Consumer Complaint Nos. 812, 813, 814, 815, 816, 817, 818, 940, 941, 942 and 944 of 2016. Case: Kapil Kumar Khosla and Ors. Vs DLF Homes Panchkula Private Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission
| Case Number | Consumer Complaint Nos. 812, 813, 814, 815, 816, 817, 818, 940, 941, 942 and 944 of 2016 |
| Counsel | For Appellant: Narender Yadav, Advocate and For Respondents: Ekta Jhanji, Parveen Jain and Sapna Seth, Advocates |
| Judges | Jasbir Singh, J. (President), Dev Raj and Padmay Pandey, Members |
| Issue | Arbitration And Conciliation Act, 1996 - Section 8; Code of Civil Procedure, 1908 (CPC) - Sections 15, 16, 17, 18, 19, 20; Consumer Protection Act, 1986 - Sections 11, 13 (4), 14(1)(d), 17, 2 (1)(d)(ii), 2 (1) (o), 2(1)(d), 2(1)(o), 3 |
| Judgement Date | April 05, 2017 |
| Court | Chhattisgarh State Consumer Disputes Redressal Commission |
Order:
Dev Raj, Member, (Chandigarh)
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By this order, we propose to dispose of the aforesaid 11 consumer complaints bearing Nos. 812, 813, 814, 815, 816, 817, 818, 940, 941, 942 and 944 all of 2016.
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After hearing arguments on 20.03.2017, we were of the opinion that the facts and issues in law, involved in the above bunch of complaints, by and large, are the same, and therefore, the aforesaid 11 complaints can be disposed of, by passing one consolidated order.
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During arguments, Ms. Ekta Jhanji, Advocate, Counsel for the Opposite Parties, placed on record, a detailed chart, under her signatures, showing in each case detail of property purchased, its price, date of agreement, total price and amount received and further whether possession offered etc. which was taken on record. It was also agreed by the Counsel that the facts given in the chart were correct, as per their record.
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Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No. 812 of 2016, titled as 'Kapil Kumar Khosla & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.'.
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In brief, the facts are that the Opposite Parties developed a Residential Group Housing Project under the name and style of "The Valley" situated in Sector 3, Kalka-Pinjore Urban Complex. On the basis of advertisements, the complainants approached the Opposite Parties and booked an independent floor with total area of 1640 sq. ft. in DLF Valley Project on 11.08.2010 for their residential purpose and paid an amount of Rs. 4,00,000/- vide receipt RVL/CRB/00277/0910. The Opposite Parties entered into an Independent Floor Buyers Agreement (Annexure C-2) on 03.02.2011 whereby independent floor No. E-4/31 SF (Second Floor) with parking number P-2F was allotted to the complainants. The total price of the unit was fixed as Rs. 50,39,799.65 for the saleable area of 1640 Sq. Feet. In Para 6 of the complaint, it was stated that till 18.10.2016, the complainants had paid Rs. 49,14,802.01 to the Opposite Parties.
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As per Clause 11(a) of the Agreement, the possession of the flat was to be delivered within 24 months from the date of execution of the said Agreement. The Opposite Parties also published an advertisement dated 13.01.2014 stating that possession would be delivered in 2014 but nothing was done. It was further stated that the complainants came to know after visiting the site on various occasions that the unit, in question and other amenities/facilities, as promised, were not even ready for possession and the Opposite Parties were not in position to give the possession. It was further stated that the complainants approached the Opposite Parties to grant them possession of the flat on the agreed terms & conditions but to no avail. It was further stated that the complainants have invested their hard earned money and delay in the grant of possession has caused financial loss and grave mental agony and disturbance to them.
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Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties, to hand over physical and legal possession of the unit, in question, complete in all respects after obtaining all due permissions and certificates including the Completion Certificate inter-alia from the concerned authorities; pay interest calculated @15% per annum on the deposited amount from the date of delay in handing over of the possession till the date, possession is handed over to the complainants; award compensation of Rs. 5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainants due to the actions/omissions of Opposite Parties; Rs. 70,000/- as litigation expenses; and grant any other relief which this Commission deems fit and proper under the facts and circumstances of the present case.
