Chandigarh

StateCommission

CC/32/2022

Yogender S. Bansal - Complainant(s)

Versus

M/s BPTP Ltd. - Opp.Party(s)

Sanjeev Gupta & Ripudaman Singh Adv.

06 Sep 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint No.	:	32 of 2022
Date of Institution	:	14.03.2022
Date of Decision	:	06.09.2023

 

Yogender S. Bansal son of Late Sh. G. R. Bansal resident of House No.1155, Sector 24B, Chandigarh 160023.

….Complainant.

Versus

1]  M/s BPTP Ltd. having its registered office at OT-14, 3^rd Floor, Next Door Parklands, Sector-76, Faridabad, Haryana – 121004.

2]  Kabul Chawla, Managing Director, M/s BPTP Ltd. having its Corporate Office at 28, ECE House, 1^st Floor, Kasturba Gandhi Marg, New Delhi 110001.

….Opposite Parties.

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT MR. RAJESH  K. ARYA, MEMBER

 

ARGUED BY:      

 

Sh. Sanjeev Gupta, Advocate for the complainant.        

Sh.  Hemant Saini, Advocate for the opposite parties.

 

PER  RAJESH  K. ARYA, MEMBER

 

Brief facts of the case:-

1]                Initially, a residential plot measuring 500 Sq. Yards bearing No.F-52, Block-F, Phase II was purchased by one Sunil Jain & Manjula Jain in the project of the opposite parties namely ‘Parklands’ at Sector 88, Faridabad being developed by opposite party No.1. The basic sale price of the said plot was Rs.46,75,000/- but after discount of Rs.13,00,244/- given by the opposite parties, the basic sale price was fixed at Rs.33,74,756/-. A buyer agreement was executed on 05.02.2007. Apart from the final basic price, an amount of Rs.5,12,000/- towards EDC, Rs.2,22,500/- towards IDC, Rs.75,000/- towards Club, Rs.15,000/- towards utility connection charges, Rs.7,01,250/- towards PLC & Rs.1,00,000/- towards IBMS was to be paid as per the agreement. Thus, the total sale consideration inclusive of all charges was fixed as Rs.50,00,506/-. As per Clause 22.1 of the agreement, possession of the plot was to be delivered within a period of 24 months. The complainant purchased the said plot from the original allottees Sunil Jain & Manjula Jain on 08.03.2010 by paying hefty premium of Rs.8,25,482/-. An endorsement w.r.t. transfer of the said plot in the name of the complainant was entered by opposite party No.1 in the buyer agreement on 19.03.2010. Prior to the transfer of the plot, the original allottees had paid an amount of Rs.41,74,518/- to opposite party No.1.  Thereafter, the complainant paid the amounts of Rs.9,50,000/- on 02.07.2013 and Rs.1,83,738/- on 09.05.2014, thus, making it a total sum of Rs.53,08,256/- paid to opposite party no.1.

2]                It has been stated that vide letter dated 28.05.2013, opposite party No.1 offered the possession of the plot in question, which is only a paper possession as there was no completion certificate with the opposite parties  and there was also no development at the place where the plot in question is situated. It has further been stated that vide the said letter, the opposite parties also raised the demand of enhanced EDC of Rs.6,88,000/-, despite the fact that already it had received an amount of Rs.5,12,000/- towards external development charges. It has further been stated that even the club charges of Rs.75,000/- is not payable as there is no club existing and there is no development and the project is not at all habitable. 

3]                It has further been stated that the demand of enhanced EDC was stayed by Hon’ble High Court in CWP No.5835 of 2013 vide order dated 19.03.2013 and as long as there is stay, enhanced EDC could not be charged from the complainant. It has further been stated that there were specific instructions/order dated 07.11.2013 & 17.09.2014 from the Director General, Town and Country Planning, Haryana that licencee would not charge the enhanced EDC from the allottees as long as stay of Hon’ble High Court is operational. It has further been stated that the opposite parties have arbitrarily adjusted Rs.35,250/- towards enhanced EDC. It has further been stated that vide email dated 25.04.2017, the complainant requested opposite party No.1 for getting the conveyance/sale deed executed and also committed that he is ready to give an undertaking that he will abide by the Court decision with respect to the payment of enhanced EDC but opposite party No.1 asked the complainant to make Fixed Deposit equivalent to the amount of enhanced EDC in its favour for a period of five years, which the complainant refused.

