BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA.

Satinder Kumar Saggu son of late Inderjit Kumar, resident of House No.116, Phase-3B1, Mohali.

….Complainant

Versus

1.      Hanumanta Land Promoters Private Limited. Registered Office House No.326, Sector 10, Panchkula through its Managing Director, Anand Kumar. 

2.      Anand Kumar son of Sh. Mohan Lal, Managing Director, Hanumanta Land Promoters Private Limited, resident of house No.596, Sector 4, Panchkula, District Panchkula.

….Opposite Parties

Present:     Sh.Mukund Gupta, Advocate for complainant.

                  OPs No.1 and 2 ex-parte vide order dated 26.11.2020.

                                                      And

Satinder Kumar Saggu son of late Inderjit Kumar, resident of House No.116, Phase-3B1, Mohali.

….Complainant

Versus

1.      Hanumanta Land Promoters Private Limited. Registered Office House No.326, Sector 10, Panchkula through its Managing Director, Anand Kumar. 

2.      Anand Kumar son of Sh. Mohan Lal, Managing Director, Hanumanta Land Promoters Private Limited, resident of house No.596, Sector 4, Panchkula, District Panchkula.

….Opposite Parties

Present:     Sh.Mukund Gupta, Advocate for complainant.

                  OPs No.1 and 2 ex-parte vide order dated 26.11.2020.

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT,  2019.

Before:       Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

ORDER

(Satpal, President)  

1.      By this order we shall be disposing of the two consumer complaints bearing Nos. 279 of 2019 & 280 of 2019 by a common order as by and large similar question of law and facts are involved in the same.

2.      For the sake of brevity and to avoid repetition, facts are being taken from consumer complaint bearing No.279 of 2019 (Satinder Kumar Vs. Hanumanta Land Promoters Pvt. Ltd. & Anr.) as agreed by the Ld. counsel for the complainant.

3.     Briefly stated the facts as alleged in the complaint are that the complainant, looking for a flat, was taken in by the presentation made on behalf of Ops herein that a residential project (under the mega housing project called Micro Homes Project) situated at Village Desumajra, Jhandpur, Kharar, Mohali (Punjab) would be developed within a period of two years and it would have all the facilities required for a good living. On a projected complex of the project and handing over of possession within a period of two year, the complainant purchased a 2nd floor flat (bearing No.C-23) measuring 750 sq. feet in that project and entered into an agreement dated 07.03.2017 (Annexure C-2) which (Agreement) also indicated the manner in which the payment was to be made. The total agreed price was Rs.17 lacs. The complainant made a total payment of Rs.17,00,000/- on 07.03.2017 itself and at the time when the amount was paid, the complainant was assured that possession of the flat will be delivered within two years from the date of signing of the Flat Buyer’s Agreement or the date of booking whichever is later. The Complainant has paid whole of the sale consideration amount well within time to the Ops and there was no delay on the part of the complainant to make the payment, but till date Ops has not delivered the possession of the flat allotted to the complainant despite the fact that the complainant has been visiting the office of the OPs number of times with a request to deliver the possession of the flat to the complainant. Though the Ops were required to deliver the possession of the flat to the complainant by 07.03.2019, but till date has not delivered the possession of the flat to the complainant despite spent his hard earned money with the Ops. The complainant having suffered huge financial losses on account of the delay in handing over the possession of the flat is left with no alternative but to seek the refund of the deposits made with the Ops. Hence, this complaint.

4.           Notices were issued to the Ops No.1 and 2 through registered post (earlier and later through Peon/Process Server) several times. As per the report of Peon/Process Server of this Commission, notices issued to Ops No. 1 and 2 have been served twice for putting their appearance. But they did not appear before this Commission.  Hence, due to non appearance of Ops No.1 and 2, they were proceeded ex-parte by this Commission vide order dated 26.11.2020.

5.          To prove his ex-parte claim, the learned counsel for the complainant has tendered the evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-3 and closed the evidence.