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The Opposite Parties, in their preliminary submissions in the written statement stated that the complainants filed the instant complaint in total disregard to the terms of Floor Buyer's Agreement executed between the parties. It was further stated that the complainants are backing out from the executed contract. It was further stated that occupation certificate (Annexure R/1) was received on 09.06.2016 and offer of possession letter dated 15.11.2016 was sent to the complainants. It was further stated that the complainants had the full knowledge about the terms of Agreement dated 03.02.2011 executed between the parties. It was further stated that the complainants have prayed for unfounded demands, which were not as per executed terms of the Agreement and, thus, the Opposite Parties also pray to allow 31% cost escalation of the construction as well 47% of the land holding cost, totaling 76% of the sale price. It was further stated that the project was cost escalation free as the complainants shall get the possession of the floor on the same price as committed by the Opposite Parties at the time of allotment of the floor through application form dated 05.10.2010. It was further stated that all the losses/cost, escalation on many counts like building material cost, labor cost, land cost etc. has been borne by the Opposite Parties. It was further stated that construction of the project got delayed due to stay on construction, ordered by the High Court and thereafter by Hon'ble Supreme Court of India due to third party litigation involving acquisition proceedings of land of litigants therein, in the years 2010 and 2012.
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The Opposite Parties have further stated that after dismissal of the said litigation by Hon'ble Supreme Court on 12.12.2012, the Opposite Parties vide letter dated 05.06.2013 offered an exit option to the complainants by accepting refund of their entire amount paid till date with 9% interest but they refused to avail the said option and apart from opting to continue with the project, also consented to the extension of time. It was stated that occupation certificate(s) of 1669 units had already been received and offer of possession was under process. It was also stated that proper water connection and electricity supply was in place and housekeeping and maintenance services were being provided through leading multinational company, namely, Jones Lang Lasalle.
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In the preliminary objections, it was stated that the parties were bound by the terms and conditions mentioned in the Independent Floor Buyer's Agreement; that the complainants have made baseless allegations of unfair trade practice, deficiency in service etc. with an ulterior motive to amend/modify/rewrite the concluded Agreement duly executed between parties, purely to invoke jurisdiction of this Commission; that this Commission cannot adjudicate upon the matter where the prima facie prayers are for modification of clauses of the Agreement; that the complainants are not consumers as the floor, in question, was purchased by them for investment purposes and earning profits and that when given the option to exit vide letter dated 05.06.2013, the complainants agreed to continue with allotment and delay and, as such, they (complainants) voluntarily waived of their right to raise any grievance. An objection was also raised that this Commission did not have the territorial jurisdiction to entertain and try the present complaint in as much as the parties agreed to exclude the jurisdiction of all other Courts except the Courts at Panchkula and High Court of Punjab & Haryana. Further, an objection was also raised in the written statement that as per Clause 55 in the Agreement, all disputes arising out of the Agreement are to be settled amicably, failing which, they shall be referred to the Arbitration. It was further stated that the Opposite Parties could not be made liable for delay caused due to force majeure conditions, which was on account of stay by Hon'ble Punjab & Haryana High Court and Hon'ble Supreme Court of India from 19.04.2012 to 12.12.2012 and delay in grant of approvals in layout plans and service plans. In Sub Para (g) of Para 11 of the preliminary objections, it was further stated that approval regarding revision in layout plan and service plans sought on 11.3.2013 and 20.05.2013, was received on 06.09.2013 and 14.08.2014 respectively.
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The Opposite Parties moved Miscellaneous Applications under Section 8 of Arbitration and Conciliation Act, 1996, for referring the matter to the sole arbitration, in the following complaints:-
The aforesaid applications were disposed of by this Commission by holding that the applicability of the arbitration process would be seen at the time of final arguments in the main case.
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On merits, it was stated that the complainant booked property No. DVF-E4/31-SF on 05.10.2010 and both the complainants and the Opposite Parties signed the Floor Buyer's Agreement on 03.02.2011. It was further stated that the value of the property as per SOP is Rs. 54,50,791.91 plus service tax. It was further stated that after final measurement of floor, the area was increased to 1758 sq. ft. from 1640 sq. ft., and, therefore, the price of the floor stood revised to Rs. 59,94,655.39 plus service tax. It was further stated that the complainants on their own will/understanding and accord have purchased the floor in question. It was stated that Floor Buyer's Agreement was executed only when 25% of the price was paid by the complainants.
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It was admitted that as per Clause 11(a) of the Agreement, possession of the allotted unit, was to be handed over to the complainants within 24 months from the date of signing of the Agreement subject to force majeure conditions or due to reasons beyond the control of Opposite Parties as mentioned in Clauses 11(b) and 11(c) of the Agreement. It was further stated that letter dated 15.11.2016 was sent to the complainants and the demand raised...
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