NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 603 OF 2007 (From the order dated 17.07.2007 in CC No. C-255/1997 of the Delhi State Consumer Disputes Redressal Commission) M/s. DLF Universal Ltd., (Now DLF Ltd.) DLF Center, Sansad Marg, New Delhi Appellant/Opposite Party (OP) Versus Mr. Vijay Chopra & Mrs. Amarjeet Chopra, 226, Kailash Hills Top Floors, New Delhi Respondents/Complainants BEFORE HONLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONLE DR. B.C. GUPTA, MEMBER For the Appellant : Mr. R. Narain, Advocate For the Respondents : Mrs. Girija Wadhwa, Advocate O R D E R MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER This appeal has been filed by the Appellant/Opposite Party against the impugned order dated 17.7.2007 passed by the Delhi State Consumer Disputes Redressal Commission (in short, he State Commission in C.C. No. C-255/1997 Mr. Vijay Chopra & Amarjeet Chopra Vs. M/s. DLF Universal Ltd. by which, complaint was partly allowed and appellant was directed to pay Rs.2,00,000/-, as compensation. 2. Brief facts of the case 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 18.8.1990. The mode of payment was mutually agreed to be paid in 13 instalments at intervals, as per the schedule annexed with the agreement to sell dated 16.10.1990. The complainant deposited payment, as demanded by the OP from time to time and subsequently, OP was issuing receipts for the same. The OP issued a letter for 11th instalment asking for basic sale price of Rs.51,147/- which was due on 28.2.1993 plus escalation charges of Rs.19,224/-. The complainant accordingly made the payment and for which, a receipt was issued by the respondent on 6.3.1993. 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 word even though the complainant had 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 14.12.1994. The OP again issued a letter dated 17.6.1995 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 asking for the break up. Instead of giving break up, the OP issued a letter dated 30.8.1995 that the possession of the flat is ready and complainant can take possession of the flat maximum within 1 month, otherwise, they will cancel the allotment. It is pertinent to mention here that the OP was to give possession of the flat by 18.2.1994 and the same was not given moreover the OP has delayed the construction and have enjoyed the money and rather imposed escalation charges to which, complainant protested. The OP issued a letter on 12.1.1996 to visit the site and take 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 12.1.1996 stating that electric connection could not be provided, as the complainant had not paid electric connection charges of Rs.8,000/-. 3. Alleging deficiency on the part of the OP, complainant filed complaint before the State Commission with the prayer to direct OP to rectify the defects of the flat, refund escalation charges with interest and pay interest on the deposited amount of Rs.8,07,694/- from 18.2.1994 to 17.3.1997 and interest on fees charged for registration and stamp duty from 25.9.1995 to 16.10.1996 along with Rs.50,000/-, as compensation. 4. OP/appellant filed written statement and submitted that disputed flat had already been sold to Mrs. Sunita Tyagi and Sanjay Tyagi by the complainant for Rs.12,00,000/-, so, the complainant is no longer consumer. It was further alleged that complaint is barred by limitation. It was further alleged that possession of the flat was proposed to be delivered to the complainant within 3years from the date of execution of the agreement subject to conditions stipulated in Clause 17, 18 and 27 of the agreement. It was further submitted that possession of flat could be given by OP only after full payment with interest is made by the complainant. As the complainant failed to make payments in spite of repeated reminders, OP is not guilty of any deficiency in service and prayed for dismissal of the complaint. 5. Learned State Commission after hearing both the parties allowed complaint partly and directed OP/appellant to pay a sum of Rs.2,00,000/- to the complainant/respondent against which, this appeal has been filed. 6. Heard learned counsel for the parties and perused record. 7. Learned Counsel for the appellant submitted that delay in handing over possession of flat occurred due to non-payment of outstanding amount and learned State Commission has not opined that there was any negligence on the part of the appellant; even then, the State Commission has committed error in granting compensation. It was further argued that, as respondent had taken possession of the flat without any right to lodge claim and as per clause of agreement, respondent was entitled only to cancel the agreement and receive back refund of amount with interest; learned State Commission has committed error in allowing complaint; hence, appeal be allowed and impugned order passed by the learned State Commission be set aside. On the other hand, learned Counsel for the respondent submitted that, as the respondent had deposited all the instalments in due time and further demands have also been deposited in due time, but the possession has been delayed by 4 years, learned State Commission has not committed any error in allowing complaint partly; hence, appeal be dismissed. 