Chandigarh

StateCommission

CC/15/2024

Diwan Singh - Complainant(s)

Versus

Manohar Infrastructure & Constructions Pvt. Ltd. - Opp.Party(s)

Sandeep Bhardwaj Adv.

12 Sep 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

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

1. Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017 through its Director/Managing Director/Chairman/Authorised signatory.
2. Manohar Infrastructure & Constructions Pvt. Ltd, Site Office:-Village Mullanpur Garibdas, PGI Road, District SAS Nagar, Mohali, Punjab through its Director/Managing Director/Chairman/Authorised signatory.
3. Tarninder Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
4. Narinderbir Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
5. Dhanwant Singh Sidhu Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.
6. Effective Facility Management, Site Add; Sector 3, New Chandigarh, SAS Nagar, Mohali through its Director/Managing Director/Chairman/ Authorised signatory

…..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.

==============================================================

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

1. Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017 through its Director/Managing Director/Chairman/Authorised signatory.
2. Manohar Infrastructure & Constructions Pvt. Ltd, Site Office:-Village Mullanpur Garibdas, PGI Road, District SAS Nagar, Mohali, Punjab through its Director/Managing Director/Chairman/Authorised signatory.
3. Tarninder Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
4. Narinderbir Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
5. Dhanwant Singh Sidhu Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.
6. Effective Facility Management, Site Add; Sector 3, New Chandigarh, SAS Nagar, Mohali through its Director/Managing Director/Chairman/ Authorised signatory

…..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.

==============================================================

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

1. Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017 through its Director/Managing Director/Chairman/Authorised signatory.
2. Manohar Infrastructure & Constructions Pvt. Ltd, Site Office:-Village Mullanpur Garibdas, PGI Road, District SAS Nagar, Mohali, Punjab through its Director/Managing Director/Chairman/Authorised signatory.
3. Tarninder Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
4. Narinderbir Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
5. Dhanwant Singh Sidhu Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.
6. Effective Facility Management, Site Add; Sector 3, New Chandigarh, SAS Nagar, Mohali through its Director/Managing Director/Chairman/ Authorised signatory

…..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.

==============================================================

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:-

2.           It is the case of the respective complainants that despite the fact that substantial amounts stood received from them by the opposite parties against the flats/units located in their project, details of which are given below, they (opposite parties) failed to develop the same by the committed date(s) and in order to evade their liability, paper possession was offered to the complainants and that too in the absence of basic amenities, which is not sustainable in the eyes of law  and the same is also not accompanied with occupation and completion certificates. It has been stated that even the terms and conditions contained in the respective agreements i.e. buyers agreement and maintenance agreement are wholly one sided and heavily loaded in favour of the opposite parties and nothing has been left for the complainants therein. However, under compelling circumstances, the complainants took over possession of their respective units and got the conveyance deed executed. The opposite parties are charging maintenance charges from the complainants in the absence of basic amenities and also occupation and completion certificates. Number of requests made to the opposite parties for redressal of grievances of the complainants did not yield any result.

Details of the project/unit(s):-

Relief sought by the respective complainants:-

3. Following relief has been sought by the respective complainants :-
   1.  To provide all the facilities and amenities as promised in the brochure along with club facilities as promised and advertised.
   2. To provide the treated water for drinking with separate water meter for the unit, provide power back up with separate meter for the unit, construct all the roads.
   3. To clear all the salvage and raw material of construction lying around the complex wherein the unit is situated.
   4. To stop the construction and passing of heavy vehicles outside the complex during late hours and early morning in order to maintain the silent and safe atmosphere and to avoid air and sound pollution.
   5. To set aside the fixed maintenance charges of Rs. 1450/- till the issuance of final completion certificate from GMADA/competent authority.
   6. To pay interest @12% on the deposited amount i.e. Rs. 40,01,400/- by the opposite parties to the complainant from the date of possession i.e. 09.11.2020 till the date of issuance of final completion certificate from GMADA/competent authority.
   7. To provide all facilities and maintenance services as promised and agreed as mentioned in the maintenance agreement and brochure.
   8. To declare the terms and conditions of agreement and maintenance agreement as unfair, which are against the interest of the complainant being null and void being unfair as proven form the documentary evidence of the present case.
   9. To pay compensation of Rs. 5 Lacs, on account of mental agony, physical harassment, financial loss, caused to the complainants and deficiency in service, negligence and adoption of unfair trade practice on the part of Ops.
   10. To grant additional relief if any, as per the provision of the Consumer Protection Act, 2019.
   11. To pay cost of litigation of Rs, 1 lac to the complainant.
   12. Any other order, direction, this Hon'ble Commission deems fit may kindly be issued in the interest of Justice..”.

