Chandigarh

StateCommission

CC/207/2016

Anjan Kumar Bhaduri - Complainant(s)

Versus

M/s DLF Universal Ltd. - Opp.Party(s)

Sanjiv Pabbi Adv.

06 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	207 of 2016
Date of Institution	:	12.05.2016
Date of Decision	:	06.09.2016

1. Mr. Anjan Kumar Bhaduri son of Late Shri B. B. Bhaduri, resident of Flat No.202, Property No.E-484, Greater Kailash, Part-II, Delhi-110048.
2. Mrs. Deepasikha Bhaduri wife of Shri Anjan Kumar Bahduri, Resident of Flat No.202, Property No.E-484, Greater Kailash, Part-II, Delhi-110048.

…… Complainants

Versus

1. M/s DLF Universal Ltd., SCO No.191-192, Sector 8-C, Chandigarh through its Manager.
2. M/s DLF Universal Ltd., having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase I, Gurgaon – 122002, Haryana through its Chairman-cum-Managing Director.

....Opposite Parties.

Argued by:- Sh. Sanjiv Pabbi, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	216 of 2016
Date of Institution	:	18.05.2016
Date of Decision	:	06.09.2016

1. Mr. Vineet Kumar son of Shri Kashmiri Lal, Resident of Flat No.205, Sargodha Apartments, Sector 7, Dwarka, Delhi – 110075.

2. Mrs. Pratibha Kumari wife of Mr. Vineet Kumar, Resident of Flat No.205, Sargodha Apartments, Sector 7, Dwarka, Delhi – 110075.

…… Complainants

Versus

1. M/s DLF Universal Ltd., having its Registered Office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon – 122002, Haryana through its Managing Director.

2. M/s DLF Universal Ltd., having its Regional Office at SCO No.190-191, Sector 8-C, Chandigarh – 160009 through its Authorised Representative.

....Opposite Parties.

Complaints under Section 17 of the Consumer Protection Act, 1986.

BEFORE:     JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                   MR. DEV RAJ, MEMBER.

                   MRS. PADMA PANDEY, MEMBER.

 

Argued by:- Sh. Vishal Gupta, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

PER DEV RAJ, MEMBER            

                   The facts in brief are that the complainants are joint allottee of Independent Floor No.HPE-IF-R1-E504-SF/P-R1-E504-SF, Block E, Pocket R1 in Hyde Park Estate, New Chandigarh (Mullanpur PA), Punjab. It was further stated that application for allotment was submitted by the complainants with the Opposite Parties on 12.12.2012 and the proposed flat was allotted on 25.12.2012. It was further stated that Agreement was signed on 27.05.2013. It was further stated that as per the Agreement, the Opposite Parties were under obligation to complete the entire project and hand over possession of the flat, complete in all respects, in 30 months. It was further stated that the period for completion of the entire project named as Hyde Park, Mullanpur (Punjab) was 30 months from the date of allotment of flat. It was further stated that the complainants made payments from time to time as per the demand of the Opposite Parties. It was further stated that the Opposite Parties offered possession on 15.02.2016 (Annexure C-2) by wrongly projecting that the project was complete and also made inflated and frivolous demands under various heads alongwith the offer of possession. It was further stated that as per final statement of accounts, the complainants have paid Rs.70,50,000/- to the Opposite Parties.

2.          It was further stated that the demand of Rs.1 Lac raised on account of parking charges is already embedded in the cost of the land and hence, the Opposite Parties cannot charge the same additionally. It was further stated that since the club house is still under construction, demand raised on account of club house membership charges, is arbitrary and illegal. It was further stated that demand on account of deposit of value added tax is premature and no cause of action has arisen to the Opposite Parties for making such demand. It was further stated that without admitting the liability to pay the VAT, the complainants are ready to submit Indemnity Bond to the satisfaction of the Opposite Parties. It was further stated that the Opposite Parties also wrongly demanded escalation charges before handing over possession and payment of last installment. It was further stated that the construction started in 2012 and it was only in March 2016 that the Opposite Parties realized that there has been escalation in the cost of the project. It was further stated that since there has been no communication from the side of the Opposite Parties regarding any remote possibility of escalation in the cost of the project, the demand raised on this account is not justified. It was further stated that since the construction is not over and possession is yet to be delivered, the demand raised on account of maintenance and security charges is also not justified. It was further stated that the demand towards taxes and cess under Clause 1.12 is not payable.

