Chandigarh

StateCommission

CC/111/2020

Sheshpal Sharma - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

In Person

29 Nov 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	111 of 2020
Date of Institution	:	18.06.2020
Date of Decision	:	29.11.2021

 

Sheshpal Sharma S/o Sh. Balkishan, R/o House No. 250B, Sector-43-A, Chandigarh.

.........Complainant

Versus

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., India Trade Tower, 1st Floor, Madhya Marg Extn. Road, New Chandigarh, Dist. SAS Nagar, Mullanpur, Punjab  (PIN Code 140901), through its Managing Director/Director

Registered Office at:- 10, L.S.C. Kalkaji New Delhi (PIN Code 110019).

….Opposite Party No.1

 

2. GREATER MOHALI AREA DEVELOPMENT AUTHORITY (GMADA) PUDA Bhawan, Sector-62, SAS Nagar Mohali, Punjab (PIN Code 160062), through its Chief Administrator/Sub Divisional Officer (B).

…..Opposite Party No.2

 

3. Axis Bank, Asset Sales Centre, SCO 350-352, Sector 34-A, Chandigarh (PIN Code 160022), through its Credit Manager/Branch Incharge.

….Proforma opposite party

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS. PADMA PANDEY, MEMBER.

                             MR.RAJESH K. ARYA, MEMBER.

 

Present through video conferencing:                   

                             Sh.Sheshpal Sharma, complainant in person.

                             Sh.Munish Gupta, Advocate for opposite party no.1.

                             Sh.Naginder Vashisht, Advocate for opposite party no.2.

                             Sh.Gaurav Gupta, Advocate for opposite party no.3.

 

PER RAJESH K. ARYA, MEMBER

 

                   This case has a long chequered history. Earlier, the complainant had filed consumer complaint bearing no.209 of 2017, before this Commission, seeking possession of the flat bearing no.523X, Ground Floor, measuring 1425 square feet, Mullanpur purchased by him in the project of the opposite party no.1 named “Ambrosia Independent Floor Chandigarh” New Chandigarh Omaxe, Mullanpur, Punjab. The said consumer complaint was disposed of by this Commission vide order dated 08.09.2017 and opposite party no.1 was directed to handover possession of the flat within four months and pay compensation for the period of delay; mental agony and physical harassment; and litigation expenses. The said order of this Commission was challenged by the builder/Omaxe by way of filing First Appeal No.2374 of 2017 before the Hon’ble National Consumer Disputes Redressal Commission, New Delhi. Because during pendency of the said appeal, incomplete possession was offered to the complainant by opposite party no.1, therefore, he raised objections before the Hon’ble National Commission. He also moved an application before the Hon’ble National Commission to implead GMADA/opposite party no.2 as necessary party in the appeal as it had issued occupation and partial completion certificates which were not valid in the eyes of law.

2.           However, the Hon’ble National Commission disposed of the First Appeal No.2374 of 2017, vide order dated 27.01.2020, inter-alia, in the following manner:-

“5.      It is not possible for this Commission to  adjudicate upon the rival contentions in the appellate proceedings. The appropriate course of action therefore would be to grant liberty to the complainant to take such action as may be open to him in law for the alleged delay between 20.1.2018 when the possession was offered to him. It is pointed out that at the time when joint inspection was carried out on 20.1.2018, the complainant had raised only two grievances, the first grievance was that the lift had not been installed whereas the second grievance was that the work was still going on in the adjoining area. Thus, no defect or deficiency in the allotted flat was pointed out by the complainant. The flat allotted to him is an upper ground floor flat. Be that as it may, if the complainant has any grievance with respect to the delay after 20.1.2018, he must necessarily espouse the said grievance by way of filing a separate consumer complaint the said grievance being outside the scope of the consumer complaint which he had instituted before the State Commission.

6.      Since the possession of the allotted unit has been delivered to the complainant, the compensation by way of interest awarded to him by the State Commission is excessive and cannot be justified. Considering all the facts and circumstances of the case, the complainant/respondent in my opinion should get compensation in the form of simple interest @ 8% p.a. from the committed date of delivery of possession till 20.1.2018 when the possession was offered to him by the complainant. 

7.      For the reasons stated above, the appeal stands disposed of with the direction that the appellant shall pay an all inclusive  compensation in the form of simple interest on the entire amount received from the complainant till the date committed for the delivery of possession  @ 8% p.a. to the complainant/respondent with effect from the committed date of delivery of possession till 21.1.2018 within two months from today alongwith Rs.25,000/- as cost of litigation.   The amount which the appellant has deposited with this Commission be released to the complainant if the said amount is less than or equal to the compensation and cost of litigation payable to the complainant in terms of this order. In case, the said amount is more than the compensation and cost of litigation payable to the complainant in terms of this order, the excess amount shall be released to the appellant.

