Chandigarh

StateCommission

CC/957/2016

Rehana Anjum - Complainant(s)

Versus

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

Sumit Narang, Adv.

18 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	957 of 2016
Date of Institution	:	22.12.2016
Date of Decision	:	18.07.2017

 

 

Rehana Anjum W/o Mr. Rizwan Ahmad R/o Flat No.303,
GH-23, Sector-20, Panchkula (Haryan.a).

 

                                            .........Complainant.

                                 Versus

 

 

M/s DLF Homes Panchkula Private Ltd. through it’s Managing Director/Principal Officer, having its Registered Office at
SCO No.190-191-192, Sector 8-C Chandigarh–160017.

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

Argued by:

 

Sh. Sumit Narang, Advocate for the complainant.

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

 

 

Consumer Complaint	:	977 of 2016
Date of Institution	:	29.12.2016
Date of Decision	:	18.07.2017

 

1. WG CDR Pushpa Chauhan W/o WG CDR Mukesh Kumar Chauhan,
2. WG CDR Mukesh Kumar Chauhan S/o Sh. Virendra Singh Chauhan,

Both R/o H.No.25D, Old Race Course Nut Ford Road, Near Secunderabad Club, Hyderabad - Karnataka.

 

                                            .........Complainants.

                                 Versus

 

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

 

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

 

 

Argued by:

 

Sh. Vineet Yadav, Advocate for the complainants.

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

 

 

Consumer Complaint	:	06 of 2017
Date of Institution	:	03.01.2017
Date of Decision	:	18.07.2017

 

Sudhir Bansal S/o Bhajan Lal Bansal, R/o H.No.1592,
Sector -13, Hisar, Haryana.

 

                                            .........Complainant.

                                 Versus

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

 

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

Argued by:

 

Sh. Karn Garg, Advocate for the complainant.

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

 

 

Consumer Complaint	:	53 of 2017
Date of Institution	:	18.01.2017
Date of Decision	:	18.07.2017

 

Rajinder Singh S/o Sh. Dai Ram, R/o H.No.19, Sector-8, Karnal.

 

                                            .........Complainant.

                                 Versus

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

 

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

Argued by:

 

Sh. Vineet Yadav, Advocate for the complainant.

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

 

 

Consumer Complaint	:	146 of 2017
Date of Institution	:	15.02.2017
Date of Decision	:	18.07.2017

 

1. Prem Banga son of late Sh. D.R.Banga
2. Yashodha Banga wife of Sh. Prem Banga

Both residents of Banga’s House, Rabon P.O. Seproon, Solan, Himachal Pradesh.

 

                                            .........Complainants.

                                 Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO.190-192, Sector 8C, Chandigarh, through its Managing Director.
2. DLF Homes Panchkula Pvt. Ltd., having its Registered Office at 12^th Floor, DLF Gateway Tower, CLF City,
   Phase 3, NH-8, Gurgaon, through its authorized representative.

 

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

Argued by:

 

Sh. Mukand Gupta, Advocate for the complainants.

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

 

 

Consumer Complaint	:	156 of 2017
Date of Institution	:	20.02.2017
Date of Decision	:	18.07.2017

 

1. Brig Indrajeet Singh Gakhal, S/o Late Col. Gurmohan Singh VSM, resident of House No.1071, Sector-2, Panchkula-134102, Haryana.
2. Mrs. Puneet Gakhal, wife of Brig Indrajeet Singh Gakhal, resident of House No.1071, Sector-2, Panchkula-134102, Haryana.

 

                                            .........Complainants.

                                 Versus

1. DLF Homes Panchkula Pvt. Ltd., SCO No.190-191-192, Sector 8C, Chandigarh, through its authorized representative.
2. DLF Homes Panchkula Pvt. Ltd., Regd. 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	:	217 of 2017
Date of Institution	:	15.03.2017
Date of Decision	:	18.07.2017

 

1. Vishal Gupta Son of Sh. R.P.Gupta Resident of SCF No.42, Sector 8 Panchkula (Haryana).
2. Geeta Singla Wife of Sh. Surinder K Singla Resident of SCF No.42, Sector 8 Panchkula (Haryana).

