Haryana

Panchkula

CC/83/2016

HARBHAJAN SINGH BAINS. - Complainant(s)

Versus

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

COMPLAINANT IN PERSON.

27 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                            

Consumer Complaint No		83 of 2016
Date of Institution		12.04.2016
Date of Decision		27.09.2016

                                                                                          

Harbhajan Singh Bains S/o Capt. Sadhu Singh and Priya Bains W/o Sh.Alok Kumar, both R/o H.No.122, Shivalik Enclave, NAC, Chandigarh-160101.

                                                                                          ….Complainants

Versus

 

1.       M/s DLF Homes, DLF Valley Panchkula, through its MD, SCO No.190-192, Sector 8-C, Chandigarh.

2.       M/s DLF Ltd, DLF Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase 1, Gurgaon.

                                                                        ….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Abhineet Taneja, Adv., for the complainant. 

                             Mr.Gaurav G.S.Chauhan, Adv. for the OPs.

 

ORDER

(Dharam Pal, President)

1. The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that they were allotted an independent floor No.E-2/11 SF measuring 1550 sq. ft. vide letter dated 03.04.2010 for an amount of Rs.34,59,599.74 and paid Rs.4,00,000/- on 28.03.2010 as booking amount. The Ops also issued 2 years construction linked payment plan with commitment that physical possession of floors would be handed over within 2 years i.e. on 28.03.2012. The complainant paid the installments regularly to the Ops whenever he received demand notice from the Ops.  At the time of floating the scheme, the DLF Homes was not having necessary sanctions & approvals from the competent authorities to construct the floors. Due to this, the OPs did not enter into an agreement with the complainant for almost a year,  but the Ops kept taking installments from the complainants. In the agreement, it was written that the possession of the floor would be given within 24 months from the date of agreement whereas in the allotment letter, the Ops stated that the possession would be given within 24 months from the date of application even although the complainants had paid 50% amount of the floor when the agreement was signed. The Ops cheated the complainants by entering into agreement whereas they were not even owners of the land where the project was to be set up and on the page No.5 of the agreement, it was also mentioned that the owners of the property are M/s Gavel Builders Construction Pvt. LTd., M/s Kenya Builders, M/s Jingle Builders, M/s Morina Builders, M/s Morven Builders, M/s Jesen Builders, M/s Morgan Builders,  Sh.Ghanshyam,  Sh.Vivek Singh, Sh.Rajpal, Sh.Mehar Singh and Sh.Nirmal Singh.  It was not understandable that how the Ops were competent to float the scheme without owing the property.  The Ops also informed the complainants that there was delay in handing over the possession as there was a stay from the Hon’ble Supreme Court.  Now the Ops offered the possession of floor vide their letter dated 03.02.2016 after a period of 6 years instead of 2 years.  The Ops used to collect huge amount from the complainants and other allottees on account of EDC but the said amount was neither demanded from the Ops by competent authority nor the Ops deposited the same with the competent authority, therefore, the Ops are liable to refund the excess amount of EDC and IDC and the interest on it.  The Ops had also charged Rs.2,42,171.98 and Rs.16,274.94 as interest whereas the complainants had paid all demands made by the Ops well in time whenever a demand notice was received by the complainant. The Ops had charged Rs.7233.02 as interest on delayed payment and the Ops alleged that the complainants had delayed the payments in November, 2011 and in January, 2013 whereas the Ops have unilaterally condoned the delay upto 30 days. The Ops also demanded service tax from the complainants which was paid to the Government and the service tax was to be paid from the year 2013. However, the Ops charged Rs.4,02,000/- extra plus taxes for additional area. The Ops never took consent from the complainant to increase the area of the floor so the complainants are not liable to pay extra amount and also any tax on it. It is further alleged that the brokerage charges had been paid to some company named Avni Estates. The complainant did not know that company and never entered into an agreement into with Avni Estates as our broker agent then how come they were paid brokerage charges. The Ops issued letter dated 03.02.2016 and statement of amount in which the complainant had paid Rs.44,12,708.93 against the initial cost of Rs.34.59 laks and the Ops charged Rs.10 lacs extra from the complainants. This act of the OPs amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed their joint written statement by taking some preliminary objections & submitted that “The Valley, Panchkula” being developed by the Ops is a residential plotted colony situated at Sector-3, Pinjore-Kalka, Urban Complex. It is submitted that the said project is spread over 175 Acres of land situated at Village Bhagwanpur, Islamnagar at Sector-3, Pinjore, Kalka Urban Complex launched by the Ops in 2010. It is submitted that the Ops have already completed construction of all 771 Independent Floors on 257 Plots and another 1020 built up units are nearing completion. It is submitted that out of 1791 built-up units, occupation certificate has been received for 771 units and as on date 140 units have been offered for possession to the owners. It is submitted that proper water connection and electricity supply is in place and full housekeeping and maintenance service are being provided through leading multinational Company namely Jones Lang Lasalle. It is submitted that the agreement between the parties were executed in May 2013 which was duly signed and executed by each allottee after properly understanding each and every clause contained in the agreement. It is submitted that the terms of the agreement are binding between the respective parties. The complainant does not fall within the ambit of consumer. Further, the Ops have acted in accordance with the terms and conditions of the Buyers Agreement. It is submitted that the complainant was duly aware that under clause 1.6 of the Independent Floor Buyers Agreement, that the building plans/layout plan were subject to change and were not yet approved. The relevant extract of the clause is as under:-