6.      We have heard learned counsel for the complainant and have gone through the entire record available on record including written arguments filed by the learned counsel for the complainant, carefully and minutely.

7.           Evidently the plot no.C-23(Annexure C-1) in Micro Homes SCO-18-19, Megha Market, Opp. Naval, Air Force, Group Housing Society, Sunny Enclave, Sector-123, Greater Mohali(PB)  was allotted in favour of the complainant for a consideration of Rs.17,00,000/- as per allotment letter (Annexure C-1). As per condition no.17 of the Flat Buyer’s Agreement (Annexure C-2), possession of the flat was to be delivered within a period of two years from the date of signing of Flat Buyer’s Agreement i.e. 07.03.2017. The grievances of the complainant are that the OPs have not been performing their part of obligation as envisaged vide Flat Buyer’s Agreement(Annexure C-2) regarding delivery of possession of the flat to the complainant. It is contended that the apartment is ready at the site and in support of this contention, affidavit has been placed on record during the course of arguments. The application sent by the complainant requesting for the delivery of the possession of the said flat vide application dated 27.02.2019 (Annexure C-3) has also failed to evoke any positive response. During the course of arguments, it has been pointed out that several identical complaints involving similar question of law and facts have already been decided in favour of the consumers against the present OPs. It is submitted that the OPs have neither offered the possession of the flat to the complainant nor refunded the deposited amount by him so far. It has been prayed that the OPs be directed to handover the physical possession of the flat to the complainant after obtaining the occupation certificate from the competent authority. Further, a compensation of Rs.1,50,000/- on account of mental agony and harassment and Rs.50,000/- on account of litigations charges have also been claimed.

8.               The OPs No.1 & 2 did not appear to contest the claim of the complainant and preferred to be proceeded ex-parte, for which adverse inference is liable to be drawn against them. The non-appearance of the OPs No.1 & 2 despite notice shows that they have nothing to say in their defence or against the allegations made by the complainant. Therefore, the assertions made by the complainant go un-rebutted and uncontroverted.

9.               On the other hand, the complainant has very  well corroborated and substantiated his version by placing on record his affidavit Annexure C-A alongwith documents C-1 to C-3.

10.             As per well settled legal propositions, a builder/colonizer is under legal obligation to deliver the possession of the flat/plot within a reasonable period/or within the stipulated period as per the terms and conditions of the Flat Buyer’s Agreement. In the present case, we find that the OPs have not offered or delivered the possession of the flat in question to the complainant despite the receipt of sum of Rs.17,00,000/- from the complainant as consideration of the flat and thus, have failed to adhere to the terms and conditions as stipulated vide Clause No. 17 of the Flat Buyer’s Agreement  dated 07.03.2017(Annexure C-2) vide which it was mandatory on the OPs to offer/deliver the possession of the flat in question within a period of two years from the date of flat buyer’s agreement dated 07.03.2017(Annexure C-2) or the  date of booking whichever is later. Therefore, we find the OPs deficient while rendering services to the complainant; Hence, the complainant is entitled to relief.

11.             Now, coming to the relief, we find that as stated by the Ld. counsel for the complainant that amount deposited by the complainant with the OPs has not been refunded so far as stipulated vide clause 19 (f) of the Flat Buyer’s Agreement dated 07.03.2021(Annexure C-2); thus, the complainant is entitled to the delivery of possession of flat in question. Hence, it would be fair and proper to direct the OPs to offer the possession of the booked flat in question to the complainant after completing all the developments works pertaining to basic facilities as well as obtaining the occupation certificate as per law from the competent authority.

