NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Deepa Sharma, Presiding Member and C. Viswanath, Member
Rasheed Ahmad Usmani
and Ors. —Complainants
versus
DLF Ltd. (through its Chairman
& MD) DLF Centre and Ors. —Opp. Parties
Consumer Case No.1055 of 2015
Decided on 2.7.2019

IMPORTANT POINTS
1. It is also the settled proposition of law that the facts which can be proved by documents, no oral testimony is needed.
2. A person cannot depose on behalf of another person without being so authorized.
3. The existence of element of coercion being used upon each and every of such complainants who have taken possession and executed conveyance deed, cannot be presumed.
4. Since conveyance deed is not a service contract the forceful execution of this document cannot be challenged under the Consumer Protection Act.
5. The burden therefore is upon such person i.e. the complainants to prove such facts by leading evidences which show that the consent given by such person while entering into a settlement, was not free.
6. Consumer should have an existing right under the service contract to claim deficiency in service.
7. It is for the complainants to prove that the contractual terms of agreement are unfair and unreasonable.

Headnote:

Consumer Protection Act, 1986—Sections 2(r), 2 (nnn), 12(1)(c) and 14(1)(d)—Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972—Sections 6 and 7—Indian Contract Act in Sections 14 to 18—Original Complaint—Unfair and restrictive trade practice—Allegations of—Apartments—Booking of—In this revised proposal, the cost of project was shown to have reduced to Rs.264 crores. i.e. almost half of the initial cost—Prices of the flats were not reduced proportionately—Delay had compelled the complainants to pay higher registration charges which had increased over the period of time—Service tax had also increased to 12.3% and 14.5% and thus the buyers had to pay higher service tax—Opposite parties have also failed to provide visitors parking space in the complex which according to the local guidelines was 10% of the total parking space—Opposite parties are charging property taxes form the buyers in gross violation of Section 6—Opposite parties are also raising extra charge for preferential location i.e. for flats having a view of club house, swimming pool and greenery—The opposite parties have already completed the construction and received occupation certificate—The proper water connection from BWSSB and electricity supply from BESCOM is in place and full housekeeping and maintenance services are being provided through leading multinational company—Objection that the present complaint under Section 12(1)(c) of the Act is not maintainable, is not tenable—Complainants contesting in two groups one group is of complainants Nos. 1 to 197 and other is of complainants Nos. 198 to 339—No affidavit of individual complainant has been filed to prove their individual grievances—In the present complaint, the contentions of the parties are based on the documents executed between them and therefore to deal with these issues, no oral testimony is relevant—Different complainant played different role which can be devided into A to F—Group A. The complainants who had taken possession of their subject flats before the filing of the complaint/impleadment applications—Group B. The complainants who have taken possession and executed conveyance deeds during the pendency of the complaint/impleadment applications—Group C Complainants who have taken possession during the pendency of the complaint/impleadment applications but have not executed the conveyance deed—Group D. The complainants who have settled their dispute during the pendency of the present complaint/ impleadment applications—Group E. The complainants who have sold their subject flats to third persons during pendency of the complaint/impleadment applications—Group F. The complainants who have not taken possession of the flats and have not executed the conveyance deed—The existence of element of coercion being used upon each and every of such complainants who have taken possession and executed conveyance deed, cannot be presumed—Since conveyance deed is not a service contract the forceful execution of this document cannot be challenged under the Consumer Protection Act—Builder failed to comply with this stipulation as it failed to apply for occupancy certification and the flat purchaser filed the consumer complaint alleging deficiency of service for failure to obtain occupancy certificate and hand over possession of the flat and the buyer prayed for the refund of the entire deposited amount and also compensation for mental agony and harassment and refund of certain taxes etc- All the complainants of the group A, B & C, D have taken a common plea that they had been forced, coerced and threatened and were put under duress and an undue influence had been used upon them for accepting the possession, executing the conveyance deed and entering into settlements—The burden therefore is upon such person i.e. the complainants to prove such facts by leading evidences which show that the consent given by such person while entering into a settlement, was not free—No specific facts and circumstances have been pleaded by the complainants—These complainants had ample opportunity to bring to the notice of this Commission any of such act of the opposite parties during the pendency of the present complaint and no explanation has come forward as to why this course had not been adopted—Complainants have therefore acted on their own free will and it cannot be said that they had not signed these documents voluntarily and with a free will—Complainants 198 to 339 have not even produced any evidence—Consumer should have an existing right under the service contract to claim deficiency in service—No other evidence is produced by the complainants to prove that the cost of the project has in fact been reduced—It is also apparent from the terms of ABA that the parties had agreed that the price of the flat is to be calculated on the basis of super area of the said apartment and does not include any other amounts, charges payable by the allottee as demanded by the company which also includes Taxes—Complainants have taken up the liability to pay taxes which was in addition to the total price—Agreement for payment of taxes by the complainants, is not hit by any statutory provision of law and it cannot be said that such a clause in the agreement is ultra vires or amounts to unfair and restrictive trade practices—At the time when the complainants had entered into the ABA, they were very well aware that they would have no right on the facilities which were to come up in the project and that construction of those facilities in the new town would be done in the future—ABA was entered into by the complainants in the year 2009-2012 and they have not challenged the terms and conditions of this agreement before any Court of law—Complainants have not taken possession and have not executed any conveyance deed and had therefore not paid any money to Dua Associates so no refund therefore can be ordered as demanded—There is no denial on the part of the complainants that there is no increase in the super area—Commission cannot raise presumptions and surmises and without any evidence cannot hold that the super area of the flats has been decreased—It is apparent that in terms of the ABA, the allottees are required to pay club charges—There is no dispute to the fact that the completion of the project had been delayed—Delay had been acknowledged by the opposite parties—Builders had also offered to these complainants the delayed compensation—The argument for the complainants that the complainants had not accepted the delayed compensation but it was adjusted in the final demand, is not tenable—The final demand letter, sample of which is placed on record, clearly shows that the opposite parties had shown therein the delayed compensation calculated in terms of ABA and thereafter this amount is shown to have been deducted from the total money payable by the complainants—Complainants have accepted the said delay compensation and had taken possession before and during proceedings of the complaint and executed the sale deed—It is also apparent that although the opposite parties have contended that out of 339 complainants, 337 have taken possession—Majority of the complainants have accepted the compensation so paid by the opposite parties in terms of the ABA—It is for the complainants to prove that the contractual terms of agreement are unfair and unreasonable—Compensation under various heads granted by the NCDRC cannot be sustained—Held that, complainants have failed to even contend any exceptional and strong reason for this Commission to award compensation more than the agreed rate.

[Paras 6, 7, 8, 9, 15, 370, 381, 387, 388,

397, 400, 418, 421, 422, 428, 434, 442, 443, 450, 457, 460, 463, 464, 467, 473 and 478]

Result: Complaints dismissed.