3.          It was further stated that the complainants are retired senior citizens and as per offer of possession, the total payment payable by the complainants has been increased to the extent of Rs.93,56,775/-, when the total payment payable at the time of allotment was Rs.76,12,348.80. It was further stated that the Opposite Parties are liable to pay compensation to the complainants under the provisions of the Agreement. It was further stated that the complainants also made representation on 20.08.2015 (Annexure C-3) to the Opposite Parties asking for details for not completing the project within 30 months from the date of allotment, which expired in June 2015 but to no avail.

4.          It was further stated that the aforesaid acts of the Opposite Parties amounted to deficiency in providing service and adoption of unfair trade practice. Hence, this consumer complaint was filed by the complainants, seeking directions to the Opposite Parties to withdraw the unreasonable demands claimed vide Annexure C-2 under various heads of escalation charges, parking charges, club membership charges and security deposit and contingent deposit for VAT; or in the alternative refund Rs.70,50,000/- i.e. the complete amount paid by the complainants, alongwith interest @18% interest; Rs.1,50,000/- as compensation for unfair trade practice, harassment and mental agony and Rs.50,000/- as litigation expenses.

5.         The Opposite Parties in their written statement took up certain preliminary objections to the effect that (1) in the face of arbitration clause contained in the Agreement, dispute if any, was required to be referred to an Arbitrator, as such, the consumer complaint was not maintainable; (2) that the parties are bound by the terms and conditions mentioned in the Agreement; (3) that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint; (4) that the sale of floor/plot of land simpliciter ousts the jurisdiction of 1986 Act and that the present complaint has been filed to evade the holding charges and other charges.

6.          On merits, it was stated that the complainants were allotted a floor bearing No.R-E504-SF vide allotment letter dated 25.12.2012 measuring 1880 sq. ft., now increased by 17 sq. ft. It was admitted that Independent Floor Buyer’s Agreement was executed on 27.05.2013. It was further stated that the complainants were in habit of not following the payment plan schedule. It was further stated that possession of the floor was offered vide letter dated 15.02.2016 alongwith final statement of accounts. It was further stated that the complainants have not made the payment till date and thus, breached the terms and conditions of contract and committed default.. It was further stated that neither the complainants have made the payment of CAM charges nor of holding charges. It was further stated that the complainants are well aware that all the demands, which have been raised in the FSA are as per the terms and conditions of the Agreement.

7.          It was further stated that parking charges were claimed in accordance with Clause 18 of the terms and conditions of allotment, annexed with the application form (Annexure R-2), as parking space allotted to the complainants shall be an integral part of the independent floor, which cannot be sold/dealt with independent of the said independent floor. It was further stated that  the complainants have no right, title or interest in other unreserved car parking spaces, if any, available to the visitors/other applicants/users in the said project. As regards club house membership charges, it was stated that as per Clause 1.6 of the Agreement, in addition to the total price and other charges mentioned in the application/agreement, the complainants were required to pay towards the club facilities such as membership fee of Rs.1,50,000/- for five years, annual club charges of Rs.6,000/- per annum and refundable security deposit of Rs.20,000/-. It was further stated that the demand raised in the FSA under the heading of Value Added Tax is as per the terms and conditions of the Agreement. It was further stated that the demand of escalation charges was raised as per clause 1.2 of the Agreement and all such demands have duly been certified by the Chartered Accountant vide certificate (Annexure R-6). It was further stated that demand towards maintenance and security charges was as per Clauses 17 and 18 in the Agreement. It was further stated that the denial for compensation of delay is due to not paying the installments in time by the complainants and, therefore, they (complainants) are not entitled to any compensation for delay in handing over possession of the unit, in question. It was further stated that the demand for taxes and cess is as per Clause 1.12 of the Agreement.