1.6 The Allottee understands that the building plan/layout plan of the said project/said Independent Floor are not yet sanctioned by DTCP and further the building plan/layout plan is subject to change as per the sole discretion of the Company or as directed by the DTCP.

It is submitted that the complainant was duly informed about the schedule of possession as per clause 11 (a) (b) and (c) of the Apartment Buyers Agreement entered into between the complainant and Ops that the Company endeavored to complete the construction of the said project within 24 months unless there is delay due to a force majeure condition or due to reasons mentioned in 11(b) and 11(c). It is submitted that even though the possession was to be given within a period of two years, there was a stay on construction in furtherance of the direction of the Hon’ble Supreme Court vide order dated 19.04.2012 in SLP No.21786-88/2010. It is submitted that the construction activities at the project site had been put in abeyance and no further activities would be carried out and the Ops had informed the complainant about the stay of Hon’ble Supreme Court. It is submitted that the Ops could not be liable for the delay or failure due to Force Majeure conditions or continuance of any Force Majeure conditions which stipulated in clause 43 of the agreement that:-

“The Company shall not be liable to perform any of its obligations or undertakings provided in the Agreement if such performance is prevented due to Majeure conditions or continuance of any Force Majeure condition(s).”

It is submitted that the complainant applied for the independent floor in the project of the Ops on April 03, 2010. Subsequently, a writ petition bearing No.6230/2010 was filed before the Hon’ble Punjab and Haryana High Court and vide order dated 06.04.2010, the Hon’ble High Court restrained the Ops from creating any third party right and had also directed to ensure that the nature of the land shall neither change nor any further construction activity should be carried out. It is submitted that an appeal assailing the order dated 06.04.2010 of the Hon’ble High Court was filed before the Hon’ble Supreme Court wherein the aforesaid order dated 06.04.2010 was stayed by the Hon’ble Supreme Court on 23.07.2010. It is submitted that the delivery of possession of the Independent Floor was delayed on account of force majeure i.e. a pending litigation before the Hon’ble Supreme Court. Thereafter, a Special Leave Petition bearing No.21786-88/2010 was filed before the Hon’ble Supreme Court of India and vide its order dated 19.04.2012, the Hon’ble Supreme Court stayed the construction activities at the project site kept it in abeyance and the Ops were compelled not to carry out any further construction at the site in pursuance to the directions that led to delay in handing over possession, the same being entirely beyond the control of the Ops. It is submitted that the project was launched in four phases and on the date of passing of the aforesaid stay order apprx. 40% work at the site stood completed for the first phase and a little less than that for the remaining phases. Thereafter, the Hon’ble Supreme Court vide order dated 12.12.2012 dismissed the Special Leave Petition and vacated the stay order & to which the Ops made an endeavor to immediately resume the construction at the project site. It is submitted that there was considerable difficulty for the Ops to gather the work force and to resume construction activity in the project. It is submitted that the delay in handing over the possession of the Independent Floor was attributable to the delay in receiving statutory approvals beyond the control of the Ops. It is submitted that the Ops sought approval regarding revision in layout plan on 11.03.2013 which were received on 06.09.2013 after constant follow upon with the concerned authorities. Thereafter, the Ops vide its letter dated 20.05.2013 sought approval with respect to service plans which received on 14.08.2014 to the Ops. It is further submitted that the Ops had applied for Occupation Certificate on 18.03.2015 and the same was received on 10.07.2015. However, the complainants did not complete the payments and documentation, even though the complainants vide letter dated 03.02.2016 were requested to do so and the physical possession of the floor could not be handed over to the complainants, therefore, the Ops cannot be held liable for any deficiency in service or unfair trade practice. Moreover, the complainant has not approached this Forum with clean hands and is trying to raise such type of issues at belated stage. It is submitted that the complainants were allotted floor No.E2/11-SF vide allotment letter dated 03.04.2010 and paid Rs.4,00,000/- on 28.03.2010 at the time of booking of the floor and thereafter, the payment was to be paid by the complainants as per the payment schedule forming part of the application for allotment. It is submitted that the complainants being a Government Employee were granted an additional discount of 5% vide letter dated 07.05.2010. It is submitted that the total value of the plot was Rs.35,37,099.72 plus service tax of Rs.78,763/-. It is submitted that the Independent Floor Buyers Agreement was executed between the complainants and Ops on 25.01.2011. It is submitted that as per final statement of account