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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Capital Greens Flat Buyer Association
& Ors. —Complainant(s)
versus
DLF Universal Limited
& Anr. —Opp. Parties
Consumer Case Nos. 351 of 2015; Consumer Case No. 1084 of 2017; Consumer Case No. 1117 of 2019; Consumer Case No. 1242 of 2016; Consumer Case No. 1270 of 2016; Consumer Case No. 1346 of 2016; Consumer Case No. 1425 of 2016; Consumer Case No. 15 of 2019; Consumer Case No. 1751 of 2016; Consumer Case No. 1969 of 2018; Consumer Case No. 2047 of 2016; Consumer Case No. 2085 of 2018; Consumer Case No. 2284 of 2018; Consumer Case No. 2640 of 2017; Consumer Case No. 2657 of 2017; Consumer Case No. 2715 of 2018; Consumer Case No. 2814 of 2017; Consumer Case No. 2993 of 2017; Consumer Case No. 3441 of 2017; Consumer Case No. 3471 of 2017; Consumer Case No. 3619 of 2017; Consumer Case No. 3620 of 2017; Consumer Case No. 410 of 2015; Consumer Case No. 422 of 2017; Consumer Case No. 539 of 2016 and Consumer Case No. 751 of 2018
Decided on 03.01.2020
For the Complainant(s):Mr. Anil Sapra, Sr. Advocate
Mr. Ajay Kohli, Mr. Sarthak Katyal, Ms. Astha Garg, Ms. Medha Rai, Mr. Amit Joshi, Ms. Prabhat Kaur, Mr. B.P. Agarwal, Advocate (CC/1751/2016)
Mr. Ashish Verma, Mr. Varun Chopra, Mr. Jitendra Malkan, Mr. Vishal Bhatnagar, Advocates With complainant Mr. Avnish Kumar, Mr. Dhiraj Madan, Advocate (CC/2640/2017) and (CC/3619/2017) Mr. S.K. Pal, Advocate with complainant (CC/2814/2017) Mr. Sunil Mund, Advocate (CC/2993/2017) Mr. Amit Kumar, Mr. Soumya Patra and Mr. Aditya Parolia, Advocates
(CC/3441/2017)
Mr. Nithin Chandra, Ms. Harshita Chauhan, Advocate
Mr. Akash Khurana, Advocates
For the Opposite Parties:Mr. Pinaki Misra, Sr. Advocate; Mr. Pravin Bahadur, Mr. Kartik Nayar, Ms. Seema Sundd, Mr. Ritu Raj Srivastava, Mr. Kamal Taneja, Mr. Aditya P.N. Singh, and Mr. Snehil Srivastava, Advocates
IMPORTANT POINT
Developer cannot get any advantage on account of prohibitory order by taking advantage of its own negligence or negligence of contractor engaged by it.
Headnote:
(A) Consumer Protection Act, 1986 – Section 2(1)(g), 2(1)(o) – Delhi Apartments Ownership Act, 1986 – Section 3 – Delhi Apartments Ownership Rules, 1987 – Rule 3 – Real estate – Apartment Buyers’ Agreement – Possession of apartment not delivered within time period committed by developer – Additional demand on account of increase in super area which has been restricted to 15% of super area stated in agreements, is justified – No justification in grievance with respect to demand on account of increase in super area of apartments – Super area given in agreements that said area does not include covered / open car parking area within / around buildings for allottees / visitors, nor does it include club area – Delhi Apartments Ownership Act does not exclude, from purview of term common areas and facilities, a basement, which is used for car parking – Likewise, parking areas, irrespective of whether such areas are open or covered, whether they are provided on surface or in stilt area or in basement would be a part of common areas and facilities in relation to a multi-storeyed building. – A basement does not lose its character as such, merely on account of use to which it is put – Similarly, a parking area is an area meant for parking of vehicles, wherever such areas may be located – Basement parking was not actually designated in writing by developer as limited common areas and facilities within the meaning of Delhi Apartments Ownership Act – Nothing in law prevented developer form charging cost of club area and basement parking from allottees who were to pay on the basis of super area which included not only apartment area but also common area of building – But, having not done that, developer cannot be allowed to charge separately from allottees for club area and basements used for car parking – Developer is not entitled to recover charges for club area and car parking from allottees – Club Area and Basement Parking being common to all allottees, it would be for Association of Apartment Owners to regulate use by allottees. (Paras 14, 15, 22, 23 and 25)
(B) Consumer Protection Act, 1986 – Section 2(1)(g), 2(1)(o) – Real estate – Apartment Buyers’ Agreement – Possession of apartment not delivered within time period committed by developer – Force majeure circumstance – No force majeure circumstance has been sought on account of delay in sanction of building plans, in force majeure chart submitted by developer – Developer cannot get any advantage on account of prohibitory order by taking advantage of its own negligence or negligence of contractor engaged by it – Developer has also claimed force majeure circumstances on account of delay in grant of occupancy certificate – Again, no material has been placed on record to show how much is time usually taken for grant of occupancy certificate in respect of such a large project – Correspondence exchanged between developer and concerned authorities has not been placed on record to prove that there had been no defect or deficiency in construction raised and documents submitted by developer to concerned authorities for grant of