kamal sood vs dlf

8/10/2019 Kamal Sood vs DLF

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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 557 OF 2003

(From the order dated 28.5.03 in C.No.61/2000 of the State Commission,

Haryana)

Brig. (Retd.) Kamal Sood

Apartment No. W-112

Regency Park II

Phase IV DLF City

Gurgaon - 122 002 Appellant

Versus

M/s.DLF Universal Ltd.

Sansad Marg

New Delhi 110 001.

Through its Managing Director Respondent

AND

FIRST APPEAL NO. 683 OF 2003

(From the order dated 28.5.03 in C.No.61/2000 of the State Commission,

Haryana)

M/s.DLF Universal Ltd.

Sansad Marg

New Delhi 110 001. Appellant

Versus

Brig.(Retd.) Kamal Sood

W-112 Regency Park II

DLF Qutab Enclave

Phase IV

Gurgaon - 122 002 Respondent


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BEFORE :

HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT

MRS. RAJYALAKSHMI RAO, MEMBER

For the Appellant (in F.A.557/03) & : In person

For the Respondent (in F.A.683/03)

For the Respondent (in F.A.557/03) & : Mr.A.N. Haksar, Senior

For the Appellant (in F.A.683/03) Advocate with Mr.

Aditya Narain,

Advocate

Dated the 20thApril, 2007

O R D E R

M.B. SHAH, J., PRESIDENT

The main in questions which require consideration in the appeal are

(i). Can a builder give alluring advertisement promising delivery of

possession of the constructed building/flat to the purchaser/consumer within the

stipulated time, and, subsequently, on his failure, turnaround and contend that as

governmental permissions, such as, approval of zoning plan, layout plan and

schematic building plan, were not given, the delay in construction should not be

the ground for grant of compensation to the consumer? And,

(ii). Secondly, whether the consumer should suffer by paying escalation


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Brig.Kamal Sood, who was serving as Commandant 14 Gorkha

Training Centre, Himachal Pradesh, approached the State Consumer Disputes

Redressal Commission, Haryana, Chandigarh, by filing Complaint Case

No.61/2000 contending that M/s.DLF Universal Ltd. (hereinafter referred to as

the DLF) has indulged in unfair trade practice and there is deficiency in service

on its part because there was delay in handing over possession of the flat as wel

as unjustified recovery of so-called escalation charges from the complainant.

He, therefore, sought direction that the DLF be directed, in all, to pay a sum of

Rs.12,78,395/- to him, details whereof are given hereafter.

It was contended that the DLF published an advertisement fo

booking apartment in DLF Qutab Enclave. As per the said brochure, the DLF

was contemplating construction of apartments known as DLF Hamilton Court and

DLF Regency Park. As per the said brochure, the price for DLF Regency Park

ranged from 8.05 lakhs to 13.77 lakhs. There is a specific statement - And

remember, now all prices are ESCALATION FREE. So, the price you book

at is the price you pay, irrespective of what it might cost DLF.

It has been further stated in the said brochure as under:

And both Hamilton and Regency come with a variety o

payment plan options from the Down payment option tha

carries an attractive rebate to a 2 year interest-free plan to an

exclusive 10 year option that makes home-buying a lot


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easier than it ever was.

It has been pointed out that despite the aforesaid statement in the

brochure, the DLF demanded an additional amount of Rs.4,02,617.69p. on the

pretext of increase in the area, escalation charges, external electrification etc. I

is further alleged that the DLF made an offer to sell parking spaces in Novembe

1993 at the cost of Rs.63,000/- to each allottee which was to be paid in

instalment of Rs.22,000/- each. The complainant paid the parking space cos

within the stipulated time and was allotted the parking space. Despite this, an

additional amount of Rs.62,869/- was demanded by letter dated 4.3.1998 as

extra charges for parking space which was already allotted to him. It is also

contended that at the time of delivery of possession in September 1999, the

DLF demanded a sum of Rs.1,59,890/- for Stamp Duty and Registration

Charges for the apartment and Rs.15,265/- for parking space.

