Chandigarh

StateCommission

CC/87/2022

SANCHITA CHAUHAN - Complainant(s)

Versus

M/S MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT LTD - Opp.Party(s)

SANJEEV GUPTA

21 Jul 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint No.	:	87 of 2022
Date of Institution	:	14.12.2022
Date of Decision	:	21.07.2023

 

Sanchita Chauhan daughter of Late Shamsher Singh Chauhan resident of House No.126A, Sector-6, Panchkula.

….Complainant.

Versus

1]  M/s Manohar Infrastructure & Constructions Private Limited having its registered office at SCO No.139-141, Sector-17C, First Floor, Chandigarh through its Managing Director/Authorised Signatory.

2]  Tarninder Singh, Managing Director, M/s Manohar Infrastructure & Constructions Private Limited having its registered office at SCO No.139-141, Sector-17C, First Floor, Chandigarh.

3]  Narinderbir Singh, Managing Director, M/s Manohar Infrastructure & Constructions Private Limited having its registered office at SCO No.139-141, Sector-17C, First Floor, Chandigarh.

….Opposite Parties.

 

BEFORE:

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

 

ARGUED BY:      

 

Sh. Sanjeev Gupta, Advocate for the complainant.        

Sh. Simranjit Singh Sidhu, Advocate for the opposite parties.

 

PER  RAJESH  K. ARYA, MEMBER

 

Brief facts of the case:-

1]                Initially in the year 2011, the mother of complainant, namely, Santosh Chauhan had booked the plot measuring 300 sq yards in the locality namely Palm Springs in the project ‘The Palm’ being developed by the opposite parties in Mullanpur (New Chandigarh), District SAS Nagar, Mohali, the total sale consideration whereof was Rs.55,50,000/-, calculated @Rs.18,500/- per sq. yards. Apart from the said amount of Rs.55,50,000/-, only the EDC & PLC (if any) was to be paid extra. An application form was got filled from the mother of the complainant on 30.08.2011 and an amount of Rs.16,65,000/- i.e. 30% of sale consideration was paid to the opposite parties as booking amount vide two cheques dated 04.09.2011. On the request of the mother of the complainant to transfer the said plot in the name of her daughter i.e. the complainant, the opposite parties transferred the plot in question in the name of complainant. Instead of issuing the allotment letter & executing the agreement, opposite parties vide its letter dated 13.02.2014 raised a demand of Rs.11,10,000/- i.e. 20% of sale consideration on the pretext of project reaching final stage, which the complainant paid vide cheque dated 28.02.2014 and acknowledgement dated 05.03.2014 was issued, wherein, the opposite parties also incorporated IDC & other charges contrary to the mutually agreed sale consideration. Vide letter dated 15.05.2014, the complainant was informed that CLU had been granted and further demanded Rs.8,32,500/-, which the complainant paid vide cheque dated 30.05.2014 in hope of getting the allotment & possession. A pamphlet was also provided to the complainant wherein it was duly mentioned that the allotment shall be made by December, 2014. The complainant vide email dated 22.09.2014 requested the opposite parties to provide complete schedule for further payments well in advance. Due to repeatedly changing stand of the opposite parties, the complainant feeling harassed and trapped, asked the opposite parties in October 2014 to return her money as no allotment or even execution of the Agreement had been carried out by the opposite parties despite their being in possession of 65% of sale consideration i.e. Rs.36,07,500/-. The opposite parties refused to refund and assured that they would stick to their commitment of allocating plots by December, 2014.