 

                                            .........Complainants.

                                 Versus

 

M/s DLF Homes Panchkula Private Ltd. having its Office at SCO 190-191-192, Sector-8C, Chandigarh–160009. Through its Managing Director.

 

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

Argued by:

 

Sh. Roshan Lal Goyal, Advocate for the complainants.

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

 

 

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 7 consumer complaints bearing Nos.957 & 977 both of 2016 and 6, 53, 146,156 and 217 all of 2017.

             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 is taken on record. It was stated by the Counsel that the facts given in the chart were correct, as per their record.

2.          Arguments were heard in common. At the time of arguments on 05.07.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, were the same, and therefore, the aforesaid 10 complaints can be disposed of, by passing one consolidated order.

3.          Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.957 of 2016, titled as ‘Rehana Anjum Vs. M/s DLF Homes Panchkula Pvt. Ltd.’

4.          In brief, the facts are that the complainant applied for an independent floor for herself and her family for residential purposes in the project of the Opposite Party i.e. “The Valley”, by depositing Rs.4 Lacs on 16.09.2010. She was  allotted independent floor bearing No.D-7/14, First Floor including a parking space in the said project vide allotment letter dated 05.10.2010 (Annexure C-1). The complainant opted for a construction linked payment plan. An Independent Floor Buyer’s Agreement was executed between the parties on 27.01.2011 (Annexure C-2). Basic Sale Price of the said floor was fixed at Rs.36,40,949.98 besides payment of Rs.2,96,669.92 as External Development Charges/ Infrastructure Development Charges & Rs.2,96,379.88 as interest component, totaling Rs.42,33,999.78. Complainant was also entitled to government employee corporate discount of Rs.1,06,312/-.

5.          As per Clause 11(a) of the Agreement, the Opposite Party was to hand over possession of the floor within 24 months from the date of execution of the Agreement i.e. by 27.01.2013. It was stated that when possession was not offered uptil 27.01.2013, the complainant visited the office of the Opposite Party to enquire about the offer of possession but did not receive any satisfactory reply. It was assured by the Opposite Party that it would be offering possession very soon, however, it refused to give any written assurance. It was further stated that on visiting the site, the complainant was shocked to see that development work was going at a very slow pace, no proper internal roads, no water and drainage system, and no street lights were in existence. It was further stated that the Opposite Party had sought revision in its layout plans on 11.03.2013 and service plans on 20.05.2013, therefore, more delay was bound to happen.

6.          It was further stated that after delay of 46 months and upon repeated requests from the complainant, the Opposite Party offered possession of the unit, in question, vide letter dated 15.11.2016 (Annexure C-5), whereby the area of the unit was increased by 125 sq. ft. i.e. from 1450 sq. ft. to 1575 sq. ft. and demand of Rs.3,37,500/- was raised on account of increase in area. It was further stated that the Opposite Party also illegally charged Rs.67,725/- towards other charges, Rs.91,429/- towards electricity expenditure and Rs.30,497/- towards electrical motor and connection. It was further stated that demand of contingent deposit of vat @Rs.14.55 per sq. ft., amounting to Rs.22,216/-, at this stage, is also arbitrary.  The complainant has also challenged the demand raised on account of external development charges and internal development charges. It was further stated that on inspection of the unit, in question, it was found that at some areas, defective tiles were used, electrical connections were not installed, doors were not erected properly malba was lying in the rooms etc., bathroom fittings were defective etc., which shortcomings were pointed out to the concerned executive with a request to rectify the same, as the complainant wanted to take possession in December itself. When nothing was done, the complainant wrote email dated 19.12.2016 (Annexure C-8) to the Opposite Party but position remained the same. It was further stated that the complainant took loan from ICICI Bank, HDB and ING Vyasa for making payment towards sale consideration of the unit, in question. It was further stated that total amount of Rs.41,57,971.92 has been paid by the complainant to the Opposite Party uptil 12.12.2016. It was further stated that as per Clause 15 of the Agreement, the complainant was entitled to early payment rebate @1% p.a. for the period, where the complainant made advance payments but the Opposite Party gave such benefit only to the tune of Rs.1,30,443.19. It was further stated that the amenities such as community hall, covered stilt parking, yoga centre, proper swimming pool, library and a club house with modern facilities, as promised in the brochure/website, were not ready till date. It was further stated that the Opposite Party launched the project and invited applications without obtaining all the necessary approvals and sanctions from the competent authorities.