4]                It has further been stated that since the possession offered was only a paper possession as there is no development at the site, therefore, the opposite parties cannot charge holding charges and delay payment interest from the complainant.

5]                It has further been stated that the opposite parties are liable to pay interest on the amount paid by the complainant till date since it was bound to handover the possession by 05.07.2009, which it has failed to do till date. It has further been stated that the opposite parties are also liable to return the amount of Rs.4,47,500/-, which it had charged towards electrification & STP charges, since the said charges are not payable because of the fact that the opposite parties had already demanded & charged IDC from the complainant.

6]                It has further been stated that that the opposite parties are, thus, deficient in rendering service and also indulged into unfair trade practice, for which they are also liable to compensate the complainant for harassment and mental agony suffered.

Relief Claimed:-

7]                By alleging deficient in rendering service and also indulged into unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed :-

(a)      to handover the actual physical possession of the plot, complete in all respects, after completing all the development works and providing all the facilities;

(b)      to pay interest @18% p.a. on the deposited amount of Rs.53,08,256/- for the delay in handing over the possession w.e.f. the date of transfer of the plot i.e. 19.03.2010 till the date of delivery of actual physical possession of the plot;

(c)      to execute and register the sale deed of the plot in favour of the complainant without raising any demand towards the enhanced EDC;

(d)      not to raise any demand towards the maintenance charges, holding charges or any other charges and interest thereupon;

(e)      not to raise any demand towards interest for making delay payments as the complainant has paid all the payments in time;

(f)       refund the amount of Rs.4,47,500/- alongwith interest @12% p.a.;

(g)      to pay an amount of Rs.25,00,000/- as compensation for causing financial loss, mental agony and physical harassment;

(h)     to pay litigation expenses of Rs.1,00,000/-.

Reply of opposite parties:-

8]                While contesting the claim of the complainant, on merits, by filing their reply, on numerous grounds, the opposite parties have also raised following preliminary objections, inter-alia, that:-

1. the complaint is barred by arbitration clause 43 in the Plot Buyers Agreement dated 05.02.2007;
2. the complainant is not a consumer under Section 2(7) of Consumer Protection Act, 2019 and is a speculative investor and he alongwith his wife have purchased another unit in the project “Park Elite Floors” developed by opposite party No.1 in Faridabad;
3. the complaint is barred by statutory limitation and also for want of cause of action against the opposite parties;
4. the complaint is not maintainable and is liable to be dismissed due to mis-joinder of parties.
5. the complaint is not maintainable as the complainant has averred complex questions of facts, interpretation of law and disputes regarding rights and obligations of the parties under various statutes, which would require elaborate evidence to be led for adjudication and thus, is to be filed before Civil Court;
6. this complaint is liable to be dismissed as the complainant has indulged in suppression, concealment and misrepresentation of true facts and documents;

9]                On merits, it has been stated that the complainant was aware that timely payments is the essence of the agreement and vide clause 12 thereof, he had agreed to make the timely payment of each installment as per the payment plan schedule, failing which, he shall be liable to make the payment charges and interest @18% p.a. for the period of delay in making such payments. It has further been stated that the other plot owners have duly constructed their respective houses, adjacent to the plot of the complainant. It has further been stated that vide clause 2.4, 2.5 (b) & (c) & 2.6 of the agreement, the complainant agreed to pay the charges towards EDC, STP and Electrification, which were not hidden, as alleged by the complainant. It has further been stated that vide clause 22.2 of the agreement, the complainant agreed to pay holding charges as well.

10]              It has further been stated that the demand of enhanced EDC from all its allottees including the complainant was raised because the opposite parties had received demand notices from the Director General, Town and Country Planning (DGTCP), Haryana demanding the enhanced EDC amounts from the opposite parties in accordance with Memo No.HUDA-CCF-ACTT-I-2011/17903 dated 25.05.2011 issued by the Haryana Urban Development Authority (HUDA) in respect to the licenses granted by the Director Town Planning, Haryana (DTCP), Faridabad w.e.f. 2005.  It has further been stated that interim stay passed by Hon’ble High Court in the matter of “Balwan Singh and others Vs. State of Haryana” was passed much later than the demand was raised by the opposite parties and as such, said stay had no applicability at this stage.  It has been denied that opposite party No.1 arbitrarily adjusted Rs.35,250/- towards enhanced EDC without the consent to the complainant.