occupancy certificate and despite that concerned authorities took more than reasonable time in issuance of occupancy certificate – OP has failed to establish any force majeure circumstance for delay in offering possession of allotted flats to concerned allottees – Execution of undertaking in format prescribed by developer was a pre-requisite condition, for delivery of possession – Opposite party could not have insisted upon Clause 13 of Indemnity-cum-Undertaking – Any delay solely on account of allottee not executing such an undertaking would be attributable to developer and would entitle allottee to compensation for the period possession is delayed solely on account of his having not executed undertaking-cum-indemnity – Allottees should be paid compensation in form of simple interest @ 7% per annum from expected date for delivery of possession till date on which possession was actually offered to them – If possession to an allottee has been delayed solely on account of his having not executed Indemnity-cum-Undertaking prescribed by developer, compensation to such an allottee should be paid with effect from expected date for delivery of possession till date on which consumer complaint was actually instituted by/on behalf of such an allottee. (Paras 26 to 37)
Result : Complaints disposed of with directions.
ORDER
V.K. Jain, Presiding Member—The opposite party namely DLF Universal Limited (hereinafter referred to as “Developer”) is the developer of the large residential project namely “DLF Capital Greens” developed on the land situated at Shivaji Marg, Moti Nagar, New Delhi. 2870 residential apartments in 23 residential towers have been constructed by the developer in three phases, the first and second phase comprising of 10 towers each and the third phase comprising of three towers. Laresen & Toubro was appointed as the Principal Contractor for constructing the aforesaid residential apartments. The total apartment area of phase I and II is stated to be 332864.317 sq. mtr, whereas the aggregate of the apartment area and common areas for phase I and II is stated to be 423548.194 sq. mtr. Phase I and II were launched at the same time whereas Phase III was launched at a later date.
2. The residential apartments constructed by the developer were allotted to different persons who executed Apartment Buyers’ agreement with the developer on different dates. The total price of the apartment was calculated on the basis of its super area as noted in Clause 1.1 of the Agreement, which reflected not only the super area but also the apartment area of the apartment, subject matter of the agreement. The super area and the apartment area for the purpose of calculating the price of the apartment were defined as under in the agreements executed between the developer and the allottees:
“Definition of super area –
Super area for the purpose of calculating the total price in respect of the said apartment shall be the sum of apartment area of the said apartment, its pro-rata share of common areas in the entire said building and pro-rata share of other common areas outside building, as may be applicable, earmarked for use of all apartment alltotees in the DLF Capital Greens including the exclusive community / recreational facility with swimming pool, toilets/ change room, multipurpose hall, gymnasium and restaurant etc. etc.
Whereas the Apartment Area of the said apartment shall mean entire area enclosed by its periphery walls including area under walls, columns, balconies deck, cupboards and lofts etc. and half the area of common walls with other premises / apartment, which form integral part of said apartment and common areas shall mean all such parts / areas in the DLF Capital Greens which the allottee shall use by sharing with other occupants of DLF Capital Greens, including entrance lobby, driver’s/ common toilet at ground floor, lift lobbies, lift, shafts, electrical shafts, fire shafts, plumbing shafts and service ledges on all floors, common corridors and passages, staircases, mumties, services areas including but not limited to lift machine room, overhead water tanks, underground water tanks and pump room, electric sub-station, DG set room, fan rooms, laundromat, maintenance offices / stores, security / fire control rooms, sewage treatment plant, the exclusive community / recreational facility and architectural features, if provided.
Super area of the said apartment provided with exclusive open terrace (s) shall also include area of such terrace (s), apartment allottee however, shall not be permitted to cover such terrace (s) and shall use the same as open terrace only and in no other manner whatsoever.
It is specifically made clear that the computation of super area of the said apartment does not include the following:
1. Sites for shops and shop (s)
2. Sites / Buildings area of community facilities / amenities like Nursery / primary / Higher Secondary School, Club (exclusive community / recreational facilities for DLF Capital Greens) / Community centres, Dispensary, Creche, Religious Buildings, Health Centres, police posts, electric sub-station, dwelling units for economically weak sections / service personnels.
3. Roof / top terrace abov
