Chandigarh

StateCommission

CC/260/2016

Uma Shankar Trivedi - Complainant(s)

Versus

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

Satyawan Ahlawat, Adv.

26 Sep 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	260 of 2016
Date of Institution	:	09.06.2016
Date of Decision	:	26.09.2016

 

1. Uma Shankar Trivedi R/o P-152, Anuj Vihar near Shankar Vihar, Rao Tula Ram Marg, New Delhi.
2. Radha Trivedi w/o Col. U. S. Trivedi R/o P-152, Anuj Vihar near Shankar Vihar, Rao Tula Ram Marg, New Delhi.

…… Complainants

Versus

1. M/s DLF Universal Ltd., SCO No.191-192, Sector 8-C, Chandigarh through its Authorised Representative.
2. M/s DLF Universal ltd., “Hyde Park”, Terrances Estate, New Chandigarh (Mullanpur) Punjab through its Authorised Representative.

....Opposite Parties.

Argued by:- Sh. Satyawan Ahlawat, Advocate for the Complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	263 of 2016
Date of Institution	:	14.06.2016
Date of Decision	:	26.09.2016

 

1. Bhupinder Singh S/o Jasmer Singh;
2. Rajvanti W/o Jasmer Singh;

Correspondence Address:- R/o 1258, Sector 20-B, Chandigarh.

…… Complainants

Versus

1. M/s DLF Universal Limited (earlier known as DLF India Limited) having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon – 122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory.
2. M/s DLF Universal Limited (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh, 160009, through its Chairman/ Managing Director/Director/Authorised Signatory.

....Opposite Parties.

 

Argued by:- Sh. Sandeep Bhardwaj, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

Complaint case No.	:	304 of 2016
Date of Institution	:	27.06.2016
Date of Decision	:	26.09.2016

 

Bhisham Prashar S/o Sh. L. N. Prashar R/o 202 B, GHS-III, Ma Shakti Co-op Society, Sector-20, Panchkula.

…… Complainant.

Versus

1. DLF Universal Limited (earlier known as DLF India Limited), having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase I, Gurgaon 122002, Haryana, through its Managing Director/Authorized Signatory.
2. DLF Universal Limited (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8C, Chandigarh 160009, through its Managing Director/Authorized Signatory.

....Opposite Parties.

Argued by:- Sh. Savinder Singh Gill, Advocate for the complainant.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	305 of 2016
Date of Institution	:	27.06.2016
Date of Decision	:	26.09.2016

 

Ankit Goel S/o Sh. T. N. Goel, r/o House No.3135, Sector 21-D, Chandigarh.

…… Complainant.

Versus

1. DLF Universal Limited (earlier known as DLF India Limited), having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase I, Gurgaon 122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory.
2. DLF Universal Limited (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8C, Chandigarh 160009, through its Chairman/Managing Director/Director/Authorized Signatory.

....Opposite Parties.

 

Argued by:- Sh. Savinder Singh Gill, Advocate for the complainant.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

Complaint case No.	:	308 of 2016
Date of Institution	:	28.06.2016
Date of Decision	:	26.09.2016

 

1. Smt. Minakshi Arora W/o Tejinder Pal Singh, S/o Sh. Gurbax Singh, R/o 3465, Sector 23, Gurgaon, Haryana.
2. Tejinder Pal Singh S/o Sh. Gurbax Singh, R/o 3465, Sector 23, Gurgaon, Haryana through special power of attorney Smt. Minakshi Arora.

…… Complainants.

Versus

1. M/s DLF Universal Ltd., SCO No.191-192, Sector 8-C, Chandigarh through its authorized Representative.
2. M/s DLF Universal Ltd., “Hyde Park Terraces in Hyde Park Estate, New Chandigarh (Mullanpur) Distt. SAS Nagar, Punjab through its Authorised Representative.

....Opposite Parties.

 

Argued by:- Sh. Satyawan Ahlawat, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the Opposite Parties.

 

 

Complaint case No.	:	357 of 2016
Date of Institution	:	15.07.2016
Date of Decision	:	26.09.2016

 

Sunita Thakur W/o Sh. Anil Thakur.

Correspondence Address:- House No.3266, Sector 27-D, Chandigarh.

…… Complainant.

Versus

1. M/s DLF Universal Limited (earlier known as DLF India Limited) having its registered office at Shopping Mall, 3^rd Floor, Arjun Marg, DLF City, Phase-I, Gurgaon – 122002, Haryana, through its Chairman/Managing Director/Director/Authorized Signatory.
2. M/s DLF Universal Limited (earlier known as DLF India Limited), SCO No.190-191-192, Sector 8-C, Chandigarh, 160009, through its Chairman/ Managing Director/Director/Authorised Signatory.