7.          Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Party, the complainant filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Party, to hand over physical possession of the unit, in question, complete in all respects and execute and get the sale deed registered within a stipulated time frame of one month; pay penalty @Rs.10/- per sq. ft. of the saleable area per month from 21.01.2013 till the date when possession is actually offered; pay interest @12% p.a. for the period of delay on the principal amount of Rs.41,57,971.92; refund delayed payment interest of Rs.9773.14; provide basis of calculation of early payment rebate and further to adjust the shortfall (benefit) of Rs.20,000/-; refund the total amount of service tax alongwith interest @9% p.a.; provide exact calculation of external development charges & internal development charges; waive off electricity expenditure of Rs.91,429/-, electricity meter charges of Rs.30,497/-, advocate charges of Rs.18,000/- & value added tax of Rs.22,916/-; pay compensation of Rs.3,00,000/- for harassment, mental agony, expenses and loss caused to the complainant & for practicing unfair trade practice and Rs.1,00,000/- as litigation expenses.

8.          The Opposite Party, in its preliminary submissions in the written statement stated that the complainant is herself guilty of delaying the construction link payments and thus, she cannot blame the Opposite Party for the delay. It was further stated that the complaint has been filed in total disregard to the terms of the Agreement. It was further stated that at this stage, the complainant is backing out from the executed contract. It was stated that the complainant had full knowledge about the executed terms of Floor Buyer’s Agreement dated 27.01.2011. It was further stated that occupation certificate was received on 19.07.2016 and offer of possession was sent on 15.11.2016. It was further stated that the complainant prayed for unfounded demands which were not as per executed terms and Agreements and thus, the Opposite Party 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 complainant shall get the possession of the floor on the same price as committed by Opposite Party, at the time of allotment of the floor on 05.10.2010. It was further stated that all the losses/cost, escalation on many count like building material cost, labor cost, land cost, etc. have been borne by the Opposite Party. 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. It was further stated that after dismissal of the said litigation by Hon’ble Supreme Court on 12.12.2012, the Opposite Party vide letter dated 05.06.2013 (Annexure R-3) offered an exit option to the complainant by accepting the refund of her entire amount paid till date with 9% interest but she refused to avail the exit option and opted to continue with the project by giving her consent to extension of time. 

9.          As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received. 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.

10.        In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer’s Agreement; that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement and that the complainant is not a consumer as she 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 Opposite Party could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon’ble Punjab & Haryana High Court and Hon’ble Supreme Court of India from 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 11 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 05.06.2013, the complainant agreed to continue with allotment and delay and, as such, she (complainant) voluntarily waived of her 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. It was further stated that complainant has not approached this Commission with clean hands and now at a belated stage was attempting to wriggle out of her contractual obligation by filing the instant complaint.

11.        The Opposite Party/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.
	CC/977/2016	284/2017
	CC/6/2017	403/2017
	CC/53/2017	275/2017

 

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.  

12.        On merits, it was stated that the basic rate per sq. ft. was Rs.2700/- per sq. ft. It was denied that the total price of the said floor was Rs.42,33,999.78. It was stated that the total price of the unit as per the SOP was Rs.46,42,580.19 + service tax. It was further stated that due to increase in the area to 1575 sq. ft., the revised total price was Rs.51,38,712.33 + 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 complainant within 24 months from the signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of the Opposite Party as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that increase in area was as per Clause 9 & 10 of the Agreement. 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 Party 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 Party nor it indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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

