10.2016, the complainants have to pay Rs.3,18,591/- to the Opposite Parties. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

15.      It was further stated that electricity, sewerage and water charges were as per Clause 23 of the Agreement. It was further stated that charging of EDC is purely a transparent transaction between the answering Opposite Parties and the State Government and the same are levied as per notification issued by the competent authority and the same payment is further paid by the developer as per the schedule of payment opted by the buyer. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

16.        The complainants, in support of their case, submitted their respective short affidavits, by way of evidence, alongwith which, a number of documents were attached.

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

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

19.        It is evident that the complainants were allotted Independent Floor No.DVF-B1/56-SF#217 in DLF Valley, Panchkula vide allotment letter dated 15.03.2010 (Annexure C-2) and Independent Floor Buyer’s Agreement was executed between the complainants and the Opposite Parties on 27.12.2010 (Annexure C-3). The total price of the said independent floor, as depicted in the Agreement, was Rs.34,59,599.72, besides other charges, securities, deposits and taxes etc. as specified in the Application/ Agreement. The complainants, in all, actually paid a sum of Rs.36,63,608.69 as mentioned in the Chart showing details of the property, in question, placed on record, under the signatures of the Counsel for the Opposite Parties, at the time of arguments on 07.07.2017. As per Clause 11(a) of the Agreement, the Opposite Parties were to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. Vide letter date 02.04.2013 (Annexure R-3), option was also given to the complainants to seek refund alongwith 9% interest. However, the complainants agreed to a further period of 12 months in handing over of possession. It is, however, on record, that there was stay by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012, which in turn, delayed the completion of the project. It was also stated that there was delay in receiving approvals regarding layout plan and service plans. The Opposite Parties have claimed that these being force majeure conditions, they were entitled to benefit of delay of one year. The complainants have also acknowledged the fact of aforesaid stay. The Opposite Parties have stated that due to above force majeure condition, the possession got delayed. The possession of the unit, in question, has been offered by the Opposite Parties to the complainants on 29.10.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint was filed on 19.12.2016. 

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

21.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 27.12.2010 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 Parties that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010)  (Annexures R-6 & R-7), is not relevant.

22.        As regards allegation of complainants regarding non-completion of certain basic amenities and facilities, the Opposite Parties have stated that all the promised facilities shall be provided. In regard to allegation of poor quality of construction, the Opposite Parties have stated that  the  construction is of high quality. It may be stated here that the complainants have not adduced any cogent evidence or report of any Engineer/Architect in support of the allegation. These points were, however, not pressed during arguments.

23.           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. It may be stated here that one of the grounds in M.A. No.243 of 2017 under Sections 5 & 8 of 1996 Act, in this complaint, was that Hon’ble National Commission vide its order dated 31.08.2016 in the matter titled as ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr. bearing Consumer Complaint No.701 of 2015 & other connected cases, has referred the matter for consideration to a larger bench. This Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126, noted that litigation in the Consumer Fora is cost effective. The complaint in the State Commission can be filed by making payment between Rs.2,000/- to Rs.4,000/- only. Whereas, as per principal Act (1996 Act), the consumer will be forced to incur huge expenses towards his/her share of arbitrator’s fee. As per mandate of 1986 Act, a complaint is proposed to be decided within three months from the date of service of the other party. On the other hand, 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 was observed that if the matter is referred to an Arbitrator, it would defeat the very purpose of the provisions of 1986 Act. Paras 26, 33 and 34 of the said order, inter-alia, being relevant, are extracted hereunder:-

“26.      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.”

33.        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. As stated above, in the present case, the complainant has spent his entire  life earnings to purchase the plot, in the said project, launched by the opposite party. However, his hopes were shattered, when despite making substantial payment of the sale consideration, he failed to get possession of the  plot, in question, in a developed project. 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.

34.        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.”

             Same is the ratio of recent judgment passed by Hon’ble National Commission on 13.07.2017 in case titled ‘Aftab Singh Vs. Emaar MGF Land Ltd. & Anr.’, in Consumer Complaint No.701 of 2015, with IA/247/2016, IA/505/2017, IA/7294/2015, IA/9570/2015 & IA/11813/2016.

             In  view of the above, the plea taken by the Opposite Parties, 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.