8.      The appeal stands disposed of.”

 

3.           By way of filing this complaint, the complainant has raised following issues:-

1. that since construction of the unit in question was done in a very hurried and negligent manner, without taking proper care and precautions because this Hon’ble  Commission and also the Hon’ble National Commission, ordered opposite party no.1 to deliver possession, therefore, the construction work is very very poor;
2. that he has taken photographs of the unit and the project site, on daily basis showing as to how the construction work was being done in negligent manner without taking proper care and precautions;
3. that lift/elevator has not been provided in the tower wherein the unit is located;
4. that during joint inspection also, it was opined by the Inspection Committee of opposite party no.1 on 20.01.2018 that lift has not been provided and that construction in the adjacent flats of the tower, wherein the flat of the complainant is located etc., is also being carried out.
5. that on the very same day of joint inspection, opposite party no.1 issued letter of possession dated 20.01.2018, Annexure C-10, which was nothing but a piece of paper i.e. paper possession, issued by opposite party no.1 just to prove itself right, out of its wrong doings because certain works were yet to be carried out, which were very essential for smooth habitation i.e. installation of lifts; leveling of entrance area;  electricity work in the parking area etc.
6. that opposite party no.3/GMADA has issued occupation and completion certificates much before completion of construction and development works at the project site.

 

4.           In order to prove that construction work of the unit in question was still not ready, after joint inspection of the parties, the complainant has placed on record photographs, Annexure C-11 colly.,  taken by him on 20.01.2018 and thereafter also. Hence, this complaint has been filed by the complainant seeking following reliefs:-

1. “Opposite party no.1 to rectify the defects pointed out to them, in respect of the flat in question. 
2. Opposite party no.1 to obtain fresh legal occupation and completion certificates in respect of the project and flat in question from opposite party no.2 after following due procedure as prescribed under the PAPRA Act, 1995.
3. Opposite party no.1 to pay interest @8% p.a. on the deposited amount of Rs.44,35,796.25Ps. from 21.01.2020 till obtaining fresh legal occupation and completion certificates in respect of the project and flat in question after following due procedure by opposite parties no.1 and 2, as prescribed under the PAPRA Act, 1995.
4. Opposite parties no.1 and 2 to pay additional compensation in the sum of Rs.5 lacs, for causing mental agony, physical harassment, financial loss to the  complainant and deficiency in service, negligence and adopting unfair trade.
5. To pay cost of litigation to the tune of Rs.50,000/- to the complainant.
6. No claim is pressed against proforma opposite party no.3
7. Or any other directions which this Hon`ble Commission may deem fit…”

5.           Opposite party no.1 in its reply filed to the consumer complaint submitted that possession of the unit in question stood handed over to the complainant, complete in all respects, after obtaining occupation and completion certificate, as such now he ceased to be consumer; that  at the time of joint inspection only two grievances cropped up i.e. non-installation of lift and construction work going on in adjoining units; and that at the time of inspection, the complainant was satisfied with the construction work and did not raise any objection.  Remaining averments were denied being wrong. Prayer has been made to dismiss the complaint against opposite party no.1.
6.           Opposite party no.2 in its reply stated that the complainant is not a consumer qua it; that occupation and partial completion certificates were issued after inspection of the project site; and that there was no violation on the part of opposite party no.2 in issuing the said certificates. Prayer has been made to dismiss the complaint against opposite party no.2.
7.           Opposite party no.3 in its reply stated that no dispute whatsoever exists between it and the complainant, as it was only the loan sanctioning authority. Prayer has been made to dismiss the complaint against opposite party no.3.
8.           In the rejoinder filed, the complainant reiterated all the averments contained in the complaint and controverted those of the written replies by opposite parties no.1 and 2. Written arguments were also filed by the parties, reiterating their respective contentions.
9.           We have heard the contesting parties and have gone through the entire material available on record, very carefully.
10.           During pendency of this complaint, the complainant has also moved miscellaneous application bearing nos.46 of 2021 for appointment of Local Commissioner for submission of report before the State Commission after physical visit to the project site and 47 of 2021 for issuance of directions to Opposite Party No.1 to withdraw the illegal demand of Rs.20,12,783/- raised by it vide demand letter dated 16.9.2020.
11.           In view of peculiar facts and circumstances of this case, following questions fell for determination before this Commission :-

 

1. As to whether, the application moved by the complainant for appointment of Local Commissioner is maintainable at this stage or not?
2. As to whether, the application moved by the complainant for issuance of directions to opposite party No.1 to withdraw the illegal demand of Rs.20,12,783/- raised by it vide demand letter dated 16.9.2020 is maintainable and if yes, as to what amount, the complainant is entitled to pay to opposite party no.1 towards remaining sale consideration?
3. As to whether, the complainant is entitled to get compensation for the period of delay after 20.01.2018 and if yes, upto which date and the quantum of compensation?

