Chandigarh

StateCommission

CC/81/2022

CHAMAN LAL AHUJA - Complainant(s)

Versus

SUSHMA BUILDTECH LIMITED - Opp.Party(s)

NAVEEN SHEOKAND ADV.

28 Apr 2023

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	81 of 2022
Date of Institution	:	22.11.2022
Date of Decision	:	28.04.2023

 

Shri Chaman Lal Ahuja son of Shri Mool Chand resident of 213/1, Ram Nagar, Ambala City, Barara, Ambala, Haryana- 134003 SPA Holder of Jatinder Kumar Ahuja son of Chaman Lal Ahuja and Geetanjali Ahuja Wife of Jatinder Kumar Ahuja R/o Apartment No. 508, Abraj Al Lulu Silver Tower, Building No.1803, Road No. 5133, Block No. 351, Kingdom of Bahrain.

•  

Versus

1. M/s Sushma Buildtech Limited, Unit No. B-107, Business Complex at Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh through its Wholetime Director Sh. Bharat  Mittal

Email:- group.sushma2005@gmail.com

2. Binder Pal Mittal, Managing Director of M/s Sushma Buildtech Limited, r/o H.No.233, Sector 7, Panchkula- 133001.

…..Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                      MR. RAJESH K. ARYA, MEMBER

 

Present:-       Sh.Naveen Sheokhand, Advocate for the complainants.

Sh.Vishal Singal, Advocate for the opposite parties.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   This complaint has been filed by the complainants, through their  Special Power of Attorney Holder- Shri Chaman Lal Ahuja,  seeking directions to the opposite parties to deliver possession of the unit bearing no.D-303, 3^rd Floor, 3 BHK, measuring 1130.01 square feet (super area 1885 square feet) Tower No.D, in their project named ‘Sushma Chandigarh Grande’, Village Bishangarh, Ambala Chandigarh Highway, Zirakpur, SAS Nagar, Mohali, Punjab (in short the unit), total sale consideration whereof was fixed at Rs.68,56,550/- plus GST.  Alongwith the relief of delivery of possession of the unit in question, the complainants have also sought compensation for the period of delay in possession and also for mental agony and harassment besides litigation expenses. It is the definite case of the complainants that possession of the unit in question was required to be delivered by the opposite parties on or before 18.07.2020, as envisaged in clause 7.1 of the agreement dated 19.07.2018, Annexure C-3 but they failed to do so, despite the fact that they had paid substantial amount of Rs.65,92,800/-. It has been stated that possession of the unit in question  was offered vide letter dated 01.09.2022, Annexure C-4, which too was incomplete and was containing illegal charges qua delayed payment interest, maintenance charges despite the fact that possession was not taken over etc. because the unit was not liveable. The complainants were asked to take possession by 01.10.2022 followed by reminder letter dated 23.09.2022. It has been averred that possession of the unit was not taken over by the complainants because it was not habitable/liveable and the discrepancies were brought to the knowledge of the opposite parties, in writing. However, to the utter shock of the complainants thereafter, the opposite parties terminated the possession.  It has been stated that during the period intervening, the opposite parties vide email dated 11.10.2022, Annexure C-8 asked the complainants to make payment of Rs.7,58,150/- after adjustment of delayed compensation for the period of delay in offering possession plus maintenance charges of Rs.31696/-, yet, the other grievances remained unaddressed. Hence this complaint.