24.                  Another objection raised by the Opposite Parties was that as per Clause 55 of the Agreement, the Courts at Panchkula alone and the Punjab and Haryana High Court at Chandigarh, shall have Jurisdiction, to entertain and adjudicate the complaint, and, as such, the Jurisdiction of this Commission was barred. It was stated that      since  the  property,  in  question,  is  situated in District Panchkula, a part of cause of action arose at    Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. Clearly, application for allotment of Unit (Annexure R-4) was made by the complainants at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Allotment letter dated 15.03.2010 (Annexure C-2) also bore the same address at the top, meaning thereby the allotment letter was also issued by the office of the Opposite Parties at Kishangarh Address. Independent Floor Buyer’s Agreement was also executed between the parties on 27.12.2010 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainants, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. It may be stated here that all the provisions of the Code of Civil Procedure are not applicable, except those, mentioned in Section 13 (4) of the Act, to the proceedings, in a Consumer Complaint, filed under the Act. For determining the territorial jurisdiction, to entertain and decide the complaint, this Commission is bound by the provisions of Section 17 of the Act. In Associated Road Carriers Ltd., Vs. Kamlender Kashyap & Ors., I (2008) CPJ 404 (NC), the principle of law, laid down, by the National Commission, was to the effect, that a clause of Jurisdiction, by way of an agreement, between the Parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras. It was further held, in the said case, that there is a       difference between Sections 11/17 of the Act               and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, as held above, a part of cause of action arose to the complainants, within the territorial Jurisdiction of this Commission, at Chandigarh. In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC)= VII (2011) SLT 371, the principle of law, laid down, was that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case.

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

26.        The next objection raised by the Opposite Parties was that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission. It was further stated that the complainants were 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 complainants hired the services of the Opposite Parties, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines ‘service’ as under:-

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

              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 complainants have the remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a ‘consumer’, as stated above. In the instant case, the complainants are seeking relief on account of violation of terms and conditions of the Agreement by the Opposite Parties and their deficiency in rendering service. It, therefore, cannot be said that the complainants are trying to rewrite/modify the terms of the Agreement. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

27.        To defeat claim of the complainants, the next objection raised by the Opposite Parties was that since the complainants 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, they would not fall within the definition of ‘consumer’, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainants are property dealer(s), and are indulged in sale and purchase of property, on regular basis. In their complaint, the complainants have specifically stated that they purchased the unit, in question, for residential purposes. In the absence of any cogent evidence, in support of the objection raised by the Opposite Parties, mere bald assertion to that effect, cannot be taken into consideration. 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 complainants, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited 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 complainants, thus, fall within the definition of ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Parties, in their written reply, therefore, being devoid of merit, is rejected.  

28.        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 rights to raise any grievance. This plea of the Opposite Parties is not well based. While seeking option vide letter dated 02.04.2013 (Annexure   R-3), the complainants were informed of delay and extension of one year was sought. One year extended period expired on 26.12.2013 whereas the possession was offered on 29.10.2016 vide offer of possession letter (Annexure R-1 colly.). Had the Opposite Parties handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 26.12.2013, position would have been different and in that situation, it would have been accepted that the complainants had waived of their rights to raise grievance. The possession has been offered after delay of 2 years 10 months, even after the delay period. The plea being devoid of merit is not tenable.

29.               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 27.12.2010 read thus:-

“11(a) Schedule for possession of the said Independent Floor:-

 

The Company based on its present plans and estimates and subject to all just exceptions, endeavors to complete construction of the said Independent  Floor  within  a period of twenty four (24) months from the date of execution of the Agreement unless there shall be delay or failure due to Force majeure conditions and due to reasons mentioned in Clause 11(b) and 11(c) or due to failure of Allottee to pay in time the Total Price and other charges, taxes, deposits, securities etc and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of this Agreement.

11(b) Delay due to reasons beyond the control of the company:-

If the possession of the Said Independent Floor is delayed due to Force Majeure conditions, then the company shall be entitled to extension of time for delivery of possession of the said Independent Floor. The company during the continuance of the Force Majeure reserves the right to alter or vary the terms and conditions of the agreement or if the circumstances so warrant, the company may also suspend the development for such period as is considered expedient and the allottee shall have no right to raise any claim compensation of any nature whatsoever for or with regard to such suspension.”

