MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD V/S AMANPREET KAUR - Consumer Court Case

Chandigarh

StateCommission

CC/128/2023

AMANPREET KAUR - Complainant(s)

Versus

MANOHAR INFRASTRUCTURE & CONSTRUCTIONS PVT. LTD - Opp.Party(s)

SANDEEP BHARDWAJ

14 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint case No.	:	128 of 2023
Date of Institution	:	05.12.2023
Date of Decision	:	14.05.2024

Amanpreet Kaur wife of Sh.Dharmider Singh Bali
Dharminder Singh Bali S/o Jarnail Singh Bali.

Both residents of Flat No.621 (First Floor), Palm Residency, Manohar Infrastructure and Constructions, New Chandigarh-140901, District SAS Nagar, Mohali, Punjab.

Versus

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.
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.
Tarninder Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139- 141, Sector 17-C, Chandigarh 160017.
Narinderbir Singh Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office: Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.
Dhanwant Singh Sidhu Director/Authorized Signatory of Manohar Infrastructure & Constructions Pvt. Ltd, Corporate Office:- Manohar Campus SCO 139-141, Sector 17-C, Chandigarh 160017.
Effective Facility Management Private Limited., Site Add; Sector 117, Phase-7, Industrial Area, New Chandigarh, SAS Nagar, Mohali through its Director/Managing Director/Chairman/Authorised signatory

…..Opposite Parties

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

MR. PREETINDER SINGH, MEMBER

Present:- Sh.Sandeep Bhardwaj, Advocate for the complainants.

Sh.Simranjit Singh Sidhu, Advocate for the opposite parties.

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

Factual scenario:-

It is the case of the complainants that despite the fact that the entire sale consideration to the tune of Rs.50,01,360/- stood received from them by the opposite parties against flat/unit bearing no.621 (FF), measuring 1560 square feet located at THE PALM, New Chandigarh, SAS Nagar, Mohali, Punjab, yet, only paper possession thereof stood delivered on 25.11.2020 (Annexure C-3) as neither all the basic amenities as promised at the time of selling the said unit has been provided at the project site nor completion certificate has been obtained from the competent Authorities. It has been stated that even the terms and conditions contained in the buyers agreement dated 19.12.2019, Annexure C-2 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 unit, yet, the opposite parties failed to get the conveyance deed executed till date. The opposite parties are charging maintenance charges from the complainants in the absence of basic amenities and also occupation & completion certificates. Even the basic amenities like lift, club house, dispensary, market, schools, shopping malls etc. have not been provided by the opposite parties at the project site. Vide letter dated 22.09.2022, Annexure C-9, the Greater Mohali Area Development Authority (GMADA) has sought various documents from the opposite parties, in order to issue partial completion certificate but there is nothing on record that the same have been provided by the opposite parties.

Relief sought by the complainants:-

Following relief has been sought by the complainants :-
1. To execute the sale deed of the unit immediately after obtaining the completion certificate from the competent authority i.e. GMADA.
2. To pay interest @12% on the deposited amount i.e. Rs. 52,51,460/- by the opposite parties to the complainant from the date of possession i.e. 25.11.2020 till the date of issuance of final completion certificate from GMADA/competent authority.
3. To provide all facilities and maintenance services as promised and agreed as mentioned in the maintenance agreement and brochure.
4. To set aside and waive the fixed maintenance charges of Rs. 1450/- till the issuance of final completion certificate from GMADA/competent authority.
5. 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.
6. 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.
7. To grant additional relief if any, as per the provision of the Consumer Protection Act, 2019.
8. To pay cost of litigation of Rs.1 lac to the complainant..”

Written version of the opposite parties:-

The claim of the complainants has been contested by the opposite parties by way of filing written version wherein number of objections were taken as under:-
1. that the complainants have concealed material facts from this Commission;
2. that this complaint is not maintainable
3. that this Commission is not vested with pecuniary and territorial jurisdiction to entertain this complaint;
4. that the complainants are challenging only maintenance charges, as such, in this view of the matter also, this Commission is not vested with pecuniary jurisdiction;
5. this complaint are barred by limitation, as the possession of the unit in question was delivered vide letter dated 25.11.2020 and this complaint has been filed in the year 2023;
6. 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;
7. that the complainants have taken contrary stand qua basic amenities at the project site;
8. that the complainants have failed to raise any objection qua terms and conditions of the said agreement, when draft thereof was sent to them;
9. that the complainants were required to visit the company and deposit the charges qua sale deed, which they failed to do and as such, now they cannot blame the opposite parties for the same.
On merits, it has been stated that the project is at the verge of completion; that application for sanction of the project in question was moved by the opposite parties on 12.09.2011 with the Competent Authorities; that the project was approved on 22.03.2013 and the agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given upto 13.06.2018,; that exemption from the applicability of provisions of the Punjab Apartment and Property Regulation Act, 1995, (PAPR Act) stood granted by the Government on 25.01.2017; that the Competent Authority has granted extension for completion of the project upto 31.12.2022; that all the basic amenities such as sewerage, water, electricity, metalled road connectivity etc. have been provided at the project site; and that the contents of report relied upon by the complainants are not true. However, it has been fairly admitted by the opposite parties in para no.17 of preliminary submissions that they have already applied for partial completion certificate for which the Competent Authorities are taking considerable time for issuance of the same. The complainants are being charged for maintenance charges for the services provided to them at the project site. Remaining averments of the complaint have been denied being wrong.