 

12.           First coming to the question as to whether the application bearing no.46 of 2021 moved by the complainant for appointment of Local Commissioner for submission of report before the State Commission after physical visit to the project site is maintainable at this stage or not. It may be stated here that it has been fairly admitted by the complainant at the time of arguments that this issue has also been taken by him before the Hon’ble National Commission at the time of hearing the appeal. Thus, in our considered opinion, once the complainant has taken up this issue before the Hon’ble National Commission, as such, now he is not entitled to rack up this issue again, especially, when liberty has been granted to him by the Hon’ble National Commission vide order dated 27.01.2020 only with respect to his grievance raised after 20.1.2018. Since, liberty has been granted to the complainant on a specific grievance referred to above, the complainant cannot be allowed to take up additional grounds in this complaint. In this view of the matter, application bearing no.46 of 2021 moved by the complainant for appointment of Local Commissioner, referred to above, is not maintainable and is accordingly dismissed with no order as to costs.
13.           Now coming to the question, arising from application bearing no.47 of 2021 whereby the complainant has sought issuance of directions to opposite party No.1 to withdraw the illegal demand of Rs.20,12,783/- raised by it vide demand letter dated 16.9.2020. Opposite party no.1 has relied on statement of account dated 22.12.2018 attached with the reply filed to this application  to say that the complainant is liable to pay interest on account of delayed remittance of Rs.15,88,649.34 ps. Under these circumstances, to arrive, as to what amount the complainant is liable to pay to opposite party no.1 towards sale consideration in respect of the unit in question, this Commission is required to go through the earlier consumer complaint bearing no.209 of 2017, which contains all the details pertaining to the payment to be made and the payments made by the complainant to the company in respect of the unit in question. On perusal of entire record, it is found that the total sale consideration of the unit was fixed at Rs.44,80,406/- against which the complainant had paid an amount of Rs.44,35,796/- (Rs.42,56,869/- plus Rs.1,78,927/-)  i.e. more than 98% stood paid by him as far as back by 10.12.2014. Statement of accounts, Annexure C-28 to this effect issued by the opposite parties was also on record of consumer complaint bearing no.209 of 2017. It is significant to mention here that thereafter for the first time, vide letter dated 22.12.2018 and that too during pendency of appeal before the Hon’ble National Commission, that it was brought to the notice of the complainant that the area of the unit has been increased and accordingly the price of the unit was inflated to Rs.54,06,535/-.  Not only as above, even as per statement of accounts issued by the opposite party no.1, attached with this application, it is clearly depicted that not even a single penny is due to be paid by the complainant towards delayed interest. It is more significant to mention here that possession of the unit was ultimately handed over to the complainant on 21.05.2019 only. In this manner, the company utilized the amount paid by the complainant for more than 7 ½  years, without providing him anything. In the reply filed by opposite party no.1 to the earlier consumer complaint bearing no.209 of 2017, not even a single word has been mentioned by it that the complainant was defaulter  in making payment towards price of the said unit nor could have it raised such a plea because agreement/allotment letter was executed by opposite party after a long delay on 29.08.2014 and that too on requests made by the complainant, in writing. In this view of the matter, it is held that the demand raised by opposite party no.1 vide letter dated 16.09.2020, Annexure D-1 being illegal and arbitrary is ordered to be quashed. Accordingly, this application bearing no.47 of 2021  stands allowed and accordingly, demand letter dated 16.9.2020 is ordered to be quashed. What amount the complainant is liable to make will be decided in later part of this order.
14.           Coming to the question, as to whether, the complainant is entitled to get compensation for the period of delay after 20.01.2018 and if yes, upto which date and the quantum of compensation? It may be stated here that it is coming out from the record that possession of the unit in question was handed over to the complainant only on  21.05.2019 and that too on the directions of the Hon’ble National Commission vide order dated 01.05.2019, vide Annexure C-20, under protest. It is further evident from the record that thereafter, during pendency of the First Appeal No.2374 of 2017, the complainant wrote number of emails for the period from 21.06.2019 to 31.05.2020, Annexure C-21 colly. to opposite party no.1 pointing out various defects in the unit viz still doors sliders, cracks in walls, broken tiles etc. but there is nothing on record that the said defects were ever rectified by opposite party no.1. Thus, it was only thereafter that the Hon’ble National Commission passed order dated 27.01.2020 in First Appeal No.2374 of 2017 and also granted liberty to the complainant for which this complaint has been filed.
15.           The complainant in order to prove his case that the unit in question was not ready on 20.01.2018 has placed on record photographs dated 20.01.2018, Annexure C-11 colly. which show that still the work with regard to electricity, sewerage, tiling on roof, connections of water supply was not complete and work was also still being carried out. It is further coming out from the record that thereafter, when still  the work was not completed at the project site, the complainant again took photographs of the unit in October 2018 (at pages 110 to 112) till 20.01.2019, which show that still neither lift has been installed and made functional nor electricity work stood completed. Work with regard to plaster was also not completed. It was thereafter that the complainant took possession of the unit in question on 21.05.2019, vide certificate Annexure C-20, under protest.