As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainants were entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also admitted that above fact of granting stay resulted into delay in construction at the site. 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 complainants was sought, vide letter dated 02.04.2013 (Annexure R/3), to complete construction within further 12 months. Option was also given to the complainants, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainants exercised former option and continued to make payment(s) thereafter. In view of this, the two years period stipulated in the Agreement and one year extended period on account of stay by the Hon’ble Apex Court, expired on 26.12.2013. No justification whatsoever for delay in offering possession beyond 26.12.2013 has been explained by the Opposite Parties. The argument of the Opposite Parties 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 27.12.2010 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Parties 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 Parties. Possession of the unit, in question, having been offered vide offer of possession letter dated 29.10.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question to the complainants. Delay in offering possession to the complainants is an act of clear deficiency of the Opposite Parties. The Opposite Parties are bound to remove the deficiencies/snags, if any, in the construction of the unit, in question, and deliver the possession to the complainants, after deposit of amount by them (complainants).

30.        The complainants in Para 23 of the complaint have stated that the demand in pursuance to increase in area is wrong and without any basis. Admittedly, the complainants were informed about the increase in area while offering possession, vide letter dated 29.10.2016, that the demand raised by the Opposite Parties, included Rs.4,00,000/- on account of change in area as per clauses No.1.10 for PLC and 10 for change in area as per Floor Buyer’s Agreement. Regarding increase in area, the Opposite Parties relying upon Clause 10 of the Agreement, have stated that if there was an increase/decrease of more than 15% in the saleable area of the independent floor, then, only the Opposite Parties were to intimate the complainants/ allottees in writing and obtain their consent. It has been stated that the total increase in the saleable area in the instant case being less than 15%, the Opposite Parties were not bound to seek consent of the complainants. It may be stated here that saleable area of the unit, in question, as per the Agreement was 1550 sq. ft. While offering possession, in the final statement of account, annexed with the possession letter dated 29.10.2016, it was mentioned that the final area of the unit was 1750 sq. ft. Thus, there was increase of 200 sq. ft. When compared with the original area of the unit viz. 1550 sq. ft., the increase is only 12.90%, which is less than 15%. The complainants came to know about change in the area when possession was offered to them on 29.10.2016. Still in case, the complainants had any grievance regarding increase in area, they could raise objection within 30 days from the date of notice of changes. There is nothing on record to show that the complainants raised any objection during the period of 30 days or till filing of the complaint on 19.12.2016. The complainants have also not adduced any evidence by way of report of an Engineer/Architect that increase in area did not exist. The demand raised by the Opposite Parties to this effect, is, thus, legal and tenable and the complainants are liable to pay the same.

31.        Further the statement of account as on 29.10.2016 annexed with offer of possession letter clearly reveals that the complainants have also been given compensation for the delayed period in the sum of Rs.6,06,854.83 and after adjusting/reducing this amount from the payable amount, the balance payable by the complainants was Rs.3,18,591.34, which they (complainants) were definitely liable to pay. 

32.        Further, it was agreed by the counsel for the Opposite Parties that demand raised on account of contingent deposit of Vat in the sum of Rs.25,463/- shall be payable by the complainants, as and when the same is paid by the Opposite Parties to the Government.

33.          Thus, in view of above, offer of possession and demand(s) raised on account of different components are in accordance with terms and conditions of the Agreement.  Therefore, except contingent deposit of vat, the complainants should have made payment of the amount towards other components of demand to the Opposite Parties within a period of 30 days or at best, could take another 30 days grace period. Since the demand raised is justified, the complainants shall not be entitled to compensation for delay beyond the date of offer of possession i.e. 29.10.2016, plus two months i.e. (30 days given in the offer of possession letter + 30 days grace period), i.e. up to 28.12.2016.

34.         The next question, that falls for consideration, is, as to whether, the complainants are 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 Parties 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 27.12.2010 i.e. by 26.12.2013. There is, thus, inordinate delay of around 2 years 10 months, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Parties on 29.10.2016. Clearly there is delay in offering possession on account of which, the complainants deserve to be compensated. 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, in Para 16 held as under:-

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

 

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

35.        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.”

             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 complainants 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.  

36.        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, beyond two years plus one year extended period i.e. w.e.f. 27.12.2013 till delivery of possession of the unit would meet the ends of justice. The possession having been offered on 29.10.2016, the complainants shall be entitled to compensation up-to plus 2 months from 29.10.2016 i.e. 28.12.2016 (30 days for making payment + 30 days grace period). The complainants are, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above.