8.          It was further stated that the complainants are themselves guilty on all the counts as they have not released the payment against the final statement of account since the date of offer of possession i.e. 15.02.2016. It was further stated that the complainants have not come forward to take possession of the unit, in question. It was further stated that the Opposite Parties were neither deficient, in rendering service nor they indulged into unfair trade practice. The remaining averments, made in the complaint, were denied.

9.          The complainants, in support of their case, submitted the affidavit of Sh. Anjan Kumar Bhaduri, complainant No.1, by way of evidence alongwith which, a number of documents were annexed.

10.        The Opposite Parties, in support of their case, submitted joint affidavit of Sh. Shiv Kumar and Sh. Mahinder Singh, their authorized signatories, by way of evidence, alongwith which, a number of documents were annexed. 

11.        Despite opportunity afforded, the complainants did not file any rejoinder.

12.        We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.  During arguments, the counsel for the complainants stated that the complainants confine their prayer for refund alongwith other reliefs.

13.        Admittedly, with reference to application dated 08.12.2012, the complainants were allotted Independent Floor No.IF-R1-E504-SF with parking space bearing No.IF-R1-E504-SF, in the project of the Opposite Parties, namely ‘Hyde Park’. As per complaint, total price including External Development Charges, Parking space etc. was Rs.76,12,348.80Ps. As per stipulation in clause 1.4, the complainants were to make payment of the total price as per payment plan set out in Annexure III to the Agreement alongwith other charges, taxes and cess, securities, deposits etc. and increases thereof as mentioned in the Agreement; escalation charges as per clause 1.2, taxes and cesses as per clause 1.12, club house membership charges in terms of clause 1.6, maintenance charges as per clauses 17 and 18 of the Agreement, IBMS calculated at the rate of Rs.538/- per sq. mtr. (Rs.50/- per sq. ft.), as and when demanded by the Opposite Parties – Company,. Computing 30 months period for delivering possession, from the date of application viz. 8.12.2012, the possession was to be delivered by 07.06.2015. The possession, has, however, been offered vide letter dated 15.02.2016 i.e. after delay of 8 months. The case of the complainants is that development is not complete and demand raised in the sum of Rs.15 lacs out of Rs.22,96,441/- is not justified.

14.             The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of  1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. This question has already been elaborately dealt with by this Commission in Consumer Complaint No.213 of 2016 titled ‘Gobind Paul Vs. Emaar MGF Land Limited & Another’ decided on 16.08.2016. Paras 8 to 15 of the said order, inter-alia, relevant, are extracted hereunder:-

                    “8……….To decide above said question, it is necessary to reproduce the provisions of  Section 3 of the Consumer Protection Act 1986 (in short the Act), which reads as under;

“3. Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

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

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

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

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

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

9.                 Many a times, by making reference to the provisions of Section 8 of 1996 Act, in the past also, such objections were raised and the Hon'ble Supreme Court of India, when interpreting the provisions of Section 3 of 1986 Act, in the cases of Fair Air Engg. Pvt. Ltd. & another Vs. N. K. Modi (1996) 6  SCC 385, C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. (2003) 7 SCC 233, Rosedale Developers Private Limited Vs. Aghore Bhattacharya and others, (Civil Appeal No.20923 of 2013) etc., came to a conclusion that the remedy provided under Section 3 of 1986 Act, is an independent and additional remedy and existence of an arbitration clause in the agreement, to settle disputes, will not debar the Consumer Foras, to entertain the complaints, filed by the consumers.

10.               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.”

 

11.               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.

12.               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-à-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.

13.               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 have spent his life savings to get a unit, for their 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 up-to 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.

14.               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 unit, in the said project, launched by the opposite parties. However, his hopes were shattered, when despite making substantial payment of the sale consideration, they failed to get possession of the unit, 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.

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

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

15.        In view of the above, the objection raised by Counsel for the opposite parties that in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint, being devoid of merit, is rejected.

