Chandigarh

DF-II

CC/520/2019

Mr. Ajay Gulati S/o Sh. Lajpat rai Gulati - Complainant(s)

Versus

Silvercity Housing & Infrastructure Ltd. - Opp.Party(s)

Adv. Pankaj Chandgothia

02 Aug 2023

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	520 of 2019
Date  of  Institution	:	06.06.2019
Date   of   Decision	:	02.08.2023

 

 

 

 

 

1]  Mr.Ajay Gulati s/o Sh.Lajpat Rai Gulati,

2]  Mrs.Vijayata Gulati w/o Mr.Ajay Gulati,

Both residents of Flat No.164/F, Block B-6, Sixth Floor, Silver City Themes, Industrial Focal Point, Derabassi, Distt. Mohali, Punjab

                              …...Complainants

                                               Versus

1]  Silvercity Housing & Infrastructure Ltd. Regd. Office: House No.89, Sector 8-A, Chandigarh through its C.M.D.

 

2]  Silvercity Housing & Infrastructure Ltd. site Office, Silver City themes, Village Bhankarpur, M.C. Derabassi, District Mohali, through its Site Manager.

 

3]  M/s Silvercity Infra Maintenance, Plot No.101 A, Silver City, Zirakpur, Distt. Mohali, through its Manager.

 

4]  Shital Singh Bains, CMD, Silvercity Housing & Infrastructure, Ltd. Regd. Office: House No.89, Sector 8-A, Chandigarh.

 

5]  The Residents Welfare Association Silver City Themes, Silver City Themes, Village Bhankarpur, M.C. Derabassi, District Mohali, through its Secretary.

 

    ….. Opposite Parties

 

BEFORE: MR.AMRINDER SINGH SIDHU,      PRESIDENT

                 MR.B.M.SHARMA,   MEMBER

         

Present       :         Sh.Pankaj Chandothia, Counsel of complainant

                Sh.Ramneek Vasudev, Counsel of OPs No.1 to 4

Sh.Bhushan Kumar Garg, Representative of RWA Silvercity Themes, OP NO.5 ((OP No.5 already exparte)

 

 

ORDER BY AMRINDER SINGH SIDHU, M.A (Eng.),LLM,PRESIDENT

 

                By dint of this common order, we propose to dispose off two (02) connected consumer complaints i.e. present consumer complaint and another consumer Complaint No.519/2019 – Sanjeev Kumar Gupta & Anr. Vs. Silvercity Housing & Infrastructure Ltd. & Ors.

 

2]      The facts are gathered from C.C.No.520/2019 – Ajay Gulati & Anrs. Vs. Silvercity Housing & Infrastructure Ltd. & Ors.

               

                The complainants filed present complaint under Section 12 of the Consumer Protection Act, 1986 (Now Section 35 of Consumer Protection Act, 2019) pleading that the opposite party floated a scheme for allotment of residential apartments and flats, about 990 in number, under the name and style of "Silver City Themes". The official of the OPs started promoting the scheme much before even the actual drawings were made and even before the actual grant of licenses to develop the Land was granted. The complainants, who are husband and wife and co-allottees, were in urgent requirement of a residential unit in a developed area, they were taken in by the promises floated by the agents/officials of the OPs. Taken in by the promises and representations made by the OPs, the complainants bought a Flat in the said apartments. The complainants paid the entire demanded amount towards the complete cost of their respective Flat. It shall be pertinent to mention here that the OP charged amount in excess of that represented and also the OPs have taken different amounts from different people who have bought flats of the same size. A copy of the advertisement issued by the OPs, is annexed with the complaint as Annexure C-1. A perusal of the advertisement /Block B-6, Sixth floor, Silver City Themes. A copy of the Agreement between the builder and complainants was annexed as Annexure C-2. For the purpose of the present case, it shall be useful to refer to concerned para of the said agreement which details the responsibility of the OPs regarding maintenance services. The Builder has taken charges as under from each purchaser, including the complainants:-

A.  Builder charged Rs. 1,90, 160/- for open road car parking,

B. Rs. 60,000/- for Power backup (generators) from each purchaser, including the complainant, and

C.  Rs.25,000/- for Club House (Community centre), from each purchaser/allottee, including the complainant.

D.  Rs. 18,000/- Towards Cost of Electric Meter.

 

