NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

FIRST APPEAL NO. 557 OF 2003

(From the order dated 28.5.03 in C.No.61/2000 of the State Commission,
Haryana)
Brig. (Retd.) Kamal Sood
Apartment No. W-112
Regency Park II
Phase IV DLF City
Gurgaon - 122 002

Appellant

Respondent

Versus
M/s.DLF Universal Ltd.
Sansad Marg
New Delhi 110 001.
Through its Managing Director

AND
FIRST APPEAL NO. 683 OF 2003
(From the order dated 28.5.03 in C.No.61/2000 of the State Commission,
Haryana)
M/s.DLF Universal Ltd.
Sansad Marg
New Delhi 110 001.

Appellant

Respondent

Versus
Brig.(Retd.) Kamal Sood
W-112 Regency Park II
DLF Qutab Enclave
Phase IV
Gurgaon - 122 002

BEFORE :
HONBLE MR. JUSTICE M.B. SHAH, PRESIDENT
MRS. RAJYALAKSHMI RAO, MEMBER

For the Appellant

(in F.A.557/03) &
For the Respondent (in F.A.683/03)
For the Respondent (in F.A.557/03) &
For the Appellant (in F.A.683/03)

In person

Mr.A.N. Haksar, Senior

Advocate with Mr.
Aditya Narain,
Advocate

Dated the 20 th April, 2007

ORDER
M.B. SHAH, J., PRESIDENT
The main in 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

(ii).

grant of compensation to the consumer? And,

Secondly, whether the consumer should suffer by paying escalation

cost due to such delay?

In our view, 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 retiremental 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 colourful 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 14 Gorkha

Training Centre, Himachal Pradesh, approached the State Consumer Disputes
Redressal Commission, Haryana, Chandigarh, by filing Complaint Case
No.61/2000 contending that M/s.DLF Universal Ltd. (hereinafter referred to as
the DLF) 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, details whereof are given hereafter.

It was contended that the DLF published an advertisement for

booking apartment in DLF Qutab Enclave. As per the said brochure, the DLF
was contemplating construction of apartments known as DLF Hamilton Court and
DLF Regency Park. As per the said brochure, the price for DLF Regency Park
ranged from 8.05 lakhs to 13.77 lakhs. There is a specific statement - And
remember, now all prices are ESCALATION FREE. So, the price you book
at is the price you pay, irrespective of what it might cost DLF.

It has been further stated in the said brochure as under:

And both Hamilton and Regency come with a variety of

payment plan options from the Down payment option that
carries an attractive rebate to a 2 year interest-free plan to an
exclusive 10 year option that makes home-buying a lot

easier than it ever was.

It has been pointed out that despite the aforesaid statement in the
brochure, the DLF demanded an additional amount of Rs.4,02,617.69p. on the
pretext of increase in the area, escalation charges, external electrification etc. It
is further alleged that the DLF made an offer to sell parking spaces in November
1993 at the cost of Rs.63,000/- to each allottee which was to be paid in
instalment of Rs.22,000/- each. The complainant paid the parking space cost
within the stipulated time and was allotted the parking space. Despite this, an
additional amount of Rs.62,869/- was demanded by letter dated 4.3.1998 as
extra charges for parking space which was already allotted to him. It is also
contended that at the time of delivery of possession in September 1999, the
DLF demanded a sum of Rs.1,59,890/- for Stamp Duty and Registration
Charges for the apartment and Rs.15,265/- for parking space.

Further, it is contended that the complainant had hired the services of

Koshal & Associates (Architect Engineers and approved Valuers), who gave
their report dated 12.7.2000 along with the site plan, which reads as under:
A. (a) Super area sold as per the agreement : 130.52 SM @ Rs.6728/- per SM
(b) Super area as per physical measurements taking into account the
contents of the relevant clause of the agreement = 127.894 SM
(c) Less Super Area given = 2.626 SM
(d) Financial effect = Rs.17667.72
B (a) Carpet area to be given as per the agreement @ 87.412% of super area
= 114.09 SM
(b) Carpet area actually found provided after the physical measurements =
69.895 SM (The carpet area is calculated as per IS 3861-1975 clause

2.2 and 5).

