Diwan Singh filed a consumer case on 12 Sep 2024 against Manohar Infrastructure & Constructions Pvt. Ltd. in the StateCommission Consumer Court. The case no is CC/15/2024 and the judgment uploaded on 01 Oct 2024.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 15 of 2024 |
Date of Institution | : | 16.02.2024 |
Date of Decision | : | 12.09.2024 |
Diwan Singh S/o Raj Kumar R/o Unit No.622, Upper Ground Floor in the Palm Residency, Manohar Infrastructure & Constructions, New Chandigarh-140901, District SAS Nagar, Mohali, Punjab
...Complainant
Versus
…..Opposite Parties
Present:- Sh.Sandeep Bhardwaj, Advocate for the complainant.
Ms.Garima Pandey, Advocate for opposite parties no.1 to 3, 5 and 6.
Opposite party no.4 exparte vide order dated 09.05.2024.
==============================================================
Complaint case No. | : | 16 of 2024 |
Date of Institution | : | 16.02.2024 |
Date of Decision | : | 12.09.2024 |
Mohindri Devi wife of Sh.Sukhbir R/o Unit No.605, First Floor, in the Palm Residency, Manohar Infrastructure & Constructions, New Chandigarh-140901, District SAS Nagar, Mohali, Punjab
...Complainant
Versus
…..Opposite Parties
Present:- Sh.Sandeep Bhardwaj, Advocate for the complainant.
Ms.Garima Pandey, Advocate for opposite parties no.1 to 3, 5 and 6.
Opposite party no.4 exparte vide order dated 09.05.2024.
==============================================================
Complaint case No. | : | 39 of 2024 |
Date of Institution | : | 02.05.2024 |
Date of Decision | : | 12.09.2024 |
Manjit Kaur Randhawa W/o Sh.Harbhajan Singh R/o Unit No.602, First Floor in the Palm Residency, Manohar Infrastructure & Constructions, New Chandigarh-140901, District SAS Nagar, Mohali, Punjab
...Complainant
Versus
…..Opposite Parties
Present:- Sh.Sandeep Bhardwaj, Advocate for the complainant.
Ms.Garima Pandey, Advocate for opposite parties no.1 to 3 & 5.
Opposite parties no.4 and 6 exparte vide order dated 09.07.2024.
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BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. PREETINDER SINGH, MEMBER
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
By this order, we propose to dispose of the aforesaid three consumer complaints. Since, the issues involved in the above complaints, except minor variations, here and there, of law and fact are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.
Factual scenario:-
Details of the project/unit(s):-
CC No. | 15 of 2024 | 16 of 2024 | 39 of 2024 |
Project name | “Palm Residency”, New Chandigarh, SAS Nagar, Pb. | “Palm Residency”, New Chandigarh, SAS Nagar, Pb. | “Palm Residency”, New Chandigarh, SAS Nagar, Pb. |
Unit booked/allotted on | 09.05.2019 | 25.05.2017 | 05.08.2017 |
No. and Area of the unit | 622, Upper Ground Floor (1560 sq.feet) | 605, First Floor (1560 sq.feet) | 602, First Floor (1560 sq.feet) |
Total cost/amount paid | 40,01,400/- | 58,71,840/- | 47,70,120/- |
Buyers’/ & Maintenance Agreement | 18.06.2019 (C-2) | 30.08.2017 (C-2) | 05.02.2018 (C-2) |
Possession due date | 9 months as per clause 4.2 of agreement C-2) | 30 months from the date of start of construction plus grace period of 6 months as per clause 4.2 of agreement C-2 | 30 months from the date of start of construction plus grace period of 6 months as per clause 4.2 of agreement C-2 |
Possession delivered on | 09.11.2020 (C-3) | 04.12.2017 (C-3) | 06.02.2018 (C-5) |
Sale deed executed on | 06.11.2020 (C-5) | 22.12.2017 (C-6) | 16.05.2019 (C-6) |
Allottee | Original | Original | Original |
Occupation Certificate obtained | Not yet | Not yet | Not yet |
Completion certificate obtained | Not yet | Not yet | Not yet |
Relief sought by the respective complainants:-
Written version of the opposite parties no.1, 2, 3 and 5 & 6:-
Opposite parties no.4 and 6 exparte in CC/39/2044:-
Rejoinder filed by the complainants:-
Observations/findings of this Commission:-
Pecuniary jurisdiction:-
“………47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—
A bare perusal of Section 47 (1) (a) (ii) provides that the State Commission shall also have the jurisdiction to entertain and decide the complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees, (pecuniary jurisdiction of State Commission has now been decreased to rupees two crores vide Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021 dated 30.12.2021. Definition of “unfair contract” has been provided under Clause 2 (46) of CPA 2019 as under:-
(46) "unfair contract" means a contract between a manufacturer or trader or service provider on one hand, and a consumer on the other, having such terms which cause significant change in the rights of such consumer, including the following, namely:—
(i) requiring manifestly excessive security deposits to be given by a consumer for the performance of contractual obligations; or
(ii) imposing any penalty on the consumer, for the breach of contract thereof which is wholly disproportionate to the loss occurred due to such breach to the other party to the contract; or
(iii) refusing to accept early repayment of debts on payment of applicable penalty; or
(iv) entitling a party to the contract to terminate such contract unilaterally, without reasonable cause; or
(v) permitting or has the effect of permitting one party to assign the contract to the detriment of the other party who is a consumer, without his consent; or
(vi) imposing on the consumer any unreasonable charge, obligation or condition which puts such consumer to disadvantage….”