2]                The opposite parties vide their letter dated 30.06.2015 informed the complainant that they are going to start the process of allocation of plots. Thereafter, the opposite parties vide letter dated 11.07.2015 for the first time demanded 50% of EDC & IDC charges from the complainant on the pretext of issuing the allotment letter. The complainant again visited the office of opposite parties on 6.10.2015 for the allotment letter and execution of buyer agreement but the opposite parties laid pre-conditions that the complainant firstly pay 50% of EDC & IDC amounting to Rs.6,00,000/- before commencement of the process of allocation of plot number. The complainant had no option except to pay the demanded amount in order to get the plot number. The complainant paid Rs.6,00,000/- towards 50% of EDC & IDC and further paid Rs.5,55,000/- towards 10% PLC vide two cheques. Plot bearing No.1411 measuring 300 Sq. Yards (approx.) was allotted to the complainant. Without commencing development at the project site, the opposite parties vide letter dated 30.11.2015, further demanded Rs.5,55,000/- in order to complete 75% of sale consideration and Rs.3,00,000/- for completion of 75% of development charges (EDC & IDC),  which the complainant also paid i.e. Rs.3,00,000/- (Rs. 2,91,000/- + Rs. 9,000/- deposited towards TDS) on 24.02.2016 and Rs.5,55,000/- (Rs.5,24,480/- + Rs. 30,520/- deposited towards TDS) on 25.02.2016. The complainant vide her letter dated 04.02.2019 asked the opposite parties to address her concerns about the terms and condition contained in the Plot buyer's Agreement. However, having received no response from the opposite parties, she vide letter dated 15.07.2019 again asked the opposite parties to address her concerns but the opposite parties again vide letter dated 20.09.2019 asked the complainant to sign the agreement, to which the complainant duly replied vide letter dated 05.12.2019. The opposite parties, even without commencing the development works at the project site, vide letter dated 03.12.2019 offered the possession of the plot in question and without giving any calculation, demanded an amount of Rs.15,44,238/- from the complainant. In response, the complainant vide letter dated 11.02.2020 asked the opposite parties to compensate her for excessive delay in handing over the possession as no development of even basic minimum infrastructure like approach road etc. is available for the said plot. Vide the said letter, she also highlighted the fact of having not removing the unilateral conditions in the plot buyer agreement as well as demand of IDC by the opposite parties. It is the case of the complainant that till date, the opposite parties have failed to execute the agreement as per mutually agreed terms and conditions and further have failed to commence any development in the area/locality where the plot of the complainant is located. It has been stated that there are fields in the area where the plot of the complainant is located. The complainant had visited the project site many times to see whether the opposite parties have commenced the development at the project location where the said plot is located but to her utter surprise, the opposite parties have not even commenced any development at the said project location. The complainant recently come to know that the opposite parties were not having a single approval when the plot was sold to them rather the opposite parties had not even applied the necessary permissions when the plot was sold to the complainant.

3]                It has also come to the knowledge of the complainant that IDC is not being charged by the Punjab Government. The opposite parties pressurized the complainant to pay the money towards IDC on the pretext that IDC is charged by the Punjab government. It is relevant to mention that Punjab Government or any other competent authority do not charge IDC. The opposite parties arbitrarily included in the draft agreement, additional/hidden charges which are contrary to the mutually agreed terms and conditions at the time of booking and which are contrary to the terms and conditions mentioned in the booking application form dated 30.08.2011, payment plan. In 2015, Plot No.1411 measuring approximately 295 sq yards, (adjoining Plot No.1410 as per layout plans (Annexure C-15) shown of The Palm Project) was allotted by the opposite parties to the complainant. However, after receiving this entire payment, subsequently after many years in 2019, both the area and placement/location of the plot number 1411, earlier allotted to the complainant in 2015 was willfully changed by the opposite parties in their revised layout plan dated 10.10.2019, by interchanging the complainant's plot number 1411 with 1411A.

Relief Claimed:-

4]                The complainant has prayed for direction to the opposite parties to allot and hand over actual physical possession of plot measuring about 295 sq yards (adjacent to plot No.1410), along with delay period interest @12% PA on the amount paid to the opposite party w.e.f. 30.08.2013 till the date of handing over the actual physical possession, complete in all aspects, after obtaining the completion/occupancy certificate. Furthermore, the complainant has prayed for refund of the entire IDC (internal development charges & the amount towards PLC which has been excessively charged by the opposite parties. Prayer has also been made to direct the opposite parties not to demand any other charges/additional charges/hidden charges like  such as IDC & Govt. levies, IBMS @Rs.500 per sq yards, which were arbitrarily mentioned in the draft agreements and which are contrary to the terms and conditions settled at the time of booking. Besides, the complainant has claimed Rs.20 Lakhs towards damages for the physical and mental torture, agony, discomfort and undue hardship caused to her as a result of deficiency in services and indulgence into unfair & deceptive trade practices on the part of the opposite parties, as also escalation in prices & Rs.1,00,000/- towards cost of litigation.

Reply of opposite parties:-

5]                The claim of the complainant has been contested by the opposite parties on numerous grounds, inter alia:-

1. this complaint is not maintainable and to be filed before Civil Court as the complainant has raised complex questions of law and facts, which require a regular trial before a Civil Court;
2. the complainant is not a consumer under Section 2(7) of Consumer Protection Act, 2019 and is a speculative investor;
3. this complaint is liable to be dismissed being Suppressio veri and Suggestio falsi;
4. this complaint is barred by limitation;
5. this complaint is barred by Arbitration clause of Agreement;
6. this complaint is not maintainable because of Real estate (Regulation and Development) Act, 2016;
7. This complaint is barred by the provisions of Sections 17 & 35 of PAPRA Act.