(c) Less carpet area provided : (114.09 69.895 = 44.195 SM)
(d) Financial effect : (44.195 x 6728) = Rs.297343-96
Net Financial effect : (17667.72 + 297343.96) = Rs.3,15,011.68 p.

On the aforesaid count, the complainant has claimed that he has

suffered a loss of Rs.3,15,011.68p. Finally, he has claimed the following reliefs:
a)

refund of additional amount charged and

interest thereon @ 20% p.a. w.e.f. 3.5.99
to the date of refund.

Rs. 4,02,617.19 p.

b)

refund of amount on account of lesser area

given with reciprocal interest thereon @ 20%
p.a. w.e.f. 3.5.99 to the date of refund

Rs. 3,15,011.68 p.

c)

refund of amount charged on account of Rs. 1,28,869.00 p.

parking space, reciprocal interest thereon
@ 20% p.a. w.e.f. the date of payment of
each instalment i.e. November, 1993, Nov.
1994, Nov.1995 and March 1998 till the date
of refund.

d)

Interest on a sum of Rs.1,75,150/- charged

For stamp duty @ 20% p.a. from Sep.1999
To Nov. 2001.

Rs. 75,898.00 p.

e)

compensation for delay of 3 years in handing

over possession of the flat beyond stipulated
date.

Rs. 2,00,000.00 p.

f)

Compensation for harassment

Rs. 50,000.00 p.
______________
Total

Rs.12,78,395.87 p.
==============

Order of the State Commission:

The State Commission, after considering the facts held that:

(i).

as per the agreement between the parties the complainant was

bound to pay Escalation Charges, and hence rejected the prayer for refund of
the Escalation amount;
(ii).

Secondly, with regard to payment of interest for keeping the money

which was recovered from the complainant for execution of the Conveyance
Deed, the State Commission directed the DLF to pay interest at the rate of 10%
p.a. on the amount deposited by the complainant from the date of deposit till the
date of execution of the Conveyance Deed;

(iii).

Thirdly, for the differential carpet area, the State Commission held

that the said dispute between the parties cannot be decided/sorted out in
summary proceedings.

(iv).

Lastly, for delay of 3 years in delivery of possession, the State

Commission awarded a lump sum of Rs.1 lakh as compensation.

Against that order, the complainant has preferred First Appeal

No.557/2003; and, the DLF has preferred First Appeal No.683/2003.

We have heard the complainant, who is appearing in person and the

learned senior counsel, Mr.A.N.Haksar, who is appearing for the DLF.

Submissions:
Learned senior counsel, Mr.Haksar, submitted that
Delay in construction was due to reasons beyond the control of the
DLF. For this purpose, he relied upon the statements made in Para-E of the

Memo of Appeal (First Appeal No. 683 of 2003), wherein it has been stated as
under:

(a).

There was a considerable delay on the part of the Government

in granting sanctions, approvals and certificates in respect of the said

project where, inter alia, apartment no.W-112, of the respondent
herein was also situated;

(b).

the Appellant had taken steps to get the Zoning Plan in respect

of the said project approved and the Director, Town & Country
Planning had approved the same on 24.8.1992 ; copy annexed and
marked as Annexure - C.

(c).

On 10.09.1993; the Appellant submitted, the layout plan along

with detailed site plan and schematic building plan etc., for the said
project; copy annexed and marked as

(d).

ANNEXURE-D.

In response to certain queries and clarification sought by the

Director, Town & Country Planning the

Appellant by letter dated

22.11.1993 furnished certain clarifications and explanations and once

again sought approval of the layout plan; copy annexed and marked
as ANNEXURE E .

Thereafter, the Appellant by letter dated

07.03.1994 submitted the layout plan consisting of detailed site

plans, schematic building plans etc., to the Director, Town & Country
Planning for approval; copy annexed herewith and marked as
ANNEXURE F. The Director, Town & Country Planning by letter
dated 02.08.1994 raised certain objections and pointed out certain
deficiencies; copy annexed herewith and marked as ANNEXURE
G. The Appellant herein by letter dated 03.08.1994 furnished certain
clarifications and conformations in response to the above letter dated
02.08.1994; copy annexed herewith and marked as ANNEXURE
H. The Appellant by letter dated 06.02.1995 enclosed the site plan
and other relevant documents and drawings and requested the
requisite approvals at the earliest; copy of the said letter dated
06.02.1995 is annexed herewith and marked as

(e).

