DR.INDER JIT SINGH, MEMBER

1.       The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Party(ies) (OPs) as detailed above, inter alia praying for directions to the OP(s) to:-

1. To restore the allotment of flat / 3 BHK Apartment No.B-1004, road facing having 2480  Sq.ft  in Wing B, 10^th Floor at (Super Mega), Falcon View, Phase I, Sector 66-A, Mohali which is a part of duly approved Super Mega Project, Sector 66-A, Mohali in their name as original allottee. 

2.  Not to allot the said flat in the name of any third person thereby involving any 3^rd party rights and stay be granted in their favour and against the OPs from allotting the flat in dispute to any person other than them till the pendency of the present complaint.

3. To  hand over the said flat with all basic amenities  and facilities and rate / cost as stipulated in buyer’s agreement and also with all the relevant permission and approvals and without any undue deductions like holding charges etc.

4. To pay a sum of Rs.10.00 lacs as compensation for mental harassment and agony

5. To pay sum of Rs.77,000/- on account of cost of litigation.
6. To pay the actual expenses incurred by the complainants travelling from Australia to Chandigarh solely for the purpose of taking the possession of the flat in question but the possession could not be taken due to defects and deficiency on behalf of OPs.

2.       Notice was issued to the OP(s).  Complainant filed Evidence by way of an Affidavit.  Parties also Written Arguments/Synopsis.  The details of the flats allotted to the Complainant (s)/other relevant details, based on pleadings of the parties and other records of the case are also given in the Annexure-A.

3.       Brief facts of the case, as emerged from the pleadings of the parties and other case records are that Complainants booked a 3 BHK Apartment with the OP in the name and style of Super Mega, Falcon View, Phase I, Sector 66-A, Mohali.  Complainants entered into an agreement with the OPs through authorised representative on 12.08.2013. The price of 3 BHK Apartment of 2490 sq. ft has been calculated @ Rs.3760/- which works out to Rs.93,24,800/- and amount paid with application form and additional amount, if any, to the extent of Rs.24,03,233/- ( 25%) of sale consideration constitute the earnest money. The balance payment of Rs.69,93,600/- ( 75%) shall be recovered in instalments alongwith service tax as per schedule.

4.       It is further the case of the complainants that vide allotment letter dated 17.08.2013, they were allotted Apartment No. B-1004, Road Facing, measuring 2480 sq. ft, located at 10^th Floor in the said project of the OPs.  As per the allotment letter, the OPs were supposed to complete the project in a period of 30 months from the date of allotment letter but OPs failed to abide by the same. It is further the case of the Complainants that they have paid the entire cost of the flat as and when demanded and they were never in default of payments. Further, as per clause 32 of the agreement dated 12.08.2013, OPs were supposed to pay Rs.10/- per sq.ft. of the super area of the apartment to the complainants for the delayed period beyond 30 months.

5.       The Complainants regularly followed up with the authorised representative of the OPs since August 2016 asking them about the handing over the possession and any payment which is left to be paid by them, but no satisfactory reply was given to them.  Even they have asked through Email as to why they have been deducted with TDS as they are not liable to pay the same as the entire payment has  been made them through their NRE account for which they are exempted from paying the TDS but OPs failed to answer that query as well.  Complainants were all the time ready and willing to take over the possession of the flat but due to delayed tactics of the OPs, the same did not happen. 

6.       The OPs offered the handing over of the possession of the apartment vide letter dated 15.09.2017, which also states that net balance to be paid by the complainant comes to Rs.8,24,642/- including some overdue payment and some interest as on 09.10.2017.  The complainants raised the said issue with the OPs vide emails, which OPs failed to respond.   The possession of the apartment was offered after a delay of 18 months for which OPs are liable to pay compensation.  Further, compensation was never paid in full and whatever payments towards compensation were made by the OPs, same were made with wrong calculations and deductions despite explaining that owners are NRI and does not have to pay TDS.