11]              It has further been stated that even though as per the terms and conditions of the agreement, opposite party no.1 was well within its right to terminate the allotment but as a goodwill gesture and being a consumer oriented company, it gave several opportunities to the complainant to make the due payments alongwith interest, which the complainant failed to pay. It has further been stated that the plot in question is ready and completely developed alongwith basic amenities like sewer, roads, electricity poles, schools, operational nursing homes. Pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.

Rejoinder:-

12]              In the rejoinder filed, the complainant reiterated the averments contained in the complaint and controverted those contained in the written reply of the opposite parties.

13]              The parties led evidence in support of their case and also filed written arguments.

14]              We have heard the contesting parties and have gone through the record of the case, including the written arguments filed by them, very carefully.

15]              Before discussing the case on merits, we would like to first decide the preliminary objections raised by the opposite parties as under:-

Objection (i) :

Complaint is barred by Arbitration Clause 43 in the Plot Buyers Agreement dated 05.02.2007.

                   So far as the objection with regard to complaint being barred by Arbitration Clause 43 in the Plot Buyers Agreement dated 05.02.2007, it may be stated here that this issue has already been dealt with by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Feeling aggrieved against the said findings, the builder filed Civil Appeal bearing No.23512-23513 of 2017 before the Hon’ble Supreme Court of India, which was dismissed vide order dated 13.02.2018. Even the Review Petition (C) Nos.2629-2630 of 2018 filed by the builder in Civil Appeal Nos.23512-23513 of 2017 against order dated 13.02.2018, was dismissed by the Hon’ble Supreme Court of India, vide order dated 10.12.2018. As such, this objection also stands rejected.

Objection (ii) :

The complainant is not a consumer under Section 2(7) of Consumer Protection Act, 2019 and is a speculative investor.

                   As regards the objection taken by the opposite parties to the effect that the complainant is not a consumer under Section 2(7) of Consumer Protection Act, 2019 and is a speculative investor as he alongwith his wife have purchased another unit in the project “Park Elite Floors” developed by opposite party No.1 in Faridabad; it may be stated here that there is nothing on the record that the complainant is a property dealer and deals in the sale and purchase of property, on regular basis, and as such, the plot, in question was purchased by the complainant by way of investment with a view to resell the same as and when there was escalation in the prices thereof. On the other hand the complainant in Para 2 of the complaint has clearly stated that the he had booked the plot in question for his own and his family’s personal use and occupation. It is significant to mention here that a person cannot be said to have purchased a residential house or plot for a commercial purpose only by proving that he/she has purchased more than one house or plot. Separate plots may be purchased by a person for the individual use of his family members. A person may buy two or three houses/plots, if the requirement of his family cannot be met in one house. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. Since the opposite parties have leveled allegations against the complainant, the onus lay upon them, to place on record, documentary evidence in that regard, which they failed to do so. Otherwise also, in a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon’ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta,  2016 (2) CPJ 316. Not only as above, under similar circumstances, in  a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, the Hon’ble National Commission, while rejecting similar plea raised by the builder, observed as under:-

 “ In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to make profits by sale of such houses or plots.  A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots.  In a given case, separate houses may be purchased by a person for the individual use of his family members.  A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city.  A person may buy two or three houses if the requirement of his family cannot be met in one house.  Therefore, it would not be correct to say that in every case where a person owns more than one house, the acquisition of the house is for a commercial purpose.  In fact, this was also the view taken by this Commission in Rajesh Malhotra &Ors. Vs. Acron Developers Pvt. Ltd. &Ors. First Appeal No. 1287 of 2014 decided on 05.11.2015.”

                   The principle of law laid down in the aforesaid cases is fully applicable to the present case. The complainant, thus, falls within the definition of a ‘consumer’, as defined under the Act. Such an objection taken by the opposite parties therefore, being devoid of merit is rejected. 