ANNEXURE I.

The Director Town and Country Planning by letter dated

30.05.1995

granted approval of the building plans for the said

project; copy of the letter dated 30.5.1995 is annexed herewith and

marked as ANNEXURE J.

Thereafter, the Appellant herein also made an application on

28.9.1998 to the Director Town and Country Planning for obtaining
the occupation certificate under Rule 47(1) of the Punjab Scheduled

Roads and Controlled Areas Restriction of Unregulated Development

Rules, 1965 ; copy annexed herewith and marked as Annexure K.
It was after almost one year that the Director Town and Country
Planning issued the occupation certificate on 10.9.1999 in respect of
the said project; copy annexed herewith and marked as Annexure - L.

He further contended that:

(a)

Even, there was delay on the part of the complainant in paying

the instalments;

(b) as per the agreement between the parties, the complainant was
required to pay Escalation Charges; and

(c) for the Stamp Duty and Registration Charges, he contended that
as soon as the complainant approached the DLF, the document was executed
and hence the delay was on the part of the complainant and not on the part of the
DLF. He also submitted that the order passed by the State Commission directing
to pay interest on the said amount cannot be justified.

FINDINGS:
I.

Delay in registering conveyance deed:

For the delay in registering the Conveyance Deed, we have to state

that the submission made above by the learned senior counsel for the DLF is
totally baseless and inconsistent with the submission made by DLF in its written
arguments which were filed before the State Commission, wherein the DLF has
admitted the delay and offered to pay interest thereon, as under:
Charges for registration and stamp duty : These are statutory
duties, which are payable under the Registration Act and the Stamp
Duty Act.

The same have been paid by the respondent to the

concerned authorities. The complainant deposited Rs.1,49,890/- on

account of flat and Rs.15,265/- on account of parking on 22 nd
November 1999. The respondents sent a letter dated 3 rd July 2001
requesting the complainant to come forward to execute the
necessary documents. The said documents were registered on 29 th
October 2001. The respondent is ready to pay the interest @
12% on the said amount, which comes to Rs.22,037/- for the flat
and Rs.2100/- for the parking after deduction of TDS.

In view of the aforesaid admission of its liability made before the

State Commission, there is no substance in the contention now raised by the
learned senior counsel for the DLF that the DLF is not bound to pay interest on
the amount paid by the complainant for Registration and Stamp Duty of the
Conveyance Deed.

Those written submissions were filed before the State

Commission on 10.12.2002.
In view of the aforesaid specific admission, there is no necessity to

consider the allegation of the learned Senior Counsel Mr.Haskar that there was
some delay on the part of the Complainant.

Secondly, we would state that undisputedly the stamp duty and the
registration charges were collected by the DLF in November, 1999 and retained
with it approximately for two years. For that, the DLF is bound to pay interest

II.
(a).

Delay in delivery of possession of the flat:

Undisputedly, there is delay of three years in handing over

the possession of the apartment to the Complainant.

The DLF was

required to deliver the possession of the flat within a period of 2 to 3 years

from the date of the agreement. For this purpose, it is undisputed that the
complainant booked the apartment on 7.9.1993; agreement was executed
between the parties on 18.10.1993; and,

as per the said agreement, the

complainant was entitled to have possession of the flat in September 1996.

Admittedly, the possession was delivered on 24.11.1999.

There is also no dispute that the complainant was required to pay the
total consideration price within a period of 10 years. It is the contention of the
Complainant that despite having opted for a ten year payment plan at the time of
booking the apartment in the year 1993, the entire cost was paid within a period
of six years and before taking possession of the flat in the year 1999.

Delay on the part of the Complainant in paying the

(b).

instalments:
Learned senior counsel, Mr.Haksar, submitted that all throughout
there was delay on the part of the complainant in paying the instalments.
Therefore, DLF is not liable to pay any compensation to the Complainant for
delay in delivery of possession of the apartment.

