Chandigarh

DF-I

CC/247/2023

HARISH CHANDER - Complainant(s)

Versus

AMBIKA REALCON PRIVATE LIMITED THROUGH ITS DIRECTORS - Opp.Party(s)

AMARDEEP SINGH WALIA

26 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

 

                    

Consumer Complaint No.	:	CC/247/2023
Date of Institution	:	12/05/2023
Date of Decision	:	26/04/2024

 

1. Harish Chander S/o Sh.Todar Mal, R/o H.No.23, Bank Colony, Karnal, Haryana.
2. Shobha Anand W/o Sh.Harish Chander, R/o H.No.23, Bank Colony, Karnal, Haryana.

… Complainants

V E R S U S

1. Ambika Realcon Pvt. Ltd. through its Directors, Corporate office SCO 18-19, Sector 9 Madhya Marg Chandigarh.
2. Diwaker Bansal, Director, Ambika Realcon Pvt. Ltd., Corporate office SCO 18-19, Sector 9 Madhya Marg Chandigarh.
3. Ritesh Sehgal, Director, Ambika Realcon Pvt. Ltd., Corporate office SCO 18-19, Sector 9 Madhya Marg Chandigarh.

… Opposite Parties.

CORAM :	PAWANJIT SINGH	PRESIDENT
	SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

 

                                                

ARGUED BY	:	Sh.Amardeep Singh Walia, Advocate for Complainants.
	:	Sh.Manpreet Singh Longia, Advocate (through VC) and Ms.Jyoti Kaur, alongwith Sh.Paras Sharma, Advocates for OP No.1.
	:	OP No.2 & 3 ex-parte.

Per Surjeet kaur, Member

1.      Averments are that the complainant had booked flats with the OP No.1. The complainants were allotted residential Apartment No.305, on 3^rd Floor, in project Florence Park being developed by the OP No.1, having super built area 1270 sq. ft. in New Chandigarh for a price of Rs.37,07,608/-. The complainant paid a sum of Rs.22,68,750/- in December 2017. The complainants entered into buyers’ agreement with OP on 16.4.2018. The complainant further paid a sum of Rs.13,11,981 on January, 2019 and 31^st January 2019 (Annexure C-1 to C-7). As per the buyer’s agreement clause 7 the possession of the flat was to be delivered by 31.03.2020 unless it is delayed due to any reasons covered under ‘Force Majeure’ is Annexure C-8. The OP No.1 failed to give possession to the complainants as per the schedule and as per the knowledge of the complainants no occupancy certificate or the completion certificate has been given to the OP’s. The OP’s have only been issued partial completion certificate dated 11.01.2022. It is further alleged that the OP’s have charged an extra price of Rs.1,22,880/- on account of increase in super area of the flat. The internal area of the flat remains exactly the same and has not been changed. It is also alleged that a sum of Rs.40,800/- has been charged as annual maintenance charges even though the project is not complete and only partial completion certificate has been given to the OPs. The project as whole is not complete and lot of construction work is still in progress and the many facilities promised by the OPs have not been provided for. The OPs conduct of not completing and delivering possession of the units within stipulated time, charging annual maintenance charges without completing the project and charging for increased area without changing any internal area of the flat. Hence, is the present consumer complaint.
2.     OP No.1 contested the consumer complaint, filed its written reply and stated that due to the onset of the Covid-19 Pandemic, the Hon’ble Chairman of Real Estate Regulatory Authority Punjab, had issued a circular dated 28.08.2020 to the effect that for all the projects in state of Punjab, wherein the completion date was due on or before 15.03.2020, the period of validity of such projects shall be automatically extended by 6 months from the original date. However, in terms clause 1.6 of the agreement, in case of increased area, it was agreed between the parties that in case the area of the flat is increased by 5% then the buyer would be bound to pay up to 5% of the increased area only. In the present case, the area has been increased by 122 sq. feet, but in terms of the agreement, the OP have only charged for increased area 43 sq. ft. Therefore, while issuing the letter for offer of possession, a demand of Rs.1,22,880/- was raised from the complainants on account of increased area and other consumables. On these lines, the case is sought to be defended by OP No.1.
3.     Notice of the complaint was sent to OP No.2 & 3 for seeking their version of the case. However, nobody appeared on behalf of OP No.2 & 3 despite service, therefore, they were proceeded ex-parte on 10.07.2023.
4.     Despite grant of sufficient opportunity, no rejoinder was filed by the complainants to rebut the stand of the OP No.1, hence, opportunity to file rejoinder was closed vide order dated 11.08.2023.
5.     Parties led evidence by way of affidavits and documents.
6.     We have heard the learned counsels for the parties and gone through the record of the case.
7.     It is an admitted fact that the apartment in question was booked by the complainant in December, 2017 with the OPs and as per buyer’s agreement the promised date of possession was 31.03.2020, but in fact the same was handed over to the complainant on 02.02.2022 after the settlement of his account with delay of almost two years.
8.     Through the present complaint, the complainant is seeking the compensation for delay in handing over the possession alongwith refund of amount charged by the OPs on account of increase in area as well as on account of an annual maintenance charges. So far as the question of refund of amount for increase in area and annual maintenance charges is concerned, to our mind it is evident from the record that the complainant has already taken the possession in 2022 without any protest. Hence, these two reliefs being not maintainable cannot be allowed to be granted to the complainant.
9.     So far as the question of delayed offer of possession is concerned to clarify the same, the complainants have drawn our attention towards the clause 7.6 of the buyer’s agreement which is reproduced as under:-