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

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

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

17.        It is evident that the complainant was allotted Independent Floor No.DVF-D7/14-FF#217 in DLF Valley, Panchkula vide allotment letter dated 05.10.2010 (Annexure C-1) and Independent Floor Buyer’s Agreement was executed between her and the Opposite Party on 27.01.2011 (Annexure C-2). The total price of the said independent floor, as depicted in the Agreement, was Rs.42,33,999.78, besides other charges, securities, deposits and taxes etc. as specified in the Application/ Agreement. The complainant, in all, actually paid a sum of Rs.49,17,668.56 as mentioned in the Chart showing details of the property, in question, placed on        record, under the signatures of the Counsel for the Opposite Party, at the time of arguments on 05.07.2017. As per Clause 11(a) of the Agreement, the Opposite Party was to complete the construction of the said independent floor within a period of 24 months from the date of execution of the said Agreement. Vide letter date 05.06.2013 (Annexure R-3), option was also given to the complainant to seek refund alongwith 9% interest. However, the complainant 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. The Opposite Party has claimed that this being a force majeure condition, it is entitled to benefit of delay of one year. The complainant has also acknowledged the fact of aforesaid stay. The Opposite Party has 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 Party to the complainant on 15.11.2016 vide offer of possession letter (Annexure R-1 colly) and the instant complaint was filed on 22.12.2016. 

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

19.        Since the Independent Floor Buyer’s Agreement, in the instant case, was executed between the parties on 27.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (Agreement), the averment of the Opposite Party that Hon’ble Punjab & Haryana High Court had restrained it from creating any third party rights, during the year 2010 (06.04.2010 to 23.07.2010)  (Annexures R-6 & R-7), is not relevant.

20.           The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in case titled ‘Sarbjit Singh Vs. Puma Realtors Private Limited’, IV (2016) CPJ 126. Paras 26, 29 to 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.”

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

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

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

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

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

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

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.

 

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 party, that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

21.        Another objection raised by the Opposite Party 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 and a part of cause of action arose at Panchkula. According to Section 17 of the Act, a consumer complaint can be filed, by the complainant, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to her. Clearly, application for allotment of Unit (Annexure R-4) was made by the complainant at Chandigarh address viz. Shop No.101-102, Ist Floor, DLF City Centre Mall, Rajiv Gandhi, I.T. Park, Kishangarh, Chandigarh. Allotment letter dated 05.10.2010 (Annexure C-1) also bore the same address at the top, meaning thereby the allotment letter was also issued by the Kishangar Address of the Opposite Party. Independent Floor Buyer’s Agreement was also executed between the parties on 27.01.2011 at Chandigarh. Since, as per documents, referred to above, a part of cause of action arose to the complainant, at Chandigarh, this Commission has got territorial Jurisdiction to entertain and decide the complaint. 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 complainant, 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.

22.        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 complainant 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 her, to file the complaint. The submission of the Opposite Party, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.

23.        The next objection raised by the Opposite Party was that the complainant has made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between the parties, purely to invoke jurisdiction of this Commission. It was further stated that the complainant was virtually inviting this Commission to assume powers conferred under the Civil Court and, therefore, this Commission did not have the jurisdiction to consider the present complaint. It may be stated here, that the complainant hired the services of the Opposite Party, for purchasing the flat, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was to complete construction of the said Independent Floor within a period of twenty four months, from the date of execution of the same (Agreement). Section 2 (1) (o) of the Act, defines ‘service’ as under:-

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

 

 

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

24.        To defeat claim of the complainant, the next objection raised by the Opposite Party was that since the complainant had purchased the flat, in question, for earning profits i.e. for resale, as and when there was escalation in the prices of real estate, as such, she would not fall within the definition of ‘consumer, as defined by Section 2 (1) (d) (ii) of the Act. It may be stated here that there is nothing, on record to show, that the complainant is a property dealer, and is indulged in sale and purchase of property, on regular basis. In her complaint as also in the rejoinder, the complainant has specifically stated that she purchased the unit, in question, for herself and other family personal use. In the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion to that effect, cannot be taken into consideration. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, it was held by the National Consumer Disputes Redressal Commission, New Delhi, that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. The principle of law, laid down, in Kavita Ahuja’s case (supra) is fully applicable to the present case. Under these circumstances, by no stretch of imagination, it can be said that the unit, in question, was purchased by the complainant, by way of investment, with a view to earn profit, in future. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs.  Nirmala Devi Gupta, 2016 (2) CPJ 316. Not only above, recently under similar circumstances, in a case titled as “Aashish Oberai Vs. Emaar MGF Land Limited”, Consumer Case No.70 of 2015, decided on 14 Sep. 2016, the National Commission, while rejecting similar plea raised by the builder, observed as under:-

