SHIPRA TRIPATHI Vs. DLF HOME DEVELOPERS LIMITED

JUDGEMENT

(1.) Heard Mr. Gyan Prakash Saxena (Authorised Representative of the complainants), in the Court Room and Mr. Pravin Bahadur, Advocate and Mr. Aditya Singh, Advocate, for the opposite parties, through video conferencing.

(2.) Dr. Shipra Tripathi and Km. Snigdha Ojha (the complainants) have filed this complaint for directing DLF, Home Developers Limited (opposite-party-1), (hereinafter referred to as the builder) (i) to give possession of Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, (ii) to pay compensation due to delay in giving possession, from 17.04.2012, awarding the interest at the rate, which is being charged by the builder from the buyers for delayed payment, on the money deposited by them, (iii) to pay compensation, equivalent to 25% of the cost of apartment, for changing shape of the apartment from its original lay out, (iv) to refund Rs.1,13,866.24, with interest, which was realised as cost of increased area of the apartment, (v) to refund government charges, realised from the complainants, (vi) to pay compensation for mental agony suffered by the complainants and (vii) Any other order which the Commission deemed fit and proper, in the fact and circumstances of the case be passed; In alternative the opposite party be directed to refund the amount deposited by the complainants along with such interest, which would be sufficient for the complainants to purchase other apartment of same standard. The facts as stated in the complaint and emerged from the documents are that DFL Estates (Delhi) Private Limited (which was later on incorporated as DLF, Home Developers Limited) (the builder) was engaged in developing, constructing multi-story buildings and selling its unit, under Down Payment Plan and Time Bound Interest Free Instalments Plan. In March, 2009, the builder advertised construction of residential flats in the name of DFL Capital Green, Shivaji Marg, New Delhi. M/S G.T.S. Exports Pvt. Ltd., 24-A, Opp. Street No.-4, Industrial Area, New Rohat Road, New Delhi-110005 deposited Rs.5,00,000/- on 18.04.2009 and booked a residential flat. The builder allotted Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, admeasuring super area of size 1420 Sq.ft. at the rate of Rs. 6000/- per Sq. ft. The builder gave a letter dated 20.04.2009, to M/S G.T.S. Exports Pvt. Ltd., offering therein that in case, you opt for Down Payment Plan and deposit 95% of sale consideration within 30 days from the date of booking then 8.5% of sale price would be given as Down Payment Rebate along with Rs.500/- per Sq.ft. as Timely Payment Rebate. Remaining 5% of sale price has to be paid at the time of possession. M/S G.T.S. Exports Pvt. Ltd. deposited Rs.70,47,325/- (adjusting Down Payment Rebate and Timely Payment Rebate) on 12.05.2009 and paid 95% of sale price. Apartment Buyer's Agreement was executed on 12.05.2009, between the parties, in which total cost of the apartment of 1420 Sq.ft. was mentioned as Rs.95,30,000/- (i.e. Rs.85,20,000/- (at the rate of Rs.6000/- per Sq. ft.) as Basic Sale Price, Rs.7,10,000/- as Preferential Location Charge and Rs.3,00,000/- as Parking Space Charge). In clause-11 (a), of this agreement, it was mentioned that subject to all just exceptions, endeavours be made to complete construction within 36 months from the date of Application. M/S G.T.S. Exports Pvt. Ltd. was in need of money and decided to sell this apartment and Dr. Sunit Kumar Ojha (husband of complainant-) and Dr. Shipra Tripathi agreed to purchase it. M/S G.T.S. Exports Pvt. Ltd. moved an application dated 30.08.2010 before the builder for granting permission to sell the apartment. The builder through letter dated 31.08.2010, informed that they had no objecting in selling the apartment and nominating the buyer. Dr. Sunit Kumar Ojha took a loan of Rs.83,00,000/- from ICICI Bank on 31.08.2010 and Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi arranged remaining sale consideration from their saving bank accounts and paid Rs.83,50,000/- to M/S G.T.S. Exports Pvt. Ltd. and Rs.4,62,625/- had to be paid to the builder. An agreement to sell dated 03.09.2010 was executed between the parties. On 06.09.2010, they deposited Rs.71,000/- with the builder as nomination charges and got the names of Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi, recorded in the record of builder over the aforesaid apartment, in place of M/S G.T.S. Exports Pvt. Ltd. Thereafter, the builder, through letter dated 11.10.2010 informed about change of its name. Dr. Sunit Kumar Ojha died on 02.01.2012, leaving the complainants as his heirs. The builder through letter dated 28.02.2013, informed the complainants that to meet out the requirement of Delhi Fire Service, he had increased saleable area of the apartment to 1434.81 Sq.ft. from 1420 Sq.ft. and demanded Rs.99,958/- for increased area. The complainants deposited Rs.1,07,260.24 on 09.01.2014 for the increased area. The builder through letter dated 08.07.2016, informed that Occupation Certificate has been obtained and final statement of account was being prepared for offering possession. The builder, through letter dated 24.08.2016, sent the final Statement of Account of the complainant, showing balance of Rs.17,46,209.80/- and asked to deposit this amount and complete the documentation for taking possession. Then this complaint was filed on 02.09.2016, complaining that the builder had not paid (i) Compensation for delayed possession, (ii) Compensation for changing lay out plan of the apartment and Super Area has been arbitrarily increased, for which they were not liable to pay.

