Chandigarh

StateCommission

A/184/2023

RUCHI AGGARWAL - Complainant(s)

Versus

M/S AMAZING REAL ESTATE PVT LTD - Opp.Party(s)

SOMESH GUPTA ADV.

16 Oct 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Additional Bench)

 

Appeal No.	:	184 of 2023
Date of Institution	:	28.07.2023
Date of Decision	:	16.10.2023

 

1. Ruchi Aggarwal w/o Sh.Pardeep Kumar Aggarwal
2. Pardeep Kumar Aggarwal s/o  Sh.B.K.Aggarwal

      Both r/o H.No.2261, Sector 35-C, Chandigarh

……Appellants/Complainants

 

V e r s u s

 

M/s Amazing Real Estate Pvt. Ltd. Corporate Office Unit No.B-107, Business Complex at Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh through its Managing Director/Authorized Signatory.

…..Respondent/opposite party

 

Present:- Sh. Somesh Gupta, Advocate for the appellants.

               Sh. Sanjeev Sharma, Advocate for the respondent.

                            

 

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

Appeal No.	:	183 of 2023
Date of Institution	:	28.07.2023
Date of Decision	:	16.10.2023

 

Indu Aggarwal w/o Sh.Amit Aggarwal, r/o H.No.2261, Sector 35-C, Chandigarh

……Appellant/Complainant

 

V e r s u s

 

Amazing Real Estate Pvt. Ltd. Corporate Office Unit No.B-107, Business Complex at Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh through its Managing Director/Authorized Signatory.

…..Respondent/opposite party

 

Present:- Sh. Somesh Gupta, Advocate for the appellant.

               Sh. Sanjeev Sharma, Advocate for the respondent.

                            

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

Appeal No.	:	143 of 2023
Date of Institution	:	27.06.2023
Date of Decision	:	16.10.2023

 

Amazing Real Estate Pvt. Ltd. B-107, Business Complex, Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh-160002.

……Appellant/opposite party

 

V e r s u s

1. Ruchi Aggarwal H.No.2261, Sector 35-C, Chandigarh
2. Pardeep Aggarwal H.No.2261, Sector 35-C, Chandigarh

…..Respondents/complainants no.1 and 2

 

Present:- Sh. Sanjeev Sharma, Advocate for the appellant.

               Sh. Somesh Gupta, Advocate for the respondents.

                            

 

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

Appeal No.	:	144 of 2023
Date of Institution	:	27.06.2023
Date of Decision	:	16.10.2023

 

Amazing Real Estate Pvt. Ltd. B-107, Business Complex, Elante Mall, 1st Floor, Industrial Area, Phase-1, Chandigarh-160002.

……Appellant/opposite party

 

V e r s u s

Indu Aggarwal, H.No.2261, Sector 35-C, Chandigarh

…..Respondent/complainant

 

Present:- Sh. Sanjeev Sharma, Advocate for the appellant.

               Sh. Somesh Gupta, Advocate for the respondent.

                            

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

BEFORE:              JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                             MRS.PADMA PANDEY, MEMBER.

                             MR.PREETINDER SINGH, MEMBER

 

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    Since common question of facts and law are involved in these appeals, as such, we are going to dispose of the same, by passing a consolidated order. 

2.           These appeals have been filed by the respective appellants assailing the common order dated 15.05.2023 passed by the District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (in short the District Commission), whereby consumer complaints bearing no.341 of 2021 titled as Ruchi Aggarwal and another Vs. M/s Amazing Real Estate Private Limited and 367 of 2021 titled as Indu Aggarwal Vs.  M/s Amazing Real Estate Private Limited were  partly accepted and opposite party-M/s Amazing Real Estate Private Limited, was directed as under:-

CC No.341/2021- Ruchi Aggarwal and another Vs. M/s Amazing Real Estate Private Limited

“…… In view of the above findings, this complaint is partly accepted along with compensation and the OP is directed as under:-

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.
2. To immediately hand over possession of the apartment/flat complete in all respects along with modular kitchen and designated car parking slot.
3. To issue fresh statement of accounts to the complainant after adjusting, interest, penalty and cost as imposed upon the OP in the present order.
4. To pay compensation for causing mental agony and physical harassment to the complainants on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of Rs.1,00,000/- (Rupees One lakh only), to the complainants, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,00,000/-(Rupees One lakh only), shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.

C.C. No.367 /2021-Indu Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd.

This complaint is also partly accepted along with compensation and the OP is directed as under:-

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest on the payments already made.
2. To immediately hand over possession of the apartment/flat complete in all respects alongwith modular kitchen and designated car parking slot.
3. To issue fresh statement of accounts to the complainant after adjusting, interest, penalty and cost as imposed upon the OP in the present order.
4. To pay compensation for causing mental agony and physical harassment to the complainant on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily, in lumpsum, to the tune of Rs.1,00,000/-(Rupees One lakh only), to the complainant, within a period of 60 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.1,00,000/-(Rupees One lakh only), shall carry interest @12% p.a. from the date of passing of this order, till the date of its actual realization.…”

3.           Appeal bearing no.183 of 2023 (in CC No.367 of 2021) titled as Indu Aggarwal Vs. M/s Amazing Real Estate Private Limited and appeal bearing no.184 of 2023 (in CC No.341 of 2021) titled as Ruchi Aggarwal and another Vs. M/s Amazing Real Estate Private Limited have been filed by the respective complainants for modification of the orders impugned by way of enhancing the compensation already awarded by the District Commission and are also seeking various reliefs as under, on the ground that the same have been ignored by the District Commission:-
   1. To issue directions to the respondent/builder/opposite party-(in short the respondent/builder) to rectify the defects in the construction work like cracks in the structure of the tower in question wherein the units are located etc.
   2. To issue directions to the respondent/builder to pass the benefit of GST to the appellants/complainants;
   3. To pay interest @12% p.a. on the entire amount paid by the appellants/complainants, by way of compensation for the period of delay in delivery of possession i.e. till all the amenities as promised vide brochure Annexure C-1 are provided at the project site;
   4. Directions to the respondent/builder not to charge maintenance charges till occupation/completion certificates are obtained from the competent Authorities;
   5. Refund of PLC as the same was not leviable as per booking form Annexure R-1; and
   6. To award litigation expenses.