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

 

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

25.        An objection has been raised by the Opposite Party that the complainant, when given the option to seek refund with 9% simple interest, agreed to continue with allotment and also agreed to delay and, as such, she waived of her rights to raise any grievance. This plea of the Opposite Party is not well based. While seeking option vide letter dated 05.06.2013 (Annexure R-3), the complainant was informed of delay and extension of one year was sought. One year extended period expired on 26.01.2014 whereas the possession was offered on 15.11.2016 vide offer of possession letter (Annexure R-1 colly.). Had the Opposite Party handed over possession before the stipulated period of two years in the Agreement plus one year extended period i.e. by 26.01.2014, position would have been different and in that situation, it would have been accepted that the complainant had waived of her right to raise grievance. The plea being devoid of merit is not tenable.  

26.        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 27.01.2011 read thus:-

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

 

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

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

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

As stated above, according to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Party, it was liable to deliver physical possession of unit, within a period of 24 months, from the date of execution of the same (Agreement). In the event of failure to deliver possession, as per Clause 15 of the Agreement, the complainant was entitled to get penal compensation @Rs.10/- per square feet, per month, of the saleable area, for the period of delay. It is true that in some litigation, the Hon’ble Supreme Court of India stayed construction at the project site and order passed remained in force from 19.04.2012 up-to 12.12.2012 i.e. for about 8 months. It is also 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 complainant was sought, vide letter dated 05.06.2013 (Annexure R/3), to complete construction within further 12 months. Option was also given to the complainant, to seek refund of the deposited amount, alongwith simple interest @9% P.A. The complainant exercised former option and continued to make payment(s) thereafter. 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 in January 2014 on 26.01.2014. No justification whatsoever for delay in offering possession beyond 26.01.2014 has been explained by the Opposite Party. The argument of the Opposite party that delay in handing over possession of independent floor was attributable 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 27.01.2011 and before execution thereof, the Opposite Party ought to have obtained all the approvals. If permissions/approvals for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approvals for which were also received in due course of time, the initial time taken (more than two years) for seeking such approvals amounts to clear deficiency on the part of the Opposite Party and in the absence of any justified reason for not doing so earlier, time consumed in obtaining such approvals would not amount to force majeure condition. The plea taken, therefore, is of no help to the Opposite Party. Possession of the unit, in question, having been offered vide offer of possession letter dated 15.11.2016 (Annexure R-1 colly.), clearly, there is inordinate delay in offering possession of the unit, in question to the complainant. Delay in offering possession to the complainant is an act of clear deficiency of the Opposite Party.

27.        It may be stated here that on 02.01.2017, it was undertaken by the Counsel for the complainant that the complainant would deposit the amount claimed vide letter dated 15.11.2016 (Annexure C-5) i.e. (Rs.8,69,524.64 + Rs.82,766.00, minus contingent deposit of vat) within 10 days from the date of said order i.e. 02.01.2017. On the said date itself, Ms. Sapna Seth, Advocate accepted notice of the complaint on behalf of the Opposite Party and she stated that on deposit of the aforesaid amount by the complainant, possession would be delivered after removing the defects indicated in Para XIV at Pages 14 & 15 of the complaint, within six weeks thereafter. The case was adjourned to 27.02.2017. On the said date i.e. 27.02.2017, it was stated by Counsel for the Opposite Party that in terms of order dated 02.01.2017 aforesaid, the requisite amount stood deposited and physical possession of the unit, in question, was handed over to the complainant on 18.01.2017.

