Delhi

StateCommission

255/97

MR. VINAY CHOPRA - Complainant(s)

Versus

M/S DLF UNIVERSAL LTD. - Opp.Party(s)

17 Jul 2007

ORDER

IN THE STATE COMMISSION  : DELHI

(Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 )

 

              Date of Decision: 17-07-2007                                         

 

Complaint Case No. C-255/1997

 

 

Mr. Vijay Chopra & Amarjeet Chopra,        Complainants.

226, Kailash Hills Top Floors,                               Through

New Delhi.                                                             Ms. Girija Wadhwa,

                                                                                Advocate.

 

Versus

 

M/s DLF Universal Ltd.                                        Opposite Party

DLF Centre, Sansad Marg,                              Through

New Delhi.                                                      Mr. Pallav Sishodia,

                                                                                Advocate.

 

CORAM :

                                    Justice J.D. Kapoor-          President

                                    Ms.Rumnita Mittal -            Member

                                   

1.   Whether reporters of local newspapers be allowed to see the     judgment?

2.      To be referred to the Reporter or not?

 

JUSTICE J.D. KAPOOR, PRESIDENT (ORAL)

 

 

            Alleging deficiency in service on the part of OP in delaying handing over of possession of the flat booked and not rectifying the defects pointed out by the complainants, the instant complaint has been filed claming following reliefs:

 

(i)                 Direct the OP to immediately rectify the defects of the flat of the complainant.

(ii)               Direct the respondent to pay interest on deposited amount of Rs. 8,07,694 @ 24% per annum from 18.2.94to 17.03.97. 

(iii)              Direct the OP to make the refund for escalation charges of Rs. 71,690/- with @ 2% interest as it was wrongly worked out.

(iv)            Direct the respondent to pay interest @ 24% on fees charged for registration and stamp duty from 25.9.95 to 16.10.96. 

(v)             Compensation quantified at Rs. 50,000/- for mental agony, denial of the flat harassment at the hand of OP.

2.         Brief facts leading to the filing of this complaint are that complainant booked a flat bearing No. H-33/10 (FF II) measuring about 264 sq. meters situated at DLF Qutab Enclave Complex, Gurgaon, Haryana with the OP by paying initial amount of Rs. 65,000/-  and accordingly an agreement to Sell was entered into between the complainants and the OP on 18.8.90. The mode of payment was mutually agreed to be paid in 13 instalments at interval as per the schedule annexed with the agreement to sell dated 16.10.90. The complainant deposited the payment as demanded by the OP from time to time and subsequently OP was issuing receipts for the same.

3.         The OP issued a letter for 11^th installment asking for basic sale price of Rs. 51,147/- which was due on 28.2.93 plus escalation charges of Rs. 19,224/- the complainant accordingly made the payment and for which a receipt was issued by the respondent on 6.3.93.

4.         The complainant had made the payment within a span of 3 years, there was assurance by the OP to handover the possession within 3 and half years.  The OP did not keep up its words even though the complaint has complied with all the requirements.  After more than one year the OP came with the demand of Rs. 20/- towards escalation charges which was also paid on 14.12.94.  The OP again issued a letter dated 17.6.95 and demand of Rs. 71,690/- towards escalation charges.  The amount of Rs. 88,101/- was demanded on account of Registration charges and stamp duty and Rs. 3500/- was charged towards water and sewer connection charges.  The complainant wrote a letter  for asking the break up instead of giving breakup the OP issued a letter dated 30.8.95 that the possession of the flat is ready and complainant can take the possession of the flat maximum within 1 month otherwise they will cancel the allotment.

5.         It is pertinent to mention here that the OP was  to give possession of the flat by 18.2.94 and the same was not given moreover the OP has delayed the construction and have enjoyed the money and on that they have imposed escalation charges to which complainant protested against the payment of escalation charges levied by OP.

6.         The OP issued a letter on 12.01.96 to visit the site and to take the possession of the flat.  When the complainant reached there, the flat was incomplete and it was  not ready to take the possession.  There was no electricity available. The OP issued a letter dated 12.1.96 stating that electric connection could not be provided as complainant had not paid electric connection charges of Rs. 8000/-.   Hence this complaint.

7.         The version of OP on the other hand is that the flat in dispute i.e. H-33/10, DLF Qutab Enclave, Phase-I, Gurgaon has been sold to Mrs. Sunita Tyagi wife of Capt. Sanjay Tyagi and Capt. Sanjay Tyagi son of Sh. S.P. Tyagi both resident of  . H-33/10, DLF Qutab Enclave, Phase-I, Gurgaon for a consideration amount of Rs. Twelve Lacs.  A copy of Sale Deed dated 28.12.1998 made between the complainant namely Sh. Vijay Chopra and Mrs. Amarjeet Chopra and the buyers Mrs. Sunita Tyagi and Capt. Sanjay Tyagi shows that the purported complaint can no longer be entertained since the complainants are no longer “ Consumers” and is therefore liable to be dismissed.