 

Objection (iii) :

Complaint is barred by statutory limitation and also for want of cause of action against the opposite parties.

                   As regards the objection that the complaint is barred by statutory limitation of two years, it has been stated by the opposite parties that possession was offered to the complainant vide letter dated 28.05.2013 and the previous complaint bearing No.486 of 2020 filed by him in the year 2020 which was filed beyond the limitation period of 2 years as prescribed under Section 69(1) of the Consumer Protect Act, 2019. It has further been stated that vide order dated 26.10.2021, the complainant withdrew the said complaint with liberty to file the fresh complaint on the same cause of action before appropriate forum. It has further been stated that the complainant again filed the complaint which he again withdrew on the ground of change in pecuniary jurisdiction and now the present complaint is totally time barred. It has further been stated that the complaint is also barred for want of any cause of action against the opposite parties. In this regard, it may be stated here that the complainant has specifically averred that the possession offered by the opposite parties vide letter dated 28.05.2013 was merely a paper possession and there is no development of any kind at the place or the project where his plot is situated and further no facilities or basic amenities have been provided and the project is not habitable.

                   Per pleading of the parties, the possession of the allotted plot, has not been offered to the complainant till date, as such, there is a continuing cause of action in favour of the complainant to file this complaint, in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal   Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when actual possession of the units/plots is not delivered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard also stands rejected.

Objection (iv) :

Complaint is not maintainable and is liable to be dismissed due to mis-joinder of parties.

                   So far as the objection raised that the complaint is not maintainable and is liable to be dismissed due to mis-joinder of parties, it has been stated by the opposite parties that the complainant has arrayed the Managing Director of opposite party No.1 as one of the party to the complaint i.e.  opposite party No.2 in his personal capacity, which is neiher proper nor justified as the entire transaction took place between the complainant and opposite party No.1. In this regard, it may be stated here that a company being a juristic person, all its deeds and functions are the result of acts of others and therefore, the Managing Director, Director(s) or the officers of a company who are responsible for acts done in the name of the company are fully responsible and liable for the acts. It is not the case of the opposite parties that opposite party No.2 was not at the helm of the company in the capacity of the Managing Director at the time when the complainant booked the plot in question. As such, the objection raised stands rejected.

 

Objection (v) :

Complaint is not maintainable as the complainant has averred complex questions of facts, interpretation of law and disputes regarding rights and obligations of the parties under various statutes, which would require elaborate evidence to be led for adjudication before Civil Court.

 

                   As regards the objection that the complaint is not maintainable as the complainant has averred complex questions of facts, interpretation of law and disputes regarding rights and obligations of the parties under various statutes, which would require elaborate evidence to be led for adjudication and thus, is to be filed before Civil Court, it may be stated here that the Hon’ble Supreme Court in the case titled ‘Dr. J. J. Merchant vs. Shrinath Chaturvedi III (2002) CPJ 8 (SC); and ‘C. Venkatachalam v. Ajit Kumar C. Shah’, III (2011) CPJ 33 (SC) has specifically held that remedy under the Consumer Protection Act cannot be denied because complicated question was involved.  It reads as under:-

“It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on the ground that complicated questions of facts cannot be decided in summary proceedings.  It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts required to be dealt with or decided.  The Act provides sufficient safeguards.”

                   In view of above, this objection raised by the opposite parties also stands rejected.

Objection (vi) :

Complaint is liable to be dismissed as the complainant has indulged in suppression, concealment and misrepresentation of true facts and documents.

                    As regards the objection that the complaint is liable to be dismissed as the complainant has indulged in suppression, concealment and misrepresentation of true facts and documents, from bare perusal of the record, we do not find any suppression of truth, concealment or suppression on the part of the complainant. Therefore, this objection stands rejected.