28.        As stated above, since the complainant has deposited the entire demand raised vide offer of possession letter dated 15.11.2016 minus contingent deposit of vat and possession of the unit, in question, stood delivered to her on 18.01.2017, her challenge to demands qua increase in area, EDC/IDC, other charges, service tax, advocate charges & contingent deposit of vat has become infructuous. Otherwise also, the issue qua legality of above demands raised, has already been settled by this Commission in Consumer Complaint bearing No.32 of 2017 titled Kavita Devi Vs. M/s DLF Homes Panchkula Pvt. Ltd. decided on 17.05.2017 alongwith which, 12 connected complaints were also decided. Except the demand on account of contingent deposit of vat & advocate charges, this commission held the other demands raised to be legal and valid. The view held in Kavita Devi’s case (supra) qua demands raised holds good in this case also.

29.          It was agreed by the counsel for the Opposite Party that demand raised on account of contingent deposit of Vat in the sum of Rs.22,916/- shall be payable by the complainant, as and when the same becomes payable by the Opposite Party to the Government.

30.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, within the stipulated period of 24 months and extended period of 12 months on account of force majeure conditions. As stated above, in the instant case, the Opposite party did not deliver possession within 24 months as stipulated in Independent Floor Buyer’s Agreement and thereafter within extended period of 12 months, from execution of the Agreement on 27.01.2011 i.e. by 26.01.2014. There is, thus, inordinate delay of around 2 years, even beyond the extended period. As already stated above, possession of the unit, in question, was offered by the Opposite Party on 15.11.2016. Clearly there is delay in offering possession on account of which, the complainant deserves 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.

31.        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.”

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

33.        Thus, keeping in view the principle of law laid down by the Hon’ble National Commission, in the cases, referred to above, and position stated above, the complainant is entitled to grant of compensation in the form of simple interest @12% on the deposited amount for the period of delay, beyond two years plus one year extended period i.e. w.e.f. 27.01.2014 up-to + 2 months from the date of offer of possession. The possession having been offered on 15.11.2016, the complainant shall be entitled to compensation up-to plus 2 months from 15.11.2016 i.e. 14.01.2017 (30 days for making payment + 30 days grace period). The complainant is, thus, held entitled to compensation by granting interest @12% on the deposited amount for the delay period as above.

34.         The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to her, for inordinate delay in delivering physical possession of the unit to her, by the Opposite Party, by the promised date in the Agreement. Admittedly, the possession of unit, in question, has been offered to the complainant on 15.11.2016. The complainant has been adequately compensated by granting 12% interest for the delay period as stated above. The price of the unit, in question, is escalation free. The complainant shall also get the benefit of escalation in price of the unit. The compensation in the sum of Rs.3 lacs claimed by the complainant is on the higher side. Grant of compensation in the sum of Rs.1,50,000/- would serve the ends of justice. Under these circumstances, the complainant is held entitled to compensation in the sum of Rs.1,50,000/-.

35.        Similarly, in three consumer complaint bearing No.977 of 2016 and 146 & 156 both of 2017, particulars of which are given hereunder, possession of the unit(s), in question, stands delivered to the complainant(s), in terms of interim orders passed by this Commission, after deposit of the amounts, towards demands raised vide offer of possession letters, minus the demand qua component of contingent deposit of vat. This was admitted by the Counsel for the parties during arguments.

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.	Date on which possession taken	Whether amount deposited	Whether documents submitted	DLI if any (Rs.)
1.	977/2016	07.02.2011 (Undertaking dated 09.08.2014)	06.02.2014	15.10.2016	28.03.2017	Yes on 03.01.2017	Yes	Rs.1,964/-
2.	146/2017	07.01.2011	06.01.2014	15.11.2016	18.04.2017	Yes on 28.02.2017	Yes	Rs.2,684/-
3.	156/2017	07.01.2011	06.01.2014	14.01.2016	20.04.2017	Yes on 22.02.2017	Yes	Rs.1,68,433.85

 

36.        In the chart submitted by Counsel for the Opposite Parties, it was clearly stated by counsel for the Opposite Parties, that in the aforesaid three complaints, possession of the unit(s), in question, stood delivered to the complainant(s) on 28.03.2017, 18.04.2017 & 20.04.2017 respectively, after receipt of amount towards the demand raised vide offer of possession letters minus contingent deposit of vat.

