JUSTICE V.K. JAIN, PRESIDING MEMBER The respondent / complainant and his son Hemjeet Singh jointly booked a residential flat in a project, which the appellant no. 1 was to develop in Zirakpur, Mohali. The booking was made in November, 2007 and the sale consideration was agreed at Rs.23,88,276/-. The possession, according to the complainant / respondent was agreed to be delivered within 18/24 months after completing the flat in all respects. The possession of the flat however, was offered only on 21.8.2012. The offer was accompanied by a demand of Rs.2,36,661/-. An additional demand of Rs.49,045/- was thereafter raised towards maintenance charges. Both the aforesaid payments were made by the complainant, who claims to have paid an excess amount of Rs.60,154/- to appellant No. 1. According to the complainant / respondent when he went to take possession on 25.09.2012, he found that the bathrooms were not complete, electric wiring etc. had not been provided and there were several defects and deficiencies in the flat offered to him. The complainant therefore refused to take possession of the flat and asked appellant No. 1 to remove the aforesaid defects and deficiencies. The appellant No. 1 however, failed to remove the said defects and deficiencies but kept on raising the bills for maintenance charges, through appellant No. 3, which was opposite party No.3 in the complaint, namely Sunrise Estate Management Services, which is stated to be a sister concern of the appellant. Being aggrieved, the complainant / respondent approached the concerned State Commission by way of an appeal, seeking possession of the said flat, along with compensation and a direction to the appellants to develop the park in front of the tower in which the flat allotted to him was situated or in the alternative, refund a sum of Rs.61,050/- along with interest and damages quantified at Rs.5.00 lacs on account of the consequent reduction in the value of the flat. He also sought refund of Rs.49,045/- which he had paid towards maintenance charges along with interest on that amount @ 21% per annum. 2. The complaint was resisted by the appellants, who admitted the booking of the flat on 23.11.2007 as well as the payment of Rs.60,154/- towards preferential location charges. They also admitted that the possession of the flat was offered only on 21.8.2012. It was further stated in the reply that on account of the change in the location of the flat, the amount of Rs.60,145/- has been credited in the account of the complainant. It was further stated that the complainant did not turn up to take possession of the flat, despite which possession having been offered to him. 3. The State Commission vide its order dated 03.8.2015, issued the following directions to the appellants: (A) (i) to remove the defects from the flat and to deliver the possession thereof, complete in all the respects, within three months of the receipt of the certified copy of this order; (ii) to pay interest at the rate of 9% per annum on the total amount of Rs.24,92,976.28P (Rs.25,54,024.70P minus Rs.61,048.42P), round off to Rs.24,92,976/-, from the dates of deposits till the date of delivery of possession; (iii) to pay Rs.1,00,000/- as compensation for the mental pain and harassment suffered by the complainant on account of deficiency in service and (iv) to pay Rs.11,000/- as the litigation expenses. (B) Opposite party No.3 is directed to refund the sum of Rs.49,045/- received as the maintenance charges, along with interest at the rate of 9% per annum from the date of deposit of that amount till the payment thereof and not to charge any amount as maintenance charges till it enters into an agreement to that effect with the complainant. Being aggrieved from the aforesaid directions, the appellants are before this Commission by way of this appeal. 4. The first question which arises for consideration in this appeal is as to whether there was any delay on the part of the appellants in offering possession of the flat to the complainant and his son. As noted earlier, the case of the complainant is that the appellant No.1 had assured to deliver possession within 18/24 months. However, there is no documentary evidence of such an assurance having been given to the complainant and his son. Ordinarily, in such transaction a particular time for delivery of possession is always given by the builder to the flat buyer and this is not the case of the appellants that they had given a period longer than 24 months to deliver possession of the flat to the complainant and his son. However, even if it is assumed that no such assurance was actually given, it can hardly be disputed that the appellants were under an obligation to deliver possession of the flat within a reasonable time. Considering all the facts and circumstances, a maximum period of three years from the date of booking, in my opinion, would be reasonable for completing the construction, finishing of the flat in all respects, obtaining the requisite occupancy certificate and offering possession of the flat to the complainant and his son. Since according to the appellants, the booking was made on 23.11.2007; the possession ought to have been delivered by 22.11.2010. That having not been done, the appellant No. 1 is required to pay adequate compensation to the complainant and his son for the delay in offering possession after completing the construction and finishing of the flat in all respects. 5. It is an admitted position that the possession of the flat was offered for the first time vide letter dated 21.8.2012 sent to the complainant / respondent Jotinder Singh. The said letter was issued in his sole name instead of issuing the same in the joint name of the complainant and his son. The complainant claims to have delivered a handwritten letter dated 25.9.2012 to the appellants pointing out the defects and deficiencies noticed by him on inspection of the aforesaid flat. The case of the appellants is that the aforesaid letter was not received by them. The complainant has not filed any acknowledgement of the said letter. However, the complainant has placed on record several other letters sent to the appellants, along with postal receipt whereby the said letters were sent by registered post. In the letter dated 11.2.2013, the complainant specifically referred his earlier letter dated 25.9.2012 and also annexed a copy of the said letter. The letter dated 11.2.2013, was sent by registered post as is evident from the postal receipt filed by the complainant. There is a statutory presumption of the service of the said notice upon appellant No.1 Ansal Housing and Construction Ltd. since it bears the complete and correct address of the said company. The appellant No.1 did not send any reply to the aforesaid letter dated 11.2.2013. Had the letter dated 25.9.2012 not been received by it, appellant No.1 would, on receipt of the letter dated 11.2.2013, have written to the complainant that the earlier letter dated 25.9.2012 referred in