Merits of the case:

16]              Now coming to the merits of the case, first we will first deal with the issue with regard to charging of enhanced External Development Charges (EDC) by opposite parties from the complainant. In this regard, it may be stated here that a bare perusal of record reveals that as per Clause 2.2 of Plot Buyers Agreement dated 05.02.2007, the purchaser was to pay to the Seller/Confirming Party, External Development Charges and any future increase in EDC as and when demanded by the State Govt. and/or any Authority or Department of the Government on demand by the Seller/Confirming Party. Admittedly, the complainant has already paid an amount of Rs.5,12,000/- towards EDC. Further in Schedule-I which forms part of the Plot Buyers Agreement, under the heading “COST CALCULATION”, the External Development Charges (EDC) payable was given as @Rs.1024/- per sq. yard. No doubt, Clause 2.2 of the agreement stipulates payment of enhanced EDC yet it is not out of place to mention here that the Hon’ble High Court of Punjab and Haryana has stayed the demand of enhanced EDC in Civil Writ Petition No.5835 of 2013 titled “Balwan Singh and Others Versus State of Haryana and Others” vide order dated 19.03.2013. There is on record copy of order dated 07.11.2013 of Director General, Town & Country Planning Department, Haryana, Chandigarh which reads thus:-

“The Hon’ble Hig Court in  CWP No.5835 of 2013 (Balwan Singh Vs. State of Haryana) has stayed operation of HUA memo No.HUDA-CCF-ACTT-2011/24224 dated 14.07.2011. In view of the above orders dated 19.03.2013 of Hon’ble High Court, the Department is not insisting for payment of enhanced EDC from the licencees for the time being. All licencees are hereby directed to take note of above orders and ensure that no violation of the same takes place. In case of any violation of the said orders the entire onus of the same shall lie on such colonizer. However, the licencee shall remain bound to deposit any amount collected against enhanced EDC either directly or indirectly from its allottees and deposit the same with the Department without any delay.”

17]              In view of stay order of Hon’ble High Court, the complainant vide his email dated 21.03.2014 asked the opposite parties to convey him the exact amount to be paid without enhanced EDC and registration charges and also stated that the opposite parties are in no authority to charge the governmental dues. The opposite parties vide their email dated 28.03.2014 informed the complainant that registration of property can be done only once all the dues would be cleared, otherwise, the complainant may hold the payments & registration till next notification from the authorities concerned, however, penalty as mentioned in the agreement would be applicable on overdue payments in the account of the complainant. The complainant responded to this email of the opposite parties vide his email dated 29.03.2014 wherein he stated that since enhanced EDC is not chargeable by government in view of the stay proceedings, therefore, there is no question of this being an outstanding amount in the records. However, the complainant clearly mentioned in this email that how the opposite parties could stop the registration process in lieu of this issue of enhanced EDC. The complainant further mentioned that he could give an undertaking that the same would be deposited once it is cleared by the Court and the opposite parties should not have any issue as this is government dues and not the dues of the opposite parties. He further stated that since due to stay, it is not chargeable, therefore, the question of interest and penalty thereon did not arise at all. In our considered opinion, demand raised by the opposite parties qua enhanced EDC is totally arbitrary in view of ongoing stay proceedings. Not only above, there is another office order dated 21.10.2015  passed by District Town Planner (HQ) O/o Director General, Town and Country Planning, Haryana, Chandigarh on record whereby it was decided that no completion certificate/part occupation certificate would be withheld on the ground of non-payment of enhanced EDC as the same has already been stayed by the Hon’ble High Court, however, an undertaking needed to be taken from the licensee that if the matter pending in the Hon’ble High Court is decided in favour of the Department, then enhanced EDC would be paid by him within a period of three months and the department would be competent to recover the same even from the other licenses of the same colonizer. Thus, in our considered view, it will be in the interest of justice, if an undertaking/affidavit is obtained from the allottee/complainant that he will pay the enhanced EDC if the pending issue w.r.t. enhanced EDC is decided in favour of the Department. Therefore, at this stage, it will not be appropriate for the opposite parties to reiterate its demand qua enhanced EDC from the complainant. Accordingly, we decide this issue with the observation that the complainant will furnish an undertaking/affidavit to the opposite parties that he will pay the enhanced EDC and abide by the decision of Hon’ble High Court if the matter is decided in favour of the Department.