8. As far as payment of instalments by the respondent is concerned, it appears that respondent deposited due amount in time and delayed amount was deposited with interest. Whenever additional demands were raised, respondent deposited additional demands pertaining to escalation charges, electric connection charges, etc. In such circumstances, it cannot be said that delivery of possession was delayed due to non-payment of instalments in time. 9. It is admitted case of the respondent that possession of the flat was to be delivered within 3years, whereas possession of the flat was delivered after about 7 years and certainly there is delay of 3years in handing over possession. But, the question is; whether the respondent is entitled to any compensation on account of delayed possession. Learned Counsel for the appellant has drawn our attention to letter dated 17.3.1997, Annexure page 54, which runs as under: /s. DLF Universal Ltd. 17.3.1997 DLF Centre Sansad Marg, New Delhi 110 001 Dear Sir, Sub: ACCEPTANCE OF POSSESSION Ref: House No. H 33/10 FF 2 Type ATH In DLF Qutab Enclave Complex This refers to your letter No. QEC/COML/ATH/H 33/10 FF 2 dated 12.1.1996 the above subject. I have inspected the construction of the said house and now I do hereby confirm that the house is complete in all respects and that I have no claim against you in respect of the terms of work done in the said house or for defect in any design, specifications, building material used or for any reason whatsoever. I hereby unconditionally accept the possession of my house No.H-33/10 FF 2, Type ATH in DLF Qutab Enclave Complex. Thanking you, Yours faithfully Handed over Name Mr. Vijay Chopra & Mrs. Amarjeet Chopra Address 226, Kailash Hills (T.F.) New Delhi For DLF Universal Ltd. 10. Perusal of this letter reveals that respondent accepted possession of the flat unconditionally and in such circumstances, he was estopped from making any claim against the appellant regarding defects in the flat, delay in handing over possession and learned State Commission has committed error in allowing compensation on account of delayed delivery of possession, 11. Learned Counsel for the appellant further submitted that, as per clause 19 of the agreement, respondent was only entitled to terminate the agreement and get refund of money paid by him, but not entitled to claim compensation. Clause 19 of the agreement reads as under: 9. THAT if for any other reason, the Company is unable or fails to deliver possession of the said Dwelling Unit to the Dwelling Unit Allottee within the time specified herein above, or within any further period or periods agreed to by and between the parties hereto, then and in such case, the Dwelling Unit Allottee shall be entitled to give notice to the Company terminating the Agreement, and the Company thereafter shall be at liberty to sell and dispose of the said Dwelling Unit to any other person at such price and upon such terms and conditions as the Company may deem fit. However, the Company shall within a reasonable time from the date of receipt of such notice, refund without any interest to the Dwelling Unit Allottee the aforesaid amount of earnest money and further amount that may have been received by the Company from the Dwelling Unit Allottee as part payment(s) in respect of the said Dwelling Unit. Neither party shall have any other claim against the other in respect of the said Dwelling Unit under or arising out of this Agreement 12. Honle Apex Court in (2008) 7 SCC 585 DLF Universal Ltd. Vs. Ekta Seth & Anr. observed as under: 1. Coming to the second aspect as per Clause 16 of the agreement it was proposed that the possession could be given within three years from the date of booking i.e. by 16.6.1996 but the same was not done even till September 1998 and it is evident from letter dated 22.2.1999 that there was still some time and further work to be done by the appellant to enable it to hand over the possession. As per Clause 18 the only option given was that if there is delay in delivering the possession then the allottee would be entitled for refund of entire amount deposited with the appellant but without any interest. In other words, as per the terms of the agreement no liability will accrue upon the appellant due to delay in handing the possession 13. In the light of aforesaid judgement pertaining to same appellant, in similar agreement, it becomes clear that in spite of delay in handing over possession, respondent was not entitled to any compensation, but could have only terminated the agreement and received back payment made by him without any interest. Learned State Commission has committed error in allowing compensation to the respondent on the count of delayed possession. 14. Learned Counsel for the respondent submitted that admittedly, the possession was handed over after 3years and appellant utilized money deposited by respondent and amount awarded by the State Commission is even less than 9% p.a. interest, in such circumstances, order passed by the learned State Commission is just and proper. No doubt, respondent was deprived of the possession even after depositing the entire amount as and when demanded, but as per Clause 19 of the agreement and as per Honle Apex Court aforesaid judgement, the respondent is not entitled for any compensation. Learned Counsel for the respondent submitted that such agreements come within the purview of unfair trade practice, but this argument is devoid of force, as the Honle Apex Court in DLF Universal Ltd. case (Supra) decided the matter under Monopoly and Restrictive Trade Practices Act and has not opined that such Clause falls within the purview of unfair trade practice. 15. In the light of above discussion, it becomes clear that though morally the respondent is entitled to some compensation on account of delayed possession, but legally he is not entitled to any compensation and learned State Commission has committed error in granting Rs.2,00,000/- as compensation and appeal is to be allowed. 16. Consequently, appeal filed by the appellant against the respondent is allowed and impugned order dated 17.7.2007 passed by the learned State Commission is set aside with no order as to costs. .. ( K.S. CHAUDHARI, J)