Written version of the opposite parties no.1, 2, 3 and 5 & 6:-

4.           The claim of the complainants has been contested by the opposite parties no.1, 2, 3 and 5 & 6 by way of filing separate written versions wherein number of objections were taken as under:-
   1. that this Commission is not vested with  pecuniary and territorial jurisdiction to entertain these complaints;
   2. these complaints are barred by limitation, as the possession of the respective units stood delivered to the complainants as far as back in the year 2018-2020 and these complaints have been filed in the year 2024;
   3. that the terms and conditions of the agreements have been approved by the RERA, as such, the complainants cannot dispute the same before this Commission because draft of the said agreements were provided to them to go through the same and they never raised any objection at that time;
   4. that on the one hand, the complainants are stating that there are no basic amenities/facilities at the project site, yet, on the other hand, they are requesting to restrain the opposite parties to disconnect the facilities;
   5. the report got prepared by the complainants cannot be said to be authenticated as the same was not witnessed by any representative of the company;

5.           On merits, it has been stated that, in order to obtain a completion certificate from the competent authorities, opposite parties no.1,2, 3 and 5 have sought an assessment by the National Institute of Technical Teachers Training and Research (NITTTR). A report dated 15.03.2024, attached as Annexure R-2, has been obtained. This report has been submitted to the Department of Housing and Urban Development for issuance of the completion certificate, which is still pending. Furthermore, it has been asserted that the development of the project in question is near completion. The application for sanctioning the project was initially submitted by opposite parties no.1,2, 3 and 5 to the competent authorities on 12.09.2011. The project received approval on 22.03.2013, and a formal agreement with the Government of Punjab was executed on 14.06.2013. Subsequently, additional land was incorporated into the project, extending the completion period to 13.06.2018, as per the supplementary agreement dated 16.06.2016, which was also executed with the government. Later on exemption from the provisions of the Punjab Apartment and Property Regulation Act, 1995 (PAPR Act), was granted by the government on 25.01.2017. Subsequently, the Competent Authority extended the project's completion date to 31.12.2022. It has been claimed that all basic amenities have been provided at the project site. However, it has been fairly admitted by opposite parties no.1, 2, 3 and 5 & 6 in paragraph 21 of their preliminary submissions that the completion certificate for the project is still awaited. They have already applied for a partial completion certificate, but the competent authorities are taking considerable time to issue the same. Meanwhile, the complainants are being charged maintenance fees for the services provided to them at the project site. Remaining averments of the complaints have been denied being wrong.

Opposite parties no.4 and 6 exparte in CC/39/2044:-

6.           Despite service, none put in appearance on behalf of opposite parties no.4 and 6, as a result whereof, they were proceeded against exparte vide order dated 09.07.2024. In consumer complaints bearing no.15 of 2024 and 16 of 2024, opposite party no.4 was proceeded against exparte vide orders dated 09.05.2024.

Rejoinder filed by the complainants:-

7.           In the rejoinder filed, the complainant(s) reiterated the  averments contained in their complaints and controverted those contained in the written replies of the contesting opposite parties
8.           The contesting parties led evidence in support of their cases.
9.           We have heard the contesting parties and have gone through the record of these cases very carefully.

