Chandigarh

StateCommission

A/100/2023

MOHIT NAGPAL - Complainant(s)

Versus

GREATOR NOIDA INDUSTRIAL DEVELOPMENT AUTHORITY - Opp.Party(s)

Appellant( In person)

21 Sep 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	100 of 2023
Date of Institution	:	22.05.2023
Date of Decision	:	21.09.2023

 

Mohit Nagpal aged 33 years son of Sh. Bhupinder Nagpal r/o House No.3233, Ground floor, Sector 35-D, Chandigarh.

……Appellant/Complainant

 

V e r s u s

1. Greater Noida Industrial Development Authority, 159, Chitvan Estate, Sector GAMMMA, Greater Noida City, Greater Noida, District Gautam Budh Nagar (U.P.) through its Managing Director/Director.
2. Managing Director Greater Noida Industrial Development Authority, 159, Chitvan Estate, Sector GAMMA, Greater Noida City, Greater Noida, District Gautam Budh Nagar (UP).

…..Respondents/opposite parties

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER

                            

Present:-    Sh.Bhupinder Nagpal, Father and Authorized Representative of the appellant.

                   Sh.Piyush Chandel, Advocate for the respondents (on VC).

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainant has assailed the order dated 27.03.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), vide which the consumer complaint bearing no.495 of 2021 filed by him was partly allowed as under:-

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

1. To handover the physical possession of the flat in question to the complainant complete in all respects after receipt of pending maintenance charges of Rs.51200/- from the complainant.  
2. to pay Rs.10,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.5000/- to the complainant as costs of litigation.

This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(i) &(iii) above..…..” 

 

2.           Before the District Commission, it was the case of the complainant that the opposite parties launched a scheme for allotment of residential flats in Sector OMICRON-1A in Greater Noida.  The complainant applied for the allotment of flat under the said scheme by fulfilling required formalities. The complainant was issued allotment-cum-allocation letter dated 16.8.2010, Annexure C-3 and the complainant fulfilled all requirements thereof and made payments as demanded from time to time by the opposite parties. However, despite the fact that as per the promise made, possession of the unit was to be delivered within a period of two years from the date of issuance of allotment letter but the opposite parties failed to do so, for want of development activities at the project site.  In 2016 the complainant was in urgent need of funds and he wanted to raise loan against the aforesaid property, as a result of which,  under compelling circumstances, he had to sign on the possession letter and give his satisfaction and the possession was handed over to him, but infact the project was not ready.   Thereafter, the complainant requested the opposite parties to complete the construction and development work at the project site but to no avail. Hence, he was forced to issue legal notice dated 14.8.2018 in the matter but was still of no use. Hence, consumer complaint was filed before the District Commission.
3.           In their reply filed, the opposite parties stated that in March 2016 they had issued offer of possession to the complainant and thereafter he had to execute lease deed within a period of 60 days. However, the complainant never approached the authority for issuance of possession certificate after getting the offer of possession letter for execution of lease deed. Lease deed of the flat of the complainant had already been registered before the Registrar on 18.04.2016. Now it is the duty of the complainant to deposit the copy of the registered sale deed before  the authority for issuance of possession certificate but despite knowing the fact that the lease deed had already been executed, the complainant, intentionally did not approach the opposite parties for issuance of possession certificate. Further the complainant admitted himself that he signed the draft possession letter by giving satisfaction. Possession Letter has been issued by the opposite parties on 08.03.2016 and the complainant was asked to get registration of sale deed of flat in question. A fully furnished flat was provided to the complainant with all the facilities. Further the complainant till now has not taken possession certificate from the opposite parties and without taking the possession certificate and without entering into the flat, he cannot raise question with respect to its condition. The complainant has executed lease deed on 18.04.2016 and as per office order allottees have to take possession certificate within a period of 30 days from the date of lease deed registration and failure to do so was to attract penalty. Since the  complainant has not taken the possession certificate, as such, Rs.51,200/- is pending against him as maintenance charges till date. As per clause ‘H’ of the brochure it has been specifically mentioned that flat will be accepted by the allottee "as is where is basis” on  lease for a period of 90 years unconditionally. The opposite parties had already issued offer of possession letter and lease deed had also been executed in favour of complainant and now the complainant is bound to accept and take possession letter from the authority and he cannot run from legal liability.
4.           In the rejoinder filed, the complainant reiterated all the averments of his complaint and controverted those of the opposite parties.
5.           The District Commission after hearing the contesting parties and on going through the material available on record partly allowed the consumer complaint and directed the opposite parties to deliver possession of the unit in question by holding as under:-

“……On perusal of documents on record, it is observed that the OPs have not adduced any documentary evidence that the flat in question was complete for physical occupation in all respects. It is apparent from photographs placed on record by the complainant vide Annexure C-4 that the flats in question are not inhabitable conditions. However, the OPs have not adduced any photographs showing the latest condition of the flat or that of surroundings area vide which they could have contradicted the plea of the complainant that the said flats are not fit for occupation and inhabitation. Thus, there is clear cut deficiency on the part of the OPs by not handing over physical occupation of the flat in question after completing it in all respects Hence, we are of the opinion that the OPs are liable to handover the physical possession of the flat in question to the complainant complete in all respects so that he can physically occupy the same and the complainant is also liable to pay the maintenance charges which  is pending to be paid to the OPs….”