PRESIDING MEMBER

k  

 NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST

APPEAL NO. 603 OF 2007 (From the order dated 17.07.2007 in CC No. C-255/1997 of the Delhi State Consumer Disputes Redressal Commission, Hyderabad)

M/s. DLF Universal Ltd., (Now DLF Ltd.), DLF Center, Sansad Marg, New Delhi Appellant Versus Mr. Vijay Chopra & Mrs. Amarjeet Chopra, 226, Kailash Hills Top Floors, New Delhi Respondent BEFORE HONLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HONLE DR. B.C. GUPTA, MEMBER For the Appellant Mr. R. Narain, Advocate For the Respondent (s) Mrs. Girija Wadhwa, Advocate O R D E R

PER DR. B.C. GUPTA, MEMBER

I have gone through the order passed by the Honle Presiding Member. -2- The basic issue that merits consideration in the present case is whether the non-delivery of possession of a flat/plot/house by a developer to the allottee in question within the stipulated period constitutes deficiency in service or not? In the present case, it is very clear that there has been a delay of 3 years in handing over the possession. The opposite party is trying to take shelter on the strength of an agreement signed between the developer and the allottee in which it has been mentioned in Clause 19 that if or any reason the company is unable or fails to deliver the possession, the allottee shall be entitled to receive the money deposited with the developer back but without any interest. 2. I do not agree with the proposition that mere signing of such an agreement gives unrestricted power or a licence to the developer to get away with the charge of deficiency in service as defined in the Consumer Protection Act, 1986. 3. There have been a number of judgements delivered by the Honle Supreme Court of India and also by the National Consumer Disputes Redressal Commission, in which it has been clearly held -3- that if there is late delivery of possession, without sufficient reason on the part of the developer, the allottee is entitled to receive appropriate compensation. In the famous case, Ghaziabad Development Authority Vs. Balbir Singh, popularly known as the Balbir Singh case, the Honle Supreme Court in their judgement as reported in (2004) 5 SC Cases 65 observed that if the possession is not delivered in time, the allottee is entitled to get compensation. The principles of awarding this compensation have also been laid down in detail in this judgement. In another case, Lucknow Development Authority Vs. M.K. Gupta as reported in 1994 (1) SC Cases 243, the Honle Court held that hen possession of property is not delivered within stipulated period, the delay so caused is denial of service. In Haryana Urban Development Authority Vs. Vijay Aggarwal, as reported in (2005) 9 SCC 446 also, the Apex Court held that the principles laid down in Balbir Singh Case are to be followed in future cases. 4. The Honle Supreme Court in their landmark judgement delivered in Bangalore Development Authority Vs. Syndicate Bank as reported in (2007) 6 SCC 711, enunciated the principles -4- involved in these kind of cases and made reference about the cases quoted above i.e. the Balbir Singh case, the M.K. Gupta case etc. and stated as follows: (a) Where the development authority having received the full price, does not deliver possession of the allotted plot/flat/house within the time stipulated or within a reasonable time, or where the allotment is cancelled or possession is refused without any justifiable cause, the allottee is entitled to refund of the amount paid, with reasonable interest thereon from the date of payment to date of refund. In addition, the allottee may also be entitled to compensation, as may be decided with reference to the facts of each case. .. 