In our view, this submission of the learned senior counsel is without

any substance because the payment chart, which the DLF has produced on
record, establishes beyond doubt that the complainant was punctual in payment
of instalments as agreed. The relevant chart is as under :

DELAYED INTEREST CALCULATION REPORT FOR 019 REGENCY PARK

Customer Code : 5400269
Property Code : W112

Interest Rate :

Grace Period : 0

Due Date

20.00

07 Sep.1993

Amount
Due
87807

07 Nov.1993

100076.00

07 Mar.1994

12269.00

07 Jun.1994
30 Aug.1994
08 Sep. 1994
07 Mar.1995

12269.00
1.00
12269.00
87087.00

07 Dec.1995

43904.00

07 Mar.1996

43904.00

07 Jun.1996

32344.00

07 Sep.1996

32344.00

07 Dec.1996

32344.00

80064 )

Receipt
Date

BRIG KAMAL SOOD

Receipt
Amount

Days
Delay

Interest
Amount

07 Sep.1993

87807.00

0.00

02 Nov.1993

100076.00

0.00

11 Mar.1994
11 Mar.1994
11 Mar.1994
11 Mar.1994
11 Mar.1994
08 Jun.1994
05 Sep.1994
15 Dec.1995
15 Dec.1995
23 Apr.1996
23 Apr.1996
18 Jul.1996
18 Jul.1996
13 Sep.1996
13 Sep.1996
04 Feb.1997
04 Feb.1997

12269.00
12269.00
1.00
12269.00
63268.00
12269.00
12269.00
1.00
43903.00
1.00
43903.00
1.00
32343.00
1.00
32343.00
1.00
32343.00

4
0
0
0
0
0
0
283
8
138
47
133
41
98
8
150
59

26.89
0.00
0.00
0.00
0.00
0.00
0.00
0.16
192.45
0.08
1130.65
0.07
726.61
0.05
106.33
0.08
1045.61

07 Mar.1997

32344.00

07 Jun.1997

32344.00

07 Sep.1997
07 Dec.1997

32344.00
32344.00

07 Mar.1998

32344.00

07 Mar.1998

32344.00

07 Sep.1998

32344.00

07 Dec.1998
03 Mar.1999

32344.00
32344.00

18 Mar.1997
18 Mar.1997
10 Jun.1997
10 Jun 1997
18 Sep.1997
18 Sep.1997

1.00
32343.00
1.00
32343.00
1.00
32344.00

101
11
95
3
103
11

0.06
194.94
0.05
53.17
0.06
194.95

17 Dec.1997

32344.00

10

177.23

12 Mar.1998

32343.00

88.61

16 Mar.1998
16 Mar.1998
14 Sep.1998
14 Sep.1998
25 Dec.1998
25 Dec.1998
03 May 1999

1.00
32343.00
1.00
32343.00
1.00
32343.00

101
9
99
7
109
18

0.06
159.50
0.05
124.06
0.06
319.00

Total Interest Due

4540.79

Balance Interest Due

4540.79

Total Interest on Delayed Payment

5551.00

From the aforesaid chart, it can be stated that up to 7.12.1995, the

complainant had paid a large amount without there being any delay. Further, it
appears that for insignificant amount of Re.1 the builders found that there was
delay in paying the same and for that they have mentioned the period. In our
view, such submission is required to be ignored and we would state that it is part
of unfair trade practice. In any case, for the aforesaid large sum, the delay was
so negligible that even the builders have charged maximum Rs.5,551/- as
interest. Considering this aspect, it cannot be said that there was any substantial
delay in payment of instalments.

(c).

Delay in obtaining various sanctions:

However, learned senior counsel, Mr.Haksar, pointed out that the

delay was due to obtaining sanctions for various plans, including the lay out plan,

zoning plan, and that the approval of building plan for the project was finally
sanctioned on 30.5.1995.

In our view, before obtaining statutory clearances, such as, sanction

for construction and approval of Site Plan and other relevant documents, if the
builder issues tempting advertisement or promises to deliver the possession of
the constructed flat within 2 years to 3 years, then the fault lies with the builder.

In this case, the Complainant had applied for allotment of the flat in
September 1993, and the agreement, i.e. Apartments Buyers Agreement was
executed in October 1993.

Normally, delay in construction of building may arise because of

various reasons.

