SIMLA MOHINDER vs DLF Universal Ltd.

THE complainants Mrs. Simla Mohinder and Ms. Samidha Shikha in their complaint averred that they jointly applied to respondent No. 1 - M/s. DLF Universal Limited, New Delhi for the allotment by sale a two bed room residential apartment No. 121/14 on 24.10.1991 located at Gurgaon under Ten Year Payment Plan through Maj. H.L. Chadha, Chandigarh, respondent No. 2, a local agent, as per the complainant''s add, Annexures 1 and 2. As per 10 years payment plan, 65 percent of the sale consideration and other charges were to be paid to the Company in the first two years and the remaining 35 per cent was to be paid in the next 8 years in 32 equal quarterly instalments, as contained in Annexure 3.

A total sum of Rs. 1,02,313/- was remitted to the Company, which approximately comes to 15% of the total sale price and registration money, Annexure 4. On 3.2.1992, as demanded by the Company, another demand draft for Rs. 1,37,656/- was sent, Annexure 5. Thus the total amount of about Rs. 2,40,000/-, i.e. 32% of the total amount was paid to the Company before the actual execution of the ''Buyers'' agreement on 5.2.1992. The complainants have averred in their complaint that the agreement was in the form of undertaking sought from the trusting customers, and is a wholly lopsided document, heavily loaded in favour of the respondent Company. It is vague, arbitrary, inequitable and self contradictory which amounts to an unfair trade practice. After remitting half of the 65% of the payment in the first three and a half months, the balance amount of over Rs. 2,50,000/- was remitted to the respondent-Company during the next 21 months as per the schedule in seven quarterly instalments. Thus the total sum of Rs. 5 lacs was deposited between October, 1991 to November, 1993 which is 65% of the total amount as demanded by the Company, including the sum of Rs. 1.00 lac which according to the complainant was unjustified. The Company proposed to deliver the possession of the apartment to the complainants, within two years'' period, i.e. upto 5.2.1994 as per Clause 16 of the Agreement but it was not complied with and finally delivered possession on 7.11.1997, i.e. almost after six years. The complainants averred that a sum of Rs. 1,26,889/- extra has been paid by them and thus have suffered a great deal of financial loss and mental agony due to the sins and lapses on the part of respondent-Company. The Apartment holders Society has already obtained a stay from M.R.T.P.C. restraining the respondent Company from selling, disposing of or alienating in any manner such parking slots, Annexure 18. The Company has charged from the complainants Rs. 97,904/- including a sum of Rs. 10,327/- as registration expenses and stamp duty without any registration and also escalation charges of Rs. 7,980/-. The complainants have further averred that for internal and external electrification the Company charged a sum of Rs. 41,651/- from the complainants which is un-authorised. In nutshell, the total relief claimed by the complainants comes to Rs. 10,53,778/- which includes refund of extra electrification charges, parking slots charges, mental harassment, etc.

Respondent No. 1, in his reply has raised the preliminary objection that this Commission has no jurisdiction as the complainant has paid the instalments, directly to the Company, situated in Delhi and there has been no agreement between the parties at Chandigarh. Further the respondent has averred that the complainant has filed the complaint contrary to agreement containing terms and conditions, dated 5.2.1992 and the consensus decisions taken by the parties as such the contract is within the jurisdiction of the Civil Court. The relevant clauses from the agreement, executed on 5.2.1992 read as under : "1. That the Company hereby agrees to sell and the Apartment Allottee hereby agrees to acquire the said premises as detailed below at the rate mentioned against it and upon the terms and conditions set out hereunder as mutually agreed by and between the parties hereto."

It has further been averred that the complaint is presented in gross suppression of material facts. Clause 16 of the Agreement only provides : "16. That the possession of the said premises is proposed to be delivered by the Company to the Apartment Allottee within two years from the date of execution of this Agreement. The Company shall not incur any liability if it is untenable to deliver possession of the said premises by the time aforementioned... for any 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 handing over of possession of the said premises was not absolute and unassailable condition. The delay had been due to the following reasons, as explained in letter No. DLF/QEC/APT/121/0104 dated 4.11.1993, which reads as under : "We regret to inform you that on account of delays in according sanction of zoning and building plans by the Government, construction of your apartment has been delayed despite our best efforts and persistent follow up. However, we have unilaterally decided to take the following mitigating measures in this regard : (a) Defer, with immediate effect all instalments of sale price falling due after the date of issue of this letter till further communication from us. (b) We shall bear escalation cost on account of increase in the price of material and labour used in the construction of building which may take place after the due date of possession of the Apartment as per stipulation embodied in the "Agreement to Sell".

