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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Vineet Kumar and Anr. —Appellants
versus
M/s. DLF Universal Limited
and Anr. Respondents
First Appeal No.1340, 1108, 1316, 1327, 1328, 1416, 1417, 1418, 1419, 1420, 1421, 1422, 1423, 1748, 1771, 1772, 300 and 454, 856 of 2016
Decided on 13.2.2019
In FA No.1340 of 2016
For the Appellants:Mr. Sudhir K. Makkar, Sr. Advocate with Mr. Manav Kumar, Advocate
For the Respondents:Mr. Rajiv Nayar, Sr. Advocate Ms. Seema Sundd, Ms. Kanika Agnihotri, Mr. Saurabh Kumar and Ms. Shreyansi Goel, Advocates
In All Other First Appeals
For the Appellants:Mr. Rajiv Nayar, Sr. Advocate Ms. Seema Sundd, Ms. Kanika Agnihotri, Mr. Saurabh Kumar and Ms. Shreyansi Goel, Advocates
For the Respondents:Mr. Sudhir K. Makkar, Sr. Advocate Mr. Sandeep Bhardwaj, Mr. Anant Agarwal, Mr. Natansh Kr. Pal, for ICICI Bank, Mr. Savinder Singh Gill, Mr. Manav Kumar, Mr. Parvez Chugh, In person with Mr. Nikhil Jain, Mr. Amarjeet Singh, Mr. Narender Yadav, Mr. Lakhbir Singh, Mr. Anand V. Khatri, Ms. Surbhi and Mr. Chinmay Sejwal, Advocates
IMPORTANT POINT
When all such amenities and facilities which were essentially required for use and enjoyment of flats were available at the time possession was offered, allottees are not justified in refusing possession on the ground that requisite facilities and amenities or infrastructure had not been provided by developer.
Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Real estate—Booking of residential floors—Delay in offering possession of allotted residential floors to concerned allottees—In 17 consumer complaints, State Commission directed refund of amount paid by allottees to developer, along with compensation, whereas in one case, State Commission directed execution of conveyance deed in favour of allottees and payment of compensation, possession having already been taken by them—Since all such amenities and facilities which were essentially required for use and enjoyment of flats were available at the time possession was offered, allottees were not justified in refusing possession on the ground that requisite facilities and amenities or infrastructure had not been provided by developer—As regards those facilities which though obligatory but were not essential for use and enjoyment of flats, allottees can have such remedy against developer as may be open to them in law on account of any unreasonable delay on part of developer in making said facilities functional in all respects—Appeal disposed of with directions.
Held: In view of the report of the Architect, I hold that since all such amenities and facilities which were essentially required for use and enjoyment of the flats were available at the time the possession was offered, the allottees were not justified in refusing possession on the ground that the requisite facilities and amenities or infrastructure had not been provided by the developer. As regards those facilities which though obligatory but were not essential for the use and enjoyment of the flats, the allottees can have such remedy against the developer as may be open to them in law on account of any unreasonable delay on the part of the developer in making the said facilities functional in all respects.
It is true that except in one case, there was delay on the part of the developer in offering possession of the allotted flats to the concerned allottees. The delay was one year or less in 16 matters whereas it was more than one year in a few matters. Out of 20 cases subject matter of these appeals, the possession in 17 matters had been offered before the consumer complaints were instituted by the concerned allottees. As noted earlier in one case, i.e., the complaint filed by Vineet Kumar, there was no delay. The question which arises for consideration is whether the allottees were justified in refusing possession solely on account of such a delay, despite the fact that the basis facilities and amenities essentially required for the use and enjoyment of the allottees flats were available at the time the possession was offered. The project in which flats were booked by the complainant is a large project. Some delays in a large project of this nature are understandable and sometimes inevitable. In fact there is also a change in the judicial approach, in the cases where the possession is offered either before or during the pendency of the complaint. It is only where the delay is unreasonable or the circumstances of the allottee have materially changed in the meanwhile that the allottee may be justified in refusing to accept the possession and seek refund of the amount paid by him to the developer alongwith compensation etc. As noted earlier, the delay in 16 matters was not more than one year and there was no delay in one matter. Even in the remaining three matters, the delay, though more than one year, was not so unreasonable that it would justify the offer of possession given by the developer, even if a fair and just compensation is paid to the allottee for the delay in making the said offer. It has to be kept in mind that a bonafide purchaser books a flat for the purpose of having a shelter over his head. In the case of booking of a flat, the house is constructed for him by the developer. The refund to an allottee whether with or without compensation is also directed with a view to enable him to purchase an alternative flat, in lieu of the flat booked by him. Therefore, ordinarily there will be no justification for not accepting the possession except in a case where the delay is very substantial and cannot at all be justified by the developer, or there is material change in the circumstances of the allottee, which would justify refund to him.
