Consumer Complaint Nos. 974, 953, 958, 960, 975, 976, 979, 980, 981 of 2016, 51 and 54 of 2017. Case: Naresh Kumar and Ors. Vs DLF Homes Panchkula Private Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission
|Case Number:||Consumer Complaint Nos. 974, 953, 958, 960, 975, 976, 979, 980, 981 of 2016, 51 and 54 of 2017|
|Party Name:||Naresh Kumar and Ors. Vs DLF Homes Panchkula Private Limited and Ors.|
|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 Padma 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)(d), 2(1)(o), 3|
|Judgement Date:||April 12, 2017|
|Court:||Chhattisgarh State Consumer Disputes Redressal Commission|
Dev Raj, Member, (Chandigarh)
By this order, we propose to dispose of the aforesaid 11 consumer complaints bearing Nos. 974, 953, 958, 960, 975, 976, 979, 980, 981 all of 2016 and 51 & 54 both of 2017.
After hearing arguments on 27.03.2017, 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.
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 stated by the Counsel that the facts given in the chart were correct, as per their record.
Under above circumstances, to dictate order, facts are being taken from consumer complaint bearing No. 974 of 2016, titled as 'Naresh Kumar & Anr. Vs. DLF Homes Panchkula Pvt. Ltd. & Anr.'
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, one Rajesh Mirchumal Mirchandani booked an independent floor with total area of 1450 sq. ft. in DLF Valley Project on 27.03.2010 and paid an amount of Rs. 4,00,000.00. Sh. Rajesh Mirchumal Mirchandani entered into an Independent Floor Buyer's Agreement with the Opposite Parties on 15.02.2011 (Annexure C-1) whereby an independent floor bearing No. D-6/21 SF (Second Floor) with a parking bearing No. P-2F, measuring 1450 sq. ft. was allotted to him. Subsequently, the complainant entered into an Agreement with the original allottee on 29.03.2012 and the property was transferred in the name of the complainant vide endorsement letter dated 29.03.2012 (Annexure C-2). The total price of the unit was fixed as Rs. 32,18,999.69. In Para 7 of the complaint, it was stated that till 04.08.2016, the total amount of Rs. 34,64,149/- was paid to the Opposite Parties.
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 Opposite Party No. 1 vide letter dated 29.10.2016 offered the physical possession of the unit, in question and asked the complainant to deposit the amount of Rs. 7,38,525/- to be paid within six months with a condition that non-payment within six months of final statement of account would attract interest/"Holding Charges" @Rs. 10/- per sq. feet per month as per terms and Condition No. 13 of the Agreement. It was further stated that Opposite Party No. 1 is now just giving the paper possession and not the legal possession of the unit.
It was further stated that the complainant came to know after visiting the project site on various occasions that the unit, in question, and other amenities/facilities, as promised, were not even ready for possession. It was further stated that the Opposite Parties demanded Rs. 22,916/- for contingent deposit of Vat, which was neither mentioned in the Agreement nor in the schedule of payment. It was further stated that the complainant has invested his hard earned money and delay in the grant of possession has caused financial loss and grave mental agony and disturbance to him.
Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainant 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 @12% 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 complainant; withdraw the demand of Rs. 22,916/- raised on account of contingent deposit of Vat; award compensation of Rs. 5,00,000/- on account of causing financial risk, hardship, mental agony, harassment, emotional disturbance caused to the complainant 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.
The Opposite Parties, in their preliminary submissions in the written statement stated that the complainant is a subsequent purchaser and had purchased the said floor on 29.03.2012 from the original allottee, namely, Sh. Rajesh Mirchumal Mirchandani. It was further stated that the disputed floor was allotted to the original allottee on 03.04.2010 and subsequently Floor Buyer's Agreement was executed with the original allottee on 15.02.2011. It was further stated that the complainant filed the instant complaint in total disregard to the terms of Floor Buyer's Agreement executed between the parties, which amounted to default/breach of its terms and conditions. It was further stated that the complainant is backing out from the executed contract. It was further stated that the complainant had full knowledge about the executed terms of Agreement. It was further stated that occupation certificate was applied on 21.03.2016, which was received on 09.06.2016. It was further stated that the offer of possession has already been sent to the complainant vide letter dated 29.10.2016 (Annexure R/1 colly). It was further stated that the complainant prayed for unfounded demands, which were not as per executed terms of the Agreement and, thus, the Opposite Parties 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 complainant 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 allotment letter dated 03.04.2010. 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.
As regards present status of the project, it was stated that occupation certificate(s) of 1775 units had already been received. It was reiterated that occupancy certificate of the floor, in dispute, had already been received on 09.06.2016 and offer of possession letter dated 29.10.2016 already sent to the complainant. 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. Further, the value of the property as per Schedule of Payment (SOP) was Rs. 35,40,080.10 plus service tax, as applicable. It was further stated that due to increase in area of the floor after final measurement from 1450 sq. ft. to 1575 sq. ft., the price of the floor stood revised to Rs. 40,16,378.72 plus service tax. It was further stated that the complainant had deposited a sum of Rs. 34,64,149.12 and there is an outstanding amount of Rs. 16,083.83 towards DLI of 163 days.
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 complainant has 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 complainant is not a consumer as the floor, in question, was booked by him for investment purposes and earning profits. Another objection raised in the written statement is 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 10 of preliminary objections, it was 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. Apart from above objections, the territorial jurisdiction of this Commission to entertain and try the complaint has been challenged on the ground that since the project, in dispute, is situated in Panchkula, which comes within the jurisdiction of Panchkula District, only Courts at Panchkula and Punjab & Haryana High Court have the territorial jurisdiction to entertain and try the instant complaint.
The Opposite Parties also moved miscellaneous applications under Section 8 of Arbitration and Conciliation Act, 1996 in all these consumer complaints, as under, for referring the matter to the sole arbitration:-
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...
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