Chandigarh

StateCommission

CC/286/2019

Harmesh Singh Malhi - Complainant(s)

Versus

M/s Emerging India Housing Corporation Pvt.Ltd. - Opp.Party(s)

Sahil Khunger Adv.

20 May 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Complaint case No.	:	286 of 2019
Date of Institution	:	19.12.2019
Date of Decision	:	20.05.2021

 

Harmesh Singh Malhi S/o Sh.Gian Singh Malhi, resident of House No.29, Abchal Nagar, Patiala.

 

……Complainant

V e r s u s

M/s Emerging India Housing Corporation Private Limited, SCO 46-47, First Floor, Sector 9, Madhya Marg, Chandigarh, through its Managing Director.

                                                             .... Opposite Party

BEFORE:         JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                                               

Argued by (through Video Conferencing):            

Sh. Sahil Khunger, Advocate for the complainant.

Sh. J.S.Rattu, Advocate for Opposite Party.

 

PER PADMA PANDEY, MEMBER

 

                The facts in brief are that the complainant was allotted flat No.D-101 (3BHK flat having approximate area of 1605 sq. ft.) in Block-D, First Floor located in the housing group named Emerging Height-III situated in Sector 115 (Village Sante Majra), Tehsil Kharar, District Mohali, Punjab and Agreement dated 16.07.2015 was executed between the parties (Annexure C-1). The total sale consideration of the said flat was Rs.37,36,504/-, which was deposited in time and in this regard, payment confirmation letter dated 26.07.2017 was issued, in which, it has been mentioned that all the extra charges including car parking IMFS, power backup, PLC, fire fighting and club membership has been paid by the complainant (Annexure C-2). It was further stated that  sale deed in respect of the unit was executed in favour of the complainant on 26.07.2017 (Annexure C-3). It was further stated that possession was to be delivered by 31.03.2016 but the Opposite Party failed to deliver the possession in time and the same was delivered on 27.12.2017. Therefore, as per Clause 5 of the Agreement, the Opposite Party was liable to pay to the complainant a monthly rental income of Rs.15,000/-. It was further stated that at the time of taking possession, it was a utter shock to see that no agreed amenities were available even at that point of time. The complainant and other allottees visited the office of the Opposite Party and complained about the same and it was assured by the Opposite Party that needful will be done very soon but it was not done. Ultimately, the complainant sent legal notice dated 27.10.2018 to the Opposite Party but to no avail. It was further stated that the aforesaid acts, on the part of builder, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under the Consumer Protection Act (in short the ‘Act’ only), was filed.

2.                The Opposite Party in its written version has taken objection that this Commission has no jurisdiction to entertain the complaint as it has been specifically mentioned in Clause 36 of the Agreement that all the disputes shall be referred to an Arbitrator to be appointed as per the provisions of Arbitration and Conciliation Act, 1996. It was stated that the complaint is not maintainable due to non-joinder of the necessary party as he has not made the registered office of the Company as party. It was further stated that the complainant did not fall within the definition of “Consumer” as defined in the Consumer Protection Act, as he purchased the said unit for investment purpose only since he is permanent resident of Patiala. It was further stated that with regard to basic amenities, this Commission had attached the whole project and development work as well as the construction work suffered, which was not in the hands of the replying Opposite Party. It was further stated that the complainant offered possession of the unit in the year 2017 and now the present complaint is filed just for the monetary benefits because at that time, he never raised any grievance regarding the delay. It was further stated that the value of the flat, in question, is Rs.45 lakhs after all the payment and necessary charges and the letter attached by the complainant shows that other charges are adjusted against the rental income, which shows that it was already adjusted and the complainant was satisfied about the late possession and he never raised any claim at the point of time and now after three years of possession, he was raising the false claim. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party nor it indulged into unfair trade practice.

3.                The Parties led evidence, in support of their case.

4.                We have heard the Counsel for the contesting parties, and have gone through the evidence and record of the case, carefully. 

5.                First of all, coming to the objection raised with regard to existence of Arbitration clause contained in the Agreement, 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 complainants and the Builder cannot dilute 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, objection raised by the Opposite Party in this regard stands rejected.