5. It is very clear from the above judgements that where possession is refused without any justifiable cause, the allottee is entitled for refund of the amount paid with reasonable interest from the date of the payment to the refund of the payment. In another case, titled as UT Chandigarh Administration & Anr. Vs. Amarjeet Singh as reported in (2009) 4 SCC 660, the Honle Supreme Court observed as follows: -5- here a developer carries on the activity of development of land and invites applications for allotment of sites in a developed layout, it will amount to ervice that when possession of the allotted site is not delivered within the stipulated period, the delay may amount to a deficiency or denial of service, and that any claim in regard to such delay is not in regard to the immovable property but in regard to the deficiency in rendering service of a particular standard, quality or grade. 6. In Haryana Urban Development Authority Vs. Des Rattan Dutta, the National Consumer Disputes Redressal Commission passed an order on 20.07.2010 in Revision Petition No. 4361 of 2009, clearly stating that if the petitioner HUDA after having received the price of the plot had failed to offer possession for more than four years, and the respondent was constrained to ask for refund, the respondent was entitled for relief as he cannot be made to suffer for the acts of omission and commission of the petitioner. 7. It is very clear from the judgements quoted above, that in all cases, where the deficiency of service is proved on account of non-delivery of possession in time, the consumer is entitled to get compensation for harassment or mental agony or oppression. In the -6- case of DLF Universal Limited Vs. Ekta Seth & Anr., as reported in (2008) 7 SCC 585, it has been stated in para-11 as follows: 1. Coming to the second aspect as per Clause 16 of the agreement it was proposed that the possession could be given within three years from the date of booking i.e. by 16.06.1996 but the same was not done even till September, 1998 and it is evident from letter dated 22.02.1999 that there was still some time and further work to be done by the appellant to enable it to hand over the possession. As per Clause 18 the only option given was that if there is delay in delivering the possession then the allottee would be entitled for refund of entire amount deposited with the appellant but without any interest. In other words, as per the terms of the agreement no liability will accrue upon the appellant due to delay in handling the possession. 8. The wording of this paragraph reveals clearly that the Honle Court has stated that as per the terms of the agreement, no liability will accrue upon the appellant due to delay in holding the possession. The learned Court however, after considering the facts and circumstances of the case, did decide to grant relief to the allottee by invoking jurisdiction under Article 142 of the Constitution of India. 9. It is commonly observed that big developers / Development Authorities, even in the Government Sector, often tend to take gullible applicants for a ride and make them sign certain agreement, which are detrimental to the interest of allottees / consumers in the long run. Such developers provide printed application forms to the prospective allottees, containing a large number of terms and conditions and make them sign at the time of applying for the housing unit in question. Such developers are obviously in a state of dominant position vis-vis the applicants / allottees. Even, in the instant case of DLF Universal Vs. Ekta Seth as quoted above, the Honle Apex Court observed that the Company had vested in itself unrestricted power to increase the cost. Such acts on the part of the developers should not be allowed to harm the interest of the allottees in the long run. 10. From the above discussion, it becomes clear that the mere signing of an agreement by a developer with the allottee of a plot/flat/house does not give immunity to such developer from the charge of deficiency of service, if proved from the facts and circumstances of the case, in accordance with the provisions of the Consumer Protection Act, 1986. The orders passed by the District -7- Forum and the State Commission in the instant case, therefore represent correct appreciation of the factual position on record and deserve to be sustained.