Observations/findings of this Commission:-

Pecuniary jurisdiction:-

10.           First, we will deal with the objection taken by the opposite parties no. 1, 2, 3 and 5 & 6 with regard to pecuniary jurisdiction of this Commission, it may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 (under which these complaints have been filed) speak about the jurisdiction of this Commission. It is necessary to reproduce relevant provisions of Section 47 of CPA 2019 as under:-

“………47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—

1. to entertain—

1. complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
2. complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees; appeals against the orders of any District Commission within the State…
3. xxxxxx…..….”

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:-

11.           Now we will deal with the objection taken by the opposite parties no. 1, 2, 3 and 5 & 6 to the effect that this Commission did not vest with territorial jurisdiction to entertain these complaints. It may be stated here that it is settled law that even an infinitesimal fraction of a cause of action will be part of the cause of action and confer jurisdiction on the Court/Tribunal/Commission within the territorial limits of which that occurs. In the instant cases, this Commission is vested with territorial jurisdiction because all the buyers agreement(s), maintenance agreements qua the respective units of the complainants have been executed at Registered Office of the opposite parties located at SCO Nos.139-141, First Floor, Sector 17-C, Chandigarh. Not only as above, even  all the letters like handing over possession letters; certificates of possession etc. have been issued by the opposite parties from their said Chandigarh Office,  meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Offices at Chandigarh. Thus, this Commission at Chandigarh has territorial jurisdiction to entertain these complaints. Objection taken by opposite parties no.1, 2, 3 and 5 & 6 in this regard stands rejected.

Possession delivered was valid and legal or not:- 

12.           Now the question which falls for consideration is, as to whether, the possession of units offered and delivered by the opposite parties no.1 to 5  was valid and legal possession or not? It may be stated here that counsel for the complainants has specifically contended with vehemence that though possession of the respective units have been taken over by the complainants, yet, the said possession was nothing but a paper possession because possession letters were neither accompanied by occupation and completion certificates nor the basic amenities as promised vide brochure and also at the time of booking of the said units were in existence at the project site but possession was taken over under disadvantageous position, as failure to take over the same was to entail penalty, holding charges etc.

                   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.

13.           It is significant to mention here that the opposite parties in clause no.4.1 of the respective agreements have clearly promised to deliver possession and execute sale deed in respect of the units in question, after obtaining occupation and completion certificates. Relevant part of the said clause is reproduced hereunder:-

“…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……”

14.           However, at the time of arguments, when we put a query to  counsel for opposite parties no. 1, 2, 3 and 5 & 6 as to where is occupation and completion certificate, she was having no valid answer to it. On the other hand, she tried to wriggle out of the situation by stating that though the company has applied for completion certificate, based on the NITTTR report dated 15.03.2024, Annexure R-2, yet, the competent Authority is delaying the same. In other words, it has been candidly admitted by opposite parties no. 1, 2, 3 and 5 & 6 that till the date of arguments even, no occupation and completion certificates have been obtained qua the units and project in question.

                   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:-

15.           Though to justify the stand of the opposite parties that all the amenities and facilities have been provided at the project site, counsel for the opposite parties no.1 to 5 while placing reliance on the photographs and also NITTTR report dated 15.03.2024, Annexure R-2 colly. contended with vehemence that all the basic amenities as promised at the time of booking of the respective units,  stood provided at the project site, yet, in our considered opinion this contention is of no help for the reasons recorded hereinafter.

                   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:-

16.           The next question that falls for consideration is, as to whether, the opposite parties can charge maintenance charges in the absence of occupation and completion certificates and also basic amenities, referred to above or not, irrespective of the fact that the complainants are in possession of their respective units? It may be stated here that a similar question fell before the Hon’ble National Commission in the case titled as Madhusudhan Reddy R & Ors. case (supra), which has been decided in favour of the buyer/complainant while holding as under:-

