State Consumer Disputes Redressal Commission
Mrs. Anita Singh vs Dlf Homes Panchkula Pvt. Ltd. on 27 October, 2022
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 29 of 2022
Date of Institution : 24.03.2022
Date of Decision : 27.10.2022
1. Mrs.Anita Singh wife of Lt. Gen. Kamal Jit Singh, aged 64 years.
2. Lt. Gen. Kamal Jit Singh son of Sh.Manohar Singh, IAS (Retd.), aged 66
years.
R/o of House No. A-1/33-Ground Floor, DLF Homes Panchkula Private
Limited, The Valley, Sector 3, Pinjore Kalka Urban Complex, Village
Bhagwanpur, Islamnagar, Panchkula, Haryana-134107.
....Complainants
Versus
1. M/s DLF Homes Panchkula Private Limited, Registered Office at 12th
Floor, DLF Gateway Tower Building, DLF City, Phase-III, National
Highway, Gurugram-122002 through its Managing Director/
Director/Authorized Signatory
Second Address:- DLF Homes Panchkula Private Limited, Corporate and
Sales Office, # F-2/3, The Valley, Sector 3, Pinjore Kalka Urban Complex,
Village Bhagwanpur, Islamnagar, Panchkula, Haryana-134105 through
its Managing Director/Director/Authorized Signatory.
2. Sh.Surinder Singh Chawla, Director, DIN-00102064 and Sh Rakesh
Kerwell, Director, M/s DLF Homes Panchkula Private Limited, 12th
Floor, DLF Gateway Tower Building, DLF City, Phase-III, National
Highway, Gurugram-122002.
3. Mr.Vineet Kanwar (DIN-00522258), Mr.Rajeev Singh (DIN-02669832),
Harsh Deep Sachdeva, Directors (00330009), DLF Homes Panchkula
Private Limited, Corporate and Sales Office # F-2/3, The Valley, Sector 3,
Pinjore Kalka Urban Complex, Village Bhagwanpur, Islamnagar,
Panchkula, Haryana-134105
....Opposite parties no.1 to 3
4. Director General and Country Town Planner, Department of Town &
Country Planning Haryana, Plot No.3, Sec-18A, Madhya Marg,
Chandigarh 160018.
.....Proforma Opposite Party No.4
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.
MRS.PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER MR.PREETINDER SINGH, MEMBER.
2Present:-- Maj. Gen (Retd.) M.P. Singh, Advocate for the complainants alongwith complainant no.2 in person.
Sh.Kunal Dawar and Ms.Tanika Goyal, Advocates for opposite parties no.1 to 3.
Opposite party no.4 exparte.
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The moot question which falls for consideration in the present case is, as to whether, a builder can recover amount of excess area, beyond the area mentioned in the occupation certificate?
2. Both the complainants are senior citizens and struggled for getting possession of their unit for more than one decade and now they are before this Commission for execution of sale deed in respect of the said unit. It is the case of the complainants that initially, complainant no.2 vide application dated 18.02.2010, Annexure C-1, applied to opposite parties no.1 to 3 for purchase of residential unit bearing no.A1/45-First Floor, in its project named "DLF Valley", Sector 3 Panchkula, against total sale consideration of Rs.49,61,360/-, yet, they failed to deliver possession thereof by 24.11.2012 i.e. within a period of 24 months as envisaged in Clause 11 (a) of the agreement dated 25.11.2010, Annexure C-7. It has been averred that during the period intervening, opposite parties no.1 to 3 informed complainant no.2 that the Hon'ble Supreme Court of India stayed the construction activities for the period from April 2012 to December 2012. However, by 31.10.2013, total amount of Rs.29,40,501/- stood received by opposite parties no.1 to 3, yet, possession of unit no. A1/45 was still not offered to complainant no.2. To his utter shock, opposite parties no.1 to 3 vide letter dated 04.03.2014, Annexure C-10 colly., informed complainant no.2 that allotment of unit no. A1/45 is cancelled, which was later on restored. Thereafter, complainant no.2 raised housing loan from Army Group Insurance Fund and made more payments to opposite parties no.1 to 3 and thus by 10.08.2015 total amount of Rs.47,10,471/- stood paid in respect of unit no. A1/45, however, possession thereof was still not offered and delivered. When complainant no.2 contacted opposite parties no.1 to 3 in the matter, they vide letter dated Annexure C-13 informed that possession of unit no. A1/45 will be delivered by 01.08.2016, yet, they failed to do so. Under those circumstances, complainant no.2 had filed consumer complaint bearing no.61 of 2017 before this Commission, which was later on withdrawn vide order dated 15.02.2017, Annexure C-16 on the assurance of opposite parties no.1 to 3 that they will redress their grievance. Resultantly, vide letter dated 12.04.2017, Annexure C-17, complainant no.2 was relocated to unit no.A1/33-Ground Floor, allegedly measuring 3702 square feet in the said project, for total sale consideration of Rs.1,53,45,674.77. However, complainant no.2 was shocked to see that 3 the area of the unit