16.          Another objection raised by the Opposite Parties is that complaint in respect of sale of plot of land simpliciter does not fall under 1986 Act and cannot be entertained by this Commission, which could only be raised before and dealt with by a Civil Court and, as such, is beyond the scope and jurisdiction of this Commission. It was also stated that parties did not enter into any contract for hiring of services. It may be stated here that the objection raised by the Opposite Parties, needs rejection, in view of Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014 (AIR 2014 S.C. 1766), wherein the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh & Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. Thus, since, it was bounden duty of the Opposite Parties to provide basic facilities and infrastructure to make the flat habitable, as such, it cannot be said that only an apartment was to be delivered to the complainant, without any amenities/facilities. Under similar circumstance, in Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  the National Commission, held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

17.        It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing the plot, in question, in the manner, referred to above. According to Clause 11(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the apartment, in question, within a period of thirty months, from the date of application. 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”

 

18.        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.’s case (supra),  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.’s case (supra). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, 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 consumer, as stated above. 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.

19.        The next question, which falls for consideration, is, as to whether there was delay in offering possession of the unit, in question, beyond the period stipulated in the Independent Floor Buyer’s Agreement. As is evident from record, the complainants submitted application dated 08.12.2012 for allotment. The unit was allotted on 25.12.2012 and Independent Floor Buyer’s Agreement was executed between the parties on 27.05.2013. As per Clause 11(a) of the Agreement, the Company was to endeavor to complete construction of the independent floor within a period of 30 months from the date of the application unless there was delay or failure due to reasons mentioned in Clauses 11(b) and 11(c) or due to failure of the allottee to pay in time the total price and other charges, taxes and cesses, deposits, securities etc. and dues/payments or any failure on the part of the allottee to abide by all or any of the terms and conditions of the Agreement. Clause 12 of the Agreement stipulated that company upon obtaining certificate of occupation and use from the Governmental Authority, shall offer in writing, possession of the independent floor to the allottee in terms of the Agreement to be taken within 30 days from the date of issue of such notice and the Company shall give possession provided the allottee is not in default of any terms and conditions of the Agreement and has complied with all provisions, formalities, documentation etc., as may be prescribed by the Company in this regard. In the instant case, 30 months period from the date of application expired on 12.06.2015. The possession of the unit, in question, was offered vide letter dated 15.02.2016, meaning thereby that there was delay of around eight months in offering possession. No reason or circumstances, which were beyond the control of the Opposite Parties for such delay, have been explained. There is, thus, delay in offering possession of the allotted unit.

20.        While offering possession vide letter of possession dated 15.02.2016, the Opposite Parties raised demand on account of the following:-

1.(a)	Basic Sale Price	Rs.3,52,500.00
	EDC (External Development Charges	Rs.10,743.14
	Parking Charges	Rs.4,870.66
(b)	Change in Area & PLC	Rs.63,750/-
	Service Tax	Rs.15,266.00
II.	Other charges vide clause no.1.12 of the Floor Buyer’s Agreement @Rs.159.83 per sq. ft.	Rs.3,03,198.00
	Service Tax @14.50%	Rs.43,964.00
III.	Main Power Supply, Power Back-Up, Electricity, Sewer & Water Connection Changes etc. as per relevant clauses of the Floor Buyer’s Agreement Proportionate cost of expenditure @Rs.88.92 per sq. ft.	Rs.1,68,681.00
	Service Tax @14.50%	Rs.24,459.00
IV.	Escalation charges, as applicable (Refer clause no.1.2 of the Floor Buyer’s Agreement)	2,18,351.00
	Service Tax (as applicable)	Rs.7,915.00
V.	Contingent Deposit for VAT @Rs.65.16 per sq. ft.	Rs.1,23,609.00
VI.a)	Club Charges (50% of membership Fees)	Rs.75,000.00
	Add:- Service Tax @14.50%	Rs.10,875.00
b)	Club Security Deposit	Rs.20,000.00
VII.	Stamp Duty, Registration Charges & Others	Rs.7,48,375.00
	Balance Payable by Anjan Kumar Bhaduri in favour of DLF Universal Limited	Rs.21,91,556.80
IX.	Interest Bearing maintenance Security & CAM Charges.
(a)	Interest Bearing Maintenance Security (IBMS) @Rs.50/- per sq. ft.	Rs.94,850.00
(b)	1 Quarter Advance CAM @Rs.1.54 per sq. ft. per month.	Rs.8,764.00
	Add:- Service Tax @14.50%	Rs.1,271.00
	Balance Payable by Anjan Kumar Bhaduri in favour of Hyde Park Residents Welfare Society.	Rs.1,04,885.00