7.       The Complainants for the purpose of taking the possession of their flat visited the premises on 21.12.2017 and were shocked to see that flat and particularly the building, in which their flat was located,  was not in a liveable condition and without any amenities.  The complainants being NRIs and resident of Australia spent lot of money in travelling from Australia to Mohali on 3 occasions for the purpose of taking possession but the OPs misled them as apartment was not at all ready for the possession and was not in the liveable condition when the OPs offered the possession.   Since November 2017, the complainants were running after the OPs for getting the possession but till today ( till the filing of the Complaint), OPs are delaying the possession of the apartment on one aspect or the other.

8.       The OPs unilaterally cancelled the allotment of the apartment and sent a letter dated 08.11.2019, cancelling the allotment after deducting Rs.17,12,033/- from the total paid amount to the OPs.  The complainants on receiving the cancellation letter, sent Email to the OPs asking them the reason for the cancellation but no response was received.  Being aggrieved by the said act of the OPs, the Complainants filed Consumer Complaint.

9.       Vide order dated 26.07.2022 passed by the Coordinate Bench of this Commission, the right of the OPs to file written version was closed in view of the directions given by the Hon’ble Supreme Court in Suo  Motu   Writ Petition ( Civil) No.3 of 2020.

10.     Heard counsels of both sides.  Contentions/pleas of the parties, on   various issues are summed up below.

1. 1.  Learned counsel for the Complainants reiterated the points which have been stated in para nos. 3 to 8,  hence the same are not being repeated  here.

10.2.  Learned counsel for the OPs argued that Complaint no. 28 of 2020 was filed before the State Commission which was withdrawn on 28.1.2020 with liberty to file fresh Complaint with better particulars on the same cause of action.  The fresh complaint was to be filed before the State Commission where the value of total claim was Rs.98,79,800/-.  The present complainant before this Commission, is, therefore, not maintainable.    It is further argued that due to unavoidable reasons, possession could not be offered within the period of 30 months.  Further, compensation @ Rs.10/- per sq. ft. for the period 01.07.2016 to 09.10.2017 amounting to Rs.3,78,400/- including TDS was got adjusted in due payment to be cleared by the Complainant and various cheques for compensation @ Rs.10/- per sq.ft. as per clause 2.24 of the allotment letter were granted to the complainants for the period 17.02.2016 to June 2016 for the total amount of Rs.1,09,460/- including TDS.  Further, cheque for the period February 2016 to April 2016 and June 2016 were also encashed by the Complainants.

1. 3.  It is further argued by learned counsel for the OPs that Complainants had failed to deposit the amount of the allotment as promised, and, therefore, OP had no option but to cancel the allotment of the apartment after deducting 10% as per clause 2.9 of the allotment and cheques for refundable amount of Rs.75,87,126/- were sent, which were not encashed.  OPs stated that Occupation Certificate dated 26.04.2018 has been obtained.   Learned counsel further argued that said apartment can be restored subject to following payment :

1. Interest as per clause 2.5 for the late payment calculated till 25.02.2023 – Rs.7,81,482/- including GST holding charges as per clause 2.24 for the period 03.11.2017 to 28.02.2023 @ Rs.10 per sq. ft –Rs.1,86,50,693/- totalling Rs. 2646093/-.  If possession is taken after 28.02.2023, these charges would be increased correspondently.

11.     On account of OPs not filing their written version within the statutory prescribed period under section 13 ( 1) (a) of the Consumer Protection Act, 1986 ( Corresponding Section 38 (2) (a) of Consumer Protection Act, 2019), vide order dated 26.07.2022, their right to file the written version was closed. Consequently, no evidence was filed by the OPs.  However, they were allowed to participate in the proceedings based on available records and file a brief of written arguments.  Delay in offering possession as per committed date under the agreement is admitted by the OPs.  It is further contended by the OPs that complainants had failed to deposit the amount of the allotment, hence OPs had cancelled the allotment after deducting 10% as per clause 2.9 of the allotment letter and four cheques for balance amount totalling to Rs.75,87,126/- were sent, which have not been encashed by the Complainants.  OPs further stated in their written arguments that said apartment can be restored subject to certain payments.  In this regard, relevant extract of written arguments of OPs is reproduced below :

3.  Since the Complainants had failed to deposit the amount in terms of the allotment as even promised, therefore the OP has no option but to cancel the allotment of the apartment B-1004, Falcon View, Sector 66A, Mohali after deducting 10% as per clause 20.9 of allotment letter and cheques for refundable amount of Rs.75,87,126/- were sent which were not encashed.