bearing no.A1/33 GF, in DLF Valley, Panchkula was shown to be increased from 2255 square feet to 3702 square i.e. (alleged 3702 square feet), as a result whereof, the differential amount of Rs.76,16,150/- was additionally demanded. Furthermore, an amount of Rs.3,64,949.07 was also shown as interest in the letter dated 12.04.2017, which was never justified by opposite parties no.1 to 3. Both these demands were totally illegal because the complainants had directly obtained occupation certificate dated 20.10.2016, Annexure C-18, under RTI, in respect of the unit in question and found that the actual area of unit bearing no.A1/33 GF is 282.01 square meters i.e. 3035.60 square feet and not 3702 square feet. Similarly, an amount of Rs.3,64,949.07 was shown as interest in letter dated 12.04.2017, which was never justified by opposite parties no.1 to 3. In this manner, total amount of Rs.79,81,099/- (Rs.76,16,150/-(+) 364949.07), vide letter dated 12.04.2017 was illegally demanded by opposite parties no.1 to 3 from complainant no.2 out of Rs.1,53,45,674.77. Complainant no.2 raised his grievances on account of illegal charges, referred to above, levied, by the company in respect of unit bearing no.A1/33-GF, but to no avail. Without redressing the grievances of complainant no.2, opposite parties no.1 to 3 offered possession of unit bearing no.A1/33-GF, vide letter dated 31.05.2017, Exhibit C-19, whereby, now the price of the said unit was enhanced from Rs.1,53,45,674.77 to Rs.1,80,97260.41. Complainant no.2 requested opposite parties no.1 to 3 to waive off the illegal charges referred to above and also to reissue a valid statement of accounts so that he is able to make the actual remaining amount but to no avail. However, the amount of Rs.1,81,64,819.98ps. was received from complainant no.2.
3. During the period intervening, complainant no.2 vide letter dated 14.07.2017 requested opposite parties no.1 to 3 for substituting the name of complainant no.1 in his place in respect of unit bearing no.A1/33- GF, which was acceded by the company vide letter dated 21.07.2017, Exhibit C-20. No separate agreement in respect of unit bearing no.A1/33- GF, was executed between the parties either towards relocation or towards substituting the name of complainant no.1 instead of complainant no.2, referred to above. Thereafter the complainants together approached the office of opposite parties no.1 to 3 with a request to redress their grievance regarding charging of arbitrary amounts referred to above, and also to deliver possession of unit bearing no.A1/33 GF, which was offered vide letter dated 31.05.2017, as they were facing huge difficulties in the absence of house. However, opposite parties no.1 to 3, being in a dominating position failed to redress the aforesaid grievances and rather blackmailed complainant no.1 to take possession of unit bearing no.A1/33-GF, failing 4 which threat of cancellation thereof was given. She was asked to clear all payments before delivery of possession of unit bearing no.A1/33-GF. The prevailing circumstances compelled complainant no.1 to pay the said exorbitant amount against the actual price of the said unit, thereby causing huge financial loss and on the other hand, opposite parties no.1 to 3 enriched themselves at the hands of the complainants. Thus, under disadvantageous position, complainant no.1 had made the entire payment which included illegal demand also and took possession of unit bearing no.A1/33-GF, vide possession certificate dated 04.08.2017, Exhibit C-22 colly. Thus, against the total sale consideration of Rs.88,52,789.58, opposite parties no.1 to 3 have received an amount of Rs.1,81,64,819.98 i.e. Rs.93,12,030.40 in excess. Thereafter, complainant no.1 alongwith her husband again approached opposite parties no.1 to 3 with a request to pay delayed compensation and refund the excess amount received and also to redress other grievances but to no avail. The complainants again wrote detailed letter dated 23.07.2018, Exhibit C-23 wherein, they narrated the entire episode and again requested to redress their grievances. However, only a petty amount of Rs.1,40,650.21 and Rs.80,000/- was refunded to complainant no.1 on 25.02.2019, Exhibit C-24 colly., yet, remaining grievances were not redressed. Resultantly, reminder letter dated 14.07.2021, Exhibit C-25 followed by reminder email dated 13.12.2021, Exhibit C-26 were sent in the matter by the complainants but to no avail. In this manner, the complainants were left in lurch. Hence this complaint has been filed by the complainants seeking following reliefs against opposite parties no.1 to 3:-
(i). To refund the excess amount of Rs.93,12,030.40 as reflected in calculation sheet in para no.41 above, along with interest @12% p.a. from the date of receipt thereof till realization.