(3.) The builder filed its written statement on 28.10.2016 and contested the complaint. In written statement, they admitted booking of Apartment No. CGC-243 and Parking No.PC-3036, DFL Capital Green, Shivaji Marg, New Delhi, admeasuring super area of size 1420 Sq.ft. at the rate of Rs.6000/- per Sq. ft., by M/S G.T.S. Exports Pvt. Ltd. and deposit of Rs.5,00,000/- on 18.04.2009, deposit of Rs.70,47,325/- and execution of Apartment Buyer's Agreement on 12.05.2009, between the parties, and total cost of the apartment of 1420 Sq.ft. was mentioned as Rs.95,30,000/- (i.e. Rs.85,20,000/- (at the rate of Rs.6000/- per Sq. ft.) as Basic Sale Price, Rs.7,10,000/- as Preferential Location Charge and Rs.3,00,000/- as Parking Space Charge), permission granted to M/S G.T.S. Exports Pvt. Ltd. to transfer the apartment to Dr. Sunit Kumar Ojha and Dr. Shipra Tripathi and agreement to sell dated 03.09.2010, recording their names in the records and deposit of Rs.1,07,260.24 on 09.01.2014. They stated that DFL Capital Green Project comprises three Phases, having total 23 towers with 2,856 apartments. The project has various features like rain water harvesting, earthquake resistant building, swimming pool, convenient shopping centre, community space for elderly citizens, playground, dedicated walking and jogging tracks, secured and dedicated three level basement parking and club facility etc. They applied for sanction of Lay-out Plan before Municipal Corporation, Delhi, for Phase-1 in May, 2009, by whom reports/no objections were obtained from various government departments and Lay-out Plan was approved in March, 2010, then the construction work was started. They engaged a renowned Architect namely Hafeez Contractor for architecture and design of the project, M/S Larsen & Toubro Ltd. for construction and Jones Lang Lasalle, a multinational apartment and facilities management company to audit and control quality of the construction. The construction was done with maximum strength, employing about 4500 workers and required heavy machines. Some casualty happened on the site on 17.05.2014 as such the construction work was stopped by Director of Industrial Safety and Heath, Labour Department of Government on 26.05.2014, which was revoked on 16.09.2014, then construction was resumed. After completion of construction of Phase-1, the builder applied for Occupation Certificate in March, 2015, which was issued on 30.06.2016. The builder vide email dated 08.07.2016 informed the complainant about issue of Occupation Certificate. After preparing final statement of account, it was sent to the complainant on 31.08.2016, with request to deposit the amount due and complete documentation for taking possession. The delay has occurred in completing a big project firstly due to delay in approval of Lay-out Plan and secondly due to stopping the work by Labour Department, which were beyond the control of the builder. The builder suffered heavy monetary loss due to escalation of the costs of building materials and labour charges, due to delay. Super area has been increased to meet out the objection of Fire Service Department. In clause-14 (i) of the booking application form and clause-9 of Apartment Buyer's Agreement, it was disclosed that building plan, designs, specifications, measurements, dimensions, location, number of apartment, building floor and other terms and conditions were tentative and could be altered at the discretion of the builder. Under clause-18 of the booking application form and clause-11 (a), of Apartment Buyer's Agreement, handing over possession was subject to force majeure conditions. Clause-18 of the booking application form and clause-14 of Apartment Buyer's Agreement provide for payment of compensation for delayed possession to the original allottee at the time of handing over of the possession, at the discretion of the builder. The complainants are not original allottee rather a subsequent transferees as such they are not entitled for compensation for delayed possession. The builder has also raised preliminary objections that total valuation of the apartment was Rs.95,30,000/-, which is below the pecuniary jurisdiction of this Commission; In the complaint, neither cause of action nor any deficiency in service have been shown; and nothing has been said that the complainants were consumer and there was deficiency in service by the builder. In the absence of these necessary ingredients, the complaint was not maintainable. The agreement contained an arbitration clause as such the complaint be dismissed with direction to the complainants to go in arbitration. The pleadings are vague and cause of action for filing the complaint is missing in it. There is no pleading regarding deficiency of service or unfair trade practice.