DLF HOMES, PANCHKULA PVT. LTD. Vs. BHASKAR GAUTAM

JUDGEMENT

(1.) This Appeal has been filed under Sec. 19 of the Consumer Protection Act, 1986 against Order dtd. 7/11/2017 in CC No. 276 of 2017 by the State Consumer Disputes Redressal Commission, Chandigarh allowing the complaint.

(2.) Brief facts of the case, as per the complainant are that the Complainant/ Respondent is the rightful owner of Independent Floor No. DLF-E8/9-FF 217, measuring 141.21 sq. yds., originally booked on 7/10/2010 by Sh. Paramvir Singh and his wife Malika Ahlawat from the Appellants/Opposite Parties (OP)s at a rate of Rs.2,700.00 per sq. ft. with an initial booking amount of Rs.4,00,000..00 An Agreement to Sell was executed on 8/2/2011 between the original purchasers and the OP, whereby possession was promised within 24 months or 2 years from the date of booking. The Agreement also stipulated that in case of delay, compensation @ Rs.10.00 per sq. ft. per month would be payable to him. Subsequently, due to Shri Paramvir Singh's residence abroad (UK), he executed a Gift Deed dtd. 21/7/2014 in favour of the Complainant, transferring ownership rights. The Complainant continued to make timely payments and has paid a total of Rs.35,46,677.30, as reflected in the customer ledger. However, OP failed to deliver possession within the time stipulated. The construction had halted for about a year allegedly due to litigation in the Hon'ble Supreme Court arising from the OPs non-compliance with licensing and statutory approvals. The Complainant was neither informed of this nor compensated for delay. On 10/2/2017, the OPs issued a letter falsely alleging a 105 days delay in instalments payment from October 2016 and charged Rs.6,251.00 as penalty. The Complainant contended that this was a deliberate attempt to classify him as a defaulter and thus deny him the contractual compensation for delay. He contends that all payments were made in time and no such default occurred. Despite repeated inquiries, possession has not been offered, and no compensation has been paid. Meanwhile, OPs continued demanding further charges, including 70% of enhanced External Development Charges (EDC) @ Rs.27.53 per sq. ft., without justification or breakup of previous EDC payments. The Complainant contended this as further harassment and arbitrary demand. The Complainant contended that the agreement is one-sided, that while it penalizes buyers with 18% interest for delayed payment, no similar burden is borne by the builder for its own default. The fundamental purpose of the purchase has been frustrated due to long delay and the continued non-delivery of the unit and the OPs are indulging in unfair trade practices and deficiency in service. Hence the complaint before the learned State commission.

(3.) On issue of Notice, the OPs filed the written version raising preliminary objections and contended that the agreement dtd. 8/2/2011 clearly provided for compensation in the event of delay in handing over possession, specifically limiting the compensation to Rs.10.00 per sq. metre per month. OPs contended that the delay in completion of the project was attributable to force majeure conditions, including stay orders passed by the Punjab and Haryana High Court and the Hon'ble Supreme Court, as well as the shortage of workforce, all of which were beyond the control of the OPs. OPs relied on Clause 43 of the agreement that such events exempt the developer from liability and negate any finding of deficiency in service. The compensation under Clause 15 was subject to the condition that the allottee must not have defaulted in making payments or in fulfilling any part of the agreement. The eligibility to claim compensation, was conditional. There has been sharp rise in the cost of construction and, however, no escalation charges were demanded. The complainant was not entitled for any compensation as he was a defaulter. The OP contended that the consumer protection law is intended to protect the consumers but not profiteer from the transaction. The complainant had in fact failed to show that any financial loss was sustained. The OPs sought the complaint to be dismissed.