(ii). To intimate current status of automatically cancelled Occupation Certificate of Property No. A1/33-GF
(iii). To provide mandatory documents for sale deed registration as per State Govt. Policy on the subject including updated & duly Govt. sanctioned "Final Building Plan and Occupation Certificate showing 3702 sq ft area of my unit No.A/33-GF", as directed by Hon'ble National Commission in case of Pawan Gupta Versus Experion Developers Pvt Ltd., Consumer Case No. 286 of 2018 dated 26 August, 2020 and also as per instructions contained in State Govt FCR Letter dated Mar 2009 stipulating policy on registration of independent floor in Haryana.
(iv). To give intimation, in writing, regarding amount of stamp duty and incidental expenditure required to be incurred for sale deed and to get legally valid sale deed executed as First Allottee transferring absolute rights in respect of unit 5 bearing no.A1/33-GF, as per the area mentioned in the occupation certificate as per State Govt. policy on the subject.
(v). To provide No Encumbrance Certificate to ensure that the
complainants are not made liable for any
illegalities/mortgage/court cases attributable to Opposite Parties.
(vi). To provide indemnification, to the effect that in case, in future, any wrong/defect is found by any of the legal authorities including the Court in title of land, approvals, compliance of statutes/local laws/State Govt Policy, Payment of govt tax/dues etc. and in that event, in case of any loss caused to the complainants, the same shall be indemnified by the company, to the extent of loss caused.
(vii). To provide the complete details regarding sale consideration of unit bearing no.A1/33-GF, as they have deliberately created a confusion by giving three sale considerations as per DLF FSA i.e. 1,75,45,575.34 w/o considering interest component of Rs.3,64,949.07; latest FSA reflected amount of Rs.1,80,74,501.98 with an additional ST of Rs.1,67,061.98.
(viii). To apprise the complainants, as to under which head, the amount of Rs.1,49,650.00 and Rs.88,960.00 have been refunded to them
(ix). To apprise the complainants and provide breakdown/details with justification of FAS for charging additional amount of 1,00,22,450.00 for unit bearing no.A1/33-GF and also regarding the discount given, if any.
(x). To pay compensation by way of interest @12% p.a. on the deposited amount for the period of delay in handing over possession till realization i.e. starting from 24.11.2012 till 03.08.2017.
(xi). To pay compensation of Rs.5 lacs, on account of mental agony, physical harassment, financial loss caused to the complainants; and providing deficient services, negligence and adoption of unfair trade.
(xii). To pay cost of litigation to the tune of Rs.50,000/- to the complainants"
4. Their claim has been contested by opposite parties no.1 to 3, on numerous grounds, inter alia, as under:-
(i). that this Commission did not vest with territorial jurisdiction to entertain and decide this complaint;
(ii). that the complainants are not consumers as the unit in question was purchased by them for investment purposes;
(iii). that the complainants are seeking complete amendment/ modification/rewriting of the terms and conditions of the agreement;6
(iv). that the complainants were relocated from unit no.A1/45 to A1/33 on the request made by themselves only;
(v). that as a good will gesture, the complainants were given certain rebates to the extent of Rs.16,27,790/-;
(vi). that initially allotted unit no.A1/45 was also constructed and its occupation certificate had been received on 12.01.2017, Annexure OP-1;
(vii). that because the transaction in question is contractual in nature, as such, only civil court is competent to entertain and decide this complaint;
(viii). that the parties are bound by terms and conditions of the agreement;
(ix). that the complainants were well aware that the layout plans of the project were tentative and subject to change, as such, now at this stage they cannot wriggle out of the same;
(x). that even otherwise, the increase is area is to the extent of 2.12% which is below 15% i.e. within the permissible limits as specified in terms and conditions of the agreement;
(xi). that the area mentioned in the occupation certificate (A1/33) did not include the area of common areas such as staircases, balconies etc. and as such the sale price is based on the entire saleable area;
(xii). that increase in area has been audited and computed by GAA Advisory and experts of School of Planning and Architecture, New Delhi;
(xiii). that possession of the unit could not be offered on account of stay on construction activities by the Hon'ble Supreme Court of India vide order dated 19.04.2012 in SLP No.21786-88/2010, which was ultimately vacated on 12.12.2012 and subsequent thereto the company tried its level best by arranging the labour etc. to complete the construction and development work at the project site;
(xiv). that delay in possession of the unit also took place because there was delay on the part of competent authorities in granting statutory approvals/service and layout plans;
(xv). that the complainants were given option to take refund of the amount paid alongwith interest @9% p.a. but they did not opt the same;
(xvi). that possession was offered to the complainant no.2 vide letter dated 31.05.2017, Annexure OP-11 after receipt of occupation certificate dated 20.10.2016, Annexure C-18 alongwith demand 7 of balance sale consideration but the complainants delayed the same;
(xvii). that possession of the unit has been handed over to complainant no.1 on 04.08.2017, Annexure OP-12 on receipt of balance sale consideration and (xviii). that since after taking over possession of the unit on 04.08.2017, the complainants have approached this Commission and filed complaint on 24.03.2022, it is barred by limitation.