37.        Since compensation in the sum of Rs.6,06,854.83 on account of delay in possession has been credited in Final Statement of Account, the same shall be deducted from the compensation amount by way of interest @12% for delay period.   

38.         The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, for inordinate delay in delivering physical possession of the unit to them, by the Opposite Parties, by the promised date in the Agreement. Admittedly, the possession of unit, in question, has been offered to the complainants on 29.10.2016. The complainants have been adequately compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. Grant of compensation in the sum of Rs.1,50,000/- would serve the ends of justice. Under these circumstances, the complainants are held entitled to compensation in the sum of Rs.1,50,000/-.

39.        Similarly, in following eight complaints bearing No.868, 936 & 937 all of 2016 and 126, 128, 130, 157 & 158 all of 2017, particulars of which are indicated in Table-I below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-

TABLE-I

 

Sr. No.	Complaint No.	Date of independent Floor Buyer’s Agreement.	Due date for possession after 2 years plus 1 year extended period	Date on which possession offered	Whether amount deposited after offer of possession.	Whether documents submitted after offer of possession	DLI (Rs.)	Compensation (Rs.)
A.	B.	C.	D.	E.	F	G	H
1.	868/2016	03.02.2011	02.02.2014	26.10.2016	No	Pending	52,738.18	-
2.	936/2016	05.01.2011	04.01.2014	29.10.2016	Yes on 28.12.2016 in terms of this Commissions order dated 21.12.2016	Yes on 25.04.2017	-	6,02,118.06
3.	937/2016	18.01.2011	17.01.2014	26.10.2016	Yes on 29.12.2016 in terms of this Commissions order dated 21.12.2016	Yes in April 2017	46,583.33	-
4.	126/2017	14.12.2010	13.12.2013	29.10.2016	Yes on 13.03.2017 in terms of this Commissions order dated 15.02.2017	Yes on 22.05.2017	1,45,867.67	-
5.	128/2017	11.11.2010	10.11.2013	15.11.2016	Yes on 21.02.2017/ 23.03.2017 in terms of this Commissions order dated 15.02.2017	Yes on 03.03.2017	348.64	-
6.	130/2017	31.01.2011	30.01.2014	05.10.2016	Yes on 27.02.2017 in terms of this Commissions order dated 15.02.2017	Pending	1,51,906.00	-
7.	157/2017	21.04.2011	20.04.2014	15.11.2016	Yes on 12.05.2017 & 13.06.2017	Yes on 06.07.2017	-	-
8.	158/2017	25.04.2011	24.04.2014	29.10.2016	Yes on 11.04.2017 (Annexure C-28)	Yes on 25.04.2017	61,927.69	-

 

            In consumer complaint No.936/2016, compensation in the sum of Rs.6,02,118.06 has been credited in the account of the complainant as is evident from offer of possession letter dated 29.10.2016.

40.        In the aforesaid complaint cases, no demand qua stamp duty and registration charges has been raised while offering possession. As per offer of possession letter(s) placed, on record, six months’ time was given to the complainant(s) to complete the formalities and make the payment, which in all the above cases, has already lapsed.

41.        Ms. Ekta Jhanji, Sh. Parveen Jain & Ms. Sapna Seth, Advocates, Counsel for the Opposite Parties, on instructions, stated that contingent Vat deposit need not be deposited at this stage, subject to furnishing of an affidavit by the complainant(s) to make the payment as and when demanded by the Government.

42.        In all the aforesaid eight complaints, as stated by Counsel for the Opposite Parties, during arguments, except one complaint bearing No.868 of 2016, amount(s), demand(s) whereof was raised vide offer of possession letters, minus contingent deposit of vat, stood deposited by the complainant(s) in terms of order(s) passed by this Commission in most of the cases. However, in complaint no.868 of 2016, as stated above, no amount towards the demand raised vide offer of possession letter has been deposited by the complainant. Further, except complaints bearing Nos.868 of 2016 & 130 of 2017, the requisite documents in the remaining six complaints, have also been submitted by the complainant(s).

43.        In two Complaint Cases bearing Nos.126 and 128 both of 2017, the complainants have submitted snag lists/customer observations dated 08.02.2017 (Annexure C-4) & 24.01.2017 (Annexures C-4) respectively to the Opposite Parties, pointing therein numerous defects/shortcomings in the allotted units.