(Dr. B.C. Gupta)

Member  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 603 OF 2007 (Against the order dated 17.07.2007 in Complaint Case No. C-255/1997 of the State Commission, Delhi) M/s. DLF Universal Ltd. (Now DLF Ltd.) DLF Centre, Sansad Marg, New Delhi-110001 .Appellant Versus Mr. Vijay Chopra & Mrs. Amarjeet Chopra 226, Kailash Hills Top Floors, New Delhi .....Respondent BEFORE: HONLE MR. VINAY KUMAR, PRESIDING MEMBER For the Appellant : Mr. Ravinder Narain, Advocate Mr. Kanika Gomber, Advocate Mr. Siddharth Bantia, Advocate Ms. Ruchika, Advocate For the Respondent : Ms. Girija Wadhwa, Advocate

PRONOUNCED ON : 23rd May, 2014

ORDER PER MR. VINAY KUMAR, PRESIDING MEMBER

1. This appeal is filed against the order of Delhi State Consumer Disputes Redressal Commission in CC No. C-255/1997. The matter was heard by a Bench of this Commission comprising Honle Mr. Justice K.S. Chaudhari and Honle Member Dr. B.C. Gupta. In his note of 26.4.2013 Honle Mr. Justice K.S. Chaudhari informed the Registrar of the Commission that as the two Members have differed in their opinion, the matter may be placed before Honle President NCDRC, under Section 20 (1A) (iii) of the Consumer Protection Act, 1986. Thereafter, on 30.4.2013, with the approval of Honle President, the matter has been referred to be heard by the undersigned. 2. The provision in Section 20 (1A) (iii) reads as follows:- f the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more or the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it. 3. Both sides have been permitted to inspect the relevant record in the registry and have also been permitted to obtain copies of the orders passed by the two Honle Members. At the initial stage itself, Mr. Ravinder Narain, learned counsel for the appellant referred to the provisio to Section 14 (2A) of the Consumer Protection Act, 1986. The relevant provisio reads as follows:- very order made by the District Forum under sub-section (1) shall be signed by its President and the member or members who conducted the proceeding: Provided that where the proceeding is conducted by the President and one member and they differ on any point or points, they shall state the point or points on which they differ and refer the same to the other member for hearing on such point or points and the opinion of the majority shall be the order of the District Forum. Mr Narain argued that reference to a Third Member requires a clear statement of the difference on the point /points between the two Members and that the scope of the present proceedings would be limited to consideration of the same. The two counsels agree that the sole point, on which the two Honle Members have expressed different views, is hether the respondent/complainant would be entitled to any compensation, in view of the letter of Possession dated 17.3.1997, considered together with the provision in Clause 19 of the agreement between the parties. 4. In the consumer complaint before the State Commission, the relief sought included compensation of Rs 50,000 for mental agony, harassment and denial of the flat as well as interest on the deposited amount of Rs 807694 @ 24% per annum from 18.2.1994 to 17.3.1997. The State Commission has observed that, as per Clauses 17, 18 and 27 of the Agreement between the parties, possession of the flat was to be delivered to the complainant within three and a half years from the date of the agreement i.e. by 18.2.1994. The possession was offered only in March 1997. The State Commission considered the stipulation in these three clauses and came to a conclusion that even if the date of handing over is proposed or tentative, as per the agreement, it would not give the builder liberty to extend it for such a long time. Nor can the builder be permitted to take advantage of its own acts of commission or omission. In this case, possession was offered after unreasonably long time, over and above the agreed period of three and a half years. Therefore, it awarded a lump sum compensation of Rs 2 lakhs to the complainant. 5. On the above point, main ground urged in the Memorandum of Appeal is that in terms of Clause 18 of the Agreement, possession was to be handed over only after all payments had been made. The last payment, including escalation charge, was made only on 29.1.1996. Therefore, delay if any, should exclude period prior to 29.1.1996. The question that would arise here is whether the responsibility for this delay in payment would lie at the door of the respondent/complainant. Learned counsel for the respondent/complainant drew my attention to the letter of 7.10.1994 received from the appellant/OP. It shows that as on 7.10.1994, the sole outstanding amount was Rs 20. It was towards escalation charge and was paid on 12.11.1994. Interestingly, in the of Reply Affidavit of