12.             As per Clause 17(a) of the Flat Buyer Agreement (Annexure C-2), it was imperative upon the opposite parties to offer the possession of the flat within a period of two years from the date of the signing of the Flat Buyer Agreement (Annexure C-2) i.e. 07.03.2017 or from the date of booking of the flat in question. Evidently, the OPs have failed to adhere to the said terms regarding delivery of possession of the flat to the complainant. At this stage, it is pertinent to mention here that in case of any default in the payment of price of the flat on the part of the complainant, the OPs by virtue of clause 12 of the Flat Buyer’s Agreement dated 07.03.2017 (Annexure C-2), are authorized to charge an interest @ 24% P.A. for delay upto 90 days and thereafter @36% on the outstanding amount. However, there is no penalty clause, in case, there is default on the part of the Ops/builders in delivering the possession of the flat.  As per well settled legal preposition, in a catena of judgments delivered by the Hon’ble National Commission as well as Hon’ble Apex Court, the consumers/allottees are held entitled to receive the amount of compensation from the builders/colonizers i.e. OPs, in case of, non-delivery of possession of the flat/plot. The Hon’ble Supreme Court in case titled as Wg.Cdr.Arifur Rahman Khan and Aleya Sultana and Ors. Vs. DLF Southern Homes Pvt Ltd.(now known as BEGUR OMR Homes Pvt. Ltd.) and ors. decided on 24.08.2020 in Civil Appeals No.6239 of 2019 & 6303 of 2019  has  granted  the simple interest @6% per annum to the consumer/ allottee/complainant on the deposited amount, in addition to penalty amount/charges admissible to the consumers as per agreement, on account of delayed delivery of the possession. In another case titled as DLF Home Developers Ltd.(earlier known as DLF Universal Ltd) and Another Vs. Capital Greens Flat Buyers Association Etc. decided on 14.12.2020 in  Civil Appeal Nos. 3864-3889 of 2020, the Hon’ble Apex Court has held that the interest @6% per annum on the deposited amount is payable on account of delayed delivery of the possession. Since  there is no provision of penalty charges in the Flat Buyers Agreement dated 07.03.2017(Annexure C-2), in case of default on the part of OPs i.e. builders in delivering the possession of the flat, in our considered opinion, it would be just, fair and proper to grant the simple interest @ 9% p.a. on the deposited amount after the expiry of two years from the date of Flat Buyers Agreement dated 07.03.2017(Annexure C-2) till the offer of possession is made to the complainant. In this regard, we may, safely, place reliance upon the order dated 22.07.2021 passed by Hon’ble State Consumer Disputes Redressal Commission, U.T.Chandigarh in complaint no.85 of 2020 titled as Dharminder Singh Sidhu & anr. Vs. M/s Manohar Infrastructure & Constructions Pvt. Ltd & Others wherein, in similar facts and circumstances, interest @9% on the deposited amount has been granted apart from direction to deliver the possession.

13.             As a sequel to the above discussion, we partly allow the present complaint with the following directions against the OPs:-

1. That the OPs are directed to make the offer of possession of the Flat No.C-23 & C-26 measuring 750 sq.feet on second floor, in Micro Homes Project situated at Village Desumajra, Jhandpur, Kharar, Mohali (Punjab) to the complainant after obtaining the occupation certificate/completion certificate from the competent authority as per law. 

2. That the OPs shall pay simple interest @9% p.a. in both cases on the deposited amount after the expiry of two years from the date of Flat Buyers Agreement i.e.07.03.2017 till the offer of possession is made to the complainant.

3. That the OPs shall pay an amount of Rs.10,000/- on account of mental agony and harassment and further to pay Rs.5,500/- as cost of litigation charges in each case.

14.             The OPs No.1 to 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 2 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

15.             The complaint bearing no.280 of 2019 involving similar question of law and facts is ordered to be allowed in similar terms as passed in this Complaint no.279 of 2019. Certified copy of this order be placed in the said connected complaint files mentioned above i.e. C.C.No.280 of 2019.

Announced:16.08.2021

Dr.Sushma Garg            Dr. Pawan Kumar Saini          Satpal

         Member                   Member                     President

Note: Each and every page of this order has been duly signed by me.

   Satpal                                                    

 President