Further, it is contended that the complainant had hired the services of

Koshal & Associates (Architect Engineers and approved Valuers), who gave

their report dated 12.7.2000 along with the site plan, which reads as under:

A. (a) Super area sold as per the agreement : 130.52 SM @ Rs.6728/- per SM

(b) Super area as per physical measurements taking into account the

contents of the relevant clause of the agreement = 127.894 SM

(c)

Less Super Area given = 2.626 SM

(d) Financial effect = Rs.17667.72

B (a) Carpet area to be given as per the agreement @ 87.412% of super area

= 114.09 SM

(b)

Carpet area actually found provided after the physical measurements =

69.895 SM (The carpet area is calculated as per IS 3861-1975 clause


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2.2 and 5).

(c)

Less carpet area provided : (114.09 69.895 = 44.195 SM)

(d)

Financial effect : (44.195 x 6728) = Rs.297343-96

Net Financial effect : (17667.72 + 297343.96) = Rs.3,15,011.68 p.

On the aforesaid count, the complainant has claimed that he has

suffered a loss of Rs.3,15,011.68p. Finally, he has claimed the following reliefs:

a) refund of additional amount charged and Rs. 4,02,617.19 p.

interest thereon @ 20% p.a. w.e.f. 3.5.99

to the date of refund.

b) refund of amount on account of lesser area Rs. 3,15,011.68 p.

given with reciprocal interest thereon @ 20%

p.a. w.e.f. 3.5.99 to the date of refund

c)

refund of amount charged on account of Rs. 1,28,869.00 p.

parking space, reciprocal interest thereon

@ 20% p.a. w.e.f. the date of payment of

each instalment i.e. November, 1993, Nov.

1994, Nov.1995 and March 1998 till the date

of refund.

d)

Interest on a sum of Rs.1,75,150/- charged Rs. 75,898.00 p.

For stamp duty @ 20% p.a. from Sep.1999

To Nov. 2001.

e)

compensation for delay of 3 years in handing Rs. 2,00,000.00 p.

over possession of the flat beyond stipulated

date.

f) Compensation for harassment Rs. 50,000.00 p.

______________

Total Rs.12,78,395.87 p.

==============

Order of the State Commission:

The State Commission, after considering the facts held that:


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(i). as per the agreement between the parties the complainant was

bound to pay Escalation Charges, and hence rejected the prayer for refund o

the Escalation amount;

(ii). Secondly, with regard to payment of interest for keeping the money

which was recovered from the complainant for execution of the Conveyance

Deed, the State Commission directed the DLF to pay interest at the rate of 10%

p.a. on the amount deposited by the complainant from the date of deposit till the

date of execution of the Conveyance Deed;

(iii). Thirdly, for the differential carpet area, the State Commission held

that the said dispute between the parties cannot be decided/sorted out in

summary proceedings.

(iv). Lastly, for delay of 3 years in delivery of possession, the State

Commission awarded a lump sum of Rs.1 lakh as compensation.

Against that order, the complainant has preferred First Appea

No.557/2003; and, the DLF has preferred First Appeal No.683/2003.

We have heard the complainant, who is appearing in person and the

learned senior counsel, Mr.A.N.Haksar, who is appearing for the DLF.


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Submissions:

Learned senior counsel, Mr.Haksar, submitted that

Delay in construction was due to reasons beyond the control of the

DLF. For this purpose, he relied upon the statements made in Para-E of the

Memo of Appeal(First Appeal No. 683 of 2003), wherein it has been stated as

under:

(a). There was a considerable delay on the part of the Governmen

in granting sanctions, approvals and certificates in respect of the said

project where, inter alia, apartment no.W-112, of the responden

herein was also situated;

(b). the Appellant had taken steps to get the Zoning Plan in respec

of the said project approved and the Director, Town & Country

Planning had approved the same on 24.8.1992 ; copy annexed and

marked as Annexure - C.

(c). On 10.09.1993; the Appellant submitted, the layout plan along

with detailed site plan and schematic building plan etc., for the said

project; copy annexed and marked as ANNEXURE-D.