         A copy of the Receipt dated 04.04.2015, in the case of the complainant was annexed as Annexure C-3. Charges have been taken for 100% Power Back Up from 732 sold out flat owners totaling about Rs.4.39 crores, but only 4 generators have been provided which are wholly insufficient to give hundred percent back up. The Project started in the year 2003-04 and still after 14 years, the project was not completed. No completion or occupation certificate has been issued to the builder for the said project by any competent authority. A Partial Completion certificate cannot in any manner be considered to be fulfillment of the terms and conditions and clauses of PAPRA Act, which categorically lays down that possession can only be offered only after receiving the completion certificate. The PCC dated 27.6.2017 has been issued subject to fulfilment of various conditions, which have also not been fulfilled till date. A copy of this letter is annexed hereto as Annexure C-4. Even otherwise, this has been issued only on 27.6.2017 and even if, for the sake of arguments, we take it as a completion certificate, the builder has offered and given possession of flats much prior to 27.6.2017 and therefore all such possessions are invalid and cannot sustain in the eyes of law. It shall be pertinent to mention here that the complainants are not seeking refund of the flat price. They are only seeking the promised and necessary facilities and services and compensation and damages for delaying the provision of promised and necessary services. Moreover, the said letter itself says that the final completion certificate will be issued only after completion of all formalities and compliance and obtaining NOCs from all concerned departments. A copy of the Possession Certificate of the complainants dated 03.04.2016 is annexed as Annexure C-5.  It shall also be useful to refer to the POSSESSION CERTIFICATE issued by the builder. A possession certificate issued on 03.04.2016 reads: "Allottee is provided basic services and amenities including Temp electricity, water, sewerage etc. However, allottee is aware & understands that formal services of the project are under process." This itself shows that a defective possession has been given. The possession certificate is not as prescribed under PAPRA Act. The OPs have indulged in unfair trade practice and gross deficiency in service. There is no transparency and objectivity in the working of the OPs. They have never given any commitments and accounts in writing, so that they can charge various amounts as per their whims and fancies and also indulge in over-charging. The RWA of the project had approached RERA for redressal of its grievances against the OPs, but the authority has disposed off the complaint as not maintainable as the said project was found to be not registered under the provisions of RERA Act. This amounts to another gross deficiency in service as a mandatory govt. requirement is being deliberately ignored by the builder. A copy of the said order dated 25.2.2019 is annexed hereto as Annexure C-10. The OP builder is also liable and at fault u/s 59 of the RERA Act. The complainants have been put to a lot of mental & physical harassment due to the gross deficiency in service & Unfair trade practice on the part of the OPs. Lastly complainants prayed that the OPs be directed to immediately provide the promised amenities/facilities i.e. "individual covered car parking facility, 100% Power back-Up, Club Facility, Fencing/Boundary wall, white wash of towers/common areas, mandatory 2 working lifts in each block, working and certified firefighting equipment, basic CCTV cameras surveillance and Security Systems in the said Apartments. It is also prayed that the OPs be directed to handover the maintenance of the society to the residents' welfare society alongwith the funds collected on this account and to refund the amounts wrongly and excessively charged from the complainants, including Builder charges Rs.1,90,160/- for open road car parking, Rs. 60,000/- for Power backup (generators) from each purchaser, including the complainants, and Rs.25,000/- for Club House (Community centre) from each purchaser/allottee, including the complainant, Rs 18000/- towards Cost of Electric Meter and a sum of Rs. 5,00,000/- as consolidated compensation for the various deficiencies and shortcomings and non-provision of promised and mandatory services and amenities, including the refund of the amounts wrongly and excessively charged from the complainants and a sum of Rs. 4 lakhs be imposed on the OPs as token compensation for the physical and mental harassment caused to the complainants.

 