....Opposite Parties.

3. UCO Bank, SCF-3, Sector 22-D, Chandigarh through its Manager/Auhorized Representative.

….Performa Opposite Party.

 

Argued by:- Sh. Sandeep Bhardwaj, Advocate for the complainant.

                  Ms. Ekta Jhanji, Advocate for Opposite Parties No.1 & 2.

                  Ms. Amita Khanna, Advocate for Opposite Party No.3

 

Complaint case No.	:	414 of 2016
Date of Institution	:	29.07.2016
Date of Decision	:	26.09.2016

 

1. Hima Sood W/o Ashish Sood R/o 3703/5, Brahm Niwas, Opp. Civil Hospital, Gyan Marg, Ambala Cantt. Haryana.
2. Ashish Sood S/o Avinash Sood R/o 3703/5, Brahm Niwas, Opp. Civil Hospital, Gyan Marg, Ambala Cantt. Haryana.

…… Complainants.

Versus

1. M/s DLF Universal Ltd., SCO No.191-192, Sector 8-C, Chandigarh.
2. M/s DLF Universal Ltd., Hyde Park, New Chandigarh (Mullanpur), Punjab through its Authorised Signatory.

....Opposite Parties.

 

Argued by:- Sh. Satyawan Ahlawat, Advocate for the complainants.

                   Ms. Ekta Jhanji, Advocate for the 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.

 

 

PER DEV RAJ, MEMBER            

            By this order, we propose to dispose of, following seven consumer complaints:-

1	CC/260/2016	Uma Shankar Trivedi & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
2	CC/263/2016	Bhupinder Singh & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
3	CC/304/2016	Bhisham Prashar	Vs	DLF Universal Ltd. & Anr.
4	CC/305/2016	Ankit Goel	Vs	DLF Universal Ltd. & Anr.
5	CC/308/2016	Minakshi Arora & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
6	CC/357/2016	Sunita Thakur	Vs	M/s DLF Universal Ltd. & Ors.
7	CC/414/2016	Hima Sood & Anr.	Vs	M/s DLF Universal Ltd. & Anr.

 

2.         At the time of arguments, on 07.09.2016, it was agreed between Counsel for the parties, that facts involved in the above complaints, by and large, are virtually the same, and therefore, these seven complaints can be disposed of, by passing a consolidated order.

3.         Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No.260 of 2016, titled as ‘Sh. Uma Shankar Trivedi & Anr. Vs. M/s DLF Universal Ltd. & Anr.’

4.         The facts in brief are that the complainants booked an independent floor R2-E805FF, Block E, measuring 1881 sq. ft., @Rs.3,800/- per sq. ft., at the total basic sale price of Rs.80,65,049.04 and payment was to be regulated by construction linked payment plan. An Independent Floor Buyer’s Agreement was executed between the complainants and the Opposite Parties on 28.08.2013. The complainants in all paid an amount of Rs.77,13,239/- as per details given in Para 3 of the complaint. As per clause 11(a) of the Agreement, possession of the unit, in question, was to be delivered within 30 months from the date of booking i.e. 17.08.2012 but the Opposite Parties failed to do so within the stipulated period. The complainants visited the site many a time and observed that the brick work and other construction material like sand, cement, bajari etc. were not being used as per BIS for construction material code parameters and the quality of material was not according to the Agreement, which was substandard. It was stated that despite receipt of huge amount, the Opposite Parties did not adhere to the quality norms and continued to use substandard quality of material. It was further stated that the complainants requested the company to refund the amount deposited with the company but the Opposite Parties did not bother to respond to the request of the complainants and kept mum without any intimation. It was further stated that instead of making refund, the Opposite Parties shoot up a letter dated 15.02.2016 intimating enhancement of cost of the flat from Rs.80,65,049.04 to Rs.1,00,98,732.50, without the consent/prior approval of the complainants and demanded the balance amount in lump-sum. The aforesaid increase was on account of various heads i.e. other charges, escalation charges, contingent deposit for VAT, club charges, club security deposit, stamp duty, & registration charges, interest bearing maintenance security, main power supply, power back up, electricity, sewer and water connection charges, additional service tax etc. It was further stated that the demand raised by the Opposite Parties vide aforesaid letter dated 15.02.2016 was an unfair trade practice by forcing the complainants to accept a costly house/floor, which was beyond their financial budget. It was further stated that the complainants are not in a position to make payment of the enhanced amount. It was further stated that the complainants visited the site in March 2016 and latest on 01.06.2016 and found that the unit to be not ready for possession as the same is still under repair as confirmed by the Opposite Parties on 01.06.2016. It was further stated that the complainants are left with no option but to demand the refund of the deposited amount alongwith interest. 