(d). In response to certain queries and clarification sought by the

Director, Town & Country Planning the Appellant by letter dated

22.11.1993 furnished certain clarifications and explanations and once


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again sought approval of the layout plan; copy annexed and marked

as ANNEXURE E . Thereafter, the Appellant by letter dated

07.03.1994 submitted the layout plan consisting of detailed site

plans, schematic building plans etc., to the Director, Town & Country

Planning for approval; copy annexed herewith and marked as

ANNEXURE F. The Director, Town & Country Planning by lette

dated 02.08.1994 raised certain objections and pointed out certain

deficiencies; copy annexed herewith and marked as ANNEXURE

G. The Appellant herein by letter dated 03.08.1994 furnished certain

clarifications and conformations in response to the above letter dated

02.08.1994; copy annexed herewith and marked as ANNEXURE

H. The Appellant by letter dated 06.02.1995 enclosed the site plan

and other relevant documents and drawings and requested the

requisite approvals at the earliest; copy of the said letter dated

06.02.1995 is annexed herewith and marked as ANNEXURE I.

(e). The Director Town and Country Planning by letter dated

30.05.1995 granted approval of the building plans for the said

project; copy of the letter dated 30.5.1995 is annexed herewith and

marked as ANNEXURE J.

Thereafter, the Appellant herein also made an application on

28.9.1998 to the Director Town and Country Planning for obtaining

the occupation certificate under Rule 47(1) of the Punjab Scheduled


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Roads and Controlled Areas Restriction of Unregulated Developmen

Rules, 1965 ; copy annexed herewith and marked as Annexure K.

It was after almost one year that the Director Town and Country

Planning issued the occupation certificate on 10.9.1999 in respect o

the said project; copy annexed herewith and marked as Annexure - L.

He further contended that:

(a) Even, there was delay on the part of the complainant in paying

the instalments;

(b) as per the agreement between the parties, the complainant was

required to pay Escalation Charges; and

(c) for the Stamp Duty and Registration Charges, he contended tha

as soon as the complainant approached the DLF, the document was executed

and hence the delay was on the part of the complainant and not on the part of the

DLF. He also submitted that the order passed by the State Commission directing

to pay interest on the said amount cannot be justified.

FINDINGS:

I. Delay in registering conveyance deed:

For the delay in registering the Conveyance Deed, we have to state


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that the submission made above by the learned senior counsel for the DLF is

totally baseless and inconsistent with the submission made by DLF in its written

arguments which were filed before the State Commission, wherein the DLF has

admitted the delay and offered to pay interest thereon, as under:

Charges for registration and stamp duty : These are statutory

duties, which are payable under the Registration Act and the Stamp

Duty Act. The same have been paid by the respondent to the

concerned authorities. The complainant deposited Rs.1,49,890/- on

account of flat and Rs.15,265/- on account of parking on 22nd

November 1999. The respondents sent a letter dated 3rdJuly 2001

requesting the complainant to come forward to execute the

necessary documents. The said documents were registered on 29th

October 2001. The respondent is ready to pay the interest @

12% on the said amount, which comes to Rs.22,037/- for the fla

and Rs.2100/- for the parking after deduction of TDS.

In view of the aforesaid admission of its liability made before the

State Commission, there is no substance in the contention now raised by the

learned senior counsel for the DLF that the DLF is not bound to pay interest on

the amount paid by the complainant for Registration and Stamp Duty of the

Conveyance Deed. Those written submissions were filed before the State

Commission on 10.12.2002.

In view of the aforesaid specific admission, there is no necessity to


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consider the allegation of the learned Senior Counsel Mr.Haskar that there was

some delay on the part of the Complainant.

Secondly, we would state that undisputedly the stamp duty and the

registration charges were collected by the DLF in November, 1999 and retained

with it approximately for two years. For that, the DLF is bound to pay interest

II. Delay in delivery of possession of the flat:

(a). Undisputedly, there is delay of three years in handing over

the possession of the apartment to the Complainant. The DLF was

required to deliver the possession of the flat within a period of 2 to 3 years

from the date of the agreement. For this purpose, it is undisputed that the

complainant booked the apartment on 7.9.1993; agreement was executed

between the parties on 18.10.1993; and, as per the said agreement, thecomplainant was entitled to have possession of the flat in September 1996.

Admittedly, the possession was delivered on 24.11.1999.

There is also no dispute that the complainant was required to pay the

total consideration price within a period of 10 years. It is the contention of the

Complainant that despite having opted for a ten year payment plan at the time o

booking the apartment in the year 1993, the entire cost was paid within a period

of six years and before taking possession of the flat in the year 1999.