44.        It was stated by Counsel for the Opposite Parties that the snags/deficiencies, if any, will be removed, before delivering possession.

45.        Therefore, in all the aforesaid complaints, particulars of which are given in Table-I, the complainants are held entitled to compensation by way of grant of 12% interest, for the delayed period, (after two years + one year extended period) up-to the date of offer of possession plus 2 months (30 days for making payment + 30 days grace period), as under:-

TABLE – II

 

Sr. No.	Complaint No.	Date of offer of possession	Date up-to which entitled to compensation
1.	868/2016	26.10.2016	25.12.2016
2.	936/2016	29.10.2016	28.12.2016
3.	937/2016	26.10.2016	25.12.2016
4.	126/2017	29.10.2016	28.12.2016
5.	128/2017	15.11.2016	14.01.2017
6.	130/2017	05.10.2016	04.12.2016
7.	157/2017	15.11.2016	14.01.2017
8.	158/2017	29.10.2016	28.12.2016

 

             In complaint case bearing No.936 of 2016, at Sr. No.2 in Table-I, while offering possession, compensation in the sum of Rs.6,02,118.06 on account of delay in possession has been credited in Final Statement of Account. The same shall be deducted from the compensation amount by way of interest @12% for delay period.

46.        If after deposit of amount minus contingent deposit of vat and submission of requisite documents, possession is not delivered, for delay beyond 30 days, the complainants shall be further entitled to compensation by way of interest @12% p.a. on the deposited amount.

47.        In four complaints bearing Nos.13, 50, 127 and 155 all of 2017, particulars of which are given hereunder, in Table-III, possession of the unit(s), in question, stands delivered to the complainant(s), after deposit of the amounts, towards demands raised vide offer of possession letters dated 05.10.2016, 26.10.2016, 14.01.2016 and 26.10.2016 respectively, minus the demand qua component of contingent deposit of vat. This was admitted by the Counsel for the parties during arguments.

TABLE-III

 

Complaint No.	13/2017	50 of 2017	127 of 2017	155 of 2017
Date of Independent Floor Buyer’s Agreement.	01.02.2011	20.12.2010	31.01.2011	14.02.2011
Due date for possession after 2 years plus 1 year extended period	31.01.2014	19.12.2013	30.01.2014	13.02.2014
Date on which possession offered.	05.10.2016	26.10.2016	14.01.2016	26.10.2016
Whether amount deposited after offer of possession	Yes on 17.02.2017 in terms of this Commission order dated 20.01.2017	Yes in terms of this Commission order dated 31.01.2017	Yes on 10.03.2016 & 13.03.2017.	Yes on 23.03.2017
Whether documents submitted after offer of possession	Yes	Yes	Yes on 22.05.2017	Yes on 08.04.2017
Date on which possession taken	07.04.2017	22.06.2017	31.03.2017	05.06.2017
DLI (Rs):	15,210.54	9,803.00	28,778.67	1,36,955.35

 

48.        In these cases, during arguments, it was stated by Counsel for both the parties, that possession of the unit(s), in question, stood delivered to the complainant(s) on 07.04.2017, 22.06.2017, 31.03.2017 and 05.06.2017 respectively.

 

49.        Therefore, in the aforesaid complaints, particulars of which are given in Table-III above, the complainants are held entitled to compensation by way of grant of 12% interest, for the delayed period, (after two years + one year extended period) up-to the date of offer of possession plus 2 months (30 days for making payment + 30 days grace period), as under:-

 

TABLE – IV

 

Sr. No.	Complaint No.	Date of offer of possession	Date up-to which entitled to compensation
1.	13/2017	05.10.2016	04.12.2016
2.	50/2017	26.10.2016	25.12.2016
3.	127/2017	14.01.2016	13.03.2016
4.	155/2017	26.10.2016	25.12.2016

 

 

In complaint case No.127 of 2017, demand towards stamp duty and registration charges to the tune of Rs.2,67,428/- was also raised in the offer of possession letter dated 14.01.2016.

50.          It may be stated here that the sale deed is to be executed after delivery of possession. Therefore, the actual expenditure for registration of sale deed besides stamp duty and registration charges, shall be borne by the complainant at the time of registration/execution of sale deed.