2.           Their claim has been contested by the opposite parties on numerous grounds, inter alia,
   1. that the complaint is defective as it has been filed by Chaman Lal Ahuja  who is not the complainants(s) but only Special Power of Attorney holders of the complainants;
   2. that this Commission did not vest with pecuniary and territorial jurisdiction;
   3. that the complaint filed is beyond limitation;
   4. that deficient court fees is paid by the complainants;
   5. that the complainants being investor did not fall within the definition of consumer;
   6. that because the project in question has been registered under RERA and also the agreement in question has been executed under RERA as such in that event, this complaint is not maintainable before this Commission;
   7. that in the face of existence of clause 33 in the agreement providing amicable settlement in the matter and failure upon the same through Adjudicating Officer to be appointed under RERA, this consumer complaint is not maintainable;
   8. that despite the fact that possession of the unit in question was offered to the complainants, vide letter dated 01.09.2022, after obtaining partial completion certificate dated 15.03.2022, Annexure R-8, with subsequent reminders in the matter, yet, they failed either to make the remaining payment of Rs.16,27,788/- nor took possession by 01.10.2022 and on the other hand have filed this complaint;
   9. that failure to take possession of the unit by the complainants attracted delayed payment interest on the amount not paid by them;
   10. that when the complainants failed to take over possession of the unit in question and also to make remaining payment, despite reminders, allotment of the unit in question stood cancelled vide letter dated 23.11.2022, Annexure R-7;
   11. that the period of possession was subject to force majeure circumstances and as such, any delay on the part of the opposite parties in offering possession of the unit in question, between March 2020 to May 2022 is excluded from the time of possession, in view of the order passed by the Hon’ble Supreme Court of India, because of COVID-19; and
   12. that because the allotment of unit stood cancelled, as such, now the complainants are entitled to get refund of thier amount paid, after applying forfeiture  clause as per the agreement.
3.           On merits, purchase of the unit in question by the complainants; payments made by them as mentioned in the complaint; that there was delay in delivering possession of the said unit, has not been disputed by the opposite parties. Prayer has been made to dismiss the complaint with costs.
4.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written statement filed by the opposite parties.
5.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments by the parties, wherein they have reiterated their contentions.
6.           We have heard the contesting parties and have gone through the entire record of the case, including the written arguments, very carefully.
7.           First coming to the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers. Objection taken in this regard therefore stands rejected.
8.           Now we will deal with the objection taken by the opposite parties with regard to pecuniary jurisdiction. It may be stated here that in exercise of powers conferred by provisos to sub-section (1) of Section 34, sub-clause (i) of clause (a) of sub-section (1) of section 47 and sub-clause (i) of clause (a) of sub-section (1) of section 58 read with sub-clauses (o), (x) and (zc) of sub-section (2) of section 101 of the Consumer Protection Act, 2019, the Central Government has notified the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, to the effect that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore. In the present case, if total sale consideration paid by the complainants towards the unit in question is Rs.65,92,800/- which fell above Rs.50 lacs and below Rs.2 crores. In this view of the matter this Commission has got pecuniary Jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
9.           Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Fora within the territorial limits of which that occurs. In the instant case, record reveals that almost all the documents mentioned below have been executed/issued by the opposite parties from their Corporate Office located at Unit No.B-107, Business Complex, Elante Mall, 1^st Floor, Industrial Area, Phase 1, Chandigarh-160002:-
   1. Agreement of sale dated 19.07.2018, Annexure C-3
   2. Possession demand letter dated 01.09.2022, Annexure C-4
   3. Offer of possession demand letter dated 01.09.2022
   4. Possession reminder letter dated 23.09.2022, Annexure C-5
   5. Letter dated 19.10.2022, Annexure C-7 and
   6. Email dated 11.10.2022, Annexure C-8.

Thus, in view of above, it can easily be said that the opposite parties were actually and voluntarily residing and carrying on business from their Registered and Corporate Office at Chandigarh and personally work for gain thereat. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken, thus, stands rejected.

10.           Now coming to the objection taken by the opposite parties to the effect that in the face of registration of the project under the RERA, jurisdiction of this Commission is barred to entertain this complaint, it may be stated here that the said objection 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 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.
11.           There is no dispute with regard to the fact that the complainants have purchased the unit in question, in the said project of the opposite  parties, for which, they had already paid an amount of Rs.65,92,800/- against total sale consideration of Rs.68,56,550/- plus GST. Though, possession of the unit in question was required to be delivered by the opposite parties on or before 18.07.2020, as envisaged in clause 7.1 of the agreement dated 19.07.2018, Annexure C-3, yet, it is coming out from the record that possession thereof was offered to the complainants for the first time vide letter dated 01.09.2022, Annexure R-4 wherein they were asked to take possession on or before 01.10.2022. However, without waiting for the said period, reminder dated 23.09.2022, Annexure R-5 was sent by the opposite parties in the matter followed  by letters dated 19.10.2022 and 23.11.2022. It is significant to mention here that it is coming out from the record that on receipt of the  offer of possession letter aforesaid followed by reminders, the complainants vide email dated 30.11.2022, Annexure C-10 intimated the opposite parties that though they were anxiously waiting  to take possession and to pay the balance amount, yet,  the unit is not habitable. Request was made to complete the pending work. Alongwith this email, pending list of work as well as photographs of the said pending works in the unit in question were also attached. Relevant part of the said email is reproduced hereunder:-

 

“……Jatinder Ahuja <jkahuja2004@yahoo.com>

To: Amandeep Tiwana <amandeept@sushmabuildtech.com> Cc: Shweta Kapila <shweta@sushmabuildtech.com>

 

Wed, Nov 30, 2022 at 8:09 PM

 

Dear Amandeep

 

We are surprised with your letters.

 

We are anxiously waiting to take possession and ready to pay the balance amount but the current condition of the Apartment is not good enough to take possession.

 

As per details of pending activities in attached file, please confirm completion of these balance activities, make the apartment liveable, send us the proof of completion the pending work and thereafter send a fresh possession letter.