Rejoinder filed by the complainants:-

In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those contained in the written reply of the opposite parties.
The parties led evidence in support of their case and also filed written arguments/submissions.
We have heard the contesting parties and have gone through the record of the case, including the written arguments/submissions filed by them, very carefully.

Observations/findings of this Commission:-

Pecuniary jurisdiction:-

First, we will deal with the objection taken by the opposite parties with regard to pecuniary jurisdiction of this Commission, it may be stated here that the provisions of Section 47 of Consumer Protection Act, 2019 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—

to entertain—

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;
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…
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. 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 case, admittedly, the complainants have specifically challenged various terms andconditions mentioned in the buyer’s and maintenance agreement, 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 ten crores. Furthermore, wehave also gone through the terms and conditions of the agreement 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, there are number of other clauses/conditions contained in the agreement, 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 case 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 themto 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’. In this view of the matter, objection taken by the opposite parties regarding pecuniary jurisdiction of this Commission stands rejected and it is held that this complaint is maintainable under Section (2) 46 and 47 (1) (a) (ii) of CPA 2019.

Even otherwise, since admittedly the complainants have paid more than Rs.50 lacs, yet, below Rs.2 crores towards sale consideration of the unit in question, then also this Commission is vested with pecuniary jurisdiction to entertain anddecide thiscomplaint inview of the provisions of Section 4 of the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, which says that subject to the other provisions of the Act and in pursuance of proviso to sub-clause (i) of clause (a) of sub-section (1) of section 47, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration exceeds fifty lakh but does not exceed two crore rupees. As such, objection taken by the opposite parties in this regard stands rejected.

As far as objection taken by the opposite parties to the effect that this Commission did not vest pecuniary jurisdiction because only the maintenance charges have been challenged by the complainants, it may be stated here that perusal of contents of the consumer complaint reveals that the complainants have also taken a specific plea that the company has failed to provide club house, schools and other amenities which were promised vide brochure. As such, these amenities were to be provided by the company/builder, which were to be further only maintained by maintenance agency. Under these circumstances,objection taken by the opposite parties in this regard stands rejected.

Territorial Jurisdiction:-

Now we will deal with the objection taken by the opposite parties to the effect that this Commission did not vest with territorial jurisdiction to entertain this complaint. 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 case, this Commission is vested with territorial jurisdiction because the buyers’ agreement & maintenance agreement qua the unit of the complainants have been executed at Registered Office of the opposite parties located at SCO Nos.139-141, 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 this complaint. Objection taken by the opposite parties in this regard stands rejected.

Possession delivered was valid and legal or not:-

Now the question which falls for consideration is, as to whether, the possession of unit offered and delivered by the opposite parties on 25.11.2020 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 unit in question has been taken over by the complainants, yet, the said possession was nothing but a paper possession because possession letter was 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 unit, as referred to above, 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 the opposite parties contended with vehemence that possession of the unit was offered and delivered after providing all the basic amenities at the project site.

It is significant to mention here that the opposite parties in clause no.4.1 of the agreement have clearly promised to deliver possession and execute sale deed in respect of the unit 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……”

However, at the time of arguments, when we put a query to counsel for the opposite parties as to where are occupation and completion certificates, he was having no valid answer to it. On the other hand, he tried to wriggle out of the situation by stating that though the company has applied for partial completion certificate, yet, the competent Authority is delaying the same. In other words, it has been candidly admitted by the opposite parties that till the date of arguments even, no occupation and completion certificates have been obtained qua the unit and project in question.

It is significant to mention here that this Commission has so many times held 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."

It is significant to mention here that the candid admission of the opposite parties in their written version to the effect that they have applied for partial 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. It is significant to mention here that the complainants have placed on record letter dated 22.09.2022, Annexure C-9, having been issued by the GMADA in favour of the opposite parties, wherein it has been informed to them to apply for partial completion certificate after adopting due procedure as envisaged under policy letter dated 05.07.2021. However, there is nothing on record that such procedure has been completed by the opposite parties to obtain partial completion certificate even, what to speak of obtaining occupation and completion certificates. Thus, under these circumstances, the mere fact that the complainants have been delivered possession of their unit, in the absence of occupation and completion certificates, in no way can be termed as genuine 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......."