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(b). Delay on the part of the Complainant in paying the

instalments:

Learned senior counsel, Mr.Haksar, submitted that all throughou

there was delay on the part of the complainant in paying the instalments.

Therefore, DLF is not liable to pay any compensation to the Complainant for

delay in delivery of possession of the apartment.

In our view, this submission of the learned senior counsel is withou

any substance because the payment chart, which the DLF has produced on

record, establishes beyond doubt that the complainant was punctual in paymen

of instalments as agreed. The relevant chart is as under :

DELAYED INTEREST CALCULATION REPORT FOR 019 REGENCY PARK

Cus tomer Code : 5400269 ( 80064 ) BRIG KAMAL SOOD

Property Code : W112

Interest Rate : 20.00 Grace Period : 0

Due Date Amount

Due

Receipt

Date

Receipt

Amount

Days

Delay

Interest

Amount

07 Sep.1993

07 Nov.1993

07 Mar.1994

07 Jun.1994

30 Aug.1994

08 Sep. 1994

07 Mar.1995

07 Dec.1995

07 Mar.1996

07 Jun.1996

07 Sep.1996

07 Dec.1996

87807

100076.00

12269.00

12269.00

1.00

12269.00

87087.00

43904.00

43904.00

32344.00

32344.00

32344.00

07 Sep.1993

02 Nov.1993

11 Mar.1994

11 Mar.1994

11 Mar.1994

11 Mar.1994

11 Mar.199408 Jun.1994

05 Sep.1994

15 Dec.1995

15 Dec.1995

23 Apr.1996

23 Apr.1996

18 Jul.1996

18 Jul.1996

13 Sep.1996

13 Sep.1996

04 Feb.1997

04 Feb.1997

87807.00

100076.00

12269.00

12269.00

1.00

12269.00

63268.0012269.00

12269.00

1.00

43903.00

1.00

43903.00

1.00

32343.00

1.00

32343.00

1.00

32343.00

0

0

4

0

0

0

00

0

283

8

138

47

133

41

98

8

150

59

0.00

0.00

26.89

0.00

0.00

0.00

0.000.00

0.00

0.16

192.45

0.08

1130.65

0.07

726.61

0.05

106.33

0.08

1045.61


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07 Mar.1997

07 Jun.1997

07 Sep.1997

07 Dec.1997

07 Mar.1998

07 Mar.1998

07 Sep.1998

07 Dec.1998

03 Mar.1999

32344.00

32344.00

32344.00

32344.00

32344.00

32344.00

32344.00

32344.00

32344.00

18 Mar.1997

18 Mar.1997

10 Jun.1997

10 Jun 1997

18 Sep.1997

18 Sep.1997

17 Dec.1997

12 Mar.1998

16 Mar.1998

16 Mar.1998

14 Sep.1998

14 Sep.1998

25 Dec.1998

25 Dec.1998

03 May 1999

1.00

32343.00

1.00

32343.00

1.00

32344.00

32344.00

32343.00

1.00

32343.00

1.00

32343.00

1.00

32343.00

101

11

95

3

103

11

10

5

101

9

99

7

109

18

0.06

194.94

0.05

53.17

0.06

194.95

177.23

88.61

0.06

159.50

0.05

124.06

0.06

319.00

Total Interest Due 4540.79

Balance Interest Due 4540.79

Total Interest on Delayed Payment 5551.00

From the aforesaid chart, it can be stated that up to 7.12.1995, the

complainant had paid a large amount without there being any delay. Further, i

appears that for insignificant amount of Re.1 the builders found that there was

delay in paying the same and for that they have mentioned the period. In ou

view, such submission is required to be ignored and we would state that it is part

of unfair trade practice. In any case, for the aforesaid large sum, the delay was

so negligible that even the builders have charged maximum Rs.5,551/- as

interest. Considering this aspect, it cannot be said that there was any substantia

delay in payment of instalments.

(c). Delay in obtaining various sanctions:

However, learned senior counsel, Mr.Haksar, pointed out that the

delay was due to obtaining sanctions for various plans, including the lay out plan


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zoning plan, and that the approval of building plan for the project was finally

sanctioned on 30.5.1995.

In our view, before obtaining statutory clearances, such as, sanction

for construction and approval of Site Plan and other relevant documents, if the

builder issues tempting advertisement or promises to deliver the possession of

the constructed f lat within 2 years to 3 years, then the fault lies with the builder.