Looking forward to receive the confirmation and proof of balance activities to the required quality standards and a fresh possession letter enabling us to pay the balance amount.

 

Best regards

 

Jatinder Kumar Ahuja

Geetanjli Ahuja

 

DETAILS OF PENFDING WORK CONFIRMING INCOMPLETENESS OF THE UNIT D303 FOR POSSESSION

 

SBL has not provided the completion/occupation certificate from Competent Authorities.

 

In addition to the above completion certificate, the following major incomplete work was noticed during first inspection carried out on 30-Sep-2022, which confirm that Unit is not ready for possession and is not in a liveable condition.

 

1. Duct pipes are to be covered

 

2. In kitchen top stone yet to be placed

 

3. In all wash rooms sanitory work is pending

 

4. Balcony grills are yet to be painted

 

5. All doors and alimrah yet to be paint and polished

 

6. In small room plaster is to be done in a broken wall

 

7. Wooden floor is pending

 

(PLEASE NOTE THAT THE ABOVE POINTS ARE JUST THE MAJOR POINTS OBSERVED DUIRNG FIRST INSPECTION. SBL TO ENSURE THAT UNIT IS MADE READY IN ALL RESPECTS TO MAKE IT SAFE AND LIVEABLE CONDITION. FINAL ACCCEPTANCE OF THE UNIT BY US WILL BE SUBJECT TO FINAL INSPECTION AFTER THE UNIT IS COMPLETED AND RE-OFFERED FOR POSSESSION)

 

Photos certifying the above incomplete work are as under:…….”

 

12.           A bare perusal of the contents of email and also the photographs attached therewith clearly reveals that the unit in question was not habitable even as on 30.11.2022, as various basic amenities like sanitary fittings, kitchen work, paint work, wooden flooring, some plaster work etc. were still not complete. These deficiencies can easily be seen in the photographs also. In our considered opinion, these basic amenities are of such a nature that in the absence thereof, the unit cannot be occupied. We are surprised, as to how, in the absence of these basic amenities, partial completion certificate dated 15.03.2022, Annexure R-8, in respect of the tower in question stood issued by the Municipal Council Zirakpur.

                   Be that as it may, since it has been proved on record that though possession of the unit in question stood offered vide letter dated  01.09.2022, Annexure R-4, yet, it was not habitable because of the deficiencies referred to above, which are of such a nature, that the unit could not been occupied before completing the same, as such, we are of the considered opinion that the opposite parties cannot cancel the allotment, under these circumstances, especially, when the complainants had already paid substantial amount of amount of Rs.65,92,800/- against total sale consideration of Rs.68,56,550/-. It is significant to mention here that though the opposite parties are claiming that the allotment of unit in question stood cancelled vide letter dated 23.11.2022, Annexure R-7, yet, when we go through the contents of the said letter, it is found that it is only just a demand letter of Rs.11,94,304/- and not a cancellation letter. The complainants are therefore held entitled to get possession of the unit in question, after completion of the amenities, referred to above, by the opposite parties.  

13.           As far as objection taken by the opposite parties to the effect that the complaint is defective as it has been filed by Chaman Lal Ahuja  who is not the complainants(s) but only Special Power of Attorney holders of the complainants, it may be stated here that in para no.1 of the complaint itself, it has been clearly stated by Sh.Chaman Lal Ahuja, that he is the father and Special Power of Attorney Holder of the complainants-Jatinder Kumar Ahuja and Geetanjli Ahuja, in whole referred to the owner of the properties. Thus, in the very first instance, it has been made clear by  Sh.Chaman Lal Ahuja, that he is only the special power of attorney holder of the complainants-Jatinder Kumar Ahuja and Geetanjli Ahuja. Under these circumstances, the mere fact that Sh.Chaman Lal Ahuja has written in the head-note of the complaint as Shri Chaman Lal SPA Holder of Jatinder Kumar Ahuja and Geetanjli Ahuja i.e. the  allottees/complainants, is not a ground to dismiss this complaint. Even otherwise, this Commission will pass any order in this complaint, keeping in mind the fact that it is the  Jatinder Kumar Ahuja and Geetanjli Ahuja who are the complainants and not Sh.Chaman Lal Ahuja. It is significant to add here that the Consumer Protection Act, is a beneficial legislation, to provide speedy, inexpensive and hassle free redressal to the grievance of the consumers. The provisions of the Code of Civil Procedure, except the one, provided under Section 13(4) of the Act, and the Evidence Act are not applicable to the consumer disputes. The Consumer Foras are to evolve their own procedure, for adjudicating the consumer disputes, by resorting to the principles of natural justice, but are not required to enter into technicalities, with a view to deny the substantial justice to the parties. It was also so said by the Hon’ble Supreme Court of India, in the case of V. KishanRao  Vs, Nikhil Super Speciality Hospital and another, CIVIL APPEAL NO.2641_ OF 2010, (Arising out of SLP(C) No.15084/2009), decided on  March 8, 2010. Relevants contents of the said order reads thus:-