4.       It may be mentioned that Occupation Certificatedt. 26.04.2018 has been obtained which is filed herewith alongwith Alphabets and Numeric numbers of towers is marked as Annexure OP-3

5.  In the present complaint, the complainant has prayed for restoration of the said flat, it is stated that the same can be restored subject to following payment :        

Interest as per clause 2.5 for the late payment calculated till 25.02.2023 – Rs.7,81,482/- including GST holding charges as per clause 2.24 for the period 03.11.2017 to 28.02.2023 @ Rs.10 per sq. ft –Rs.1,86,50,693/- totalling Rs. 2646093/-. 

Note : If possession is taken after 28.02.2023, these charges would be increased correspondently.

12.     Complainants have themselves filed a copy of the Cancellation letter dated 08.11.2019 alongwith details of four cheques amounting to Rs.75,87,126/- and copies of these four cheques.  Extract of said cancellation letter is   reproduced  below :

“Whereas vide this office letter no. 7745-46 dated 15.09.2017 you were offered physical possession of your apartment on 09.10.2017 and had requested to deposit the balance payment before taking over the possession of your apartment.  In response to this, you sought explanation for depositing payment and which was allowed to you upto 15.11.2017.  Also as a gesture of goodwill the interest on delayed payment of Rs.10,000/- was waived off.

          During the course of your meeting with the Managing Director, you  had been given the option either to deposit the due amount and take over the possession of your apartment or get your money refunded.  The office kept on waiting but neither you deposited the payment for taking over the possession nor any response was received from you.  In the circumstances explained above, the company is left with no other option but to cancel the allotment of your apartment as per the terms and conditions of the allotment letter and refund the amount after making the deductions.  The detail of deductions is as under :

After making the deductions the cheques of refund amounting to Rs.75,87,126/- as per details below are sent herewith :

          You are requested to acknowledge the receipt of above said cheques.”

13.     The said cancellation notice dated 08.11.2019 was replied to by the Complainant vide mail dated 10.12.2019, extract of relevant portion of which is reproduced below :

Dear Sonia and team at JLPL

Please consider this email as a formal intimation that my family in India have received a  notice with 4 bank cheques enclosed as a ‘refund’ for cancelled allotment of B 1004, Falcon View, Mohali

I have been trying to contact you and your team constantly and called your office many times since my last visit last year. I did forward my grievances by email within 24 hours of my meeting with your company director last year and followed up with JLPL via email and phone calls in last few months but I never received any reply.

This is to inform you that I decline to accept your refund amount as I am more than willing to take possession of the apartment. I have paid over and above the demand money I have documented evidence of 3 visits to Chandigarh where Me or Vaishali have traveled from Australia for a sole purpose to gain possession but unfortunately the apartment was not in a "handover" state. Numerous pictures were shared in my emails after each of my visits but you failed to rectify any of the mentioned issues and kept on demanding more money for services and buildings which are not even erected yet!"