6.           However, this appeal has been filed by the appellant/complainant for setting aside the order impugned and granting him relief of refund of the amount paid, alongwith interest etc. as he is no more interested in possession of the unit in question, on account of inordinate delay in the matter.  
7.           We have heard the contesting parties and carefully gone through the material available on the record
8.           The authorized representative of the appellant/complainant contended with vehemence that since there had been an inordinate delay in delivery of actual physical possession of the unit in question, for which  he had filed the consumer complaint before the District Commission seeking refund of the  amount paid in case the respondents are not in a position to deliver the possession, yet, despite the fact that the District Commission has recorded its findings to the effect that the unit in question was not ready for possession even by the date of arguments before it, yet, it fell into a grave error by ordering possession of the unit in question, instead of refund of the amount paid.  He further submitted that though possession handing over taking over certificate was got signed from him by the opposite parties and also lease deed was executed only because the said documents were required by him to produce before the bank, from which he was to raise personal loan. He further submitted that in case the order passed by the District Commission is not set aside, an irreparable loss will be caused to the appellant.  
9.           On the other hand, counsel for the respondents contended that since possession of the unit in question stood offered to the appellant vide letter dated 08.03.2016, Annexure R-1; lease deed was executed before the Office of the Registrar on 18.04.2016, Annexure R-2; and thereafter physical possession was also taken over by the appellant vide letter dated 03.06.2016, Annexure R-3, as such, now the appellant cannot seek refund of the amount paid in  respect of the unit in question.
10.           The moot question which falls for consideration is, as to whether, the appellant is entitled to get refund of the amount paid in respect of the unit in question or not?. It may be stated here that in order to answer this question, following question needs to be answered first:-
    1. Whether, the respondents have proved on record that all the construction and development work and also basic amenities were provided at the project site before offering possession of the unit in question or not?
    2. Whether, the respondents have obtained occupation and completion certificates before offering possession of the unit in question?
    3. Whether, actual physical possession of the unit in question stood delivered to the appellant or not?
11.           First, coming to the question as to whether, the respondents have proved on record that all the construction and development work and also basic amenities were provided at the project site before offering possession of the unit in question or not, it may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the project proponent. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, in case, the development/construction activities at the project were completed by 2016, then it was for the respondents, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, were completed by the year 2016 or not but they failed to do so. Under these circumstances, the respondents have attracted an adverse inference in the matter to hold that by the year 2016 i.e. the year  in which they claimed that genuine possession was offered and delivered to the appellant, all the construction and development work and also basic amenities, were not provided at the project site.
12.           The next question that falls for consideration is, as to whether, the respondents have obtained occupation and completion certificates before offering possession of the unit in question? It may be stated here that it is settled law that before offering and delivering possession of the unit to the buyers, the project proponent is legally bound to obtain occupation and completion certificates from the competent authorities. However, despite the fact that the authorized representative of the appellant has taken a specific plea in its appeal and also has vehemently argued that respondents have not obtained occupation and completion certificates from the competent authorities and in the absence of the said certificates, it can never be presumed that the project is complete in all respect and is habitable, yet, the respondents have failed to place on record these certificates. On the other hand, had these occupation and completion certificates been obtained by the respondents, they could have easily placed on record to prove their stand that the project is complete and all respects and it would have been very easy for them to rebut the pleas taken by appellant in this regard but they miserably failed to do so, despite having number of opportunities, before the District Commission or this Commission.  Under these circumstances, left with no alternative, this Commission has to draw an adverse inference against the respondents that they have failed to obtain occupation and completion certificates in respect of the project in question.    
13.           The next question that falls for consideration is, as to whether, actual physical possession of the unit in question stood delivered to the appellant in May 2016 or not? It may be stated here that it is settled law that the project proponent is duty bound to obtain occupation and completion certificates from the competent authority before offering possession of a unit/plot and at the same time, in the absence thereof, no person shall take possession of an apartment until such occupation certificate is obtained. It is also so envisaged under Section 14 (1) of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties of the Punjab Apartment and Property Regulation Act, 1995 which says that the project proponent is duty bound to obtain occupation and completion certificates from the competent authority before offering possession of a unit/plot. Further, Section 3 (2) (j) of the said Chapter provides that no person shall be allowed to enter into possession until an occupation certificate required is duly given by the appropriate authority and no person shall take possession of an apartment until such occupation certificate is obtained.                                           Even the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015 held that the allottee is not obliged to take possession of the unit in the absence of completion certificate. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

                   Thus, once it has been held above that the respondents have failed to prove that they have completed the construction and development work and basic amenities by the year 2016 or even thereafter and at the same time it is not proved that they have obtained occupation and completion certificates from the Competent Authorities, as such, it can easily be said that even if for the sake of arguments, it is assumed that possession of the unit in question stood offered in the year 2016, symbolic possession whereof was delivered to the appellant on 03.06.2016, even then it cannot be said that the appellant was delivered actual physical possession of the unit in question.