sent to the complainants, they were to pay Rs.12,47,230.06 which had not been paid. It is denied that as per payment plan with the allotment letter dated 03.04.2010, the possession was to be handed over to the complainants within 2 years from the date of booking. It is denied that the Ops in their letter of allotment had committed that the possession should be given within 24 months from the date of application for allotment. It is submitted that after 8 months of execution of letter of allotment, the Ops executed Builder Buyer’s Agreement dated 25.01.2011. It is submitted that the OPs apart from being responsible for the construction, management, marketing etc. of the project was also constructing it under its own brand name, in collaboration with different land owners, with whom the Ops had executed all the necessary agreements, therefore the Ops committed no cheating on the complainants by executing an agreement with them individually. It is submitted that letter of possession has been issued to the complainants. However, rather than taking the physical possession, the complainants choose to file the present complaint. It is submitted that the charging of EDC & IDC is purely a transparent transaction between the Ops and the State Government and the same were levied as per the notifications issued by the competent authority and the said payment is further paid by the developer of the project as per the schedule of payment opted by the buyer. It is submitted that the complainants had opted the payment plan in installment/construction link, thus the amount was 7% distributed in all components. It is submitted that as per clause 9 & 10, the Ops have every right to increase/decrease the saleable area and to demand the enhanced price from the buyer. It is submitted that the Ops vide letter dated 03.02.2016 demanded an amount of Rs.1,59,394/- on account of other charges out of which the complainants had already paid Rs.80,866/- and only Rs.78,528/- is remaining which was reflected in the final statement of account. It is submitted that the demand under the head of other charges, are strictly in terms of clause 1.11 and the same has been demanded on duly certification the Charted Accountant. It is submitted that the demand of Rs.1,32,143/- in final statement of account under the cost of electricity expenditure was in order to provide basic infrastructure like HT Feeder, EHT sub-station etc. as per clause 23 of the Agreement. Thus, there is no unfair trade practice and deficiency in service on the part of OPs and prayed for dismissal of the complaint.

3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure CA alongwith documents Annexure C1 to C5 and closed the evidence. On the other hand, the counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 to R-17 and closed his evidence.
4. We have heard the learned counsel for the parties and have also perused the record.
5. It is evident on record that the complainants were allotted an independent floor No.E-2/11 SF measuring 1550 sq. ft. vide allotment letter dated 03.04.2010 and they opted for 2 years construction linked payment plan with commitment that physical possession of floors would be handed over within 2 years i.e. on 28.03.2012. Independent Floor Buyer’s Agreement dated 25.01.2011 (Annexure C5) was executed between the complainants and the Ops, as per which, the total price was Rs.34,59,599.72 i.e. basic sale price Rs.26,66,774.96  external/internal development charges of Rs.3,34,427.93 + PLC Rs.2,16,224.97. In addition to the total price and other charges mentioned in the agreement clause 1.1, charges as mentioned in clause 1.4 of the agreement i.e. membership fee of Rs.30,000 for 5 years, Rs.6000 per annum as annual club charges and Rs.20,000 as refundable security deposit, were payable. Further, as per clause 11 (a), the Ops 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. There was a stay on construction activities by the Hon’ble Supreme Court of India from 19.04.2012 to 12.12.2012 on account of which, the Ops sought extension of time for one year, to which the complainants agreed. Since the Independent Floor Buyer’s Agreement was executed between the parties on 25.01.2011 and period stipulated therein for handing over possession was to commence from the date of execution of the same (agreement). It is also not disputed that possession of the unit, in question, was offered by the Ops to the complainants only on 03.02.2016 vide Annexure C-3, whereby the Ops also raised a demand of Rs.11,64,568.06.
6. An objection was raised by Counsel for the Opposite Parties that the complainants filed this complaint to amend/modify/rewrite the concluded Agreement duly executed between them and the Opposite Parties, purely to invoke jurisdiction of this Commission. It was further stated that the complainants were virtually inviting this Forum to assume powers conferred under the Civil Court and, therefore, this Forum did not have the jurisdiction to entertain and decide the complaint. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the unit, in question, in the manner, referred to above. According to Clause 11 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the unit, in question, within a period of 24 months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 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