         CLAUSE 7.6

    “7.6 Compensation:- The promoter shall compensate the Allottee in case of any loss caused to him due to defective title of the land, on which the project is being developed or has been developed, in the manner as provided under the act and the claim for compensation under this section shall not be barred by limitation provided under any law for the time being in force.

    Except, for occurrence of a Force Majueure event, if the promoter fails to complete or is unable to give possession of the Apartment (i) in accordance with terms of this Agreement, duly completed by the date specified herein; or (ii) due to discontinuance of his business as a developer on account of suspension of or revocation of the registration under the Act; or (iii) any other reason, the promoter shall be liable, on demand to the allottee, in case the Allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the total amount received by him in respect of the Apartment, with interest at the rate specified in the Rules within Ninety days from the date of return of original documents, including compensation in the manner as provided under the Act.

    Provided that where the Allottee does not intend to withdraw from the Project, the promoter shall pay to the Allottee interest at the rate specified in the Rules for every month of delay, till handling over of the possession of the Apartment”.

    21. The next questions that falls for consideration is, as to whether, the complainants are entitled to get compensation for the period of delay in delivering possession of their respective units and if yes, to what extent? It is clearly depicting from record that there was delay on the part of OPs in delivering possession of the respective unit to the complainants. OPs through their written statement have stated that delay was on account of force majeure circumstances i.e. due to COVID-19 the construction and development was put at halt for some period and that the competent Authorities extended the period of completion of the project, vide circular dated 28.10.2020, Annexure R-1/2 of COVID-19. Resultantly, the competent Authorities extended the period of completion of the project, for a period of 6 months because of COVID-19. Thus, in our considered opinion, OPs are entitled to get immunity of these 6 months from the actual date of possession of the unit in question to the complainants. However, it is coming out from the record that even by the extended period of 6 months also, possession of the unit in question was not offered to the complainants. Thus, in our considered opinion, by not offering and delivering possession of the units in question by the promised dates or even within the extended period of 6 months due to COVID-19, referred to above, OPs are deficient in providing service and guilty of adoption of unfair trade practice In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No.11097 of 2018. decided on 19 November, 2018 under similar circumstances, the Hon'ble Supreme Court of India has upheld the order of the Hon'ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. 

10.     In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. To pay @ 9% per annum for the period of delay of the possession of the unit from 31.09.2020 till 02.02.2022 on the deposited amount.
2. to pay an amount of ₹30,000/- to the complainants as compensation for causing mental agony and harassment to them.
3. to pay ₹10,000/- to the complainant as costs of litigation.

11.     This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
12.     Pending miscellaneous application, if any, also stands disposed of.
13.     Certified copies of this order be sent to the parties free of charge. The file be consigned.

			Sd/-
26/04/2024			[Pawanjit Singh]
Ls			President
			Sd/-
			[Surjeet Kaur]
			Member
			Sd/-
			[Suresh Kumar Sardana]
			Member