18]              Now coming to the next question, as to whether the opposite parties could charge an amount of Rs.4,47,500/- from the complainant towards electrification & STP charges over and above an amount of Rs.2,22,500/- which the complainant has already paid as Infrastructure Development Charges (IDC). It is the specific case of the complainant that the opposite parties are also liable to return the amount of Rs.4,47,500/-, which they had charged towards electrification & STP charges, since the said charges are not payable because of the fact that the opposite parties had already demanded & charged IDC from the complainant. Perusal of Clause 4 of the Plot Buyer Agreement dated 05.02.2007 shows that the total sale consideration of the plot covers the cost of development of internal services, such as laying of tarmac roads, laying of sewer, storm-water drains, electricity, horticulture within the peripheral limits of Parklands as per the specification and norms prescribed by the competent/statutory authority/HUDA. It is, thus, clear that cost of development of internal services or infrastructure development charges (IDC) includes electrification & STP charges. Even Schedule –I appended to the agreement makes the complainant liable to pay the infrastructure development charges (IDC) @Rs.445/- per sq. yard, which comes to Rs.2,22,500/-. The complainant has already paid this amount of Rs.2,22,500/- towards IDC as per Schedule-I. Apart from IDC, no separate amount has been mentioned in the aforesaid Schedule-I towards electrification & STP. Therefore, demand of Rs.4,47,500/- towards electrification & STP charges raised by the opposite parties from the complainant was totally wrong and arbitrary and the opposite parties are liable to refund the said amount of Rs.4,47,500/-, which they had received from the complainant alongwith interest.

19]              Now coming to the next question, whether the possession offered by the opposite parties vide letter dated 28.05.2013 was complete or a mere paper possession, it may be stated here that it is the specific case of the complainant that the possession offered was not complete and just a paper possession as there was no completion certificate with the opposite parties and there was also no development at the place where the plot in question is situated, whereas, on the other hand, the opposite parties have pleaded that the plot in question is ready and completely developed alongwith basic amenities like sewer, roads, electricity poles, schools, operational nursing homes. Per Clause 22.1 of the Plot buyers agreement dated 05.02.2007, the possession of the plot was proposed to be delivered by the opposite parties within about 24 months from sanctioning of the service plans of the entire colony, simultaneous to the execution of the sale deed subject to force majeure and the purchaser (complainant herein) making all payments within the stipulated period and complying with the terms and conditions of the said agreement. However, in the instant case, the complainant purchased the plot in question from the original allotte(s), in resale, which was transferred in his name and endorsed on 19.03.2010. Admittedly, the possession of the plot in question has not been delivered to the complainant till date.

20]              During the course of arguments, a query was raised to the opposite parties, whether they are in possession of any completion certificate qua the project and its development in accordance with government norms. However, the Counsel for the opposite parties conceded that the completion certificate has not been granted by the concerned authorities for the said project. It may also be stated here that in their written arguments, the opposite parties have stated that due to the reasons beyond the control of the opposite parties, they have not received the completion certificate from the authorities concerned for their project, however, they have applied for the same way back on 07.01.2014. It has further been stated in the written arguments that in the absence of completion certificate, the opposite parties are not in a position to give valid and legal possession of the plot in question to the complainant and therefore, they have already offered to refund the entire amount paid by the complainant along-with reasonable rate of interest from the date of payments till realization. It may be stated here that the complainant is seeking possession and not refund.

21]              From the above discussion, it become crystal clear that the possession offered by the opposite parties on 28.05.2013, in the absence of completion certificate, was not complete and is just a paper possession. It is also a settled law that before offering possession of a unit/plot  in a project, the project proponent is legally bound to complete the construction, development and basic amenities at the project site and also to obtain occupation and completion certificates from the competent authorities. Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificates from the competent authority, which reads as under:

14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."

22]              In the present case, since nothing has been produced on record that the project is habitable and ready for possession, as such, we are of the considered view that the complainant needs to be suitably compensated for the period, he remained without possession of the plot despite making substantial payment referred to above.