At the same time, it is also evident from the said possession certificate that no defects in the unit in question have been reported to opposite party no.1 and on the other hand, it has been clearly stated in the said certificate that the complainant has taken over all the accessories of the unit in a satisfactory condition including electricity and water supply. Thus, from this certificate, it is proved that all the defects reflected in the photographs aforesaid stood rectified by opposite party by 21.05.2019 and it was only thereafter that possession was handed over to the complainant. In this view of the matter, it is held that the complainant is entitled to get compensation by way of interest @8% p.a. on the amount deposited for the period of delay starting from 22.01.2018 to 20.05.2019 (a day before handing over of possession to him) vide certificate Annexure C-20.

16.           Coming to the question, as to whether, the complainant is liable to pay any amount to opposite party no.1 towards remaining sale consideration? It is also an admitted fact that during pendency of appeal aforesaid before the National Commission, it was, for the first time, brought to the knowledge of the complainant that there has been an increase in the area and that total amount of Rs.12,90,556.72 ps. was due to be paid by him towards remaining sale consideration. It may be stated here that from the perusal of statement dated 05.01.2019, Annexure D-4 also reveals that  against basic sale price of Rs.43,35,291.72 ps., amount of Rs.42,56,869.02 stood received by opposite party no.1 from the complainant. It is therefore held that the complainant is liable to make remaining payment of Rs.12,90,556.72 only and not beyond that. At the same time, the complainant is also entitled to get an amount of Rs.10,81,813.26ps. i.e. the compensation calculated  below @8% p.a. on the deposited amount for the period of delay starting from the due date of possession i.e. from 28.05.2016 (due date of possession as per agreement) till 20.05.2019 (one day before taking over possession of the unit) plus Rs.25,000/- as cost of litigation, as under:-

Amount paid	From Date	To Date	Days	INTEREST @8%
800000.00	28-May-16	20-May-19	1087	190597.26
20600.00	28-May-16	20-May-19	1087	4907.88
441432.59	28-May-16	20-May-19	1087	105169.80
37967.41	28-May-16	20-May-19	1087	9045.61
72236.25	28-May-16	20-May-19	1087	17210.04
1000000.00	28-May-16	20-May-19	1087	238246.58
1263560.00	28-May-16	20-May-19	1087	301038.84
1.29	28-May-16	20-May-19	1087	0.31
29380.65	28-May-16	20-May-19	1087	6999.84
3251.07	28-May-16	20-May-19	1087	774.56
10000.00	28-May-16	20-May-19	1087	2382.47
600002.97	28-May-16	20-May-19	1087	142948.65
28090.00	28-May-16	20-May-19	1087	6692.35
129274.02	28-May-16	20-May-19	1087	30799.09
4435796.25				10,56,813.26
		Cost of litigation		25,000.00
				10,81,813.26

17.           In this view of the matter, the complainant is liable to make remaining payment of Rs.2,08,743/- to the opposite party no.1, as calculated below:-

 

Balance amount payable by the complainant to opposite
Compensation amount payable by opposite party no.1 to the complainant
Balance amount payable by the complainant to opposite party no.1 A-B)	(rounded of to Rs.2,08,743/-)

         

18.           For the reasons recorded above, this complaint is partly accepted with cost of Rs.50,000/- payable by opposite party no.1 to the complainant and is accordingly disposed off, with the direction that the complainant shall pay the remaining amount of Rs.2,08,743/- to opposite party no.1 within a period of 30 days from the date of receipt of a certified copy of this order failing which he shall be liable to pay the same alongwith interest @8% p.a. from the due date till realization.
19.           It is further made clear that since it has been directed that the complainant is required to pay the remaining amount of Rs.2,08,743/- after adjustments of the amounts by the parties, to each other, referred to above, as such, it is directed that in case the complainant has got released any amount from the Hon’ble National Commission or has received any amount from opposite party no.1 out of Rs.10,81,813.26ps. towards compensation for the period of delay, he shall be liable to refund the said amount to opposite party no.1 within a period of 2 months from the date of receipt of certified copy of this order failing which he shall be liable to pay the same alongwith interest @8% p.a. from the due date till realization.
20.           Complaint against opposite parties no.2 and 3 stands dismissed with no order as to cost. 
21.           Certified copies of this order be sent to the parties, free of charge.
22.           The file be consigned to Record Room, after completion.

Pronounced

29.11.2021.

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(PADMA PANDEY)

          MEMBER

 

 

(RAJESH K. ARYA)

MEMBER

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