37.        It may be stated here that in complaint No.156 of 2017, at Sr. No.3 in the above table, after delivery of possession of the unit, in question, to the complainant(s) on 20.04.2017, as stated by the Counsel for the complainant(s) and the Opposite Parties, sale deed also stands executed on 28.06.2017.

38.        Therefore, in complaints bearing Nos.146 of 2017 & 156 of 2017, the complainant(s)s are held entitled to compensation @12% p.a. interest for the delay period, after 2 years plus 1 year extended period, up-to + 2 months from the date of offer of possession. However, the complainants in Complaint No.977/2017, being second allottees, furnished an undertaking on 09.08.2014 (Page 256 of the written statement) not to claim compensation on account of delay possession. The unit was transferred in their favour on 30.08.2014. In view of ratio of judgment of this Commission in case ‘Lt. Col. Naveen Suri Vs. DLF Homes Panchkula Pvt. Ltd.’, Complaint No.71 of 2016, which was decided alongwith other complaints vide order passed in Complaint Case No.54 of 2016 titled Hari Ram Dangra & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.’ on 25.07.2016, the complainants are entitled to compensation @12% p.a. w.e.f. 30.08.2014.

39.        The complainant(s) are also entitled to compensation for mental agony, harassment and deficiency in rendering service.

40.        In Consumer Complaints bearing Nos.977 of 2016 & 146 of 2017, the complainant(s) 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.

41.        However, in Consumer Complaint bearing Nos.156 of 2017, there has been DLI in the sum of Rs.1,68,433.85, against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainants, in this case, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/-, would serve the ends of justice.

42.        In following 3 complaints bearing No.6, 53 and 217 all of 2017, particulars of which are indicated in Table-II below, the possession of the unit(s) was offered by the Opposite Parties on the dates indicated against the respective complaints:-

TABLE-II

 

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 and documents deposited after offer of possession.	Whether documents submitted	DLI (Rs.)
A.	B.	C.	D.	E.	F	G	H
1.	6/2017	07.01.2011	06.01.2014	26.10.2016	Yes on 06.02.2017 in terms of this Commission order dated 20.01.2017	Pending	Rs.78,628.34
2.	53/2017	21.12.2010	20.12.2013	08.06.2016 (Again offered on 29.05.2017)	Yes, last payment on 14.04.2017 In terms of this Commission order dated 20.01.2017	Documents pending (Amount towards Welfare yet to be deposited)	Rs.3,85,993.64
3.	217/2017	17.01.2011	16.01.2014	26.10.2016	Yes on 28.04.2017	Documents pending (Amount towards Welfare yet to be deposited)	Rs.6,987.38

 

43.        In complaint cases No.6 & 217 both of 2017, no demand qua stamp duty and registration charges has been raised while offering possession. However, in complaint case No.53 of 2016, demand towards stamp duty and registration charges to the tune of Rs.2,82,228/- was raised in the offer of possession letter dated 08.06.2016.

44.        As per offer of possession letter(s) placed, on record, in complaint cases Nos.6 & 217 of 2017, six months’ time was given to the complainant(s) to complete the formalities and make the payment, which has already lapsed.

45.          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(s) at the time of registration/execution of sale deed.

46.        Ms. Ekta Jhanji and Sh. Parveen Jain, 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.

47.        In all the above three complaints, amount(s), demand(s) whereof were raised vide offer of possession letters, minus contingent deposit of vat, stood deposited by the complainant(s). However, the requisite documents and the demand raised towards Welfare Fund have not been submitted/paid by the complainant(s).

48.        In Complaint Case No.6 of 2017, it was stated by Counsel for the Opposite Parties that reminder was sent to the complainant(s) on 29.05.2017 to take possession.