As far as those 16 allottees to whom possession had been offered before institution of the complaints are concerned, they, in my opinion, ought to have accepted the possession reserving their right to seek compensation from the developer for the delay in offering possession of the allotted flats to them. Even the allottees in whose case the possession was offered after institution of the complaint, ought to have accepted the possession and claimed only the compensation. In one case, the complaint instituted by Ankur Mujral, the possession had not been offered even by 30.8.2016 when the State Commission directed refund of the amount paid by the allottee to the developer along with compensation etc. though the same ought to have been offered by 16.2.2015. This presumably happened because the complaint was disposed of within about two months of its institution. The developer claims to have obtained the requisite occupancy certificate for this flat as well.
In the complaint, subject matter of FA/1416/2016, the respondent / complainant stated during the course of arguments that he has already purchased another house after the order of the State Commission. The said purchase, in my opinion, amounts to material change in the circumstances of the said complainant. He having already purchased another house, it will not be fair and reasonable to compel him to accept possession of the flat, which the appellant had allotted to him.
In all the cases other than FA/1416/2016, the complainants, in my opinion, should accept possession of the flat allotted to them and in the facts and circumstances of the case, as noted hereinabove, refund of the amount paid by them to the developer, was not justified.
For the reasons stated hereinabove, all the appeals and connected consumer complaints are disposed of (Paras 23 to 28)
Result: Appeal disposed of with directions.
V.K. Jain, Presiding Member—These are 19 appeals, arising out of the different orders passed by the State Commission, UT Chandigarh. 18 appeals having been filed by DLF Universal Limited and one appeal has been filed by one of the allottees namely Vineet Kumar & Anr., 18 complaints were instituted before the State Commission, by the alllottees of residential floors in a project namely ‘Hyde Park Terraces’, which DLF Limited was to develop in New Chandigarh, Mullanpur. Admittedly, as per the schedule agreed between the parties, the possession of the residential floors was to be delivered within thirty months from the date of application. Except in one case, i.e. the complaint subject matter of the FA/1328/2016 filed by Vineet Kumar, where the consumer complaint was instituted by Vineet Kumar, there was delay in offering possession of the allotted residential floors to the concerned allottees. Being aggrieved, they approached the concerned State commission by way of separate consumer complaints. In 17 consumer complaints, the allottees sought refund of the amount paid by them to the developer, along with compensation etc. whereas in one case, i.e. the complaint subject matter of FA/300/2017 and instituted by Darshan Malik & Anr., possession was sought with compensation.
2. The complaints were resisted by the developer inter-alia on the ground that the possession was delayed on account of reasons beyond the control of the developer and there was no deficiency on the part of the developer in rendering services to the allottees.
3. In 17 consumer complaints, the State Commission directed refund of the amount paid by the allottees to the developer, along with compensation, whereas in one case, i.e. the complaint instituted by Darshan Malik and Anr., the State Commission directed execution of the conveyance deed in favour of the allottees and payment of compensation, the possession having already been taken by them.
4. Being aggrieved from the order passed by the State Commission, the developer DLF Limited is before this Commission by way of twenty separate appeals, whereas one appeal being FA No. 1340 of 2016 has been filed by the allottee Vineet Kumar, who is not satisfied with the compensation awarded by the State Commission.
5. The primary issue involved in these appeals is as to whether the complainants except Darshan Malik are entitled to refund of the amount paid by them to the developer, along with compensation, despite possession of the allotted floor having already been offered to them or they must necessarily accept possession of the allotted floor with a fair and just compensation.
6. When these appeals came up for hearing on 25.10.2017, the following order was passed by this Commission:
“It has been argued on behalf of some of the complainants that all the facilities and amenities necessary for a full and efficient use and enjoyment of the flats offered to them were not available at the time the possession was offered to them. The aforesaid contention is disputed by the appellant. The complainants have also contended that some facilities and amenities have been provided by the appellant after offering possession to them. In order to return a finding of the aforesaid contentious issue, it becomes necessary to appoint a third party architect to inspect the flats offered to the complainants and the facilities and amenities available for the said flats, in order to report whether all such facilities and amenities as are essentially required for a full and efficient use and enjoyment of the said flats for residential purpose are available or not. It also becomes necessary to require the appellant to disclose on oath the facilities and amenities if any, provided by it after offering possession to the complainants. The following directions are therefore, issued in the matters:
1. The Principal/Director, Chandigarh College of Architecture shall nominate a senior architect of the said college to inspect the flats offere