7. From the afore-extracted Section 2(1)(o) of 1986 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 1986 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 remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 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. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
8. 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 is 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 dealers, and are indulged in sale and purchase of property, on regular basis. 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. The complainants are seeking possession, which means that they purchased the same for their residence. Otherwise also, in a case titled as  Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd., 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held 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. 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.
9. Another question, which falls for consideration, is, as to whether the complainants are required to make payment in the sum of Rs.11,54,560.06, demand whereof has been raised by the Opposite Parties, while offering possession vide letter dated 03.02.2016 (Annexure R-17). The break-up of the demand raised is as under:-

1.	Basic Sale Price	Rs.120012.70
2.	External Development Charges (EDC)	Rs.57720.29
3.	Internal Development Charges (IDC)	Rs.2014.26
4.	Change in area & PLC as per Clauses No.1.10 and 10 of the Agreement.	Rs.402,000
5.	Service Tax	Rs.23901
6.	Delayed Interest.
7.	Other Charges (as per Clause 11)	Rs.78528
8.	Service Tax	Rs.11387
9.	Electricity, Water, Sewerage charges
	Proportionate cost of electricity expenditure @Rs.58.05 per sq. ft.	Rs.101646
	Electrical Meter and connection charges to individual floor.	Rs.30497
10.	Service Tax	Rs.19161
11.	Contingent Deposit (VAT)	Rs.25477
12.	Club charges	Rs.15000
13.	Service Tax	Rs.2175
14.	Club Security Deposit	Rs.20000
15.	Preferential Location Charges	Rs.11620.81
16.	Stamp duty, Registration charges & Others	Rs.233428
	Total Payable:	Rs.1154560.06

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1. The complainants have disputed the entire demand raised. It may be stated here that as per scheduled of payment against the total price of Rs.34,59,599.74, the complainant made payment of Rs.35,33,035.73. Further the total price of Rs.34,59,599.74 did not mean that nothing beyond this amount was payable by the complainants. It is clearly stipulated at internal page 6 of the Agreement that the total price of the unit did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement, for instance:-
   1. IBMS.
   2. Additional IDC/EDC, wealth tax, government rates, tax on land, fees or levies of all and any kind of whatever name called on the said project, and
   3. Maintenance charges, additional PLC, property tax, municipal tax on the said independent floor, and 
   4. Charges for any additional parking space(s) other than the parking space(s) which will be charged at the then prevailing rate and will be offered subject to availability, and
   5. Stamp duty, registration and incidental charges as well as expenses for execution of the Agreement and conveyance deed (which are to be borne and paid by the allottee); and
   6. Taxes; and
   7. Club charges;
   8. Power back up charges, as applicable; and
   9. The proportionate cost of installation of equipments for procuring and supplying electricity, cost for electric and water meter as well as charges for water and electricity connection/consumption; and
   10. Any other charges that may be payable by the allottee as per the other terms of the Agreement and such other charges as may be demanded by the Company. 

Besides, as per Clause 1.11 of the Buyer’s Agreement, the complainants agreed that in addition to total price, the complainants shall be liable to pay all taxes as stipulated therein.