5.         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 refund of the amount paid to the Opposite Parties alongwith interest @18% per annum; Rs.10 Lacs as compensation for harassment and mental agony and Rs.2 Lacs as litigation expenses.

6.         The Opposite Parties in their written statement took up certain preliminary objections to the effect that 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; that the parties are bound by the terms and conditions mentioned in the Agreement and that since the proceedings before the Consumer Foras are summary, in nature, this Commission is not competent to adjudicate this complaint.

7.         On merits, it was admitted that the complainants had purchased the unit, in question, from Opposite Parties. It was further stated that the complainants did not deposit the total sale price of the unit, in question and there was a DLI of Rs.1,23,239.87 against the complainants. It was further stated that the amount payable by the complainants to the Opposite Parties is Rs.22,94,324.50 and amount payable to Hyde Park Estate Resident Welfare Society, as per final demand, is Rs.1,05,051/-. It was stated that the total amount received by the Opposite Parties is Rs.76,95,983/-. It was further stated that the Opposite Parties are bound by the terms and conditions of the Agreement pertaining to quality of material used for construction and development. It was further stated that the complainants are neither the Engineers nor the Architects, therefore, they could not say that the material used was substandard. It was further stated that the demand letter dated 15.02.2016 was sent within the terms of the Agreement, after receiving occupancy certificate, which means that the floor, in question, was ready with all basic amenities. It was further stated that clause 39(a) was included in the Agreement as a deterrent to the defaulters so that the payment could be made on time by the customers so that the work of development could go on without any delay. It was further stated that the increase in final area by 19 sq. ft., being less than 15%, did not require any consent from the complainants. It was further stated that at this stage, the complainants are backing out from the executed contract, by not adhering to the terms and conditions of the Agreement. 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.

8.         The complainants, in support of their case, submitted the affidavit of Smt. Radha Trivedi, complainant No.2, by way of evidence alongwith which, a number of documents were annexed. However, they (complainants) did not file any rejoinder to the reply filed by the Opposite Parties.

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

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

11.       Admittedly, vide allotment letter dated 30.08.2012, the complainants were allotted Independent Floor No.IF-R2-E-805 (First Floor) with parking space No.P-R2-E-805-FF, measuring 1881 Sq. ft., in the project of the Opposite Parties, total price whereof, including Preferential Location Charges and External Development Charges, was Rs.77,36,860.04. In addition to total price and other charges mentioned in the application/ agreement, the applicant was to pay amounts towards the club facility alongwith other charges, taxes and cesses, security deposits etc., IBMS, maintenance charges, cost for providing power backup, charges paid/payable by the Company to PSPCL, proportionate share of cost incurred for construction/installation of sub-station and stamp duty, registration charges etc. in terms of Clause 1.13. The payment was to be regulated by construction linked payment plan. Independent Floor Buyer’s Agreement was executed between the parties on 28.08.2013 at Chandigarh. As per Clause 11(a) of the Independent Floor Buyer’s Agreement, possession was to be delivered within 30 months from the date of application. The date of application being 17.08.2012, 30 months period expired on 17.02.2015. Admittedly, possession offered vide letter dated 15.02.2016 (at Page 149 of the complaint) was late by one year, beyond the stipulated period. The Opposite Parties while offering possession, informed the complainants that final area of the independent floor was 1900 sq. ft. (increase of 19 sq. ft.) and as per Final Statement of Account as on 15.02.2016 annexed with possession letter, against the payable amount of Rs.99,93,681.50Ps, they (Opposite Parties) had received an amount of Rs.76,99,357/- from the complainants and still an amount of Rs.22,94,324.50Ps remained to be paid by the complainants to them and Rs.1,05,051/- remained to be paid to Hyde Park Residential Welfare Society. It is also evident from record that the complainants did not make payment of the demand raised vide letter dated 15.02.2016. While they (complainants) alleged that material used was substandard, they also showed their inability to pay the amount demanded vide letter dated 15.02.2016 whereby possession was offered. 

12.       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, being 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.””

13.         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.

14.       Another objection raised by Counsel for the Opposite Parties was that since the complainants sought enforcement of the Agreement, only a Civil Court can decide the complaint, and as such, consumer complaint was not maintainable. 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(a) of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  handover possession of the unit, in question, within a period of thirty months, from the date of Application. Section 2 (1) (o) of the Act, defines ‘service’ as under:-

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

15.       From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of 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.