6]                On merits, it has been specifically denied that the total consideration was fixed without IDC, which was informed to the complainant. It has been stated that no assurance was given to the complainant that the possession would be delivered within 2 years. It has been further stated that the payment plan opted by the complainant was time linked payment plan and the payment of installment was to be made as per the timeline given in the payment plan. It has further been stated that installments were demanded as per the payment plan. It has further been stated that the complainant and her mother never visited the office of the opposite parties and never inquired about the allotment letter and execution of buyer agreement. It has been admitted that request for transfer of the plot in the name of the complainant was made by her mother. It has further been stated that  since the complainant was avoiding payment of EDC, IDC and PLC, the opposite parties issued application acknowledgement dated 05.03.2014, wherein it was specifically mentioned that development charges, EDC and IDC would be extra in addition to the basic sale price of Rs.55,50,000/-. It has been denied that no work was commenced even in April 2014. It has further been denied that the opposite parties could not have charged IDC and more than 10% of BSP for one PLC. It has also been denied that the complainant was forced to accept Plot No.1411 and she on her own free will chose the said plot. It has been stated that  the opposite parties sent Plot Buyer Agreement to the complainant for execution, however, she was deliberately avoiding the same on one pretext or the other. It has further been stated that the provisions of the agreement were mutually beneficial and not one-sided. It has further been stated that still at the request of the complainant, Plot Buyer Agreement was revised and shared with her, which were even more mutually beneficial. It has further been stated that  the opposite parties have made almost all the amenities available in the project premises and most of the development work has been completed and the remaining development work is carried out in full swing.

7]                It has further been stated that the complainant was duly informed about the status of the approvals and sanctions at the time of booking of the plot. It has further been stated that Plot No.1411 adjacent to Plot No.1410, admeasuring approx. 296 sq. yards was per layout plan dated 06.10.2015 and in the revised layout plan dated 10.10.2019, the number of Plot No.1411 got swapped with 1411A, however, the location and size of the plot remained the same. It has further been stated that there is no unilateral change of plots. It has been denied that the possession was obligated to be delivered within 2 years from booking. It has been denied that the demand of IDC, PLC, Govt. levies, additional charges, higher IFMS/IBMs charges cannot be made by the opposite parties and further also denied that 862 plots were sold to more than 3000 people. Remaining averments of the complaint have been denied being wrong. Pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.

Rejoinder:-

8]                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.

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

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

11]              Objection (i) : Complaint is not maintainable and should be filed before Civil Court as the complainant has raised complex questions of law and facts , which require a regular trial before a Civil Court.

                   As regards the first objection that this complaint is not maintainable and should be filed before Civil Court as the complainant has raised complex questions of law and facts, which require a regular trial before a 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.

12]              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, 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 she availed the services of the opposite parties for the booking of plot for residential purpose. It is significant to mention here that a person cannot be said to have purchased a house 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, 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 has 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. 

13]              Objection (iii) : Complaint is liable to be dismissed being Suppressio veri and Suggestio falsi.

                   So far as the objection raised that complaint is liable to be dismissed being Suppressio veri and Suggestio falsi is concerned, from bare perusal of the record, we do not find any suppression of truth on the part of the complainant, which is suggestive of falsehood. Therefore, this objection stands rejected.

14]              Objection (iv) : Complaint is barred by limitation.

                   As regards the objection that the complaint is barred by limitation, it may be stated here that since, per pleading of the parties, the possession of the originally 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.

15]              Objection (v) : Complaint is barred by Arbitration Clause.

                   So far as the objection with regard to complaint being barred by Arbitration Clause, 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.

16]              Objection (vi) : Complaint is not maintainable because of Real Estate (Regulation and Development) Act, 2016.

                   As regards the next objection with regard to the challenge to the jurisdiction of this Commission in view of provisions of Real Estate (Regulation and Development) Act, 2016, it may be stated here that the same does not merit acceptance, in view of the ratio of law laid down by the Hon’ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. This view has been reiterated by the Hon’ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021. As such, this objection also stands rejected.

17]              Objection (vii) : Complaint is barred by the provisions of Sections 17 & 35 of PAPRA Act.

                   So far as this objection is concerned, it may be stated here that  in view of law settled by Hon’ble Supreme Court, in case Kishori Lal Vs. Chairman, Employees' State Insurance Corporation, 2007(5) Recent Apex Judgments (R.A.J.) 68, in Para 17 that “….The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.", the objection raised is not sustainable in the eyes of law and the same stands rejected.