It is therefore held that by offering and delivering possession of the unit in question, 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:-

Before adjudicating the controversy as to whether the amenities mentioned in the brochure have been provided or not, it is necessary to discuss about the importance of brochure. It may be stated here that it is settled law that brochure is part of the promise, on which the contract is based and therefore, promises made therein could not be override or prevailed by any subsequent contract because it is based on such alluring promises given by the builder vide the brochure only that the buyers enters into the contract for purchasing units/plots in the project. Our this view is supported by the observations made by the Hon’ble National Commission in Brig. (Retd.) Kamal Sood vs M/s. DLF Universal Ltd. on 20 April, 2007, FA No.557 of 2003. Importance of brochure was also discussed by the Hon’ble National Commission in Yash Pal Marwaha vs Pushpa Builders Ltd. and anr. on 5 September, 2005, wherein despite the fact that possession had been offered and sale deed was also executed, even then, because the amenities promised in the brochure were not provided to the buyer, the builder was ordered to refund the amount paid alongwith interest to the complainant. InWg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors Versus DLF Southern Homes Pvt. Ltd. Civil Appeal No. 6239 of 2019, decided on 24.08.2020 also, the Hon’ble Supreme Court of India held that since the amenities as provided in the brochure have not been made available at the project site, as such, the complainant therein is entitled to compensation by way of interest and also the penalty clause as provided in the agreement.

In order to move ahead, it is necessary to reproduce the relevant contents of the brochure Annexure C-1 which reveals that the opposite parties had promised following basic amenities and facilities to be provided at the project site:-

Sports and recreational facilities
24 x 7 security
Modern medical facilities
Dedicated and ample parking;
Playway school
High school
Dispensary/healthcare
Temple
Gurudwara
Police post
Commercial centre/shopping malls
Utility market
Club house (A Ten Acre Paradise)
Open lawns
Swimming Pool
Banquet Hall
Football Ground
Fully Equipped Gym
Kitty Party Hall
Lawn Tennis Court
Cricket Pitch
Badminton Courts
Carom/Billards Room
Bar and Restaurant
Basket Ball Court
Table Tennis Room
Library
Running Track
Card Room

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 while placing reliance on the photographs, attached alongwith reply contended with vehemence that all the basic amenities as promised at the time of booking of the unit, stood provided at the project site, yet, in our considered opinion this contention is of no help for the reasons recorded hereinafter.

We have gone through the said photographs and found that most of the said photographs pertain to green parks only and from none of these photographs it is coming out that all the basic amenities as promised vide brochure Annexure C-1 i.e. playway school, High school Dispensary/healthcare, Temple, Gurudwara, Club house (A Ten Acre Paradise), Swimming Pool, Banquet Hall, Fully Equipped Gym, Kitty Party Hall, Cricket Pitch, Badminton Courts, Carom/Billiards Room, Bar and Restaurant, Basket Ball Court, Table Tennis Room, Library, Card Room have still been provided at the project site.

At the same time, we have also gone through the photographs of the unit and the surrounding areas, placed on record by the complainants i.e. Annexures C-8 colly. which show that lot of development work is still pending within the building where the unit in question is located and also its surrounding. Paint patches, poor workmanship of sewerage pipes, no lifts/elevators, mud rocks, lot of malwa, unfinished plaster work, incomplete parking areas etc. are clearly visible and in no manner the project/building could be said to be habitable. Thus, by not providing all the basic amenities as promised vide brochure and agreement, 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. Under these circumstances, no benefit can be given to the opposite parties in the matter, especially, when it is a proved case that neither they have completed the development work at the project site nor they have obtained occupation and completion certificates even till the date of final arguments in this complaint.

Maintenance charges:-

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 unit? 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. Vs VDB Whitefield Development Private Limited & 2 Ors., Consumer Case No. 763 of 2020, decided on 25 Jan 2022, 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 under:-

“….. 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 case also, yet, this Commission also cannot lose sight of the fact that the opposite parties have now made some parks, roads etc. as is evident from the photographs referred to 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/other occupants. 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/Facility Management Private Limited 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. However, it is also made clear that the entire maintenance charges, if any, stood received by the opposite parties, shall be adjusted (without any deduction) towards the maintenance charges to be paid by the complainants post receipt of occupancy and completion certificates.

Limitation:-

As far as objection taken by the opposite parties that since possession of the unit has already been taken over by the complainants as such now this complaint is 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.………”