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

50.        Therefore, in all the aforesaid three complaints, particulars of which are given in Table-II, 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).

51.        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.

52.        The complainant(s) in the aforesaid complaints, are also entitled to compensation for mental agony, harassment and deficiency in rendering service.

53.        In Consumer Complaint bearing No.217 of 2017, the complainant(s) are held entitled to compensation in the sum of Rs.1,50,000/-, on account of mental agony, physical harassment and deficiency in service.

54.        However, in Consumer Complaint bearing Nos.6 & 53 both of 2017, there has been DLI in the sum of Rs.78,628.34 & Rs.3,85,993.64, against the complainant(s). Delay in payment of installments partly contributes to delay in completion of unit. Therefore, the complainant(s), in these cases, are not entitled to same amount of compensation. Grant of compensation in the sum of Rs.1,25,000/- and Rs.1,00,000/-, respectively 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.957  & 977 of 2016, 6, 53, 146, 156 and 217 all of 2017 are partly accepted, with costs, in the following manner:-

Consumer Complaints bearing No:

 

957 of 2016, 977 of 2016, 146 of 2017

 

             In the above complaint cases, possession of the unit(s) stood delivered to the complainant(s).

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

(i)	Execute and get registered the sale deed 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 27.01.2014, 30.08.2014 & 07.01.2014 respectively till 14.01.2017, 14.12.2016 & 14.01.2017 respectively, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.              For failure of 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, 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, on account of mental agony, physical harassment and deficiency in service and Rs.35,000/-, in each case, 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 till realization.

Consumer Complaints bearing No:

 

156 of 2017

 

             In the above complaint case, possession of the unit stood delivered to the complainant(s) and sale deed has also been executed on 28.06.2017.

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

(i)

To pay compensation, by way of interest @12% p.a., on the deposited amount(s), to the complainant(s), with effect from 07.01.2014 till 13.03.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amount(s) shall carry penal interest @15% p.a., instead of 12% p.a., from the date of default, till realization.        For failure to deliver possession within 30 days from the date of making payment by the complainant(s), for such delay beyond 30 days, till delivery of possession on 20.04.2017, the Opposite Parties shall pay compensation by way of interest @12% p.a. on the deposited amount within 45 days and in the event of default, interest @15% p.a. shall be payable.

(ii)

Pay compensation in the sum of Rs.1,25,000/-, 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 till realization.

Consumer Complaints bearing No:

 

6, 53 and 217 all of 2017

 

             In complaints bearing No.6 & 217 both of 2017, the Opposite Parties have offered possession in October 2016, (except complaint bearing Nos.53 of 2017, in which possession was offered on 08.06.2016). The amount towards demand raised, except the demands towards, contingent VAT deposit and Advocate charges stands deposited by the complainants in all the above cases. However, documents are yet to be submitted. Payment of welfare fund is also pending in Complaint Cases No.53 & 217 of 2017.  The Opposite Parties shall hand over possession after removing the snags, if any, within 30 days.

             The Opposite Party (ies), 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 07.01.2014, 21.12.2013 & 17.01.2014 respectively up-till two months from the date of offer of possession i.e. up-to 25.12.2016, 07.08.2016 & 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 Opposite Parties to deliver possession within 30 days from the date of making payment by the complainants, for such delay, beyond 30 days, compensation by way of interest @12% p.a. on the deposited amount for each month, till possession is delivered, shall be payable by 10th of the following month and failure shall entail penal interest @15% p.a. instead of 12% p.a. till payment is made.
(iv)	Pay compensation in the sum of Rs.1,50,000/- [in CC No.217 of 2017], Rs.1,25,000/-[in  CC No.6 of 2017] & Rs.1,00,000/- [in CC No.53 of 2017], 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.

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 shall attract simple interest @12% per annum.

59.        Certified copy of this order, be placed on the file of consumer complaints bearing Nos.977 of 2016, 6, 53, 146, 156 and 217 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.

18.07.2017

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

(DEV RAJ)

MEMBER

 

 

(PADMA PANDEY)

MEMBER

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