5. On merits, purchase of the unit in question, in the manner explained in the complaint; execution of agreement; payments made by the complainants as mentioned in the complaint; and delay in delivery of possession of the unit no.A1/45 have not been disputed by opposite parties no.1 to 3. Prayer has been made to dismiss the complaint.
6. Despite service, none put in appearance on behalf of opposite party no.4, as a result whereof, it was proceeded against exparte vide order dated 17.05.2022.
7. The complainants filed rejoinder wherein, they reiterated all the averments contained in the complaint and controverted those contained the written reply of opposite parties no.1 to 3.
8. This Commission has afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments.
9. We have heard the contesting parties and have also gone through the entire record of the case, including the rejoinder as well as written arguments aforesaid, very carefully.
10. First we will deal with the objection taken by opposite parties no.1 to 3 to the effect that the complainants are investors and did not fall within the definition of 'consumer' as defined under the Act, 2019. It may be stated here that since objection taken by opposite parties no.1 to 3 in this regard is not supported by any documentary evidence, as such the onus shifts to them to establish that the complainants have purchased the unit in question to indulge in 'purchase and sale of units' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31, but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act, 2019, especially, when they are admittedly in possession of the said unit and are residing therein. In this view of the matter, objection taken in this regard stands rejected.
811. Now we will deal with the objection taken by opposite parties no.1 to 3 with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-
".....47. (4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of opposite parties, where there are more than one, at the time of the institution of the complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain...."
Bare perusal of the above said provisions of sub-sections (a) and (b) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the opposite party(s) actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Sub-Section (c) of Section 47 (4) of the said Act, further clarifies that the State Commission within whose jurisdiction a part of cause of action, wholly or in part arises, shall have the territorial jurisdiction to entertain and decide the consumer complaint.
Furthermore, it is settled law that even an infinitesimal fraction of a cause of action will be a part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. Cause of action, wholly or in part, may be accrued at the following places:-.
(i) the place where the contract was made;
(ii) the place where the contract was to be performed or performance thereof completed;
(iii) the place wherein performance of the contract any money to which the suit relates was expressly or implied payable.
It is significant to mention here that in the present case the following documents reveal that the same have been issued by opposite parties no.1 to 3 from their Chandigarh Offices i.e. Shop No.101-102, DLF City Centre, IT Park, Kishangarh, Chandigarh and SCO No.190-192, Sector 8-C, Chandigarh:-
9(i). Letter dated 05.04.2010 (at page 50 of the paper book)
(ii). Letter dated 17.05.2010 (at page 54 of the paper book)
(iii). Letter dated 28.05.2010, Annexure C-5 (at page 57 of the paper book)
(iv). Independent Floor Buyer's Agreement dated 25.11.2010, Annexure C-7 has been made at Chandigarh and also in clause no.49 it has been clearly mentioned that Place of Execution of Agreement has been shows as "Head Office in Chandigarh".
(v). Letter dated 11.05.2012, Annexure C-8 (at page 130 of the paper book)
(vi). Offer of possession letter dated 31.05.2017, Annexure C-19 (at page 166 of paper book)
(vii). Occupation certificate dated 12.01.2017, Annexure OP-1 (A1/45) has also been issued by the Senior Town Planner, Panchkula to opposite parties no.1 to 3 at the said Chandigarh Offices.
(viii). All the payments receipts have also been issued by Chandigarh office of opposite parties no.1 to 3.
Thus, since from the documents referred to above, it has been proved that opposite parties no.1 to 3 were actually and voluntarily residing and carrying on their business from their branch offices at Chandigarh, wherefrom they were personally working for gain and at the same time, numerous part of cause of action accrued with the territory of this Commission, as such, it is held that this Commission has territorial jurisdiction to entertain this complaint. Objection taken in this regard, therefore, stands rejected.