In the present cases, admittedly, the complainants also have specificallychallenged various terms andconditions mentioned in the respective buyer’s and maintenance agreements, meaning thereby that for determination of pecuniary jurisdiction, this Commission has to see that thevalue of the goods or services paid as consideration should not exceed rupees two crores. Furthermore, wehave also gone through the terms and conditions of the respective agreements and are of the considered opinion that the same areone sided, harsh, oppressive and unconscionable to the complainants like as per clause 2.7 of the agreement in case there is delay in making payment in respect of the unit in question, the opposite parties can charge interest @18% p.a. on the unpaid amount, but at the same time, as per clause 2.10 in case there is any excess amount received by the opposite parties and the same is refundable on account of decrease in area of the unit, the same will be refunded by the opposite parties alongwith meager interest @6% p.a. Similarly, as per clause 2.21 of the said agreement, consent has been thrust upon the complainants qua electricity tariff/power backup. In clause 2.24 the opposite parties agreed that price of the unit includes fire detection and fighting equipments but in clause 2.25 it has been mentioned thatif required the cost of firefighting or preventive measures in the common areas within the project will be borne by allottees. Similarly, clause 4.1 pertains to completion certificate, yet, application for applying the said certificate has been mentioned as date of completion of construction, which is in contravention of clause no.2.10.Clause no.4.2 says that possession of the unit will be delivered in the specified period with grace period, yet, no penaltyclause has been incorporated in case there is delay on the part of the opposite parties indelivery of possession. Similarly, there are number of other clauses/conditions contained in the respective agreements, which are one sided, harsh, oppressive and unconscionable. In our considered opinion, the act of thrusting the said one sided, harsh, oppressive and unconscionable conditions upon the complainant, amounts to imposing upon the complainants unreasonable charge, obligation and condition which had put them to disadvantage. The cases of the complainants thus fall under Section 2 (46) (vi) of CPA 2019.Thisact and conduct of opposite parties also amounts to effect of permitting them to assign the contract to the detriment of the complainants, without their consent and also imposing upon them unreasonable charge, obligation and condition to put them to disadvantage, which is covered under the provisions of Section 2 (46) (v) and (vi) of CPA 2019, which gives reason to this Commission to say that it was a case of ‘unfair contract’ also. In this view of the matter, objection taken by the opposite parties no. 1, 2, 3 and 5 & 6 regarding pecuniary jurisdiction of this Commission stands rejected and it is held that these complaints are maintainable under Section (2) 46 and 47 (1) (a) (ii) of CPA 2019.
Territorial Jurisdiction:-
Possession delivered was valid and legal or not:-
On the other hand, counsel for opposite parties no. 1, 2, 3 and 5 & 6 contended with vehemence that possession of the respective units was offered and delivered after providing all the basic amenities at the project site.
