Haryana

StateCommission

CC/377/2016

SHISH RAM KAUSHIK - Complainant(s)

Versus

DLF LT.D - Opp.Party(s)

SATYAWAN AHLAWAT

21 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No.       377 of 2016

Date of Institution:  30.11.2016

Date of Decision:    21.03.2018

 

 

Shish Ram Kaushik son of Shri Prabhu Ram Kaushi, presently resident of 54 feet Marg, Meham Road Vidhya Nagar, Bhiwani, Haryana.

 

…..Complainant

 

Versus

 

1.      DLF Limited, SCO No.190-192, Sector 8-C, Chandigarh.

 

2.      M/s DLF Homes Panchkula Private Limited, DLF Valley, Pinjore, Tehsil Kalka, District Panchkula, through its authorized signatory/officer.

……Opposite Parties

 

 

CORAM:   Mr. R.K. Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.

                  

   

 

Present:     Shri Satyawan Ahlawat, Advocate for complainant.

                   Shri Gaurav G.S. Chauhan, Advocate for opposite parties.

                            

O R D E R

 

R.K. BISHNOI, JUDICIAL MEMBER

 

          It is alleged by complainant that he booked a flat on 17.02.2010 and paid cheque of Rs.4,00,000/- at that time. Flat No.E-5/3, Second Floor measuring 1450 square feet was allotted to him in the project of opposite parties (in short ‘OPs’). As per Clause 11(a) of agreement dated 25.01.2011, construction was to be completed within 24 months thereto. They deliberately delayed execution of agreement by 11 months from the date of booking. He has deposited Rs.33,21,850.05 against the total sale price of Rs.32,18,999.69, but, possession is not delivered as yet. OPs arbitrarily revised the sale price to Rs.40,27,774.16 on 05.10.2016 and demand of Rs.7,36,622.11 was raised vide letter dated 04.11.2016. They also failed to adjust compensation @ Rs.10/- per square feet per month as per agreement. The extra demand raised by OPs was altogether illegal. Area of floor was increased from 1450 square feet to 1575 square feet arbitrarily. Ultimately, possession was offered vide letter dated 05.10.2016, but, when he visited site, it was found that flat was not ready for possession, so, OPs be directed to deliver the possession and grant compensation etc. as mentioned below:

1. To pay compensation @ Rs.10/- per square feet per month of the super area of the flat after 24 months from the date of booking of flat i.e. 17.02.2012 to till the date of possession alongwith interest @ 18% per annum on the amount of compensation. Also pay interest @ 18% per annum on the amount deposited by the complainant with OPs from the date of booking i.e. 17.02.2010 to till the date of possession.
2. Also to pay interest @ 12.75% per annum on housing loan amount paid by the complainant to LICHFL amounting to Rs.208371.25/-.
3. Direction be issued against the OPs to hand over the possession of the flat/floor to the complainant within 7 days and the other issues be decided thereafter.
4. To pay Rs.5.00 lac compensation on account of mental agony, harassment, suffering and inconvenience etc.
5. To pay Rs.55000/- as cost of litigation.
6. Also not to claim any service taxes etc. by the OPs beyond 17.02.2012 i.e. committed date of possession and refund the excess service tax already recovered from the complainant from 17.02.2012 onwards.
7. Also to direct the OPs to withdraw the demand notice dated 05.10.2016 immediately.

2.      In reply allotment of floor and execution of agreement etc. are admitted by OPs, but, they have denied their liability to pay any compensation on the ground that possession was not to be delivered within 02 years from the allotment letter dated 03.04.2010, but, as per Clause 11(a) of Buyer’s Agreement dated 25.01.2011 subject to force majeure as mentioned in this clause or due to failure of allottees to pay total price and other charges in time. He did not deposit amount regularly and that is why reminders dated 20.01.2014, 13.02.2012, 16.08.2010, 02.08.2010, 16.01.2010, 08.01.2010 and 01.06.2010 were issued. It was wrongly alleged that they coaxed him to make payments even without getting necessary sanctions because it was clearly mentioned in allotment letter dated 03.04.2010 that the construction will commence after necessary approvals from competent authorities and if they would not get approvals and sanctions within one year from the date of allotment, the amount would be refunded. As per orders of Hon’ble Supreme Court dated 19.04.2012, construction activities were put in abeyance. When said order was vacated by Hon’ble Supreme Court on 12.12.2012, construction was started immediately. The delay was not caused due to any fault on their part. As per agreement allottees were liable to pay extra price in case of increase in area and prior consent was not required. As per agreement if allottees were not ready to accept increased area, objections were to be filed within 30 days otherwise consent was to be deemed. When there was no objection, demand for extra area was raised. Complainant was liable to pay taxes, service charges and charges for electricity lines etc. as per agreement and there was no deficiency in service on their part. Objections about maintainability of complaint, relationship of consumer and service provider etc. are also raised and requested to dismiss complaint. 

3.      Both the parties have led their evidence.

4.      Arguments heard. File perused.

5.      Learned counsel for the OPs vehemently argued that when floor in question was allotted to complainant and agreement (Exhibit C-1) was executed, he was well aware about stay order passed by Hon’ble Supreme Court. As per terms and conditions of agreement (Exhibit C-1), it is clear that possession was to be delivered within 02 years from the date of execution of agreement subject to terms and conditions mentioned in Clause 11(a) i.e. force majeure etc. So, it cannot be alleged that he was not aware about the litigation and was entitled for any compensation. So complaint be dismissed.