12. It is not in dispute that in the first instance, the complainant no.2 had been allotted unit no.A1/45, measuring 2255 square feet, possession whereof was to be delivered on or before 24.11.2012 i.e. within a period of 24 months as envisaged in Clause 11 (a) of the agreement dated 25.11.2010, Annexure C-7. However, there is nothing on record that possession of unit no.A1/45 was even offered by the promised date (24.11.2012), what to speak of delivery of possession thereof. It is coming out from the record that thereafter, without assigning any reason, instead of offering possession of unit no.A1/45 (2255 square feet), vide letter dated 12.04.2017, Annexure C-17, the complainants were relocated to unit no. A1/33 showing area as 3702 square feet @Rs.1906.50 in the said project, for total sale consideration of Rs.1,53,45,674.77. It is further coming out from the record that thereafter, when possession of unit no.A1/33 was offered to the complainants vide letter dated 31.05.2017, Annexure C-19, 10 the payable amount in the statement of account dated 31.05.2017 towards the said unit was shown as Rs.1,79,10,524/- out of which Rs.1,39,94,147.98 was shown as received from the complainants and balance payable was shown as Rs.39,88,339.43 and after discount payable amount came as Rs.39,08,572.43. The customer ledger dated 29.07.2019, Annexure C-21 shows that the total amount of Rs.1,81,64,819.98 was credited in the account of opposite parties no.1 to 3, in respect of the unit in question. Accordingly, possession of the unit in question was handed over to complainant no.1 on 04.08.2017, Annexure C-22. It is coming out from the record that thereafter the complainants took up the issues regarding payment of compensation, defects in the unit no. A1/33 etc. with opposite parties no.1 to 3, as a result whereof, only paltry amount of Rs.1,40,650/- was paid to complainant no.1 vide cheque dated 25.02.2019, Annexure C-
24. At the same time, even the sale deed of the unit in question has not been executed till date.
13. It is significant to mention here that when we asked Counsel for opposite parties no.1 to 3, as to why possession of the initially purchased unit no.A1/45 was not offered by the promised date i.e. 24.11.2012, he tried to wriggle out of the situation, under the grab of force majeure circumstances, on following grounds,:-
(i). On account of order dated 19.04.2012 passed by the Hon'ble Supreme Court of India in SLP No.21786-88 of 2010, whereby construction activities in the area were stayed and it was finally vacated on 12.12.2012, whereafter it took considerable time to rearrange the labour/material for resuming the construction and development work at the project site; and
(ii). that delay also took place because the competent authorities also delayed in granting statutory approvals and layout plans, which was beyond the control of the company.
14. Thus, in peculiar facts and circumstances of this case, now the following questions arise for consideration before this Commission:-
(i). Whether the plea taken by opposite parties no.1 to 3 for non offering of possession of initially purchased unit no.A1/45 was justified or not?
(ii). Whether the complainants requested opposite parties no.1 to 3 for relocation from unit no.A1/45 to unit no A1/33 or not?
(iii). What was the actual size/area of unit no.A1/33 to which the complainants were relocated and as to whether, opposite parties no.1 to 3 were justified in raising demand from the complainants, for an area of 3702 square feet in respect of unit 11 no.A1/33, against the area 3035.60 square feet as mentioned in the occupation certificate or not?
(iv). What was the actual amount payable by the complainants in respect of unit bearing no.A1/33 GF?
(v). Whether complainant no.1 is entitled for any delayed compensation on account of delivery of possession of the unit in question or not?
(vi). Whether this complaint is barred by limitation or not?
15. First coming to the question, as to whether, the plea taken by opposite parties no.1 to 3 for inordinate delay and non offering of possession of initially purchased unit no.A1/45 was justified, or not? It may be stated here that not an iota of evidence has been produced on record by opposite parties no.1 to 3 that they suffered any force majeure circumstances, for the period starting from December 2012 (when stay aforesaid was vacated) till 12.04.2017 (when they relocated the complainants to unit no.A-1/33-GF). As far as stay aforesaid, on construction activities by the Hon'ble Supreme Court of India vide order dated 19.04.2012 in SLP No.21786-88/2010 is concerned, the said stay had ultimately been vacated on 12.12.2012 i.e. the stay was in force only for 08 months i.e. from 19.04.2012 to 12.12.2012. Thus, in any circumstances, even if we give immunity of 08 months to opposite parties no.1 to 3, even then possession of unit no.A1/45 should have been offered to the complainants latest by 24.07.2013 (08 months from date of possession being 24.11.2012), which was not done so because admittedly they were thereafter relocated to unit no.A-1/33-GF vide letter dated 12.04.2017, Annexure C-17, without assigning any reason and physical possession thereof was delivered only on 04.08.2017, Annexure OP-12. Thus, opposite parties no.1 to 3 were deficient in providing service and negligent on this count.