16.         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 17.08.2012 for allotment. The unit was allotted on 30.08.2012 and Independent Floor Buyer’s Agreement was executed between the parties on 28.08.2013. 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 17.02.2015. The possession of the unit, in question, was offered vide letter dated 15.02.2016, meaning thereby that there was delay of complete one year 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.

17.       The complainants have stated that on visiting the site many times, it was observed that brick work and other construction material like sand, cement, bajri etc. was not being used as per BIS and quality of door, window, electric, fitting, flooring tiles was sub-standard. No communication, if the complainants ever brought these shortcomings to the notice of the Opposite Parties or report of an Engineer/Architect/Expert to substantiate the allegation have been placed on record. In the absence of cogent evidence, the averment cannot be accepted to be correct and is only afterthought.  

18.       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.3,57,390.00
	PLC (Preferential Location Charges)	Rs.16,458.75
	EDC (External Development Charges)	Rs.10,768.36
	Parking Charges	Rs.5,000.00
(b)	Change in Area & PLC	Rs.75,525/-
	Service Tax	Rs.18,622.00
(c)	Delayed interest, if any.	Rs.6,767.39
II.	Other charges vide clause no.1.12 of the Floor Buyer’s Agreement @Rs.159.83 per sq. ft.	Rs.3,03,677.00
	Service Tax @14.50%	Rs.44,033.00
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.1,68,948.00
	Service Tax @14.50%	Rs.24,497.00
IV.	Escalation charges, as applicable (Refer clause no.1.2 of the Floor Buyer’s Agreement)	2,31,338.00
	Service Tax (as applicable)	Rs.8,386.00
V.	Contingent Deposit for VAT @Rs.65.16 per sq. ft.	Rs.1,23,804.00
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.7,93,235.00
	Balance Payable by  Uma shanker Trivedi in favour of DLF Universal Limited	Rs.22,94,324.50
IX.	Interest Bearing maintenance Security & CAM Charges.
(a)	Interest Bearing Maintenance Security (IBMS) @Rs.50/- per sq. ft.	Rs.95,000.00
(b)	1 Quarter Advance CAM @Rs.1.54 per sq. ft. per month.	Rs.8,778.00
	Add:- Service Tax @14.50%	Rs.1,273.00
	Balance Payable by Uma Shanker Trivedi in favour of Hyde Park Residents Welfare Society.	Rs.1,05,051.00

 

The complainants have challenged the demand stating that the total payment has been increased to Rs.1,00,98,732.50 when the total payment payable, at the time of allotment, was Rs.80,65,049.04 and that the complainants were not in a position to make payment of the enhanced amount. 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.78,30,910.04 was exclusive of taxes and other charges as is evident from the provisions for the same in various clauses of the Agreement such as Clause 1.2, 1.12, 1.13, 1.16, 10, 18 etc. and briefly mentioned in Para 11 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.7,93,235/-, which obviously has to be in addition to the price of the unit, in question. A sum of Rs.3,57,390/- is on account of balance basic sale price, Rs.75,525/- on account of increase in area, and other amounts are also in accordance with the terms of the Agreement. Instead of explaining as to how the demand(s) raised were arbitrary and not in accordance with the terms of the Agreement, they (complainants) have stated that they were not in a position to make payment of the enhanced amount. The objection and concern expressed by the complainants that there was significant increase in the price of the unit and demands were arbitrary, are not on sound footing. 

19.       As already submitted above, there has been delay of around one year 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 Para 16 of the aforesaid judgment reads thus:-

“16. 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. Since there is delay of around one year beyond the committed date for delivering possession, the complainants are entitled to seek refund. 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 period stipulated in the Agreement, the contention of the Opposite Parties could have been accepted but in view of delay of one year beyond the committed period, forfeiture/default clause shall not be applicable. By not offering possession of the unit, in question, within the stipulated period and by not refunding the deposited amount, the Opposite Parties were deficient in rendering service.

20.         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.76,99,357/- was paid by the complainants to the Opposite Parties, 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. In the case titled ‘Sh. Anjan Kumar Bhaduri & Anr. Vs. M/s DLF Universal Ltd. & Anr.’, Consumer Complaint No.207 of 2016 decided by this Commission on 06.09.2016, where delay in offering possession beyond committed period was 8 months, 10% interest was granted. In the facts and circumstances of the instant case, when delay in offering possession was one year, refund of the deposited amount at the rate of 11% per annum would meet the ends of justice.