THE respondent has averred that the material fact has been deliberately suppressed by the complainants in their complaint. THEre has been delay on the part of complainants themselves in taking possession as they had delayed the completion of paper work and other formalities required. THE respondents vide their registered letters dated 25.7.1995, 23.2.1996, 25.7.1996, 24.9.1996 had given revised schedule for payment and informed the complainants as under : Letter dated 25.7.1995 "We are happy to intimate you that the structures of the buildings are complete and the finishing touches are in progress and we should be in a position to hand over the apartments to you by end of February, 1996. We have now re-scheduled the instalments due and enclosed herewith please find the revised schedule for your reference and remittance accordingly, on the due dates mentioned therein."

xxx xxx xxx Letter dated 23.2.1996 "THE construction of the apartment is complete and we should be in a position to hand over the same to you for occupation, after the receipt of completion/occupation certificate from the concerned Authorities, which is expected to be received in a month or two...."

xxx xxx xxx "You will kindly also appreciate that before you could move into the apartment, the electricity connection is to be obtained and for that you will have to submit the necessary forms [format enclosed] to HSEB. In the meantime, a sum of Rs. 32,550.34, i.e. Rs. 331.20 per sq. mtr. Is due for payment towards pro-rata cost of providing External Electrification of Installation of Electric Sub-station, Meter Box, Electric Stand by Generator, Fire fighting Equipment and other accessories, etc. in terms of Clause 2B of the Agreement and you are requested to kindly remit the same at the earliest, alongwith the format duly signed and completed."

Letter dated 24.9.1996 "Excalation charges have been strictly confirmed to the contracted delivery period only and we have worked out the same to Rs. 31,739/-. As already promised, vide our letter dated 4.11.1993, referred to above, these charges beyond the contracted period of delivery are being borne by the Company. If you desire to verify these charges, you may kindly call on us and we shall be too happy to show you the details."

The main grievance of the complainant is that according to Clause 16 of the agreement the respondents were required to deliver possession within 2 years from the date of agreement or in other words by 5.2.1994. At the same time, the complainant himself agreed to provide safeguard to the respondent in case there was delay beyond control of the Company. In this regard the respondents have brought on record that there was delay in sanction of the zoning and building plan. Even if it was a kind of lapse on the part of the respondents, it has exempted the complainant from escalation costs on account of increase in the material and labour utilised in the construction of the building and during this entire period the complainant never terminated the agreement. If the complainants were dissatisfied with the escalation and delay of the respondent they had the option to terminate the agreement. The complainant voluntarily received possession of the built premises on 7.11.1997 at Delhi though the apartment is located at Gurgaon. The relevant lines from the statement of Mrs. Simla Mohindra recorded here on 24.5.1999 are reproduced as under : "We did not exercise our option at any stage that the allotment be cancelled and our deposit be refunded, the reason is that it was not in our favour to make that option in writing."

This admission goes against the complainants.

ON behalf of the respondents, it has been argued that the plot is located at Gurgaon and the payments from beginning till end have been made at New Delhi. The mere fact that long ago respondent No. 2 was acting as one of the agents of M/s. DLF Universals Limited, respondent No. 1, at Chandigarh could not confer territorial jurisdiction to this Commission in this case. Since the parties have brought on record the entire evidence and it has been voluntarily concluded, the plea of territorial jurisdiction not specifically raised in the reply filed, loses its importance. On behalf of the respondents our attention has been drawn to Housing Board Haryana v. Kartar Singh & Ors., I (1995) CPJ 7 (NC), Revision Petition Nos. 287 to 371 of 1992, decided on 8.11.1994, by the National Commission, wherein it has been observed that the issue of price may not be raised if the allottee has obtained possession of the premises. After considering all these facts, circumstances, evidence and the contentions referred to above, the complaint has no merit and it is hereby dismissed. Complaint dismissed.