But, in our country, it is known fact that delay occurs

in

obtaining various permissions from different governmental authorities, and this

fact is well-known to

the builder.

The time normally taken in getting such

permissions could have been contemplated by the builder before issuing the
brochure. It would be unfair trade practice, if the builder, without any planning
and without obtaining any effective permission to construct building/apartments,
invites offers and collects money from the buyers. If the construction of the
building/apartment is delayed, because of such delay, and the possession of
the apartment is not delivered within the stipulated time, the builder would be
liable to bear the escalation cost and not the buyer/consumer.

For this purpose, it would be worthwhile to mention some

discussion

made in

HUDSONS Building and Engineering Contracts, 7 th

Edition, which deals with commencement of the work by the Public Authority
including Private Corporations. Therein, it has been observed:

..Many large contracts let prematurely by private property developers

suffer from similar deficiencies of administration, which can be grossly
unfair to the contractor and make effective pre-planning on his part very
difficult. On the other hand, very similar results can also occur in both public
and private projects for the quite different reason that it is a common
practice of contractors whose resources are fully employed elsewhere to
see to conclude new contracts prematurely in order to maintain an
uninterrupted flow of work, with the result that the start of work on a
later project is in such cases likely to be largely cosmetic until
earlier projects are nearer completion.
(Page No. 456, Para 3.069)
It is further discussed:
The ideal is a contract put out to tender with a stated and
realistic date for starting work, sufficiently distant in time to enable
all parties to plan and be ready for an effective start when the date
arrives. (p.457)
Hence, in our view, it was the duty of the DLF to plan in advance,

obtain necessary permission and thereafter promise to deliver the possession

of the flat/apartment within the stipulated time. As stated above, if that is not
done, delay in obtaining permission would hardly be a ground for directing the
consumer to suffer.

Next, learned Senior Counsel Mr.Hakasr contended that as per the

terms of the agreement the Complainant is bound to pay escalation cost, and, for
delay in delivering possession, Complainant will not be entitled to claim any
compensation. He relied upon the following terms of the agreement entered
into between the parties on 19 th October, 1993, which according to him deals
with escalation cost and for delay in delivery of possession of the apartment.

Relevant terms of Clause 4 and 16 are as under:

Cl.4: The price of the apartment stipulated hereinabove is based on

the price of all materials and labour charges pertaining thereto ruling
on 1 st day of January, 1993. If, however, during the progress of
work, there is increase in the price of the materials used in the
construction work and or labour charges on account of any reason
statutory or otherwise, the cumulative effect of such increase as
assessed by the Company and intimated to the Apartment Allottee
shall be debited to Apartment Allottees account who shall pay the
same on demand. The decision of the Company in this respect
shall be final and binding on the Apartment Allottee. The

increased incidence may be charged and recovered by the

Company from the Apartment Allottee with any one or more of the
instalments or separately but in any case before giving possession or
deemed possession of the Apartment.

Cl. 16:

That the possession of the said premises is proposed to

be delivered by the Company to the Apartment Allottee within two

and half/three years from the date of booking of the Apartment.
The Company shall not incur any liability if it is unable to deliver
possession of the said premises by the time aforementioned. If the
completion of the building(s) is delayed by reason of nonavailability of steel and/or cement or other building materials, or
water supply or electric power or slow down strike or due to a
dispute with the construction agency employed by the Company, civil
commotion or by reason of war or enemy action, or earthquake or any
act of God or if non-delivery of possession is as a result of any act,
notice, order, rule or notification of the Government/or any other
public or competent authority or for any other 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 Company as a result of such a contingency arising

reserves the right to alter or vary the terms and conditions of

allotment or if the circumstances, beyond the control of the Company

so warrant, the Company may suspend the Scheme for such period
as it may consider expedient and no compensation of any nature
whatsoever can be claimed by the Apartment Allottee for the period
of suspension of the scheme.

In consequence of the Company abandoning the scheme, the

Companys liability shall be limited to the refund of the amount paid
by the allottee without any interest or any other compensation
whatsoever.

From the aforesaid terms of the contract, it is clear that Clause 16,
quoted above, firstly provides that from the date of booking the Company shall
deliver the possession of the Apartment within two and half to three years.