 

The complainants have challenged the demand stating that the total payment has been increased to the tune of Rs.93,56,775/- when the total payment payable at the time of allotment was Rs.76,12,348.80 and that it was really very difficult for them to raise this huge additional fund just before handing over of the possession. They have termed the demand to be arbitrary. It may be stated here that the total price of the unit in the sum of Rs.76,12,348.80 was exclusive of taxes and other charges as is evident from the provisions for the same in various clauses of the Agreement briefly discussed in Para 13 above. It is noted that the major amount in the demand so raised, is on account of stamp duty and registration charges in the sum of Rs.7,48,375/-, which obviously has to be in addition to the price of the unit, in question. A sum of Rs.3,52,500/- is on account of balance basic sale price and other amounts are also in accordance with the terms of the Agreement. Thus, the objection and concern expressed by the complainants that there has been significant increase in the price of the unit is not correct and well based.

21.        The complainants, as submitted by the Counsel, are seeking refund. As already submitted above, there has been delay of around eight months in offering possession. This Commission in the case of Brig Ajay Raina (Retd.) and another Vs. M/s Unitech Limited, Consumer Complaint No.59 of 2016, decided on 24.05.2016, in the light of law settled by Hon’ble National Commission in such cases, held that the complainants are entitled to refund of the amount deposited by them with the Opposite Parties. Relevant Paras of the aforesaid judgment read thus:-

“Further, even if, it is assumed for the sake of arguments, that offer of possession, was made to the  complainants, in July 2015 i.e. after a delay of about three years, from the stipulated date, even then, it is not obligatory upon the  complainants to accept the same. It was so held by the National Commission in Emaar MGF   Land   Limited   and   another   Vs. Dilshad Gill, III (2015) CPJ 329 (NC). Recently also, under similar circumstances, in the case of M/s. Emaar MGF Land Ltd. & Anr. Vs. Dr.Manuj Chhabra, First Appeal No.1028 of 2015, decided on 19.04.2016, the National Commission, held as under:-

“I am of the prima facie view that even if the said offer was genuine, yet, the  complainants was not obliged to accept such an offer, made after a lapse of more than two years of committed date of delivery”.

The principle of law laid down in the aforesaid cases is fully applicable to the present case. It is therefore held that the  complainants could not be held guilty, of filing the present complaint, seeking refund of the deposited amount, alongwith interest and compensation, as possession of the unit was not offered to them by the stipulated date.

It was clearly stated by the National Commission, in Emaar MGF Land Limited and another Vs. Dilshad Gill, III (2015) CPJ 329 (NC), that when the promoter has violated material condition, in not handing over possession of the unit, in time, it is not obligatory for a purchaser to accept possession after that date. The Counsel for the Opposite Parties, argued that seeking refund would amount to rescinding the contract and earnest money was forfeitable. Had the Opposite Parties offered possession to the complainants before the stipulated period in the Agreement, we would have accepted the contention of the Opposite Parties but the same is not the situation in the instant case.

22.         It is to be further seen, as to whether, interest, on the amount refunded can be granted, in favour of the complainants. It is not in dispute that an amount of Rs.71,65,219/- was paid by the complainants, without getting anything, in lieu thereof. The said amount has been used by the Opposite Parties, for their own benefit. There is no dispute that for making delayed payments, the Opposite Parties were charging heavy rate of interest, for the period of delay in making payment of installments.  It is well settled law that whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. The obligation to refund money received and retained without right implies and carries with it, the right to interest. It was also so said by the Hon’ble Supreme Court of India, in UOI vs. Tata Chemicals Ltd (Supreme Court), (2014) 6 SCC 335. Though in cases of similar nature, where there has been inordinate delay in offering possession, this Commission has been granting interest @12%/15% per annum but in the facts and circumstances of the instant case, when delay in offering possession was eight months, refund of the deposited amount at the rate of 10% per annum would meet the ends of justice.