“The Forum overruled the objection, and in our view rightly, that complaints before consumer are tried summarily and Evidence Act in terms does not apply. This Court held in the case of Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee and others reported in (2009) 9 SCC 221 that provisions of Evidence Act are not applicable and the Fora under the Act are to follow principles of natural justice”

 

In view of above, objection taken by the opposite parties in this regard stands rejected.

14.           As far as objection taken to the effect that this complaint is time barred, it may be stated here that since it is an admitted fact that possession of the unit in question has not been actually delivered to the complainants, even by the date when arguments were heard in this complaint for dearth of completion of basic amenities referred to above, as such, there is a continuing cause of action in their favour, in view of principle of law 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 possession of the residential units is not offered, there is a continuing cause of action in favour of the allottee/buyer. Objection taken in this regard, as such, is rejected.
15.           The next question which falls for consideration is, as to whether, the complainants are  entitled to get any delayed compensation or not. It may be stated here that admittedly, as per clause 7.1 of the agreement, possession of the unit in question was to be delivered by the opposite parties on or before 18.07.2020 but on the other hand, the same had been offered only on 01.09.2022, Annexure C-4 and that too was incomplete.  However, this Commission is also not oblivious of the fact that lockdown in the country was announced on 25.03.2020, which was lifted in April 2020. This Commission is also aware of the fact that under those circumstances, the Government of India, Ministry of Housing and Urban Affairs, Housing Section, vide office memorandum dated 13.05.2020 had extended the registration and completion date or revised complete date or extended completion dates by 6 months due to outbreak of COVID-19. Thus, in our considered opinion, the opposite parties are entitled to get immunity of these 6 months from the actual date of offering possession of the unit in question i.e. possession should have been delivered to the complainants  latest by 17.01.2021 (06 months from 18.07.2020). However, it is coming out from the record that even by the said date (17.01.2021) also, possession of the unit in question was not offered to be complainants and on the other hand, it was offered on 01.09.2022 and that too was incomplete.  Thus, in our considered opinion, by not offering and delivering possession of the unit in question by the promised date or even with the extended period of 6 months due to COVID-19, referred to above, the opposite parties are deficient in providing service and guilty of adoption of unfair trade  practice.  
16.           Thus, by not offering  and delivering actual physical possession of the unit in question to the complainants for such a long time and on the other hand, offering possession without completion of basic amenities, referred to above, the complainants have definitely gone through tremendous of mental agony, harassment besides 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 Basanta Kumar Nandy & 14 Ors.  Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in our considered opinion, in the present case, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards till delivery of actual possession thereof, that will meet the ends of justice.

17.           Now coming to the objection taken by opposite parties with regard to court fees, we have gone through the requisite documents and found that correct fees to the tune of Rs.2,000/- being the claim of the complainants  above Rs.50 lacs and below Rs.2 crore, has been paid by them. Objection taken in this regard, as such, being frivolous, is rejected.
18.           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 possession of the unit in question, to the complainants after removing the defects/deficiencies pointed out by them,  if not yet removed, within a period of 30 days from the date of receipt of a certified copy of this order, on receipt of the remaining sale consideration, without charging any delayed payment interest/holding charges.
2. To pay compensation by way of interest @9% p.a. starting 17.01.2021 till 30.04.2023, on the entire deposited amount, 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 penal interest @12% p.a. from the date of default till this payment is made. However, the opposite parties are at liberty to deduct the amount, if any, paid by it to the complainants towards part delayed compensation out of the aforesaid payable amount qua compensation for the period of delay.
3. To pay compensation  by way of interest @9% p.a. on the entire deposited amount w.e.f. 01.05.2023, onwards (per month), by the 10^th of the following month to the complainants till actual delivery of physical possession of the unit, complete in all respects, as ordered in clause (i) above.
4. To pay lumpsum compensation for mental agony and harassment; and cost of litigation to the tune of Rs.50,000/- to the complainants, 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 @9% p.a. from the date of  passing of this order till realization.

 

19.           Consequently, application bearing no.868 of 2022 filed by the complainants seeking delivery of possession of the unit in question stands disposed of, accordingly.
20.           Certified Copies of this order be sent to the parties, free of charge.
21.           The file be consigned to Record Room, after completion.

Pronounced

28.04.2023

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 Rg.