“…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:-

17.           As far as objection taken by the opposite parties no. 1, 2, 3 and 5 & 6 that since possession of the respective units has already been taken over by the complainants and also sale deeds have been executed as such now these complaints are barred by limitation is concerned, it may be stated here that  this objection is bereft of merit in view of ratio of law laid down by the Hon’ble Supreme Court in the case titled as Samruddhi Coop. Housing Society Ltd. v. Mumbai Mahalaxmi Construction (P) Ltd., , wherein, it was held that continuous failure to obtain occupancy certificate is continuing wrong, therefore, complaint cannot be said to be barred by limitation. Relevant part of the said order is reproduced hereunder:-

“………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.………”

18.           In the present cases also, it has already been held by this Commission that possession of the respective units, so delivered to the complainants was not a valid and legal possession and the opposite parties are liable to obtain occupation and completion certificates  from the competent authorities which they committed  vide clause no.4.1 of the respective buyer agreements, but have failed to obtain the same, till the date arguments were heard in these complaints.  As such, the act of the opposite parties no.1 to 5 of continuous failure to obtain occupation and completion certificates is a breach of the obligations under the respective agreements and amounts to a continuing wrong and therefore, there is a continuing cause of action in favour of the complainants to file these complaints in view of ratio  of law laid down  in Samruddhi Coop. Housing Society Ltd.  case (supra). Thus, objection taken in this regard stands rejected.

                   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:-

19.           Now the question arises, as to what compensation should be granted to the complainants in these cases? It may be stated here that Consumer Protection Act has been made to safeguard consumer rights. In the present cases, the failure of opposite parties no.1 to 5 to provide complete and effective possession of the respective units, specifically due to the absence of occupation and completion certificates as well as the lack of basic amenities, constitutes a clear deficiency in service. Under such circumstances, it cannot be reasonably argued that the possession offered and delivered to the complainants is valid or legal. Rather, it is evident that the so-called "possession" provided to the complainants amounts merely to paper or symbolic possession, which fails to fulfill the legal and contractual obligations owed by the opposite parties. One can easily imagine the distress and frustration of the complainants, who invested substantial sums to purchase these units with the expectation of enjoying all the facilities and amenities as promised in the promotional brochures. However, their hopes and expectations have been severely disappointed due to the opposite parties' failure to provide these essential elements, which were integral to the sale. In our considered view, the delivery of mere paper or symbolic possession does not absolve opposite parties no.1 to 5 from their responsibility to compensate the complainants for the breach of their obligations. The opposite parties have failed to deliver on their promises and contractual duties, thereby causing financial loss, mental agony, and inconvenience to the complainants, who have been deprived of the full use and enjoyment of their properties. In light of these facts, and considering the principles of fairness and justice, we believe that awarding interest on the entire amounts deposited by the complainants for their respective units from the date when they were handed the paper or symbolic possession is a fair and reasonable measure to compensate them for the delay, loss, and hardship suffered. Such an award would not only address the financial injury incurred by the complainants but also serve as a reminder that contractual obligations must be fulfilled in both letter and spirit, and any deviation from the agreed terms will not be condoned. This measure is necessary to meet the ends of justice and to provide a fair and equitable remedy to the complainants, who have been unjustly denied the rightful possession and enjoyment of their properties.
20.           For the reasons recorded above, these complaints are partly accepted, with costs as under:-

In CC No.15 of 2024 and the opposite parties are directed as under:-

1. Opposite parties no.1 to 5 shall provide all the basic amenities and facilities as promised in the brochure and the agreements including rectification/removal of defects of seepage etc., as discussed above and also obtain occupation and completion certificates from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
2. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation by way of interest @9% p.a. from 09.11.2020  till 31.08.2024 on the entire deposited sale consideration, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 09.11.2020  till 31.08.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant(s).
3. Opposite parties no.1 to 5 shall pay to the complainant(s), compensation by way of  interest @9% p.a. on the entire deposited sale consideration, w.e.f. 01.09.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above qua providing all the basic amenities and facilities including rectification/removal of defects of seepage etc., and obtaining occupation and completion certificates from the competent Authorities. 
4. Opposite party no.6 shall charge maintenance charges from the complainant(s) only to the extent of 30% of the total charges, till compliance of directions given in para no.(i) above from September 2024 onwards. However, it is also made clear that the opposite parties shall give regular power supply/back up and also water supply to the complainant(s).
5. Opposite party no.6 shall adjust the advance maintenance charges payable by the complainants post receipt of occupation and completion certificates, out of the maintenance charges so far collected by it till August 2024 from the complainants, to the extent of 70% thereof as they are held entitled to  recover 30% of total maintenance charges  only.
6. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation to the tune of Rs.25,000/- for causing them mental agony & harassment, deficiency in providing and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.15,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.