11. Insofar as demand of Basic Sale Price (Rs.1,20,012.70), External Development Charges (Rs.57,720.29) and Internal Development Charges (Rs.2,014.26) is concerned, these amounts, as per stipulation at internal Page 7 of Independent Floor Buyer’s Agreement were to be paid by the complainants (allottees) in accordance with the terms and conditions of the application/agreement and as per demand raised by the Company from time to time. From perusal of application form annexed by the Opposite Parties alongwith their written statement, at page 152, it clearly transpires that 5% of Total Price + IBMS + Club + Registration + Stamp Duty + Other Charges, if any, were payable at the time of offer of possession. Thus, clearly, the demand qua Basic Sale Price (Rs.1,20,012.70), External Development Charges (Rs.57,720.29) and Internal Development Charges (Rs.2,014.26), being justified, is payable by the complainants. In addition to these preferential location charges of Rs.11,620.81 is also payable.
12.  As regards demand raised in the sum of Rs.4,02,000/-  on account of change/increase in the area in terms of Clause 10 of the Agreement, the complainants have specifically submitted that since increase in area, in terms of Clause 10 aforesaid, is more than 15%, their (complainants) consent was required and, therefore, the demand raised on this account is illegal. Increase in area is slightly higher than 15%. It may be stated here that the complainants have not disputed the increase in area by adducing some cogent evidence. In our opinion, the objection raised is technical. No doubt, the Opposite Parties did not comply with the requirement of seeking consent of the complainants, the fact remains that the complainants are seeking possession. It is not the case of the complainants that on account of increase in area, they (complainants), instead of seeking possession, are seeking refund. The complainants could dispute the increase on the basis of cogent evidence by way of report/affidavit of an Engineer/Architect but nothing of that sort has been done. Therefore, the demand raised by the Opposite Parties to this effect, is legal and tenable. In the absence of any cogent evidence by the complainants that increase in area was actually not there, demand of Rs.4,02,000/- cannot be said to be illegal. Therefore, the complainants are bound to pay the same.
13. The other demands raised are on account of other charges i.e. Rs.78,528/- @Rs.91.03 per sq. ft, electricity and water charges @Rs.58.05 per sq. ft. to the tune of Rs.1,01,646/-; electrical meter and connection charges to the floor in the sum of Rs.30,497/- per unit, contingent deposit of VAT @Rs.14.50 per sq. ft. in the sum of Rs.19,161/-; club charges in the sum of Rs.15,000/- and club security deposit in the sum of Rs.20,000/-. The Counsel for the Opposite Parties vehemently argued that all these charges are in accordance with terms and conditions of the Agreement only. As already stated above, at internal page 6 of the Agreement, it was stipulated that the total price was to be calculated on the basis of saleable area of the floor in question, which did not include other amounts, charges, security amount etc., which are payable by the allottee, as and when demanded by the Company in accordance with the terms of the application/agreement. Further in terms of Clause 1.11 of the Agreement, the complainants agreed to pay all taxes, as stipulated therein, in addition to total price of the unit, in question.  Thus, in view of above, the demand raised on account of other charges  plus service tax, is also in accordance with terms and conditions of the Agreement and the same is payable by the complainants.
14.  So far as the demand for stamp-duty and registration charges is concerned, the complainants shall be liable to pay the same after physical possession of the unit, in question, is delivered to the complainants.
15. In view of aforesaid discussion, out of demand of Rs.11,64,568.06, the complainants shall pay Rs.9,31,140.06 i.e. [Rs.11,64,568.06 – Rs.2,33,428 (stamp  duty /registration  charges)].   
16. The next question, which falls for consideration, is, as to whether the development/amenities were complete. The complainants have averred that construction was not complete but no cogent evidence to this effect has been brought on record. The Opposite Parties, in their written statement, have stated that out of 1791 built-up units, they received occupation certificate for 771 units and as on date, 140 units have been offered for possession to the owners. The possession in the instant case stands offered on 03.02.2016. The Opposite Parties have also stated that proper water connection and electricity supply were in place and full housekeeping maintenance services are being provided through leading multinational company. They have placed alongwith their written statement copies of Photographs depicting completion of the project as Annexure R/1B. The objection raised by the complainants to this effect, being without any cogent evidence, is not tenable and the same stands rejected.
17. The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. The complainants in the complaint, besides seeking possession, have also sought compensation @Rs.10/- per sq. ft. per month of the saleable area from 25.01.2013 onwards till the date of actual handing over of legal physical possession. Independent Floor Buyer’s Agreement was executed on 25.01.2011. The Opposite Parties were to complete the construction of the floor, in question, within a period of 24 months from the date of Agreement dated 25.01.2011 i.e. by 25.01.2013. However, as is evident from record, the Opposite Parties failed to offer possession within the stipulated period of 24 months. It is the case of the Opposite Parties that due to force majeure conditions, delay in completing the project partly accrued due to stoppage of work because of stay on construction activities by the Hon’ble Supreme Court of India. In support of their contention, the Opposite Parties placed, on record, copies of order of Hon’ble Supreme Court of India. The operative part of order dated 19.04.2012, inter-alia, reads thus:-