3]       The OPs No.1 to 4 have filed their joint written version stating that the complainants has filed the present complaint on the false and totally misconceived facts in order to harass and humiliate the opposite parties, so that they may bow to the unwarranted demands of the complainants. The opposite parties started the referred venture after obtaining all the requisite approvals from the concerned authorities. The O.Ps firmly stated that OP's have adhered to all the promises made and the allegations are misconceived, vague and has been leveled against for the sake of allegations only. The Complainants have already taken over the possession by signing the satisfactory note thereto. It is stated that catena of the judgment passed by Hon'ble National Commission in the case titled Harpal Arya Versus Housing Board, Haryana in Revision Petition NO. 3338 of 2007, clearly suggests that since the complainants have already taken over the possession that too without any preconditions, it does not lie in the mouth of the complainants to state grievances as the relation of consumer and Service provider ceases to exist, hence the present complaint is not maintainable on that ground alone. The opposite parties also stated that they have already acquired the completion certificate from the concerned authorities which emboldens the contention that the project under reference has already been completed. The O.Ps also stated that the complainants have miserably failed to release the payments as and when it fell due. To bolster the said contention reference is made here of numerous letters/demand notices served upon the complainants from time to time. The above said factum has been concealed with the ulterior motive to file the present complaint. The present complaint is an abuse of process of law. The complainants are guilty of indulging into Supresso Veri and Sugestio Falsi. The complainants are guilty of concealing material facts from this commission, besides being guilty of misleading this Commission, as such has committed perjury with this Hon'ble Commission. The O.Ps stated that from the allegations made in the complaint, it is crystal clear that the complainants wishes to take benefits of their own wrongs in a dishonest manner with no allegations of deficiency of service survives on the face of it wants to extort money. Had the complainants not satisfied with the services provided by the opposite parties, they would not have acquired possession at relevant time. Further O.P.s stated that the alleged dispute between the parties is purely of civil nature; therefore, the same can only be decided by a civil court of competent jurisdiction. Further the case in hand involves such intricate questions of facts and law, which can only be adjudicated by conducting a proper trial in the form of evidence and cross examination of the witnesses. The O.P.s objected that the present complaint is bad for non-joinder and misjoinder of parties. The O.P.s alleged that the pleadings of the complainant is not specific but vague. The O.Ps too stand that there does not arise any cause of action in favour of the complainants and against the Opposite parties. The complaint is devoid of any merits and deserves dismissal. On merits, The O.P.s denied all the allegations made against them by the complainant & lastly prayed for dismissal complaint with costs.

 

         OP No.5 was proceeded exparte vide order dated 30.7.2019 as it failed to appear despite service of notice. 

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the Counsel for the parties and have gone through the entire record including written arguments.

 

6]      The complainants themselves have alleged in Para No.8 of their complaint that the project of the OPs started in the year 2003-04.  So, it is clear that the project started 20 years ago.  The complainants, who are husband and wife, co-allottees bought the flat in question from the OPs.  The ‘Agreement to Sell’ was made on 04.07.2011 between the parties vide parties agreed to the terms and conditions of the agreement dated 14.12.2010 between themselves.  In the Agreement to Sell certain terms and conditions were imposed by the buyer including mode of payment of installments in time, failing which certain interest and penalties were to be imposed. 

 

7]       The complainants have alleged that the OPs have taken charges as per receipt dated 04.04.2013 under from them:-

1. Rs.1,90,160/- for Open Car Parking;
2. Rs.60,000/- for Power Back-up;
3. Rs.25,000/- for Club House (Community Centre)

 

4. Rs.18,000/- towards cost of Electric Meter.

 

         The complainant alleged that a copy of the receipt dated 04.04.2015, in the case of the complainants was annexed as Annexure C-3.  So, the complainants alleged that they have made payment of Total of amount of Rs.2,93,160/- on 04.04.2015 for the above mentioned facilities.  The possession of the flat in question was delivered to the complainants on 03.04.2016.  So, the complainants can file a complaint against the OPs within a period of 2 years of limitation because the complainant were well aware of the above mentioned deficiency/non-providing of facilities by the OPs on the date of taking the possession.  It is not the case of the complainants that they discovered these deficiencies later on or these deficiencies come to their knowledge after taking possession. The complainants are well aware of the above mentioned deficiencies right from 04.04.2015 when the OPs charged from the complainants regarding it and thereafter on 03.04.2016 when complainant took the possession of the flat, so their period of limitation expired on 02.04.2018 after the date of arisen of cause of action on 03.04.2016.

 

9]       Any complaint seeking compensation from the OPs, shall make a complaint within 2 years after taking possession of the flat against the Builder for any shortcomings in the flat and complaint is bound to be dismissed on the ground of limitation.  The law prescribes 2 year’s limitation from the date of arisen of cause of action which in the present complaint arose on 03.04.2016 especially when the shortcomings/ deficiencies are visible and in the complete knowledge of the complainants when they took possession of flat on 03.04.2016.

 

           The Hon’ble Supreme Court of India in case of State Bank of India Vs. B.S. Agriculture Industries (2009) 5 SCC 121, while explaining the scope of Section 24-A of the Act, has observed as under:-

          The expression, `shall not admit a complaint' occurring in Section 24 A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder.:-

       “As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and, therefore, the aggrieved party would be entitled to have such order set aside.” 

11]      Taking into consideration the above discussion and findings, we are of the opinion that the present complaint as well as connected complaint, referred to in Para No.1 above, are not maintainable being barred by limitation. Therefore, both the complaints stands dismissed.  No order as to costs.

 

12]      Pending application, if any, stands disposed of accordingly.

 

        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

02.08.2023                             

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

 (B.M.SHARMA)

MEMBER