“…The Company shall, before execution and registration of the Deed of the Said Independent Floor to the Allottee(s), obtain from the Competent Authority, the necessary occupation and/or completion certificates in respect of the Said Building in which the Said Independent Floor is situated towards Completion of Construction, as may be required under the Applicable Law……”
It is significant to mention here that an occupation certificate is a legal document that authorizes the construction of the building in the eyes of the law. It certifies that the building plan is in accordance with the construction laws approved by the concerned authorities, and the place is fit to be occupied. Without an Occupancy Certificate, a builder cannot guarantee basic civil amenities. Thus, obtaining an Occupancy Certificate is important before moving into a place to eliminate the risk of lawful eviction and demolition, which the opposite parties have admittedly not obtained. Similarly, completion certificate is also a vital document issued by the Government Authorities to signify the successful completion of a building construction including the basic amenities. It also serves as formal proof that the building has been constructed according to approved plans, adhering to all building codes, 14. It is the responsibility of the promoter- (i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and (ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate." Recently also, the Hon’ble Supreme Court in Dharmendra Sharma Versus Agra Development Authority Civil Appeal Nos.2809-2810 of 2024, decided on 6 September, 2024 has categorically held that non obtaining of occupation/completion certificates by the builder/developer unquestionably vitiates the offer of possession made by it. It is significant to mention here that the candid admission of opposite parties no. 1, 2, 3 and 5 & 6 in their written version to the effect that they have applied for completion certificate for which the Competent Authorities are taking considerable time for issuance of the same is sufficient to hold that they are not in possession of occupation and completion certificates. Merely placing on record the NITTTR report dated 15.03.2024, Annexure R-2, is not sufficient to hold that the project in complete. Even otherwise, this report is dated 15.03.2024 but possession of the respective units in these cases were delivered as far as back on 09.11.2020 (Annexure C-3), 04.12.2017 (Annexure C-3) and 06.02.2018 (Annexure C-5) respectively. Thus, under these circumstances, the mere fact that the complainants have been delivered possession of their respective units, in the absence of occupation and completion certificates, in no way can be termed as genuine offer of possession. Our this view is supported by the observations made by the Hon’ble National Commission in Shri Rajeev Nohwar & Anr. Versus M/s Sahajanand HI TECH Construction Pvt. Ltd., Consumer Case No. 346 of 2014, decided on 06 May 2016, wherein, it was held as under:- “………The date by which the flat was to be offered for the purpose of fitouts cannot be said to be the date for handing over the possession to the purchaser since neither the builder is under an obligation to complete the construction in all respect by that date nor can the purchaser occupy the flat at the stage of offer of fitouts. Section (2) (i) of MOFA mandates the promotor not to allow any persons to enter into possession until a completion certificate is duly given by the authorities. It also mandates the purchaser not to take possession of a flat until such completion certificate has been duly given. Therefore, the date on which the flat is made available for fitouts cannot be said to be the date for delivery of possession of the flat. Such a date, by law, cannot be a date earlier than the date on which the completion certificate/occupancy certificate is issued by the concerned authority…..” 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......." In Madhusudhan Reddy R & Ors. Vs VDB Whitefield Development Private Limited & 2 Ors., Consumer Case No. 763 of 2020, decided on 25 Jan 2022, the Hon’ble National Commission has clearly held that in the absence of occupation/completion certificates, even if some of the allottees have taken possession of their respective units, it would be considered as paper possession only. Relevant part of the said order is reproduced hereunder:- “……In this case, even of some of the allottees including the Complainants, have taken possession of their respective Units, it would be considered as paper possession only. ………” It is therefore held that by offering and delivering possession of the respective units, in the absence of occupation and completion certificates, the opposite parties no.1 to 5 are deficient in providing service and also adopted unfair trade practice, out of which, they cannot claim any immunity. It is therefore held that the possession so offered and delivered to the complainants is not a valid and legal possession. Basic amenities/facilities at the project site:- It may be stated here that the NITTTR report dated 15.03.2024, Annexure R-2 is silent on the basic amenities promised to be provided by the company vide brochure, Annexure C-1. The report speaks only about providing of plants and tress between roads and plots; mandatory clearances; parks; water supply; STP; electricity. However, it has also been mentioned in this NITTTR report dated 15.03.2024, Annexure R-2 that Fire Fighting system has still not been installed. At the same time, we have also gone through the photographs of the units and the surrounding areas, placed on record by the complainant(s) i.e. Annexures C-9 colly. (in CC/15/2024); Annexure C-12 colly. (in CC/39/2024) and Annexure C-10 colly. (in CC/16/2024), which show that lot of development work is still pending within the building where the units in question are located and also its surrounding. Seepage in walls of the building, loose wirings, paint patches, poor workmanship of sewerage pipes, open sewerage portholes, unfinished roads etc. are clearly visible and in no manner the project/building could be said to be habitable. Under these circumstances, no benefit can be given to the opposite parties in the matter, especially, when it is a proved case that they have failed to obtain occupation and completion certificates even till the date of final arguments in these complaints. Thus, by not providing all the basic amenities as promised vide brochure and agreements, referred to above, and on the other hand, forcing the complainants to take over possession and pay huge maintenance charges, the opposite parties indulged into unfair trade practice and are also deficient and negligent in providing service. Maintenance charges:- “…Regarding the issue of maintenance charges, it is fact that, the Complainants have taken physical possession of their