Secondly, in cases of non-availability of steel, cement, or other

building materials, or water supply or electric power or slow down strike, etc. or
due to act of God, such as earthquake, etc., or for the reasons beyond the
control of the Company, the builder (Company) would be entitled to reasonable
extension of time for delivery of possession of the said premises.

This clause, in our view, would not apply to the cases of delay in
obtaining necessary permissions for construction of the buildings. In this case,
the delay is in no way connected with the non-availability of steel, cement, etc.

nor it is the act of God, such as earthquake. As such, it was default on the part of
the builder in not obtaining such permission in advance before issuing
advertisement inviting the buyers to purchase the apartments and before
collecting money. Therefore, the reliance placed upon the said clause is without
any basis.

.III.
(a).

Escalation amount:
Now, escalation, Cl.4 provides that in case of increase of costs,

during the construction period, which were prevailing on 1.1.1993, then the
Company would be entitled to levy escalation charges from the allottee.

But, this condition is also on the foundation that construction work

was to start in the year 1993 and not in the year 1996, i.e. after obtaining various
sanctions to construct the buildings. Therefore, this clause cannot be the basis
for holding that purchasers are required to pay escalation in cost of construction.
Delay in starting construction work might have resulted in increase in the price of
the materials used in the construction work or labour charges. For this delay, the
Complainant is not responsible, and, therefore, he is not required to pay the
escalation charges due to such delay.

(b).

Further, this clause is to be read along with the promise given in the

brochure. It is settled law that brochure is part of the promise on which the
contract is based. In the brochure it has been specifically mentioned that:

And remember, now all prices are ESCALATION FREE. So, the
price you book at is the price you pay, irrespective of what it
might cost DLF.
The brochure issued by the Opposite Party which has bearing in
deciding whether escalation in cost is to be borne by the Complainant. Dealing
with the case of Ghaziabad Development Authority Vs. Union of India, (2000) 6
SCC 113, the Apex Court considered the term of the brochure that the
Development Authorities shall not be liable to pay any interest in the event of
occasion arising for return of amount and held as under:
The rate of interest awarded in equity should neither be too high nor too
low. In our opinion awarding interest at the rate of 12 per cent per annum
would be just and proper and meet the ends of justice in the cases under
consideration. The provision contained in the brochure issued by the
Development Authority that it shall not be liable to pay any interest
in the event of an occasion arising for return of the amount should
be held to be applicable only to such cases in which the claimant is
itself responsible for creating circumstances providing occasion for
the refund. In the cases under appeal the fault has been found with the
Authority. The Authority does not therefore have any jurisdiction for
resisting refund of the claimants amount with interest.

Therefore, it cannot be said that

contract

the condition contained in the

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--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.

(c).

Lesser area:
For the lesser area as contended in the complaint, the State

Commission has held that it would be open to the Complainant to approach civil
court. We do not think that this would be a fit case for interference at this stage,
because the relevant evidence is not led by the parties on the said aspect and
the Complainant has not raised any contention in support of this ground. Hence,
if the Complainant has any grievance on this ground, it would be open to him to
approach the Civil Court.

(d).

Delay in delivery of possession of parking space:

With regard to parking space, admittedly the Complainant has paid

the amount for parking space. No doubt, there was delay in allotting the parking
space and the Complainant is entitled to get some relief. But, in our view, the
relief granted by way of refund of the escalation cost, would meet the grievance
of the Complainant.

Conclusion:
In view of the aforesaid findings for delay in delivering the
possession to the Complainant, the State Commission awarded Rs.1 lakh as
compensation. Considering the fact that we are directing the builder to refund
the amount recovered on account of escalation, costs, the said amount would
compensate the Complainant properly.

In the result, the appeal No.557 of 2003 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.
[No doubt, the Complainant has claimed the refund with interest at the rate of
20%, because that was the rate at which the builder recovered from the
Complainant for some delay in payment of instalment.];

(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 No. 683 of 2003 filed by the
DLF is dismissed.

There shall be no order as to costs in both the appeals.

Sd/J.
( M.B.SHAH )
PRESIDENT
Sd/...
( RAJYALAKSHMI RAO )
MEMBER