6.         The next question, that falls for consideration, is, as to whether, the complainant falls within the definition of a consumer, as defined in the Act as he is permanent resident of Patiala and, as such, purchased the said unit in the project of the Opposite Party purely for investment purposes.  After going through the record, we are of the view that the objection taken by the Opposite Party does not carry any weight and is liable to be rejected because the complainant has specifically mentioned in his complaint that “the complainant is a bonafide allottee and the owner in possession of flat No.D-101 (3BHK flat having approximate area of 1605 sq ft.) in the block-D, first floor located in the housing group named Emerging Height-III situated in Village Sector 115 (Village Sante Majra), Tehsil Kharar, District Mohali, Punjab for his residential purpose x x x . Even otherwise, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by the complainant. There is nothing, on the record, that the complainant is property dealer. Thus, in the absence of any cogent evidence, in support of the objection raised by the Opposite Party, mere bald assertion i.e. simply saying that the complainant purchased the property for investment purposes and, as such, he did not fall within the definition of a consumer, cannot be taken into consideration. Further, in a case titled as Kavit Ahuja vs. Shipra Estates I (2016) 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. The principle of law, laid down, in the aforesaid case, is fully applicable to the present case. The  complainant, thus, falls within the definition of a ‘consumer’, as defined under Section 2(1)(d) of the Act. Such an objection, taken by the Opposite Party, in its written reply, therefore, being devoid of merit, is rejected.

7.                The next question, that falls for consideration, is with regard to non joinder of necessary party i.e. the registered office of the Opposite Party is concerned, it is submitted that not even a single document has been placed on record by the Opposite Party to show any alleged registered office of the company or any communication by the complainant with the registered office. Even all the correspondence between the parties have taken place from their Chandigarh Office. So, the said objection raised by the Opposite Party stands rejected.

8.                The next question that falls for consideration before us is as to whether the Opposite Party offered possession of the unit, in question, to the complainant complete in all respects or not. It is the admitted fact that Apartment Allottee Arrangement dated 16.07.2015 (Annexure C-1) was executed between the parties. As per Clause 5 of the said Agreement, possession was to be delivered till 31.03.2016 and in the event of failure to do so, the Opposite Party was liable to pay to the complainant  monthly rental income of Rs.15,000/-. In the present case, according to the complainant, possession was delivered by the Opposite Party on 27.12.2017 i.e. approximately after 1 ½ years. It is also the admitted fact that Sale Deed was registered on 26.07.2017 (Annexure C-3). The allegation of the complainant is that even after taking possession by him, all the basic amenities, as agreed, were never provided i.e. two air conditioners as well as water supply, efficient electricity, roads, sewerage, parking facilities etc. and in the absence of such amenities/facilities, it was impossible for the complainant to stay therein. In the present case, the Opposite Party has failed to place any completion certificate on record to prove that possession so delivered was a genuine one and as such, in the absence of the said completion certificate, it is held that possession so delivered by the Opposite Party is only paper possession and not more than that. Therefore, we are of the considered view that the Opposite Party is bound to provide all the basic amenities and obtained completion certificate from the competent authorities. Though vide letter dated 26.07.2017 (Annexure C-2) the extra charges qua car parking, IFMS, power backup, PLC, fire fighting and club membership stood already paid/adjusted by the Opposite Party against rental income uptill 26.07.2017, on which date, sale deed was executed. Therefore, in this view of the matter, the complainant is entitled for compensation w.e.f. 26.07.2017 till the date of all the basic amenities are provided and completion certificate is obtained. Our this view is fully supported by the observations made by the Hon’ble National Commission in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015, wherein, it was held that in the absence of completion certificate, the allottee is not bound to take possession of the unit. Relevant part of the said order is reproduced hereunder:-

“……..  Admittedly in the year 2012 or even in 2013, when the possession is claimed to have been offered, the Respondent was not possessed of the completion certificate from the authorities concerned.  As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015.  If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all………….”

Therefore, it is proved that possession given to the complainant is not complete in all respect and it is only a paper possession.

9.                No other point, was urged, by the Counsel for the parties.

10.              For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed, as under:-

1. To provide all the basic amenities, as per the Agreement, to the complainant, within a period of two months from the date of receipt of a certified copy of this order.
2. To pay compensation, in the sum of Rs.15,000/- per month from 26.7.2017 i.e. the date of registration of sale deed till the basic amenities are provided and completion certificate is obtained.
3. To pay cost of litigation, to the tune of Rs.33,000/- to the complainant within a period of 30 days from the date of receipt of certified copy of this order, failing which, the amount shall carry interest @12% p.a. from the date of filing of this complaint, till realization.

11.              Certified Copies of this order be sent to the parties, free of charge.

12.              The file be consigned to Record Room, after completion.

Pronounced.

May 20^th, 2021.                                      Sd/-

[RAJ SHEKHAR ATTRI]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

 

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