Merits of the case:

18]              Now coming to the merits of the case, first we will deal with the issue with regard to charging of Internal Development Charges (IDC) by the opposite parties from the complainant. It may be stated here that a bare perusal of record reveals that vide application dated 30.08.2011, Annexure C-1, Smt. Santosh Chauhan w/o Sh. S. S. Chauhan (mother of the complainant) submitted expression of interest for a residential plot measuring 300 sq. yards in the project of the opposite parties, namely, ‘Palm Springs’ by remitting an amount of Rs.16,65,000/- in favour of M/s Manohar Infrastructure & Constructions Pvt. Ltd. Vide letter dated 13.02.2014, the opposite parties informed Smt. Santosh Chauhan that the said project developed by the opposite parties has reached final stage and to proceed further on ‘Expression of Interest’, requested Smt. Santosh Chauhan to deposit a sum of Rs.11,10,000/- by 28^th Feb. 2014. Vide letter dated 19.03.2014, Smt. Santosh Chauhan requested the opposite parties to change the ownership of the plot to be allotted, for which ‘Expression of Interest’ was submitted, in the name of her daughter Ms. Sanchita Chauhan, the complainant. Accordingly, the complainant submitted expression of interest and paid the aforesaid amount of Rs.11,10,000/- to the opposite parties vide cheque dated 18.02.2014, acknowledged vide receipt dated 05.03.2014. Significantly, it is coming out from application/expression of interest signed by the complainant (Sanchita Chauhan), at Page 60, that she accepted to pay EDC, IDC and PLC charges in addition to rates quoted and additional cost of maintenance etc. The relevant part of the said Expression of Interest reads thus:-

 “Please Note: EDC, IDC and PLC charges will be in addition to the rates quoted. There shall be additional cost for maintenance etc.”

Under these circumstances, we are of the considered view that once the complainant has agreed to pay the above said charges by signing the expression of interest, as such, she cannot wriggle out of the same and is liable to pay the said EDC, IDC and PLC charges. Accordingly, this issue is decided in favour of the opposite parties. 

19]              As far as the next question regarding change of plot No.1141 to 1141A by the opposite parties by revising the layout plan is concerned, it may be stated here that it is the definite case of the opposite parties that on account of such revision, neither the location nor the size of the said plot has been changed as had been shown in the original layout plan, Annexure C-15. To protect the rights of the complainant, if necessary directions to the opposite parties to the effect, are given, that they shall deliver possession of the plot of same size & dimensions, located in original layout plan, as it is their own case that mere changing of plot number did not have any bearing on the location and size of the plot as had been shown in the original layout plan, that will meet the ends of justice.

20]              Now the issues raised by the complainant stood settled, therefore, she is directed to sign the buyer agreement. However, since it is an admitted fact that the opposite parties utilized her amount of Rs.60,28,200/- for a longer period without providing her anything, as such, in the absence of any agreement signed between the parties, we are of the considered view that in such circumstances, it is well settled law that non-delivery of possession of plots/units by the promised date or if there is no agreement, within a reasonable period say two to three years from the date of booking, is a material violation on the part of a builder and in those circumstances, the allottee is well within his/her right to seek refund of the amount paid. It was also so said by the Hon’ble National Commission in Sujay Bharatiya & Anr. Vs. Unitech Reliable Projects Pvt. Ltd., Consumer Case No.1814 of 2017 decided on 05.07.2018. The above view taken is further supported by the principle of law laid down by the Hon’ble Supreme Court of India in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019 and also  in Fortune Infrastructure Versus Trevor D’ Lima & Ors. (2018) 5 SCC 442.  Furthermore, in the present case, the opposite parties have not been able to prove, as to at which stage the project has reached, so that possession could be handed over to the complainant. It may be stated here that  it is well settled law that onus to prove the stage and status of infrastructure and development work at the project site and that all the permissions/certificates/ approvals have been obtained in respect of the project in question, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. 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."

21]              As stated above, 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, she remained without possession of the plot despite making substantial payment referred to above. Now the question arises, as to what compensation should be granted to the complainant, for delay in delivery of possession of the plot to her 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, as far as back in 2011 and remained empty handed for more than 13 years and has to approach this Commission for redressal of her grievance. The opposite parties have played fast and loose with the complainant and have caused harassment and mental agony to her, which is unacceptable and this practice needs to be deprecated. In our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by her, w.e.f. 29.08.2014 (reasonable period of 3 years from the date of booking being 30.08.2011) onwards till delivery of possession thereof, that will meet the ends of justice.

22]              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 the originally allotted plot of the same size & dimensions and at same location as per original layout plan (Annexure C-15), irrespective of its number 1141  or 1141A, to the complainant, in the project in question, 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 EDC, IDC, PLC and Govt. levies etc. and also balance basic sale price @Rs.18,500/- per square yard only, if any. 
2.      To pay to the complainant, interest @9% p.a. on the entire amount deposited, starting from 29.08.2014 till 31.07.2023, 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.

(iii)     To pay to the complainant, interest @9% p.a. on the amounts deposited, w.e.f. 01.08.2023 onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects. 

(iv)     To pay to the complainant, compensation to the tune of Rs.1,00,000/- for causing her 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.

 

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

24]              File be consigned to Record Room after completion.

 

Pronounced

21.07.2023.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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