                   Even otherwise, there is another valid reason with this Commission to hold that only paper possession was delivered to the appellant in the year 2016 vide letter dated 03.06.2016, Annexure R-3 because there is another letter dated 24.05.2017 (at page 41 of the appeal file) having been issued by the respondents to the appellant,  whereby, the appellant was asked to take over actual physical possession of the unit in question. When, the counsel for the respondents was asked to give his justification on this letter dated 24.05.2017, he very hesitantly replied that it was sent by mistake alongwith other allottees but this Commission is not convinced with this reply. Had possession of the unit in question been delivered to the appellant vide letter dated 03.06.2016, there would have no reason with the respondents to issue letter dated 24.05.2017 thereafter.  In this view of the matter, it is held that since the respondents have neither been above to prove that the construction and development activities at the project site were complete at the project site in the year 2016 nor they have obtained occupation and completion certificates from the competent Authorities, as such, actual physical possession of the unit in question was not delivered to the appellant in the year 2016 or even thereafter. 

14.           The unit in question was booked as far as back in the year 2010, yet, the actual physical possession of the unit in question was not delivered to the appellant even by June 2021, as a result of which, he was compelled to file consumer complaint before the District Commission on 28.07.2021. There has been an inordinate delay in the matter. Hard earned money was paid by the appellant, with a hope to have his unit, which has been dashed to the ground. All the facts established that from the very inception there was intent to induce the appellant to enter into the transaction, referred to above, and also intent to deceive him, which act amounts to grave deficiency in providing service, negligence and adoption of unfair trade practice on the part of the respondents, which has definitely caused a lot of mental agony, harassment and financial loss to the  appellant. The Hon’ble Apex Court in the case of Fortune Infrastructure & Anr. Vs. Trevor D’Lima & Ors. – (2018) 5 SCC 442 and the Hon’ble National Commission in the case of Parsvnath Exotica Resident Association Vs. Parsvnath Developers Ltd. & Ors., Devidayal Aluminium Industries (P) Ltd.  – IV (2016) CPJ 328 (NC), Subodh Pawar Vs. M/s Ireo Grace Realtech Pvt. Ltd. – CC No. 1998/16 decided on 24.09.18 and Amita Arora Vs. M/s. Ireo Grace Realtech Pvt. Ltd. – C.C.No.696/2017 decided on 27.03.2019, has held that the Courts are at liberty to grant the relief which is justified and warranted in the facts and circumstances of the case and the consumer/complainant cannot be asked to wait for indefinite period for the delivery of actual physical possession of the allotted units. Thus, keeping in mind the peculiar facts and circumstances of the present case, we are of the considered opinion that if the amount paid by the appellant, against his unit, is ordered to be refunded alongwith interest and compensation, that will meet the ends of justice.  However, the District Commission fell into an error by ordering the appellant to take over possession of the unit in question, in the facts and circumstances referred to above.
15.           The appellant is therefore held entitled for refund of the entire amount paid by him, towards the unit in question, alongwith interest @12% p.a. from the respective dates of deposits onwards, in view of  ratio of law laid down by the Hon’ble National Commission in Alok Kumar Vs. M/s. Golden Peacock Residency Private Limited & Anr., Consumer Case No. 1315 of 2018, decided on 06 Sep 2019; Anil Kumar Jain & Anr  Vs. M/s. Nexgen Infracon Private Limited (A Mahagun Group Company), Consumer Case No. 1605 of 2018, decided on 23^rd Dec 2019; Dr. Manish Prakash Vs. M/s. Chd Developers Ltd., Consumer Case No. 1527 of 2018, decided on 14.09.2021 and also in M/s Phoenix Infra Pvt. Ltd., Vs. Paramjit Kaur Tiwana, FA No.1855 of 2017 decided on 04.05.2022, wherein, under similar circumstances  award of interest @12% p.a. on the amount to be refunded by the developer to the complainants was upheld.
16.           Keeping in view the above discussion, the impugned order passed by the District Commission is set aside. Resultantly, this appeal stands partly allowed. The respondents/opposite parties  jointly and severally are directed as under:-

1. To refund the entire amount received from the appellant/complainant in respect of the unit in question alongwith compensation by way of interest @12% p.a., without deducting any TDS, to the appellant/complainant, from the respective dates of deposit onwards, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, thereafter, the said amount shall carry 3% penal interest i.e. 15% p.a. (12% p.a. plus (+) 3% p.a.), from the date of default, till realization.
2. To pay compensation for causing mental agony and physical harassment and also cost of litigation, in lumpsum, to the tune of Rs.75,000/- to the appellant/complainant, 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 default, till realization.

17.           Certified copies of this order be sent to the parties, free of charge.
18.           The appeal file be consigned to Record Room, after completion and record of the District Commission concerned be sent back immediately.

 

Pronounced

21.09.2023

 

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 

 

 

Rg