 

21.       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 vide letter dated 15.02.2016 i.e. after a period of around one year 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.2,00,000/-, if granted, would be just and adequate, to meet the ends of justice.

22.       Details of basic facts viz. Amount paid as per complainant(s); Date of application form; Due date for offering possession; Date of offer of possession; and Delay in offer of possession; are given hereunder, in respect of connected six complaint cases:-

		COMPLAINT NOS.
Sr. No.	Description/ Details	263/2016	304/2016	305/ 2016	308/ 2016	357/ 2016	414/ 2016
a)	Amount deposited. (Rs.)	68,74,352.00	79,55,436.13	76,27,637.89	74,35,602.17	84,49,768.67	76,74,147.00
b)	Date of application.	18.08.2012	14.08.2012	28.09.2012	28.09.2012	17.08.2012	26.04.2013
C)	Due date for offering possession.	17.02.2015	13.02.2015	27.03.2015	27.03.2015	16.02.2015	25.10.2015
d)	Date of offer of possession	15.02.2016	15.02.2016	15.02.2016	15.02.2016	15.02.2016	15.02.2016
e)	Delay in offer of possession	1 Year	1 Year	11 Months	11 Months	1 Year	4 Months

 

23.         In Consumer Complaints No.263/2016, 304/2016, 305/2016, 308/2016 and 357/2016, (except 414/2016), there is delay of around one year or 11 Months in offering/handing over possession of the unit(s), in question, as possession in all these cases was offered on 15.02.2016. However, in Consumer Complaint No.414/2016, there is delay of only four months in offering possession. Therefore, in view of the observations made in the preceding paras, the complainants, in these cases, except complaint No.414 of 2016, are also entitled to refund of the amounts alongwith interest @11% per annum from the dates of respective deposits, plus other reliefs, to which the complainants in the Consumer Complaint No.260 of 2016 are held entitled to. In Consumer Complaint No.414 of 2016, considering the fact that delay was only of four months, refund of the deposited amount alongwith 9% interest and compensation of Rs.1.50 Lacs would be justified.

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

25.          For the reasons, recorded above, the complaints bearing No.260 of 2016, 263 of 2016, 304 of 2016, 305 of 2016, 308 of 2016, 357 of 2016 and 414 of 2016 are partly accepted, with costs, in the following manner:-

CC/260/2016	Uma Shankar Trivedi & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
CC/263/2016	Bhupinder Singh & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
CC/304/2016	Bhisham Prashar	Vs	DLF Universal Ltd. & Anr.
CC/305/2016	Ankit Goel	Vs	DLF Universal Ltd. & Anr.
CC/308/2016	Minakshi Arora & Anr.	Vs	M/s DLF Universal Ltd. & Anr.
CC/357/2016	Sunita Thakur	Vs	M/s DLF Universal Ltd. & Ors.

 

            The Opposite Parties (M/s DLF Universal Limited), in each of these cases, are jointly and severally, held liable and directed as under:-

 (i)  To refund the amounts of Rs.76,99,357/-, Rs.68,74,352/-, Rs.79,55,436.13, Rs.76,27,637.89, Rs.74,35,602.17 and Rs.84,49,768.67 respectively, or amounts actually paid, alongwith simple interest @11% per annum, to the respective complainant(s), 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 amounts alongwith simple interest @14% per annum, instead of 11% per annum, from the date of filing the complaint till actual payment;

 (ii) To pay an amount of Rs.2,00,000/-  (Rupees Two Lacs Only), to the complainant(s), 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 @11% 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 complainant(s) 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 @11% per annum from the date of filing the complaint till actual payment.

            However, Complaint No.357 of 2016 stands dismissed only against Opposite Party No.3 (in the said compliant) with no order as to costs.

 

CC/414/2016

Hima Sood & Anr.

Vs

M/s  DLF Universal Ltd. & Anr.

 

            In this case, delay in offering possession is four months only.

            The Opposite Parties (M/s DLF Universal Limited, are jointly and severally, held liable and directed as under:-

(i)   To refund the amount of Rs.76,74,147/- or amount actually paid alongwith simple interest @9% 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 9% 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 Fifty Thousand Only), 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 @9% 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 @9% per annum from the date of filing the complaint till actual payment.

26.         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).

27.         Certified copy of this order be placed on record of Consumer Complaint No.263 of 2016, 304 of 2016, 305 of 2016, 308 of 2016, 357 of 2016 and 414 of 2016.

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

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

Pronounced

26.09.2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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