In CC No.16 of 2024 and the opposite parties are directed as under:-

1. Opposite parties no.1 to 5 shall provide all the basic amenities and facilities as promised in the brochure and the agreements including rectification/removal of defects of seepage etc., as discussed above and also obtain occupation and completion certificates from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
2. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation by way of interest @9% p.a. from 04.12.2017  till 31.08.2024 on the entire deposited sale consideration, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 04.12.2017  till 31.08.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant(s).
3. Opposite parties no.1 to 5 shall pay to the complainant(s), compensation by way of  interest @9% p.a. on the entire deposited sale consideration, w.e.f. 01.09.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above qua providing all the basic amenities and facilities including rectification/removal of defects of seepage etc., and obtaining occupation and completion certificates from the competent Authorities. 
4. Opposite party no.6 shall charge maintenance charges from the complainant(s) only to the extent of 30% of the total charges, till compliance of directions given in para no.(i) above from September 2024 onwards. However, it is also made clear that the opposite parties shall give regular power supply/back up and also water supply to the complainant(s).
5. Opposite party no.6 shall adjust the advance maintenance charges payable by the complainants post receipt of occupation and completion certificates, out of the maintenance charges so far collected by it till August 2024 from the complainants, to the extent of 70% thereof as they are held entitled to  recover 30% of total maintenance charges  only.
6. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation to the tune of Rs.25,000/- for causing them mental agony & harassment, deficiency in providing and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.15,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.

In CC No.39 of 2024 and the opposite parties are directed as under:-

1. Opposite parties no.1 to 5 shall provide all the basic amenities and facilities as promised in the brochure and the agreements including rectification/removal of defects of seepage etc., as discussed above and also obtain occupation and completion certificates from the competent Authorities, within a period of three months (03 months) from the date of receipt of a certified copy of this order.
2. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation by way of interest @9% p.a. from 06.02.2018  till 31.08.2024 on the entire deposited sale consideration, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount of compensation from 06.02.2018  till 31.08.2024 aforesaid shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant(s).
3. Opposite parties no.1 to 5 shall pay to the complainant(s), compensation by way of  interest @9% p.a. on the entire deposited sale consideration, w.e.f. 01.09.2024, onwards (per month), by the 10^th of the following month till compliance of directions given in sub-para no.(i) above qua providing all the basic amenities and facilities including rectification/removal of defects of seepage etc., and obtaining occupation and completion certificates from the competent Authorities. 
4. Opposite party no.6 shall charge maintenance charges from the complainant(s) only to the extent of 30% of the total charges, till compliance of directions given in para no.(i) above from September 2024 onwards. However, it is also made clear that the opposite parties shall give regular power supply/back up and also water supply to the complainant(s).
5. Opposite party no.6 shall adjust the advance maintenance charges payable by the complainants post receipt of occupation and completion certificates, out of the maintenance charges so far collected by it till August 2024 from the complainants, to the extent of 70% thereof as they are held entitled to  recover 30% of total maintenance charges  only.
6. Opposite parties no.1 to 5 shall pay to the complainant(s) compensation to the tune of Rs.25,000/- for causing them mental agony & harassment, deficiency in providing and adoption of unfair trade practice; and also cost of litigation to the tune of Rs.15,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of  default till realization.

21.           All pending applications in all these complaints, stand disposed of accordingly.
22.           Certified copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in connected case files.
23.           The files be consigned to Record Room, after completion.

Pronounced

12.09.2024

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PREETINDER SINGH)

MEMBER

Rg.