As far as plea raised with regard to delay in granting statutory approvals by the competent authorities is concerned, it may be stated here that opposite parties no.1 to 3 have not been able to convince this Commission, that if they knew that the said approvals were still awaited, then why they committed the complainants vide clause 11 (a) of agreement dated 25.11.2010, Annexure C-7 to offer possession of the unit by 24.11.2012. Opposite parties no.1 to 3 should have obtained all the approvals/sanctions before booking the said unit. If opposite parties no.1 to 3 chose to accept booking without obtaining statutory approvals, they are to blame to themselves only. The purchaser of the units, who had nothing to do with grant of statutory approvals, cannot be penalized, by postponing the possession. Our this view is supported by the observations made by the 12 Hon'ble National Commission in M/s. Narne Constructions Pvt. Ltd. Vs. Dr. Devendra Sharma & 4 Ors., Revision Petition No. 4620 of 2013, decided on 17 Dec 2015. Relevant part of the said order reads as under:-
".....As far as final sanction of layout by HUDA is concerned, in my view, the petitioner cannot penalize the complainants/respondents for the delay in the aforesaid sanction since delay cannot be attributed to any act or omission on the part of the complainants/respondents. In fact, in my opinion, the petitioner should not even have accepted the booking without final sanction of the layout by HUDA. If the petitioner chose to accept booking on the basis of provisional sanction of the layout by HUDA, it is to blame to only itself for the delay, if any, on the part of the HUDA in issuing the final sanction of the layout. The purchaser of the plot, who had nothing to do with the sanction of the layout by HUDA cannot be penalized, by postponing the possession or registration of the plot and therefore any escalation in the registration charges on account of delay in final sanction of layout by HUDA must necessarily be borne by the builder and not by the allottee of the plot....."
It has thus been proved that money has been collected from the prospective buyers including the complainants starting from 2010 itself, without obtaining statutory approvals. Collecting money from the perspective buyers and selling the project, without obtaining the required permissions/ approvals is an unfair trade practice on the part of the project proponent. It was so said by the Hon'ble National Commission, in a case titled as M/s Ittina Properties Pvt. Ltd. & 3 Ors. Vs. Vidya Raghupathi & Anr., First Appeal No. 1787 of 2016, decided on 31 May 2018. Relevant part of the said order reads as under:-
"................This Commission in Brig. (Retd.) Kamal Sood Vs. M/s. DLF Universal Ltd., (2007) SCC Online NCDRC 28, has observed that it is unfair trade practice on the part of the Builder to collect money from the perspective buyers without obtaining the required permission and that it is duty of the Builder to first obtain the requisite permissions and sanctions and only thereafter collect the consideration money from the purchasers.
It is an admitted fact that the sale deeds were executed in the year 2006 and by 2009 the completion certificate was not issued. The Occupancy Certificate was issued only on 25.09.2017 during the pendency of these Appeals before this Commission. Allotting Plots or Apartments before procuring the relevant sanctions and approvals is per se deficiency............"
It is therefore held that opposite parties no.1 to 3 failed to convince this Commission for non offering of possession of initially purchased unit no.A1/45 and the said act amounts to deficiency in providing service and negligence on their part.
1316. Now coming to the question, as to whether, the complainants requested opposite parties no.1 to 3 for relocation from unit no.A1/45 to unit no A1/33 or not? It may be stated here that not even a iota of evidence has been placed on record by opposite parties no.1 to 3 to prove that the complainants made request to the company for relocation from unit no.A1/45 to unit no.A-1/33-GF. On the other hand, the facts narrated above are sufficient to hold that it was under compelling circumstances, that complainant no.2 accepted the said relocation, which was made vide letter dated 12.04.2017, Annexure C-17, as by that date, the possession of earlier allotted unit no.A1/45 was not offered by opposite parties no.1 to 3, whereas, on the other hand, complainant no.2 was in dire need of house, as he had retired from the Indian Army in the year 2016 and was not having any house to reside alongwith his family members. It is therefore held that it was opposite parties no.1 to 3 which relocated the complainants, in the absence of any requests having been made by them.