8.         Further the complaint is also not maintainable as it is barred by limitation as provided under section 24A of the Consumer Protection Act. This is more so on account of the conduct of the complainants who were habitual defaulters and failed to pay amounts due and payable to OP.

9.         As per clauses 17,18 and 27 of the aforesaid Agreement, the possession of the Dwelling Unit was proposed to be delivered to the complainants within three and a half years from the date of the execution of the Agreement subject to conditions stipulated in clauses 17, 18 and 27 of the said Agreement.  This was subject to receipt of amounts due and payable by the complainants to OP.

10.       Clauses 17,18 and 27 of the said Agreement are being reproduced herein for sake of convenience and ready reference:

Clause –17:  “That the possession of the said Dwelling Unit is proposed to be delivered by the Company to the Dwelling Unit Allottee within 3-1/2 years from the date of execution of this Agreement and after the execution and registration of the Sale Deed in his/her favour provided that the Company shall not incur any liability if it is unable to delivery possession of the said Dwelling Unit and execute the Sale  Deed by the time aforementioned, if the completion of the respective Town House is delayed by reasons of non-availability of steel and / or cement or other building materials or water supply or electric  power or slow down, strike or due to a dispute within the construction agency employed by the Company, lockout, civil commotion or by reason of war, or enemy action or any act of God or if non-delivery of possession is as a result of any notice, order, rule of notification of the Government and / or any other public or competent authority or for any other reason beyond the control of the Company and in any of the aforesaid events the Company shall be entitled to a reasonable extension of time for delivery of possession of the said Dwelling Unit and for this purpose the consent of the Dwelling Unit Allolttee shall not be necessary. The Company shall also be entitled for reasonable extension of agreed completion period of Dwelling Unit for all or any default or negligence attributable to the Dwelling Unit Allottee.”

 

Clause: 18: “ THAT the possession of the said Dwelling Unit shall be delivered to the Dwelling Unit Allottee after the Dwelling Unit is ready PROVIDED  all the amounts due and payable by the Dwelling Unit Allotteel shall make all due payments, get the Sale Deed executed and registered in his favour and take possession of the said Dwelling Unit within 30 days of the Company dispatching a written notice to the Dwelling Unit Allottee intimating that the said Dwelling Unit is registered in his favour.  If the Dwelling Unit Allottee  neglect or fails to take possession of the Dwelling Unit after expiry of 30 days from the date of notice for whatever reasons, he shall be deemed to have received possession of the Dwelling Unit. In such an event apart from maintenance charges becoming payable under clause 7 above, the Dwelling Unit  Allottee shall also pay to the Company such monthly charges for security and upkeep of the Dwelling Unit as decided by the Company until the Dwelling Unit Allottee has taken actual physical possession of the Dwelling Unit.”

 

Clause: 27 “THAT  the Dwelling Unit Allottee hereby convenants with the company to pay from time to time and at all times the amounts which the Dwelling Unit Alottee is liable to pay as agreed under this Agreement and to observe and perform all the convenants and conditions contained in this Agreement and to keep the Company and its agents and representatives, estates, and effects, indemnified  and harmless against the said payments and observance and performance of the said convenants and conditions and also against any loss or damages that the Company may suffer as a result of non-payment , non-observance or non-performance of the said convenants and conditions except  insofar as the same are to be observed and performed by the Company.”

 

11.       OP further averred that till April, 1994 an amount of Rs. 8,07,674/- on account of BSP, EDC, delayed interest and escalation was due and payable by the complainants and the possession of the house in question could be made by this Respondent only after the payment of the said amount.

12.   The complainants were as per the schedule of payment required to make the entire payment by 30.8.1993.  However, the complainants failed to make payments of amount due and payable by the said date despite repeated reminders by the OP.   Hence OP is not guilty of any kind of deficiency in service or breach of promise to hand over the possession by the stipulated date.

13.       After having heard the learned Counsels for the parties at length and accorded careful consideration to the rival claims and the terms of the sale agreement and possession letter, demand of escalation, late interest etc., we find that the learned counsel for the OP is taking advantage of the word ‘proposed date’ by which the possession was to be handed over.  Admittedly in the ‘Agreement to Sell’ the proposed date of handing over possession was 3 ½ years from the date of execution of the agreement.  The agreement was executed in August, 1990 and the offer of possession was made in March 1997.  Again the learned counsel for the OP contended that there was a clause in the agreement that if the possession was not being offered in time the dwelling unit holder is required to give notice for refund of the amount with interest.

14.       Record shows that upto 30-08-1993 the complainant had made payment of the entire consideration amount except escalation charges, the demand for which was raised after the proposed date of handing over of possession i.e. 07-10-1994 and again in June, 1995 a demand of Rs. 71,60/- was raised towards escalation charges. 

