Punjab

StateCommission

CC/663/2017

Hemraj - Complainant(s)

Versus

Ansal Housing and Construction Ltd. - Opp.Party(s)

Ajay Pal Singh

02 Feb 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,          PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No. 663 of 2017

 

                                                          Date of Institution   :  08.08.2017                     

                                                           Order Reserved on : 24.01.2018

                                                          Date of Decision     : 02.02.2018

 

1.      Hemraj son of Late Sh. Puran Chand, resident of PINE 303,   Ansal Woodbury Apartments, Zirakpur.

 

2.      Mrs. Pramila, wife of Hemraj, resident of PINE 303, Ansal        Woodbury, Apartments, Zirakpur.

 

                                                                                     ….Complainants

                                      Versus

 

Ansal Housing & Construction Ltd., Registered Office at 15, UGF, Indra Prakash, 21, Barakhamba Road, New Delhi 110001 through its MD

 

                                                                                 …Opposite parties

 

Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

              Smt. Surinder Pal Kaur, Member.

Present:-

          For the complainants       :  Sh. A.P Singh, Advocate

          For opposite party            :  Ex-parte

                      …………………………………………………………………………………….

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

                     The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OP on the averments that on the allurement of OP, they applied for allotment of a flat in the housing complex. The basic sale price of the flat was fixed as Rs.33,14,892/-, preferential location charges were summed up at Rs.88,350/-. The total basic cost of the flat in this case was of Rs.34,03,242/-. They paid a sum of Rs.50,000/- as booking charges. They had opted for down payment plan, in which at the time of submitting application, 15% amount had to be paid. They paid 80% payment within a period of 45 days from the date of allotment. At the time of offer of possession, 5% balance amount was to be paid. The allotment letter dated 08.06.2010 was issued in their favour. They paid Rs.50,000/- on 02.06.2010 and further amount of Rs.4,60,486/- was paid by them. A sum of Rs.3,22,594/- was paid by them on 10.08.2010 and Rs.24,00,000/- on 03.09.2010. But the builder/OP has neither completed the development work in all respects, as per terms and conditions of the license, nor complied with the building regulations. The completion and occupancy certificate has not yet been obtained by the OP, but allegedly the possession has been handed over to them on the pretext that all approvals and clearances have been taken by  the latter. Stilt parking, which  was promised by OPs has not been provided to them. They further averred that e-mail dated 04.06.2010 was received from OPs that possession would be handed over to them within 15 months from the date of booking. But, the possession was handed over to them after expiry of 48 months from the date of booking. The OP was not in a position to hand over the possession in the absence of completion certificate therefor. They alleged deficiency in service and unfair trade practice on the part of OP. They prayed that OP be directed to issue completion certificate, providing stilt parking, besides compensation for metal harassment and Rs.30,000/- as costs of litigation.

2.                OP was set exparte by this Commission, vide order dated 04.12.2017.

3.                The complainants tendered in exparte evidence affidavit of Hemraj complainant no.1 Ex.C-A along with copies of documents Ex.C-1 to Ex.C-10 and closed the exparte evidence.