the body of the letter dated 11.2.2013 had not been received by it. The silence adopted by appellant No.1 in this regard, despite receipt of the letter dated 11.2.2013 from the complainant clearly indicates that even the letter dated 25.9.2012 had been received by them. 6. The following deficiencies were brought by the complainant to the notice of appellant No.1 vide letter dated 25.9.2012: 1. Electrical fitting, meters, wiring are not complete; 2. Modular Kitchen with chimney; 3. Bathroom fitting incomplete; 4. Many places seeping is there, require immediate attention; 5. Doors and locks etc. 6. TV security system. The letter dated 25.9.2012 and 11.2.2013 were followed by a letter dated 15.2.201 sent by registered post. Vide said letter dated 15.2.2013, the complainant sent several photographs of the flat in question to the appellant No.1. The aforesaid letter, to the extent it is relevant, reads as under: “……. I visited the flat on 13.2.2013 and sending you the photographs to apprise you regarding incompletion / defects of the flat even at present. The condition of the flat and its readiness can be vizualized from the following photographs. (Photograph 1) Kitchen – Sink tub, water tap fitted and chimney still not provided which was assured at the time of booking at the time of inaugural offer in 2007. (photograph 2) Broken door provided in the bed room which requires immediate replacement of door.Another door which opens in balcony from drawing room cannot be opened as the attendant told that the lock of the door is damaged from inside. (Photographs 3 & 4) Both bathrooms are incomplete.Electrical wiring and fitting, looking glass, water taps etc., not provided. (photograph 5 & 6) Due to seeping / moisture, the complete wall paint from roof to floor damaged.If it is not attended, it may continue to create problem afterwards.Further, rain water droplets fall inside the balcony due to wrong level of bottom wall of parapet.These droplet splashes to door and wall, which results in damage of wall.This can be easily rectified now also. Secondly, it can be seen from photograph that rain water also accumulates in balcony thus creating damage of paint and wall. (photograph 7 & 8) all electrical wiring including MCB, switches, switch board are not provided yet. (photograph 9) water accumulates in balcony attached to bedroom along the wall and door frame which causes seeping / moisture which results in damage of wall paint and also to door frame. TV security display equipment not installed so far.
We are bringing this to the knowledge of your main office to apprise about the condition of the flat. We are doubtful that these defects and deficiencies will be attended once possession is taken over and we have to suffer later on. We have made full payment for flat and visited the flat many times but nothing moves to attend deficiencies / defects. We request you to complete the balance work and attend deficiencies / defects at the earliest”. The complainant thereafter sent a letter dated 12.2.2013 to appellant No.3 Sunrise Estate Management Services, stating therein that he had already taken up the matter with appellant No.1 and that the flat was not ready till date. The aforesaid letter was also sent by registered post. The appellant also sent a letter dated 20.12.2013 to appellant No.2 Deepak Ansal, Chairman & Managing Director of Appellant No.1, stating therein that appellant No.1 wanted to hand over incomplete flats and appellant No.3 had started imposing huge charges in respect of an incomplete flat. There was absolutely no response from any of the appellants to the aforesaid letters sent to them by the complainant. The conduct of the appellants in not responding to the aforesaid letters pointing out several defects and deficiencies in the flat offered to the complainant, clearly shows that the construction and finishing of the flat was not complete in all respects and that was the reasons the appellants did not bother to respond to the aforesaid letters. 7. The photographs annexed to the letter of the complainant dated 15.2.2013 which are annexed R-4 to R-8 reveals several defects in the flat offered to the complainant. No sensible buyer is expected to accept the possession of the flat in such a pathetic condition. The complainant therefore, was fully justified in not accepting the possession of the flat in the aforesaid condition. 8. When this appeal came up for hearing on 12.2.2016, this Commission directed the appellants to remove all the defects in the flat sold to the complainant by 31.3.2016. When the appeal came up for hearing on 13.7.2016, it transpired during the course of hearing that the flat allotted to the complainant and his son was complete in all respects and only TV security system remained to be installed. Thereafter, the sale deed of the flat in question was executed in favour of the complainant and possession has since been delivered to him. 9. Since the defects found by the complainant in the flat offered to him by appellant No.1 came to be removed not earlier than 31.3.2016, the appellants, in my view, must pay compensation to the complainant for the period from 23.11.2010 to 31.3.2016. The State Commission has awarded compensation in the form of interest @ 9% per annum on the amount of Rs.24,92,976/-. Considering the interest rates prevailing at the relevant time, compensation by way of interest @ 9% per annum cannot be said to be excessive or unjustified. However, the facts and circumstances of the case do not justify payment of additional compensation of Rs.1.00 lacs on account of the alleged mental pain and harassment of the complainant. The appellants however, must pay the litigation expenses quantified by the State Commission at Rs.11,000/-. 10. Appellant No. 3 is also required to refund the amount of Rs.49,045/- recovered as maintenance charges along with interest on that amount @ 9% per annum, in terms of the order of the State Commission since maintenance charges could not have been recovered, without first completing the construction and finishing of the flat in all respects and then offering its possession to the flat buyer. No maintenance charges shall be recovered by appellant No.1 from the complainant for the period prior to the date on which the possession of the flat was actually delivered to him, pursuant to the directions given by this Commission. 11. At the time of final hearing of this appeal, this Commission, noticing that though the possession as offered and delivered only to the complainant Jotinder Singh, the booking had been made in the joint name of the complainant and his son, directed the complainant to file an affidavit of his son stating therein that the order passed in this complaint would be binding on him and he has no separate / individual claim against the appellants in respect of the subject flat. The said affidavit has since been filed by the complainant / respondent. 12. The appeal stands disposed in terms of para 9 & 10 of this Judgment. |