15.       It is settled law that parties are governed by the terms and conditions of the contract.  We have come across cases where the service provider or builder enters into contract with the consumer but does not hand over possession of the flat in spite of payment of entire consideration amount by the stipulated period.  May be due to many reasons the construction is not completed within the stipulated period and date for handing over possession is extended from time to time.  In such an eventuality it is the consumer who suffers because of his having been deprived of the possession by the expected or promised date. 

16.       Even if it is mentioned in the agreement that the date of handing over of the possession is proposed or tentative date, it does not give liberty to the builder to extend the date of handing over of possession to such a long time.  There may be certain compelling reasons that the builder is not in a position to complete the entire construction and the flat is incomplete still the builder is required to handover the possession within a reasonable time.

17.       We have also been of the view that wherever there are circumstances showing that the construction cannot be completed by the stipulated date the consumer cannot be penalized for withholding instalments or not making payment of instalments as the apprehension of the consumer of being deprived of the entire amount without having any ray of hope of getting possession in the near future cannot be ruled out.  In such a situation it is the consumer who is always at the receiving end and in spite of payment of almost the entire consideration forfeiture of earnest money or some other amount looms largely over his head if he defaults in making payment of one of two instalments or any other charges.

18.       In our view such contracts have to be read and considered as a whole and not in isolation.  Wherever any of the parties commits breach of any of the terms it has to be seen whether the breach was malafide or bonafide.  For instance if a builder tells that he will hand over possession within three years and he takes 10 years or 15 years and construction at the site is not even commenced by the date of promise it is a clear cut breach of the term of the contract of the builder and for its own acts of omission and commission he cannot take advantage of breach of term of the contract by the consumer as to the payment of instalments or towards consideration amount and any cancellation of allotment in such an eventuality is bad in law, illegal, whimsical and arbitrary.

19.       Be that as it may in the instant case the facts remain that the proposed date of handing over of the possession was 30-08-1993, i.e. within 3 ½ years.  The possession was offered after 7-8 long years in spite of the fact that complainant had paid the entire original consideration amount. 

20.       The reliance by the learned counsel for the OP on Bangalore Development Authority Vs. Syndicate Bank 20 2007(8) SCALE  200 para 10 (b) is misplaced as the builder cannot be given liberty to not to handover possession within a reasonable period even if time is not essence of contract.  Since provider cannot make the consumer wait for 15 to 20 years merely because time is not essence.  In such an eventuality rule of prudence and reasonableness comes into play.  In the instant case time was essence of the contract as word ‘proposed  date’ cannot be provided the meaning that time was not the essence.  Word ‘proposed’ does not mean that possession can be delayed further by 7/8 years whereas proposed or tentative period was 3 ½ years.   

21.       Merely the word ‘proposed’ was mentioned in the agreement does not mean that handing over of possession can be stretched beyond one year or two year or three years.  Here the possession was offered after seven long year.

22.       Even if we rely upon the judgment of the Supreme Court still it nowhere gives free hand to the builder to take 10 years or 20 years for handing over possession after having received the amount of consideration after 3-5 years.  Here time taken was not reasonable as it kept the consumer in suspended animation whether he would get possession of the flat which he booked 20 years back or not.  Merely because in contract time is not essence does not nullify the contract or reduce the contract into nullity or practically inoperable.

23.       The learned counsel for the OP during the course of arguments filed the written submissions and referred to para No.1 regarding the statement made by the complainant in the possession letter at the time of taking possession that he had inspected the construction of the said house and he confirmed that the house was complete in all respects and he had no claim against the OP in respect of the terms of work done in the said house or defect in any design, specifications, building material used or for any reason whatsoever.   This statement being referred is wholly misconstrued as it only confines to the quality of the work and not in respect of inordinately long 7-8 years taken by the OP in handing over possession of the flat.

24.       Word ‘compensation’ has wide connotation as propounded by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Balbir singh – 2004 (5) SCC 65, which is as under:-

“The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.”

 

25.       For determining the damages in such cases may factors are relevant.  For instance the financial loss as to the rent and being deprived of the fruits of the consideration paid for flat besides mental agony, harassment, emotional sufferings, physical discomfort and injustice done to him and if we start assessing damages in this case it may mount to double of what was paid by the complainant.

26.       However, taking over all view of the matter and particularly in view of the fact that the possession was taken over by the complainant after satisfying as to the quality of the flat but for the inordinate delay taken by the OP in handing over possession of the flat which caused immense financial loss, deprived him from enjoying the fruit of the shelter for more than seven years and in the meantime he was in so much financial crisis that he had to sell the house we deem that lump sum compensation of Rs. 2 lacs which includes the cost of litigation shall meet the ends of justice. 

27.       Complaint is disposed of in aforesaid terms.

28.       Payment shall be made within one month from the date of receipt of this order.

29.       A copy of this order as per the statutory requirements, be forwarded to the parties free of charge thereafter the file be consigned to Record Room.

30.       Announced on the   17^th July,  2007.

 

 

(Justice J.D. Kapoor)

President

 

 

(Rumnita Mittal)

Member

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