23]              Now the question arises, as to what compensation should be granted to the complainant, for delay in delivery of possession of the plot to him and for what period? It may be stated here that Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, ‘defects in goods’ and ‘deficiencies in services’ and it works and protects consumers even in situations where they do not know their rights. At the same time, it is relevant to mention here that, in the absence of a specific prayer, it is still open to the Courts/Foras/Tribunals to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case. Our this view is supported by the  findings given by the Hon’ble National Commission in BPTP Ltd. Vs. Pradeep Sharma, First Appeal No. 1516 of 2019 decided on 23 Dec 2019. Relevant part of the said order is reproduced hereunder:-

“……With regard to the objection of the Developer that the Complainants are not entitled for the relief other than prayed for in the Complaint, the Hon’ble Supreme Court as well as this Commission in catena of judgments has laid down the principal that in the absence of a specific prayer, it is still open to the Courts to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case…...” 

Failure of the opposite parties to provide complete/effective possession of the plot within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the plot(s)/unit(s), the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period, the complainant suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainant has purchased the unit in question, in resale from its original allottee(s), as far as back in March 2010 i.e. 19.03.2010 and remained empty handed for more than 13 years and has to approach this Commission for redressal of his grievance. The opposite parties have played fast and loose with the complainant and have caused harassment and mental agony to him, which is unacceptable and this practice needs to be deprecated. It is settled law that in possession cases, if there was any transfer and the transferee had stepped into the shoes of the original allottee, the compensation shall be paid from the date of expiry of the stipulated period of handing over the possession in the agreement or from the date of transfer, whichever is later. Therefore, in the instant case, since the complainant is a subsequent allottee, therefore, in our considered opinion, if we grant interest @9% p.a. to the complainant on the entire deposited amount w.e.f. 19.03.2010 (date of transfer of plot in his favour) till delivery of possession as delayed compensation and Rs.1,00,000/- as compensation for causing him mental agony, harassment, for deficiency in providing service & adoption of unfair trade practice and cost of litigation, that will meet the ends of justice.

24]              It may also be stated here that since it is now an admitted position on record that the possession offered by the opposite parties on 28.05.2013, in the absence of completion certificate, was not complete and is just a paper possession, therefore, the opposite parties cannot charge any holding charges, delayed interest or any kind of penalty or interest on the pending dues. Per Statement of Account dated 19.08.2023, placed on record by the Counsel for the opposite parties during the course of arguments, it is held that except the enhanced EDC of Rs.6,88,000/-, holding charges of Rs.2,41,087/- & interest of Rs.27,536/-, the complainant is held entitled to pay only the remaining basic sale price of Rs.35,250/- and the stamp duty. Again it is made clear that the opposite parties will not raise any extra demand from the complainant, except the above two amounts of basic sale price and registration charges at the time of handing over of the actual physical possession of the plot in question, complete in all respects, & execution of sale deed. As already stated above, the opposite parties shall refund the amount of Rs.4,47,500/- alongwith interest to the complainant. Thus, the demand qua holding charges, penalty & interest is quashed.

25]               For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally, are directed as under:-

1.      To deliver actual physical possession of plot No.F-52, Block-F, Phase II, measuring 500 Sq. Yards, in the project ‘Parklands’ at Sector 88, Faridabad, to the complainant, complete in all respects, after obtaining completion certificate from the competent Authority, within a period of 03 months from the date of receipt of a certified copy of this order, on receipt of pending basic sale price of Rs.35,250/- and stamp duty, from the complainant. 
2.      To pay to the complainant, interest @9% p.a. on the entire amount deposited, starting from 19.03.2010 till 31.08.2023, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.
3.      To pay to the complainant, interest @9% p.a. on the amounts deposited, w.e.f. 01.09.2023 onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects.
4.      To refund the amount of Rs.4,47,500/-, which the opposite parties illegally charged towards electrification and STP charges, to the complainant alongwith interest @9% per annum from the date of its receipt by the opposite parties till actual payment; within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @12% p.a. from the date of default till realization.

(v)      To pay to the complainant, compensation to the tune of Rs.1,00,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.

26]              However, the complainant is directed to furnish an undertaking/affidavit to the opposite parties within a period of 30 days from the date of receipt of certified copy of this order that he will pay the enhanced EDC and abide by the decision of Hon’ble High Court if the matter is decided in favour of the opposite parties.

27]              Certified copies of this order be sent to the parties, free of charge.

28]              File be consigned to Record Room after completion.

 

Pronounced

06.09.2023.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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