51.        It was also agreed by Counsel for the Opposite Parties that the complainant(s) need not pay Advocate charges and the incidental expenses at the time of registration shall, however, be borne by the complainant(s).

 

52.        The complainant(s) in all the aforesaid complaints, as shown in Tables-I & III, are also entitled to compensation for mental agony, harassment and deficiency in rendering service.

53.        In Complaints bearing Nos.936 & 937 both of 2016, 13, 50 & 127, 128 & 157 all of 2017, the complainants are held entitled to compensation in the sum of Rs.1,50,000/- in each case, on account of mental agony, physical harassment and deficiency in service.

54.        However, in Complaints bearing No.868 of 2016, 126, 130, 155 & 158 all of 2017, there has been DLI in the sum of 52,738.18, Rs.1,45,867.67, Rs.1,51,906.00, Rs.1,36,955.35 & Rs.61,927.00, respectively against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant(s), in each of these cases, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/-, in each case, would serve the ends of justice.

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

56.        For the reasons recorded above, all the complaints bearing Nos.935, 868, 936 & 937 all of 2016 and 13, 50, 126, 127, 128, 130, 155, 157 & 158 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

935, 868, 936 & 937 all of 2016 and 126, 128, 130, 157 & 158 all of 2017

 

             In these cases, the Opposite Parties have offered possession in October 2016 and November 2016 and the amounts towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges have been deposited by the complainants (except in Complaint No.868 of 2016). The documents in all the complaints have been submitted (except in Complaint Cases Nos.868 of 2016 and 130 of 2017. The Opposite Parties shall hand over possession after removing the snags, if any, within 30 days.

             The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), 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), after removing the snags, if any, within a period of 30 days, from the date balance payment, wherever due, 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 27.12.2013, 03.02.2014, 05.01.2014, 18.01.2014, 14.12.2013, 11.11.2013, 31.01.2014, 21.04.2014 & 25.04.2014    respectively up-to two months from the date of offer of possession i.e. up-to 28.12.2016, 25.12.2016, 28.12.2016, 25.12.2016, 28.12.2016, 14.01.2017, 04.12.2016, 14.01.2017 & 28.12.2016   respectively, 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 CC Nos.935 & 936 both of 2016, compensation in the sum of Rs.6,06,854.83 & Rs.6,02,118.06 respectively, on account of delay in possession has been credited in Final Statement of Account. The same shall be deducted from the compensation amount by way of interest @12% for delay period]              For failure of Opposite Parties to deliver possession within 30 days from the date of making payment/submission of documents by the complainant(s), 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 each case i.e. [in CC Nos.935, 936 & 937 all of 2016 and 128 & 157 both of 2017], and Rs.1,25,000/- in each case i.e. [in CC Nos.868 of 2016 and 126, 130 & 158 all of 2017] respectively, 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.

 

Consumer Complaint bearing No:

13, 50, 127 & 155 all of 2017.

 

             In these cases, possession of the unit(s), in question, stands delivered to the complainant(s).

             The Opposite Parties (DLF Homes Panchkula Pvt. Ltd.), in each of these cases, are, jointly and severally, directed as under:-

(i)	Execute and get registered the sale deed(s) in respect of the unit(s), in question, within two months from the date of receipt of certified copy of the order. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainant(s).
(ii)	To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), with effect from 01.02.2014, 20.12.2013, 31.01.2014 & 14.02.2014 up-to 04.12.2016, 25.12.2016, 13.03.2016 & 25.12.2016 respectively, 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.              For failure of the Opposite Parties to deliver possession within 30 days from the date of making payment by the complainant(s), for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount(s), till the date possession was delivered, shall be payable within 45 days and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iii)	Pay compensation in the sum of Rs.1,50,000/-, in each case i.e. [CC No.13, 50 & 127 all of 2017] and Rs.1,25,000/- [in CC No.155 of 2017] on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, as litigation costs, 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.

 

57.        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).

58.        As regards the amount of contingent Vat deposit, the complainant(s) shall furnish an affidavit to make the payment as and when demanded by the Government. The complainant(s) shall deposit amount of 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 from the Opposite Parties, shall attract simple interest @12% per annum.

59.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.868, 936 & 937 all of 2016 and 13, 50, 126, 127, 128, 130, 155, 157 & 158 all of 2017.

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

 

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

Pronounced.

25.07.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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