6.      This argument is devoid of any force. There is no iota of evidence on the file showing that complainant was aware about the litigation pending before Hon’ble Supreme Court. Neither it is pleaded nor it is proved that complainant was party to that litigation or written information was sent to him. It is well settled proposition of law that a party is supposed to specifically plead and prove a fact. One has to provide facta probanda and facta probantia as opined by Hon’ble Supreme Court expressed in C.P. Sreekumar (Dr.) MS (Ortho) Vs. S. Ramanujam, 2009 (7) SCC 130. There is no reason in believing their version just on mere ipse dixit.

7.      Further, when this floor was allotted to complainant vide letter dated 03.04.2010 (Exhibit C-3) he was not aware about the litigation pending before Hon’ble Supreme Court. If it was so why OPs promised to complete construction within 02 years thereof. This allotment was not conditional and was a clear offer. It is no where mentioned in the allotment letter that the construction would start after obtaining approvals/sanctions from concerned authorities. Rather the complainant was allured to make construction linked payment for possession within 02 years. For ready reference relevant portion of allotment letter is reproduced as under:

“Please find enclosed herewith your booking receipt for the captioned property along with the “2 years Construction Linked Payment Plan” The payments may be made in favour of “DLF Homes Panchkula Pvt. Ltd. Collection Account”.

 

          Believing this promise of OPs to be true he opted for construction linked payment plan and made payments accordingly. This act and conduct of OPs clearly shows that they were enticing allottees to make payment without having necessary sanctions and it amounts to unfair trade practice. Complainant has rightly alleged that he was left with no alternative except to sign agreement (Exhibit C-1) on 25.01.2011 because by that time approximately 50% cost of the unit was already paid. It is admitted fact that complainant is retired government employee. It is very difficult for employee to arrange funds for paying E.M.I. His entire planning goes haywire. One has to compromise qua so many counts and has to squeeze future plans. After paying such huge amount when a retired government employee comes to know that possession will be delivered after much delay, he feels cheated and is left with no alternative except to sign such like one sided agreement. Such like act of builder is not less than arm-twisting. It is well settled that a term of contract will not be final and binding if it is shown that the consent to the said term was not really voluntary, but, was given under a sort of compulsion on account of the person giving consent being left with no other choice. When format of the buyer’s agreement is not shown to purchaser at the time of booking apartment and if he refuse to sign the format provided by the builder lateron, not only will he loose booking, even booking amount/earnest money paid will be forfeited by the builder. When 50% of the estimated cost of unit is already paid, retired government employee cannot challenge the might of builder and is left with no option except to toe their line. It shows hidden tactics of builder to get money from the allottees, who are left bewildered after making such huge payment. Such like agreement is to be considered as one sided and it amounts to unfair trade practice as opined by Hon’ble National Consumer Disputes Redressal Commission expressed in Satish Kumar Pandey & anr. Versus M/s. Unitech Ltd., 2015(3) C.P.J. 440 and in Dewan Ashwani & Ors. Versus Unitech Reliable Projects Private Limited, IV(2015) CPJ 136 (NC).  In such a situation it cannot be presumed that two years should be counted from 25.01.2011 rather it should be counted from 03.04.2010. If the clearance was to be obtained and the period qua possession was to be changed in agreement, complainant should have been informed pre-hand. It was also not mentioned in agreement (Exhibit C-1) that litigation was pending before Hon’ble Supreme Court. Why they kept mum on this point is no where explained.  

8.      Further OPs have not produced any evidence about increase of area except letter dated 03.04.2010. It is no where explained therein that how and from where area has increased. As per letter dated 05.04.2016 (Exhibit R-1) they were granted occupation certificate for area measuring i.e. Ground Floor 117.054 square meters; First Floor 117.054 square meters; Second Floor 116.407 square meters and total covered area 350.515 square meters whereas area allotted to the complainant was 134.71 square meters. This letter (Exhibit R-1) shows that there is decrease in area rather increase as per version of OPs. Without any explanation they have demanded excess amount alongwith interest etc. without adjusting compensation payable to him for delay in delivery of possession. In these circumstances, complaint is allowed and OPs are directed to pay Rs.10/- per square feet as per clause 13 of buyer’s agreement (Exhibit C-1) till date of possession minus the period when the construction was stayed by Hon’ble Punjab and Haryana High Court and Supreme Court. The OPs are further directed not to claim any service taxes etc. beyond 17.02.2012 and till delivery of possession. They are also not entitled to recover any amount vide demand notice dated 05.10.2016. The OPs are further directed to pay compensation by way of interest 9% p.a. on the deposited amount to the complainant from 25.01.2014 till delivery of possession within 45 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry penal interest @ 15% p.a. instead of 9% p.a. from the date of default, till realization. The OPs are further directed to pay compensation by way of interest @ 9% p.a. on the deposited amounts, due to the complainant w.e.f. 01.10.2016 onwards (per month) till possession was delivered. The complainant is also awarded compensation to the tune of Rs.21,000/- for mental harassment etc. and Rs.11,000/- as litigation expenses within 45 days failing which the said amounts shall carry interest @ 9% p.a. from the date of filing the complaint till realization.

 

Announced 21.03.2018

(Urvashi Agnihotri) Member, Addl. Bench

(R.K. Bishnoi) Judicial Member, Addl. Bench

D.R.