In this case, the Complainant had applied for allotment of the flat in

September 1993, and the agreement, i.e. Apartments Buyers Agreement was

executed in October 1993.

Normally, delay in construction of building may arise because of

various reasons. But, in our country, it is known fact that delay occurs in

obtaining various permissions from different governmental authorities, and this

fact is well-known to the builder. The time normally taken in getting such

permissions could have been contemplated by the builder before issuing the

brochure. It would be unfair trade practice, if the builder, without any planning

and without obtaining any effective permission to construct building/apartments

invites offers and collects money from the buyers. If the construction of the

building/apartment is delayed, because of such delay, and the possession o

the apartment is not delivered within the stipulated time, the builder would be

liable to bear the escalation cost and not the buyer/consumer.


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For this purpose, it would be worthwhile to mention some

discussion made in HUDSONS Building and Engineering Contracts, 7th

Edition, which deals with commencement of the work by the Public Authority

including Private Corporations. Therein, it has been observed:

..Many large contracts let prematurely by private property developers

suffer from similar deficiencies of administration, which can be grossly

unfair to the contractor and make effective pre-planning on his part very

difficult. On the other hand, very similar results can also occur in both public

and private projects for the quite different reason that it is a common

practice of contractors whose resources are fully employed elsewhere to

see to conclude new contracts prematurely in order to maintain an

uninterrupted flow of work, with the result that the start of work on a

later project is in such cases likely to be largely cosmetic unti

earlier projects are nearer completion.

(Page No. 456, Para 3.069

It is further discussed:

The ideal is a contract put out to tender with a stated and

realistic date for starting work, sufficiently distant in time to enable

all parties to plan and be ready for an effective start when the date

arrives. (p.457)

Hence, in our view, it was the duty of the DLF to plan in advance


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obtain necessary permission and thereafter promise to deliver the possession

of the flat/apartment within the stipulated time. As stated above, if that is no

done, delay in obtaining permission would hardly be a ground for directing the

consumer to suffer.

Next, learned Senior Counsel Mr.Hakasr contended that as per the

terms of the agreement the Complainant is bound to pay escalation cost, and, fo

delay in delivering possession, Complainant will not be entitled to claim any

compensation. He relied upon the following terms of the agreement entered

into between the parties on 19thOctober, 1993, which according to him deals

with escalation cost and for delay in delivery of possession of the apartment.

Relevant terms of Clause 4 and 16 are as under:

Cl.4: The price of the apartment stipulated hereinabove is based on

the price of all materials and labour charges pertaining thereto ruling

on 1stday of January, 1993. If, however, during the progress o

work, there is increase in the price of the materials used in the

constructionwork and or labour charges on account of any reason

statutory or otherwise, the cumulative effect of such increase as

assessed by the Company and intimated to the Apartment Allottee

shall be debited to Apartment Allottees account who shall pay the

same on demand. The decision of the Company in this respec

shall be final and binding on the Apartment Allottee. The


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increased incidence may be charged and recovered by the

Company from the Apartment Allottee with any one or more of the

instalments or separately but in any case before giving possession o

deemed possession of the Apartment.

Cl. 16: That the possession of the said premises is proposed to

be delivered by the Companyto the Apartment Allottee within two

and half/three years from the date of booking of the Apartment

The Company shall not incur any liability if it is unable to delive

possession of the said premises by the time aforementioned. If the

completion of the building(s) is delayed by reason of non

availability of steel and/or cement or other building materials, o

water supply or electric power or slow down strike or due to a

dispute with the construction agency employed by the Company, civi

commotion or by reason of war or enemy action, or earthquake or any

act of God or if non-delivery of possession is as a result of any act

notice, order, rule or notification of the Government/or any othe

public or competent authority or for any other reason beyond the

control of the Company and in any of the aforesaid events the

Company shall be entitled to a reasonable extension of time for

delivery of possession of the said premises.

The Company as a result of such a contingency arising

reserves the right to alter or vary the terms and conditions of


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allotment or if the circumstances, beyond the control of the Company

so warrant, the Company may suspend the Scheme for such period

as it may consider expedient and no compensation of any nature

whatsoever can be claimed by the Apartment Allottee for the period

of suspension of the scheme.