23.       The next question, which falls for consideration, is, as to whether, the complainants are entitled to any compensation or not. The complainants deposited their hard earned money, in the hope that they will have a house to live in. As stated above, possession has been offered by the Opposite Parties letter dated 15.02.2016 i.e. after a period of around eight months from the date stipulated in the Agreement. On account of non-delivery of possession of the unit, in question, by the Opposite Parties, to the complainants, complete in all respects, within the stipulated period, the complainants have certainly suffered physical harassment and mental agony on account of the acts of omission and commission of the Opposite Parties, for which, they need to be suitably compensated. In our considered opinion, compensation in the sum of Rs.1,50,000/- (as prayed), if granted, would be just and adequate, to meet the ends of justice.

24.       In connected Consumer Complaint No.216 of 2016 titled ‘Vineet Kumar & Anr. Vs. M/s DLF Universal Limited & Anr.’, the Buyer’s Agreement was executed between the parties on 10.02.2014, the total price of the unit, in question, was Rs.74,11,570.00 + Rs.2,21,174.00 + Rs.1,76,000.00 = Rs.78,08,744.00, against which, the complainants paid a sum of Rs.71,60,823/-. As per Clause 11(a) of the Agreement, possession was to be handed over within 30 months from the date of application. Since the application for allotment was submitted on 31.10.2013, computing 30 months period from the date of application, the Opposite Parties were to handover possession of the unit, in question, by 30.04.2016. Possession stands offered vide letter dated 15.02.2016 (Annexure C-4) i.e. well within the period stipulated under the Agreement. The Opposite Parties have stated in their written statement that possession was offered upon receipt of occupation certificate. They have further stated that complainant was backing out from the executed agreement and is liable to be dealt with in accordance with default clause. The complainants have challenged the offer of possession on the ground of non-completion of project and disputing the demands raised. It has been stated that since malba and other construction material are lying, offer of possession is of incomplete project. It has also been stated that construction activity was still going on. In fact, the primary issue raised by the complainants is qua demand raised under various heads and objection regarding non-completion of certain amenities is apparently to wriggle out of the terms of the Agreement executed with the Opposite Parties. There is nothing on record that on receipt of letter dated 15.02.2016, the complainants wrote to the Opposite Parties pointing out any deficiency regarding incompletion of independent floor. The Opposite Parties have specifically stated in their written statement that they have completed the construction of the independent floors and they having obtained partial completion certificate, they are capable of handing over possession. They have specifically stated that proper water connection and electricity supply was in place and house-keeping and maintenance services were being provided through leading multinational company. Photographs of the project depicting the completion have also been placed on record as Annexure R-1. When we go through the contents of Annexure C-6, which are emails written by the complainants to the Opposite Parties on receipt of offer of possession, the same are also primarily with regard to demand and the same do not say anything specific about the non-completion/amenities in the flat. It has only been said that club house, boundary wall, security, internal roads market etc. are not available. Email dated 03.03.2016 is extracted hereunder:-

“I expected that the offer of possession would be happy experience but the unexpected and unjustified demand items in the attached offer has killed any joy I expected from DLF. It is indeed a pain to get such unrelated demands. Besides, the account ledger figures sent by you after the unjust Conditional offer of possession do not match and in the previous account ledger sent by you or at the time of marketing this project, you never told about any of these figures and the total cost. The alleged demands in any case are not acceptable.

 

The demands are unreasonable, whimsical and arbitrary. From your conduct it appears that DLF is taking undue advantage of its dominant position by raising fabricated and false demands and compelling us to pay unreasonable amounts just before handing over of the physical possession of the property. This is nothing but a ploy on the part of DLF to extract money which otherwise is not payable by us.

 

The demands raised under the headings of Escalation, Club house charges, Payment of VAT, etc. are some of the example of such arbitrary and illegal demands. Even Open Parking charge imposed is against the judgments of various courts of law. Therefore, any such demand items and so-called holding charge against such offer of possession is illegal and unjust. Even basic infrastructure and such as Club House, boundary wall, security, internal roads markets are not available at the site and therefore, the area is not livable. Where is the question of half possession?