M/S DLF Universal Ltd before the State Commission, it is clearly averred that t may be mentioned here that the final figures of the escalation charges duly audited were received in 1994 and accordingly the demand was raised by statement of account dated 17.6.1995(para 6.hh). Mrs Wadhwa, learned counsel for the respondent/complainant clarified that this refers to demand of Rs 71690 towards escalation charge which was duly paid under protest. The reply affidavit of appellant/OP further states that t is submitted that the inquiry of the Petitioner was duly answered by this Respondent by its letter dated 12.1.1996 wherein the Petitioner was rightly informed that the escalation charges were charged for the contracted period and are payable by all the allottees on prorata(Para 6 ii).. In the light of this categorical admission that the final demand in relation to escalation charge had crystallised only on 12.1.1996, payment thereof by the respondent/complainant within the same month, on 29.1.1996 can, by no stretch of imagination, be called delayed. Therefore, the contention that delay, if any, would exclude the period till 29.1.1996, is rejected. I hold that the State Commission was right in holding the appellant/OP responsible for delay in delivery of possession. 6. Another ground raised in the Memorandum of Appeal and forcefully argued by learned counsel for the Appellant, is that as per the letter (Acceptance of Possession) of 17.3.1997 possession of the house was accepted nconditionally It was argued that it clearly stipulated that the respondent/complainant would have no claim against the appellant/OP in respect of construction of the said house r for whatever reason Learned counsel, Mr Narain argued that this would exclude any claim for compensation on any account, including delay in delivery of possession. Per contra, Mrs Wadhwa, learned counsel for the respondent/complainant argued that the document of 17.3.1997 was actually a printed format of ACCEPTANCE OF POSSESSION. It only deals with design, specification, building material, which have gone into the construction. .There is nothing in it to indicate that the complainant has given up his claim arising from delay in handing over possession of the flat. The letter of 17.3.1997 reads as follows /S DLF UNIVERSAL LIMITED DLF Centre Date: 17-3-97 Sansad Marg, New Delhi -110001 Dear Sir, Sub.: ACCEPTANCE OF POSSESSION Ref. House No. H 33/10 FFo2 Type ATH In DLF QUTAB ENCLAVE COMPLEX This refers to your letter No.QEC/COML/ATH/H33/10 FF 2 dated 12-1-96 the above subject. I have inspected the construction of the said house and now I do hereby confirm that the house is complete in all respects and that I have no claim against you in respect of the terms of work done in the said house or for defect in any design, specifications, building material used or for any reason whatsoever. I hereby unconditionally accept the possession of my house No.H-33/10 FF02 Type ATH in DLF Qutab Enclave Complex. Thanking you, Your faithfully HANDEDED OVER Name Mr. Vijay Chopra & Mrs. Amarjit Chopra Address 226 Kailash Hills (TF) New Delhi For DLF Universal Limited 7. From a plain reading of this letter, it becomes abundantly clear that the undertaking of unconditional acceptance of possession is only to exclude any possible dispute or claim arising from design, specification or quality of construction. There is nothing in this letter to extend its application to claims or disputes on any other ground. It needs to be noted that this undertaking in the ACCEPTANCE OF POSSESSION flows directly from Clause 22 in the Agreement which says that after taking possession, the allottee shall have no claim against the Company in respect of any items of work in the dwelling unit which may or may not have been carried out. Therefore, I do not agree with the contention raised on behalf of the appellant/OP that by signing this letter the respondent/complainant has given up his right to seek compensation for delay in delivery of possession. 8. Learned counsel for the appellant/OP also argued that the only remedy open to the respondent was to seek refund under Clause 19 of the Agreement and not compensation. Challenging this argument, Mrs. Wadhwa, learned counsel for the respondent/complainant contended vehemently that Clause 19 of the Agreement is applicable only to a situation where the builder is not in a position to deliver possession of the flat. First of all, the buyer would need to be informed of the reasons for inability of the builder to deliver. Only thereafter, he would be in a position to decide whether to make further payments or seek refund. 