This apartment was for use by Family and my parents and because of extreme delay, in handover- My parents and family are living in unsafe environment. JLPL is responsible and liable for the Mental Trauma and all losses borne by myself and my family

Unfortunately this is a disputed property and legal action will be commenced in due course because of your unlawful cancellation proceedings of B1004, Falcon View. Mohali

Kind Regards

Dr Vishal Mehta MBBS MRCGP FRACGP Phone +61405099998”

14.     OPs had issued an offer of possession letter dated 15.09.2017, extract of which is reproduced below :

“Sub : Handing over possession of Apartment No.B-1004 of 2480 sq.ft. in Falcon View, Sector 66-A, Mohali

Dear Sir / Mam,

          Kindly refer to the subject cited above

2.       We are pleased to inform you that we are going to hand over physical possession of Apartment No.B-1004 of 2480 sq.ft. with Parking No.B-75 and B-76 in Falcon View, Sector 66-A, Mohali which was allotted to you vide our Allotment Letter No.6126-27 dated 17.08.2013.  You are, therefore, requested to take over the physical possession of the Apartment personally or through a duly authorized representative of yours from the Project Manager at our Site Office, Sector 66A, Mohali on 09.10.2017 between 1100 a.m. to 01.00 p.m.  Please note that if no possession is taken by your or by our authorized agent on the above date, possession will be deemed to have been delivered from the said date as given above.

3.       You are also intimated that as per condition No.2.24 of the above mentioned Allotment Letter where it is stated that if no possession is taken by you or by your authorized representative within 30 days of the offer you will be liable to pay holding charges @ Rs.10/- sq. ft. of the super area of the Apartment per month.

4.       You are also intimated that as per conditions of Allotment letter, you are requested to deposit the following payments /charges on or before 09.10.2017.

5.       We also wish to apprise you that there has been a delay in delivering the Apartment to you but would like to add that despite several constraints and challenges, the control of our Company and which severely affected not only JLPL but the real estate sector in general during the past 3-4 years, we have been able to negotiate these challenges and withstand the test of time, resulting in successful completion of Phase I of the project and thus create a favourable situation for handing over the possession.  Some of the constraints and challenges were that the site was having high under-ground water and it took sufficiently longer time than usual to de-water it, ban on mining of construction material, nation-wide transport strike, untimely payments by some of the allottees and above all recession in real estate industry attributed towards the delay in completing the project in time.  The company despite all these challenges withstood its promise for payment of compensation for the delayed period.

6.       We also wish to express, both our deep gratitude as well as our sincere appreciation, for the cooperation extended by you from time to time and for keeping your trust and confidence in us during such difficult times.  We drew and shall continue to draw strength from you as our most esteemed customers and patrons.

15.     The flat in question measuring 2480 sq. ft. was allotted by the OPs to the Complainant vide allotment letter dated 17.08.2013.  It was allotted at price of Rs.3760/- per sq.ft. for a total of Rs.93,24,800/- under construction linked plan.  The allotment letter dated 17.0.2013 was preceded by an agreement dated 12.08.2013.  Extract of relevant clauses of this agreement is reproduced below:

14.     That purchaser, having NRI status or being foreign nationals shall be solely responsible to comply with necessary formalities as laid down in Foreign Exchange Management Act, 1999 and / or any other statutory provisions governing this transaction which may inter-alia involve remittance of payments / considerations and acquisition of immovable assets in India.  In case any permission is ever refused or subsequently found lacking by any Statutory Authority / the Company, the amount paid towards booking and further consideration will be returned by the Company as per applicable regulations without any interest and the allotment shall stand cancelled forthwith. The purchaser agrees that the Company will not be liable in any manner on such account.

                   xxxx

21.     That the Company shall endeavor to give possession of the Residential Apartment to the purchaser within 30 months from the date of allotment letter but shall be subject to force majeure and circumstances beyond the control of developers shall  not be counted towards the said period of 30 months.

22.     That the purchaser shall before taking possession of the Residential Apartment, must clear all the dues towards the Residential Apartment.  However, apartment shall be transferable asper the policy of the company.

                   xxxx

29.     That the purchaser shall abide by the laws applicable on the land including any local enactments in respect of this agreement and the ‘premises’……..

                   xxxx

32.     That construction of the residential apartment is likely to be completed within a period of 30 months from the date of issue of allotment letter but shall be subject to force majeure and circumstances beyond the control of developers and that period shall not be counted towards the said period of 30 months.