17. Now coming to the question, as to what was the actual size/area of unit no.A1/33 to which the complainants were relocated and as to whether, opposite parties no.1 to 3 were justified in raising demand from the complainants, for an area of 3702 square feet in respect of unit no.A1/33 or not? It may be stated here that to answer this question, we need to refer the occupation certificate dated 20.10.2016, Annexure C-18. It is pertinent to mention here that we have minutely gone through the contents of the said occupation certificate, Annexure C-18 and find that it has been issued by the Senior Town Planner-cum-Chairman, Building Composition Committee, Panchkula, for an area measuring 282.017 square meters i.e. 3035.60 square feet only and not for 3702 square feet. Other than this document (occupation certificate), there is no other reliable/over- riding document having been issued by the competent Authority, wherefrom, the final area of the unit in question could be ascertained. In this occupation certificate, it has been clearly mentioned that this certificate will stand automatically cancelled, if the permitted use of building or part thereof is changed or any additional construction or alteration in the said building is raised without approval of the competent authority or the portion of the building for which occupation certificate has not been granted is occupied. Thus, in the face of occupation certificate, Annexure C-18 which has been issued by the Senior Town Planner-cum-Chairman, Building Composition Committee, Panchkula, for an area measuring 282.017 square meters i.e. 3035.60 square feet only, the document dated 07.06.2017, Annexure OP-15 colly., issued by School of Planning and Architect, New Delhi, wherein the area of the unit in question has been shown as 343.924 square meter, especially, 14 which has not been endorsed by the Senior Town Planner-cum-Chairman, Building Composition Committee, Panchkula, has no value in the eyes of law. It is therefore held that since the actual area of the unit sold to the complainants, as assessed by the competent authorities, in the said occupation certificate is 3035.60 square feet, the complainant are not bound to make payment over and above the said area (3035.60 square feet) of the unit no.A-1/33-GF. In our considered opinion before charging for any excess area, the builder is bound to share the actual reason for increase in the super area, based on the comparison of the originally approved buildings and finally approved buildings, so that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. Furthermore, the said enhanced area should also reflect in the occupation certificate too, which is not so in the present case. A similar question, as to whether, the builder can charge for excess area, in the absence of proof of the said increase in the approved building plans, fell for determination before the Hon'ble National Commission in Pawan Gupta vs Experion Developers Pvt. Ltd., consumer complaint bearing no.286 of 2018, decided on 26 August, 2020, which was answered in favour of the allottees by holding that by increasing the area at the final stage of possession, without any justification is an unfair trade practice on the part of the builder/developer. Relevant part of the said order reads as under:-
"...... In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required......"
Civil Appeal No(s).3312/2020 filed by the builder against the order dated 26.08.2020 aforesaid passed by the Hon'ble National Commission was dismissed by the Hon'ble Supreme Court of India, while holding that the 15 complainant is entitled to get refund of the amount paid towards the excess area. Under these circumstances, the complainants in the present case are thus entitled to get refund of the excess amount, paid by them to opposite parties no.1 to 3, over and above the area of 3035.60 square feet in respect of unit no.A-1/33-GF.
18. The next question that falls for consideration is, as to whether, this complaint is barred by limitation, it may be stated here that since it is not in dispute that though possession of unit no.A-1/33-GF was delivered to the complainants on 04.08.2017, Annexure OP-12, yet, neither sale deed in respect of the said unit has been executed nor compensation for the period of delay in delivery of possession has been paid by opposite parties no.1 to 3 nor the excess amount received towards the area of unit no.A- 1/33-GF has been refunded to complainant no.1, as such, this complaint cannot be said to be barred by limitation. Our this view is supported by the law laid down by the Hon'ble National Commission in Kalidas Sangar & Anr. Vs. Shri Mati Anjali Chakraborty & Anr., Revision Petition No. 1 of 2016, decided on 03.10.2016, wherein, it was held that non-execution of sale deed in respect of the units/flats purchased by the complainants in terms of the Sale Agreement is a continuing cause of action. Relevant part of the said order is reproduced here:-
"......In our view, having rightly observed that non-execution of Sale Deed in respect of the units/flats in question, purchased by the Complainants in terms of the Sale Agreement dated 26.8.1994 was a continuing cause of action, both the Forums below have committed material irregularity in dismissing the Complaints as barred by limitation under Section 24A of the Consumer Protection Act, 1986. ........."
Furthermore, as stated above, since opposite parties no.1 to 3 have also neither paid compensation for the period of delay in delivery of possession of the unit and also did not refund the excess amount received towards the unit in question meaning thereby that some grievances were still not redressed by the company, in that event also, this complaint cannot be said to be barred by limitation. As such, plea taken by opposite parties no.1 to 3 in this regard stands rejected.
19. Now the next question arises is, as to whether, complainants are entitled for any delayed compensation on account of delivery of possession of the unit in question and if yes to what extent?. It may be stated here that irrespective of the fact that the complainants were relocated to unit bearing no. A-1/33-GF from unit no.A1/45, in the year 2017, as per their own request or by opposite parties no.1 to 3 themselves, the fact remains that the complainants started pouring money to opposite parties 16 no.1 to 3 from February 2010, but they were ultimately put in possession of unit bearing no. A-1/33-GF on 04.08.2017, to which they were relocated only on 12.04.2017, Annexure C-17. Thus, hard earned money of the complainants were utilized by opposite parties no.1 to 3 for more than 7 years, without providing them anything. We have gone through the contents of letter dated 12.04.2017, vide which the complainants were relocated to unit bearing no. A-1/33-GF and found that it has been clearly mentioned therein that "the schedule of payment, payment plan and all the terms and conditions remain the same as per the executed Floor buyer agreement". In Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Bharathi Knitting Company Vs.DHL Worldwide Express Courier Division of Airfreight Ltd.- (1996) 4 SCC 704, the Hon'ble Supreme Court accepted the contention that in an appropriate case, the Consumer Forum without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant relief, though, each case depends upon its own facts. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-
"......Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat......"