4.                We have heard learned counsel for the complainants, as OP was exparte in this case and have also examined the record of the case. The grievance of the complainant, as pleaded in the complaint is on three points, first is that incomplete possession has been delivered to complainants by OP without any completion certificate, the possession has been delivered to them without all approvals and clearances taken from the authorities by OP. Second grouse of the complainants is that stilt parking was promised by the builders to be delivered to them, but it has not been provided to them. The third grievance of the complainants is that there is late delivery of possession without any compensation to them. The complainants relied upon Section 14 of Punjab Apartment & Property Regulation Act 1995 in this regard to the effect that no completion certificate has been obtained by OP from the competent authority to the effect that development work has been completed in all respects, as per terms and conditions of the licence granted to them under Section 5 of the PAPRA Act 1995. The complainants proved in affidavit on the record that OP/builder-promoter neither completed development work in all respects, as per terms and conditions of the licence nor complied with the regulations and all other formalities, which would have enabled them to get the completion certificate and occupancy certificate as enjoined by Section 14 of PAPRA Act 1995. The complainants alleged this aspect to be unfair trade practice on the part of OP. The complainants also pleaded and proved in exparte evidence on record that no stilt parking was provided to them till date, as promised by OP and hence OP is deficient in service on this point. The complainants further pleaded and proved in evidence on record that OP admitted this fact in e-mail dated 04.06.2010 to deliver the possession within 15 days from the date of booking, but possession has been delivered to them in incomplete position without any occupancy certificate and that too after expiry of 48 months from the date of booking. The basic sale price of the unit was fixed at Rs.34,03,242/-. The amount of Rs.50,000/- was paid by complainants at the time of booking on 02.06.2010 and 80% amount was paid to OP within 45 days from the date of allotment. 5% amount was to be paid at the time of final possession only. The allotment letter was issued on 08.06.2010 in favour of complainants. The complainants have alleged violation of PAPRA Act 1995 by OP in this case by delivering incomplete possession without approvals by the competent authority in this case. The complainants also pleaded and brought evidence that since possession was to be delivered to them within 15 months from the date of booking on 02.06.2010 and hence OP committed grave default in not delivering the possession to them uptill that date by travelling beyond 15 months period therefor. The complainant no.1/Hemraj brought on record his affidavit Ex.C-A in support of his averments on oath. Ex.C-1 is email regarding booking of flat making it clear that super area of flat is 1757 sq. ft and covered area is around 1484 sq. ft. Clause 2 of Ex.C-1 defines that covered car parking will be allotted on the ground floor of same tower in which allottee booked flat but place it has to be decided and will be tried to allot the allottee under his flat. Clause 7 of Ex.C-1 further makes it clear that possession will be tentatively delivered in 15 months from the date of booking by OP. The complainants paid booking amount to OP on 02.06.2010 and 15 months period has been counted from 02.06.2010. Ex.C-2 is brochure giving out the salient features of the project like entrance with security, entry to lift lobby, water bodies, park, jogging track, entrance to pavilion; children play area, club & convenient shopping and badminton court. But, none of the above facilities have been provided by OP to them. Even in Ex.C-1 covered parking was to be provided, which has not been done in this case, as per pleaded and proved case of the complainants. Ex.C-3 is booking of the flat PINE 303 by OP to complainant on 08.06.2010. Allotment letter with terms and conditions is also on the record. The receipts with regard to payment of money by complainants issued by OP are Ex.C-4 to Ex.C-7 on the record. Ex.C-8 is letter dated 28.09.2015 regarding allotment parking space and delay in possession on the record. Ex.C-9 is letter dated 22.12.2015 addressed to OP by complainants.

5.                From perusal of above exparte evidence on the record and hearing submissions of counsel for complainant, we find that the OP is deficient in service in delivering incomplete possession of the apartment to them without necessary approvals therefor. The OP is also deficient in service in not providing stilt parking to the complainants despite agreement to that effect. OP is also deficient in service in giving delayed possession to complainants. In this exparte complaint, the complainants have sought relief for the above-referred points. National Commission has held in "Yash Pal Marwaha versus Pushpa Builders Ltd & Anr," reported in II (2006) CPJ 259 (NC) that promoter has failed to deliver the complete possession, as promised with all amenities /facilities to be provided. He is deficient in service. The Hon'ble Supreme Court  has also held in "Faqir Chand Gulati versus Uppal Agencies Pvt. Ltd and Anr", in Civil Appeal no. 3302 of 2005, decided on 10.07.2008 that "where the builder commits breach of his obligations, the owner has the right to enforce specific performance and/or claim damages by approaching the civil court or he can approach the Forum under Consumer Protection Act, for relief, as consumer, against the builder as a service-provider." This authority further lays down that law require for completion certificate. The builder is bound to provide the completion certificate to allottee. He is also bound to provide the amenities and facilities like water, electricity and drainage in terms of the agreement. The completion certificate is not issued by competent authority because the builder has made deviations/violations in construction, it is his duty to rectify  those deviations or bring the deviations within permissible limits. The builder cannot say that he has constructed a ground floor, therefore, fulfilled his obligation. The builder cannot say that he is not bound to produce the completion certificate.

6.                In the circumstances of the case, the complaint of the complainant is exparte accepted and below noted directions are issued to OP :-

i)        OP is directed to deliver the completion certificate to       complainants, as mandated by Section 14 (ii) of PAPRA Act     1995          accompanied with the necessary approvals within a        period of three months from the date of receipt of certified copy      of the order.

ii)       The OP is also directed in this exparte complaint to provide the        stilt parking to complainants, as promised in Ex.C-1.

iii)      Since the possession was to be delivered by OP to         complainants within the stipulated period and OP committed      default by causing unnecessary delay in delivery of possession, hence the         complainants are entitled to          compensating therefor. Consequently, direction is issued to OP   to pay interest on the deposited amount to complainants @ 12% p.a from the scheduled date of  delivery of possession or     the payment of last installment till date of delivery of        completion certificate under Section 14 (ii) of PAPRA Act         1995          accompanied with the necessary approvals within a        period of    three months from the date of receipt of certified copy of the    order.

iv)      OP is also directed to pay Rs.30,000/- as cost of litigation to    complainants.

7.                Arguments in this complaint were heard on 24.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.

8.                The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                (SURINDER PAL KAUR)

                                                                                MEMBER

February 2,  2018                                                          

(ravi)