 

You will appreciate that the total Agreement is one-sided and we were asked to sign the pre-printed Agreement on dotted lines. Such Agreements are against the public policy as well as law of Contracts and as such, not enforceable. Based on such one-sided clauses, you can’t raise arbitrary, unfair and unjust demands. This is totally unfair and uncalled for.

 

Regarding stamp duty and registration charges, the same will paid directly to the Authorities at the time of registration. I am a joint holders with my wife, I don’t know if that has been taken into account. Also the deed writer charges are too high and I do not give my consent to pay such high charges to deed writer. I can get it done from my side.

 

In view of the above and other points which we can discuss, please withdraw the illegal demands immediately and issue fresh legitimate demands letter within 10 days after proper justification of the above and other points. I hope your authorized representative will contract me to discuss these as well as reply to these points.”

 

Non-completion of club house, boundary wall and market etc., which are under construction, could not mean that independent floor, in question, was not complete and capable of handing over for possession. The Opposite Parties have submitted that construction of independent floor, in question, is complete. In the circumstances, when possession stands offered before the stipulated date, non-payment  against demand(s) raised and seeking refund by the complainants amounts to rescinding the contract. In DLF Universal Limited Vs. Nirmala Devi Gupta, Revision Petition No.3861 of 2014 decided on 26.08.2015, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, it was held that not more than 10% of the total price of the property, in question, as earnest money can be forfeited. In such circumstances, the Opposite Parties, in the instant case, are entitled to forfeit the earnest money to the tune of Rs.6,00,000/-  in terms of Clause 4 relating to ‘Earnest Money’ of the Agreement and the settled position of law in DLF Universal Limited Vs. Nirmala Devi Gupta and Sh. Harjinder S. Kang Vs. M/s Emaar MGF Land Ltd.’s cases (supra). The complainants are entitled to refund of the balance amount. Since, in the instant case, the earnest money is less than 10%, the Opposite Parties could forfeit earnest money to the tune of Rs.6,00,000/-.

25.       Thus, in view of above, out of the total amount of Rs.71,60,823/-, the Opposite Parties can forfeit a sum of Rs.6,00,000/- only and the balance amount is refundable to the complainants. Thus, the complainants are entitled to the refund of an amount of Rs.65,60,823/-  i.e. [Rs.71,60,823.00 (-) minus Rs.6,00,000.00]. Accordingly, complainants are held entitled to refund of a sum of Rs.65,60,823/- alongwith interest @12% per annum from the date of filing the complaint i.e. 18.05.2016 till actual payment.

26.       No other point, was urged, by the Counsel for the parties.

27.        For the reasons, recorded above, both the complaints bearing No.207 of 2016 and 216 of 2016 are partly accepted, with costs, and the Opposite Parties are jointly and severally, held liable and directed in the following manner:-

Complaint Case No.207 of 2016 titled as ‘Sh. Anjan Kumar Bhaduri & Anr. Vs. M/s DLF Universal Limited and Anr.’.

(i)   To refund the amount of Rs.70,50,000/- or amount actually paid alongwith simple interest @10% per annum, to the complainants, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum, instead of 10% per annum, from the date of filing the complaint till actual payment;

 (ii) To pay an amount of Rs.1,50,000/-  (Rupees One Lac and Fifty Thousand only) (as prayed), to the complainants, as compensation for mental agony and physical harassment, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum from the date of filing the complaint till actual payment;

(iii) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum from the date of filing the complaint till actual payment.

Complaint Case No.216 of 2016 titled as ‘Vineet Kumar & Anr. Vs. M/s DLF Universal Ltd. and Anr.’.

 

(i)   To refund the amount of Rs.65,60,823/- alongwith simple interest @12% per annum, to the complainants, from the date of filing the complaint till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @18% per annum, instead of 12% per annum, from the date of filing the complaint till actual payment;

 (ii) To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum from the date of filing the complaint till actual payment.

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

29.       Certified copy of this order be placed on record of Consumer Complaint No.216 of 2016.

30.       Certified Copies of this order be sent to the parties, free of charge.

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

Pronounced

06.09.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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