respective units. It would be logical that, there would be expense on the maintenance of certain common services. It is also a fact that, the Occupancy Certificate has not been obtained yet. It means that the project is not yet fully complete and that not all services promised are being provided. As per the Order of this Commission in Kamal Kishore &Anr. Versus M/s. Supertech Limited (Supra), No maintenance charge should be levied before obtaining the Occupancy Certificate. In this case, even of some of the allottees including the Complainants, have taken possession of their respective Units, it would be considered as paper possession only. So, the question of charging maintenance charge is in our considered view not proper and therefore should not have been collected and should not be collected till receipt of the Occupancy Certificate. The Complainants will be liable to pay maintenance charge only after the Occupancy Certificate is received. In view of the discussion above, the Consumer Complaint is partly allowed. The Opposite Parties are directed to: (1) Complete the construction of the flats allotted to the Complainants in all respects, duly obtaining the requisite Occupancy certificate at its own cost and responsibility and offer and give legal possession of the respective Flats to the Complainants within 3 months of the receipt of this Order. (2) Pay delay Compensation to the Complainants @ 9 % per annum from proposed date of possession, which would include grace period as per their respective agreement on the amount deposited, till obtaining Occupancy Certificate within a period of six weeks. In case of delay beyond this period, the delay compensation will be @ 12% per annum. (3) Not to collect any maintenance charge till the receipt of Occupancy Certificate. The advance maintenance charge as given in clause 14.5 of the Construction Agreement and any other maintenance charges so far collected should be adjusted towards the maintenance charge to be paid by the Complainants post receipt of Occupancy Certificate.…” Similar view was taken by the Hon’ble National Commission in Kamal Kishore &Anr. Versus M/s. Supertech Limited, Consumer Case No. 1009 of 2016, decided on 14 March, 2017 “….. As stated earlier, the possession in my view could not have been offered to the allottee without completing the construction of the villa in all respects and obtaining the requisite occupancy certificate. Offering possession without obtaining the occupancy certificate is meaningless since the allottee is not permitted in law to occupy the house which does not have the requisite occupancy certificate. Therefore, the maintenance charges, in my opinion, would be payable only from the date on which the possession is offered to the complainants, after obtaining the requisite occupancy certificate and provided the construction of the villa complete in all respects at that time…” In Cdr.Rajgopalan and ors Vs Vatika Limited, IV (2023) CPJ 127 (NC) also, similar view was reiterated by the Hon’ble National Commission, relevant part of which is reproduced hereunder:- “…..14. It is manifest that the opposite party has delayed the completion of the project. The flats were promised to be handed over after three years. However, the offer of possession was made between 2014 to 2016/2017 on which date admittedly there was neither an OC nor an NOC of the Fire Department. The possession offered was also linked to further financial penalty in case of refusal and hence the complainants were left with no option but to accept the possession. However, in the absence of the OC and the NOC, the possession can only be construed to be a paper possession which constitutes deficiency in service. In view of the admitted fact that the OC and NOC from the Town and Country Planning Department and the Fire Services Department respectively were obtained only on 26.03.2015, the opposite party is liable to compensate the complainants in terms of the FBA for the delay and for the possession that was without the necessary legal clearances. Possession taken by the complainants was merely a paper possession in view of Kamal Kishore (supra) and therefore such alottees are not liable to pay any holding or maintenance charges till 26.03.2015….” Though the ratio of law laid down by the Hon’ble National Commission in Kamal Kishore & Anr., Madhusudhan Reddy R & Ors. and Cdr.Rajgopalan and ors. cases (supra) is squarely applicable to the present cases also, yet, this Commission also cannot lose sight of the fact that the opposite parties have now made some parks, roads etc. as has been discussed above, which is being used by the complainants/other occupants of the project and the same will definitely need regular maintenance etc. in order to maintain the same, which could be done only if some charges are borne by the complainants. Under these circumstances, considering the principles of natural justice and fair play & equity, if we direct the complainants to make payment of maintenance charges to the extent of 30% only to opposite party no.6 that will meet the ends of justice. At the same time, the complainants shall also be liable to pay for the electricity charges and also water charges-(if water charges are applicable as per agreement), to the extent the same is being used by them at the project site. Limitation:- “………Based on these provisions, it is evident that there was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided. The respondent has time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent has failed to provide the occupancy certificate. Owing to the failure of the respondent to obtain the certificate, there has been a direct impact on the members of the appellant in terms of the payment of higher taxes and water charges to the municipal authority. This continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong. The appellants therefore, are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.………” Not only as above, this plea taken by the opposite parties no.1, 2, 3 and 5 & 6 is also devoid of merit, in view of principle of law laid down by the Hon’ble Supreme Court in the case of Debashis Sinha v/s M/s R.N.R Enterprise, Civil Appeal No.3343 of 2020, decided on February 9, 2023, wherein it was held that the mere fact that possession has been taken over by the consumer and sale deed has been registered, cannot forfeits his/her right to claim the services promised by the project proponent. Compensation payable by the opposite parties no.1 to 5:- In CC No.15 of 2024 and the opposite parties are directed as under:- In CC No.16 of 2024 and the opposite parties are directed as under:- In CC No.39 of 2024 and the opposite parties are directed as under:- Pronounced 12.09.2024 Sd/- [JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/- (PREETINDER SINGH) MEMBER Rg.
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