In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No.1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In view of the observations of the Hon'ble National Commission in the above noted cases, we are of the view that the provision of penalty @ Rs.10/- per 17 square feet per month of the saleable area of the unit bearing no.A1/33 GF as per Clause 15 of the agreement, which comes to a very meager rate, is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of delay. Therefore, complainant no.1 who is now the sole owner of unit bearing no.A1/33 GF, in lieu of substitution of her name, as referred to above, is entitled to get simple interest @9% per annum on the entire amount deposited i.e. from 24.07.2013 (due date of possession after adding 08 months aforesaid in the committed date being 24.11.2012) till 04.08.2017 (the date when possession has been delivered).
20. At the same time, it is also held that there was no need to refer the present complaint to the civil court. It is a simple case of non delivery of physical possession of the unit by the committed date; nonpayment of compensation for the period of delay; illegal charging of amount in respect of the area of the unit in question and non execution of sale deed, as a result whereof the complainants have approached this Commission for redressal of their grievances. In our considered opinion, since opposite parties no.1 to 3 have received substantial amount, referred to above, from the complainants towards the said unit, and also the grievances raised by them, referred to above, remained unresolved, the nature of such transaction is covered by the expression 'service'. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., II (2012) CPJ 4 (SC), wherein 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 Consumer Protection Act. Similar principle of law was laid down by the Hon'ble Supreme Court of India in Haryana State Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766), while holding as under:-
".......We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms "consumer" and "service" under the consumer protection laws and reiterated the observation of this Court in Lucknow 18 Development Authority v. M.K. Gupta (supra) which is provided hereunder :
"5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):
"...when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act...."
Furthermore, as stated above, opposite parties no.1 to 3 did not deliver possession of the unit purchased by the complainants by the promised date; and also did not redress the other grievances referred to above, raised by the complainants, as such, it can very well be said that there is a denial of service on their part. Our this view is supported by the principle of law laid down in Lucknow Development Authority Vs. M.K.Gupta, 1994 AIR 787, 1994 SCC (1) 243, wherein the Hon'ble Supreme Court held that where the developer is at fault in not delivering possession of a property by the committed date, the act so amounts to denial of service, and consumer complaint is maintainable before the Consumer Fora. In no way, filing of this complaint amounts to seeking rewriting/modification of the terms and conditions of the agreement. It is therefore held that the plea taken by opposite parties no.1 to 3 that this complaint is not maintainable before this Commission or that this consumer complaint amounts to seeking rewriting/modification of the terms and conditions of the agreement, being devoid of merit, stands rejected.
21. For the reasons recorded above, this complaint is partly accepted with costs and opposite parties no.1 to 3, jointly and severally, are directed:-
(i). To pay compensation by way of interest @9% p.a. on the deposited amount to complainant no.1, for delay in delivery of actual legal possession of the unit no.A-1/33-GF, starting from 24.07.2013 till 04.08.2017, after deducting the part compensation if any already paid either to the complainant no.1 or complainant no.2, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made.
(ii). To execute the sale deed in respect of unit no.A-1/33-GF for an area measuring 282.017 square meters i.e. 3035.60 square 19 feet in favour of complainant no.1, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay penalty @Rs.500/- per day, till realization. However, it is made clear that in case the complainant no.1 has not paid stamp duty charges/allied charges required for registration of sale deed, the period of 30 days aforesaid, shall commence from the date of making payment of stamp duty and registration charges by her.
(iii). To refund the excess amount received, over and above, the area measuring 282.017 square meters i.e. 3035.60 square feet and allied charges, in respect of unit no.A-1/33-GF to complainant no.1, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the said amount, shall carry interest @9% p.a. from the date of default till realization.
(iv). To pay Rs.1,35,000/-, in lumpsum, towards compensation for causing mental agony and harassment and also cost of litigation to complainant no.1 within a period of 30 days, from the date of receipt of a certified copy of this order failing which the said amount shall carry interest @9% p.a. from the date of default till realization.
22. Certified Copies of this order be sent to the parties, free of charge.
23. The file be consigned to Record Room, after completion.
Pronounced 27.10.2022 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Sd/-
(PREETINDER SINGH) MEMBER Rg.