          In case possession of the apartment is not offered to the purchaser within a period of 30 months or extended period, the purchaser shall be entitled to receive compensation @ Rs.1/- per sq. ft. of the super area of the apartment per month and to  no other compensation of any kind. In case the purchaser fails to clear his account and take possession of the apartment within 30 days of the offer, the purchaser shall be liable to pay holding charges @ Rs.10/- per sq. ft. of the super area of the Apartment per month in addition to liability to pay to the Janta Land Promoters Limited and other consequences of default in payment.

          If as a result of any eventuality, the Company is unable to allot the apartment to the purchaser, the Company shall be liable to refund the purchaser, the amount received from the purchaser alongwith the interest at the term deposit rate of the Bank, as applicable on the date of refund.

16.     Complainants contended that on their visit to the premises on 21.12.2017, they found that the flat and the building in which their flat was located, was not in a liveable condition and without any amenities.  The Complainants being NRIs and resident of Australia spent lot of money in travelling from Australia to Mohali on 3 occasions for the purpose of taking possession but the OPs misled them as apartment was not at all ready for possession and was not in a liveable condition when the OPs offered possession.

17.     We have carefully gone through the entire facts and circumstances of the case, evidence of Complainants and other relevant documents on record.  In the instant case, OPs claims that OC was obtained on 26.04.2018. However, copy of this document dated 26.04.2018 placed on record by the OP shows that it is only a partial CC ( Completion Certificate) and  not the OC ( Occupation Certificate).  OP has not stated whether they have got the final OC by now or not.  This shows clearly that the offer of possession on 15.09.2017 was without a valid OC. Hence, it does not constitute a valid offer of possession.  Actual physical possession has not been handed over yet.  The Committed date of possession was 17.02.2016.  The complainant cannot be made to wait for possession for an indefinite time and suffer financially.

18.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, in particular considering that OPs have expressed their willingness to hand over the possession, though subject to certain payments by Complainants,  the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

 (i) The OP(s) shall hand over the actual physical possession of the unit in question to the complainants alongwith copy of final OC issued by the Competent Authority, complete in all respects as per specifications and alongwith all the facilities/amenities as promised in the brochure/agreement / allotment letter / booking application, within a maximum of three months of date of this order subject to the complainants paying the balance amount as per agreement / allotment letter read with this order, if any, within 45 days of this order.OP(s) shall also, within 30 days of date of this order, arrange a joint inspection of the unit with the complainants/their representative, to satisfy them about the completeness of the unit in all respects as per the specifications and alongwith amenities/facilities as per brochure / agreement / allotment letter. If any deficiencies are noticed as a result of such joint inspection, the same shall be got rectified by the OPs at their (OPs’) cost to the satisfaction of the Complainants within 30 days of date of such joint inspection.

(iv)     The OP(s) shall pay a sum of Rs.50,000/-  as cost of litigation to the    complainants. 

(v)     OPs shall make fresh calculations of amounts payable by Complainants keeping in view the above stated orders and convey the same in writing to Complainants under due acknowledgment / through Registered Post letter and over email within 15 days of this order.

(vii)    In case OPs fail to comply with this order and fail to deliver the possession to the Complainants along with a valid OC, within three months, on expiry of 3 months, the complainants shall have the option to either enforce the decree for possession alongwith other reliefs as per this order or in the alternative, seek refund of their entire principal amount, for which they shall make a specific request in writing in this regard to the OPs within one month of expiry of three months.  In such a situation, the OP(s) shall refund the entire principal amount of Rs.92,99,159/- only alongwith interest @ 9% p.a. from the date of each deposit till the date of actual refund (without imposition of any penalties/forfeiture of earnest money, charging of penal interest  etc.), within 30 days of receipt of such request. The principal amount refundable mentioned in this para is subject to verification of actual amount paid by the complainants based on receipts etc.  In this situation also, OPs shall be liable to pay litigation cost of Rs.50,000/-

          (viii)   The liability of the OP(s) shall be joint as well as several

(ix)     All  payments in terms of this order shall be paid within three months from today.

19.     The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.