“With a view to avoid further complications in the matter, we direct the State of Haryana and its functionaries and also the impleaded respondents not to undertake further construction on the land which was acquired vide Notification dated 26.9.2007 read with the declaration dated 25.9.2008. This would mean that all the on going construction activities shall be stopped forthwith.”

Undisputedly, the Hon’ble Supreme Court dismissed the SLP No.21786-88/2010 vide its order dated 12.12.2012 and the earlier order dated 19.04.2012 passed by it (Supreme Court) not to undertake further construction at the project land, stood vacated. On account of force majeure circumstances, referred to above, by giving them advantage of 12 months extended period, consent whereof, had been obtained from the complainants, vide letter dated 02.04.2013, the Opposite Parties were required to deliver possession on or before 25.01.2014 but not later than that, whereas the possession has been offered on 03.02.2016. No plausible or convincing reason for delay in delivering the possession has been placed on record. The argument of the Opposite Parties that delay in handing over possession of independent floor was also attributable due to delay in receiving statutory approvals from the competent authorities, the same being absolutely beyond its control, is not tenable. The Independent Floor Buyer’s Agreement was executed on 25.01.2011 and before execution thereof, the Opposite Parties ought to have obtained all the approvals. If permissions for revision in layout plans and service plans were sought on 11.03.2013 and 20.05.2013, approval for which was also received in due course of time, the initial time taken for (more than 2 years) 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, in our opinion, it would not come within the ambit of force majeure condition. The plea taken, therefore, is of no help to the Opposite Parties.

18. No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept in mind, for compensating the complainants for delay, but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.10/- per sq. ft. of saleable area (Clause 19 of the Application Form (at Page 149 of written statement), which is much less than the bank rate for loan or fixed deposit. If the argument of the Opposite Parties is to be accepted, it would lead to an 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 its other business venture, at nominal interest of 3 to 4 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 1986 Act.
19. It may be stated here that in case titled 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 reads 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.”

20. Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the case, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 25.01.2014, till handing over of possession of the unit, would meet the ends of justice.
21. 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, by not delivering physical possession of the unit to them, by the Opposite Parties, by the promised date in the Agreement i.e. by 25.01.2013, plus one year period on account of stay by Hon’ble Supreme Court of India. Thus, the Opposite Parties were duty bound to deliver possession by 25.01.2014. The possession of unit, in question, has been offered to the complainants on 03.02.2016. The complainants, thus, underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties.
22. The Opposite Parties are, jointly and severally, directed as under:-

(i)      To hand over physical possession of the unit, allotted in favour of the complainants, complete in all respects, to the complainants within a period of 30 days, from the date of balance payment is made by the complainnats.

 (ii)    Execute and get registered the sale deed in respect of the unit, in question, within one month from the date of possession is handed over to the complainants. The stamp duty, registration charges and incidental expenses, if any, shall be borne by the complainants.

(iii)    To pay compensation, by way of interest @ 12% p.a., on the deposited amount, to the complainants, from 25.01.2014 till 30.09.2016, within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry penal interest @ 15% p.a., instead of 12% p.a. from the date of default, till realization.

(iv)    To pay compensation by way of interest @ 12% p.a. on the deposited amounts, due to the complainants w.e.f. 01.10.2016, onwards (per month), till possession is delivered, by the 10^th of the following month, failing which, the same shall also carry penal interest @ 15% p.a, instead of 12% p.a., from the due to default, till payment is made.

(v)     To pay compensation of Rs.1,50,000/- to the complainants, on account of mental agony and physical harassment to them, within 45 days from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @ 12% p.a., from the date of filing the complaint till realisation.

(vi)    To pay an amount of Rs.50,000/- to the complainants, as litigation costs, 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.

23. A copy of this order be sent to the parties free of costs. File be consigned to records after due compliance.

 

 

Announced           (S.P.Attri)             (Anita Kapoor)          (Dharam Pal)

27.09.2016           Member                 Member                      President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Dharam Pal                                                                                                President