In consequence of the Company abandoning the scheme, the

Companys liability shall be limited to the refund of the amount paid

by the allottee without any interest or any other compensation

whatsoever.

From the aforesaid terms of the contract, it is clear that Clause 16

quoted above, firstly provides that from the date of booking the Company shal

deliver the possession of the Apartment within two and half to three years.

Secondly, in cases of non-availability of steel, cement, or othe

building materials, or water supply or electric power or slow down strike, etc. o

due to act of God, such as earthquake, etc., or for the reasons beyond the

control of the Company, the builder (Company) would be entitled to reasonable

extension of time for delivery of possession of the said premises.

This clause, in our view, would not apply to the cases of delay in

obtaining necessary permissions for construction of the buildings. In this case

the delay is in no way connected with the non-availability of steel, cement, etc


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nor it is the act of God, such as earthquake. As such, it was default on the part of

the builder in not obtaining such permission in advance before issuing

advertisement inviting the buyers to purchase the apartments and before

collecting money. Therefore, the reliance placed upon the said clause is withou

any basis.

.III. Escalation amount:

(a). Now, escalation, Cl.4 provides that in case of increase of costs

during the construction period, which were prevailing on 1.1.1993, then the

Company would be entitled to levy escalation charges from the allottee.

But, this condition is also on the foundation that construction work

was to start in the year 1993 and not in the year 1996, i.e. after obtaining various

sanctions to construct the buildings. Therefore, this clause cannot be the basis

for holding that purchasers are required to pay escalation in cost of construction

Delay in starting construction work might have resulted in increase in the price of

the materials used in the construction work or labour charges. For this delay, the

Complainant is not responsible, and, therefore, he is not required to pay the

escalation charges due to such delay.

(b). Further, this clause is to be read along with the promise given in the

brochure. It is settled law that brochure is part of the promise on which the

contract is based. In the brochure it has been specifically mentioned that:


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And remember, now all prices are ESCALATION FREE. So, the

price you book at is the price you pay, irrespective of what i

might cost DLF.

The brochure issued by the Opposite Party which has bearing in

deciding whether escalation in cost is to be borne by the Complainant. Dealing

with the case of Ghaziabad Development Authority Vs. Union of India, (2000) 6

SCC 113, the Apex Court considered the term of the brochure that the

Development Authorities shall not be liable to pay any interest in the event of

occasion arising for return of amount and held as under:

The rate of interest awarded in equity should neither be too high nor too

low. In our opinion awarding interest at the rate of 12 per cent per annum

would be just and proper and meet the ends of justice in the cases unde

consideration. The provision contained in the brochure issued by the

Development Authority that it shall not be liable to pay any interest

in the event of an occasion arising for return of the amount should

be held to be applicable only to such cases in which the claimant is

itself responsible for creating circumstances providing occasion for

the refund. In the cases under appeal the fault has been found with the

Authority. The Authority does not therefore have any jurisdiction fo

resisting refund of the claimants amount with interest.

Therefore, it cannot be said that the condition contained in the

contract would only prevail and not the terms of the brochure which is an


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With regard to parking space, admittedly the Complainant has paid

the amount for parking space. No doubt, there was delay in allotting the parking

space and the Complainant is entitled to get some relief. But, in our view, the

relief granted by way of refund of the escalation cost, would meet the grievance

of the Complainant.

Conclusion:

In view of the aforesaid findings for delay in delivering the

possession to the Complainant, the State Commission awarded Rs.1 lakh as

compensation. Considering the fact that we are directing the builder to refund

the amount recovered on account of escalation, costs, the said amount would

compensate the Complainant properly.

In the result, the appeal No.557 of 2003 filed by the Complainant is

partly allowed and the Respondent DLF is directed:

(a) to refund the amount of Rs.4,02,617.69p. to the Complainant which

is recovered on account of escalation cost, with interest at the rate of 12% p.a

[No doubt, the Complainant has claimed the refund with interest at the rate of

20%, because that was the rate at which the builder recovered from the

Complainant for some delay in payment of instalment.];

(b) to pay Rs.1 lakh as compensation to the Complainant for delay in

delivery of possession, as directed by the State Commission; and,


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kamal sood vs dlf

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