Basis of Claim against CP2
Please see the following judgement which exactly matches what we are facing in CP2:
Issue: Real Estate
Court:- STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Dated:- 20/04/ 2007
FIRST APPEAL NO.:- 557 OF 2003
Brig. (Retd.) Kamal Sood
Apartment No. W-112
Regency Park II
Phase IV DLF City
Gurgaon – 122 002
Vs.
M/s.DLF Universal Ltd.
Sansad Marg
New Delhi – 110001.
Brief Facts:-
The main 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 cost due to such delay?
It is unfair trade practice on the part of the builder to collect money from the prospective buyers without obtaining the required permissions such as zoning plan, layout plan and schematic building plan. It is the duty of the builder to obtain the requisite permissions or sanctions such as sanction for construction, etc., in the first instance, and, thereafter, recover the consideration money from the purchaser of the flat/buildings.
Secondly, in such a case, if there is any express promise that the premises would be delivered within the stipulated time, and, if not done so, escalation cost is required to be borne by the builder.
It is to be borne in mind that in most of the cases consumers invest their hard earned money, may be either retire mental benefits or their life savings to get shelter and in some cases, after retirement.
In the present case, the Complainant is a retired Brigadier. He contends that his hard earned money was invested for purchase of a flat, and, that he was compelled to pay escalation cost, despite delay in construction by the builder, and the promise made in the colorful brochure published by the builder for attracting the buyer that no escalation cost would be recovered.
Case of the Complainant:-
Brig. Kamal Sood, who was serving as Commandant Gorkha Training Centre, Himachal Pradesh, approached the State Consumer Disputes Redressal Commission, Haryana, Chandigarh, by filing Complaint contending that M/s.DLF Universal Ltd. 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 well 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.
It cannot be said that the condition contained in the contract would only prevail and not the terms of the brochure which is an alluring promise given by the builder. If the contention of the learned counsel for the DLF is accepted that the terms of the agreement would prevail and not what is stated in the brochure, then it would amount to misleading advertisement with false promise to lure the needy prospective buyers. This would also be unfair trade practice as provided under Section 2(1) (r ) of the Consumer Protection Act. Such brochure also gives undue advantage to the builder vis-à-vis other builders. Hence, the said contention cannot be accepted.
In any case, in the present case, the builder is not entitled to have escalation charges because admittedly there was delay in starting construction for no fault of the consumer/buyer of the Apartment. Therefore, the recovery of Rs.4,02,617.69p., from the Complainant under the threat of cancellation of allotment is totally unjustified.
In the result, the appeal 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.
(b)to pay Rs.1 lakh as compensation to the Complainant for delay in delivery of possession, as directed by the State Commission; and,
(c)to pay interest at the rate of 12% p.a. on the amount deposited by the Complainant for the execution of the Conveyance Deed, from the date of deposit till the date of conveyance of the deed.
In view of the aforesaid order Appeal filed by the DLF is dismissed.
There shall be no order as to costs in both the appeals.
Our case is similar where the builder has delayed possession and charged escalation.