9. On behalf of the appellant/OP, reliance has been placed on the decision in DLF Universal Ltd Vs. Ekta Seth (2008) 7 SCC 585. It was a Civil Appeal under the MRTP Act 1969. This was a case where a flat was booked for Rs.16.37 lakhs with payment spread over 42 instalments. The allottee had paid Rs.9.94 lakhs when the builder raised an additional demand of Rs.4.21 lakhs for escalation etc. The allottee defaulted on instalments and the allotment was cancelled. The builder forfeited Earnest Money of Rs.1.69 lakhs. Forfeiture was contested on the ground that the builder itself had defaulted. The possession was agreed to be given in 1996 but was not given until 1998. Honle Supreme Court held that the terms and conditions of the agreement between the parties were binding. There was delay in completion of construction. But as per Clause 18 of the agreement the only option given was to get refund of the entire deposited amount without interest. However, the Apex Court exercised its discretionary jurisdiction under Art 142 of the Constitution of India and ordered refund of 50% of the forfeited amount. These facts are very different from those in the appeal before this Commission. The question here is whether under the terms of the Agreement between the parties, the respondent complainant is entitled to compensation for delay in delivery of the flat. 10. In my view, Clause 19 of the Agreement cannot be considered in isolation. It needs to be seen in conjunction with other relevant clauses in the Agreement. Under the Agreement, the buyer has to pay the consideration in instalments spread over 36 months, as detailed in Schedule-1. Timely payment is called the essence of the contract (Clause11). Therefore, for delays in payment, the builder is permitted to charge interest @ 20% (Clause 28). The possession was proposed to be delivered in three and a half years from the date of the Agreement. Under Clause17, easonable extension of agreed completion periodis permissible in situations contemplated therein. But, if for any other reason, the builder fails or is unable to deliver possession within the agreed or extended period, Clause 19 would permit the allottee to seek termination of the Agreement. In such a case, this clause stipulates only refund of money after deducting the earnest money, and no other claim. But, what cannot be ignored is the fact that possession had already been delivered. It is not the case of the appellant that it was unable to deliver possession. Thus, in the present case there was neither a need nor any occasion for resort to clause 19. I therefore reject the contention of the appellant/OP that the only option available to the respondent/complainant was to seek refund in terms of Clause 19. 11. As already noted, in the scheme of the Agreement, time is of the essence. It would be illogical to hold that it is of the essence only for payment from the allottee to the builder and not for timely delivery by the builder to the allottee. The admitted case of the appellant/OP, as observed earlier in this order, is that the demand in relation to escalation charge had crystallised only on 12.1.1996. It is also admitted that payment of this amount was made by the respondent/complainant on 29.1.1996 i.e. within the same month. Therefore, the contention that delay, if any, would exclude the period till 29.1.1996 has to be rejected. 12. In the light of the details examined above, I hold that the State Commission was right in holding the appellant/OP responsible for delay in delivery of possession. Further, I reject the contention of the appellant that in view of the letter of 17.3.1997 the respondent/complainant would not be entitled to claim any compensation. I also reject the contention that the only option available to the respondent/complainant was to seek refund under Clause 19 of the Agreement. Consequently, the award of lump sum compensation by the State Commission is upheld. ..

(VINAY KUMAR)

PRESIDING MEMBER

S./-  

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

In F.A. No. 603 of 2007 M/s. DLF Universal Ltd. Vs. Mr. Vijay Chopra & Mrs. Amarjeet Chopra, arguments were heard on 6.3.2013 by the Bench comprising of Honle Mr. Justice K.S. Chaudhari and Honle Dr. B.C. Gupta, Member. Judgment allowing appeal was dictated by me and sent for approval to Honle Dr. B.C. Gupta, Member on 11.3.2013. Honle Dr. B.C. Gupta sent dissenting judgment on 25.4.2013. As Members of the Bench differed in their opinion, the matter was placed before Honle President, NCDRC under Section 20(i)(iii) of the C.P. Act for appropriate directions. Honle President referred the matter to Honle Member Vinay Kumar. Honle Member Vinay Kumar agreed with the judgment delivered by Honle Dr. B.C. Gupta and upheld order of State Commission, whereas Presiding Member Justice K.S. Chaudhari allowed appeal and set aside order of State Commission. Consequently, in the light of majority view, appeal is dismissed.

( Justice K.S. Chaudhari )

Presiding Member

23.5.2014