 

4.           On the other hand, appeal bearing no.143 of 2023 in CC No.341 of 2021 titled as Amazing Real Estate Pvt. Ltd. Versus Ruchi Aggarwal and another and appeal bearing no.144 of 2023 in CC No.367 of 2021 titled as Amazing Real Estate Pvt. Ltd. Versus Indu Aggarwal have been filed by opposite party/builder - Amazing Real Estate Pvt. Ltd  for setting aside the common impugned orders dated 15.05.2023 passed by the District Commission.
5.           Before the District Commission, it was the case of complainants, that allured by rosy pictures shown by the opposite party- M/s Amazing Real Estate Pvt. Ltd.  on 26.10.2016, they applied for respective residential units at Tower A in Project Joynest Moh 1, PR-7 Airport Ring Road, Near Aerocity, SAS Nagar (Mohali) against basic sale price of ₹30,00,000/-.  It was the grievance of the complainants in both the complaints that despite the fact that the opposite party promised to provide basic amenities as well as luxury facilities at the project site, yet, after receiving substantial amounts towards their respective units, including club membership and power backup, on various dates, from the complainants, the opposite party neither executed buyers agreement in respect of the units in question nor  issued any allotment letter in that regard.  However, the opposite party issued possession letters followed by reminders and show cause notices and ultimately cancelled the allotments of the units in question, arbitrarily and illegally, despite the fact that the basic facilities at the project site were incomplete and also necessary approvals were not obtained from the competent Authorities.  It was stated that the construction is still going on  at snail pace and the complainants have also annexed the photographs as Annexures C-39 to C-42.  The complainants have also alleged that the modular kitchen as promised in the brochure is also not complete. Hence consumer complaints were filed before the District Commission.
6.           After service of the notice upon the opposite party, it appeared through its counsel in both the complaints and filed the written versions admitting that the complainants were allotted the units in question. It was stated that the project is RERA registered and was to be completed by 29.7.2022. Numerous objections were taken by the opposite party that the complainants are not consumers as envisaged under Section 2(7) of the Consumer Protection Act, 2019; no cause of action has arisen to the complainants to file the present complaints; that the matter be referred to the Arbitrator as per Clause 27 of the Unit Application Forms; that the District Commission has no jurisdiction to entertain and try the present complaints. The complainants are liable to pay the GST charges as applicable by the Govt. and also the advance maintenance charges as per clause 10 of the application form and the upholding charges upon their failure to take the possession.  The units of the complainants were completed and they were offered possession alongwith the demand letter but the complainants failed to take the same. Accordingly, the allotment of units of the complainants stood cancelled and the complainants are not entitled to possession of the units and any refund is also subject to forfeiture of earnest money deposit without any interest and deduction of other charges as per the terms and condition of the application form.  The complainants were duly offered the possession along with a possession demand letter followed by numerous reminders and when they failed to take any action in the matter, their allotments were cancelled by the opposite party.
7.           The complainants filed replications to the written version of the opposite party controverting their stand and reiterated the averments made in the complaints.
8.           The District Commission after hearing the contesting parties and on going through the material available on record, partly accepted both the consumer complaints, as stated above, out of which these cross appeals have arisen.    
9.           Alongwith appeal bearing no.183 of 2023 (in CC No.367 of 2021) titled as Indu Aggarwal Vs. M/s Amazing Real Estate Private Limited and appeal bearing no.184 of 2023 (in CC No.341 of 2021) titled as Ruchi Aggarwal and another Vs. M/s Amazing Real Estate Private Limited, separate applications bearing no.582 of 2023 (in appeal no.183 of 2023) and 583 of 2023 (in appeal no.184 of 2023) for condonation of delay of 16 days in each appeal have been filed by the complainants, on the ground that though in the first instance, after receiving the copy of the orders impugned, the respondent/builder assured that their grievance will be redressed soon, yet, when nothing was done by it and sufficient time had lapsed, as such, they decided to file these appeals. 

                   Arguments on both these applications were heard alongwith the main appeals.

                   For the reasons recorded in the respective applications and also considering the fact that the delay is not so huge, we allow these applications and condone the delay of 16 days each, in filing appeal bearing no.183 of 2023 (in CC No.367 of 2021) and appeal bearing no.184 of 2023 (in CC No.341 of 2021). Both these application are disposed of accordingly.

10.           Now coming to the main appeals. We have heard the contesting parties and gone through the material available on the record.
11.            Counsel for the appellants/complainants submitted that though  the District Commission has partly accepted the complaints in favour of the complainants, yet, it failed to give the reliefs, referred to above and as such, the orders impugned needs to be modified accordingly.
12.           On the other hand, counsel for the respondent/builder submitted that the orders passed by the District Commission are  erroneous as it failed to rely on the documents placed on record whereby the complainants were offered possession of the respective units and when they failed to take over the  same despite receiving reminders followed by show cause notices, their allotments were rightly  terminated by the respondent/builder. He further submitted that the District Commission even wrongly interpreted the brochure, Annexure C-1 and  based on that wrong interpretation, the District Commission directed the respondent/builder to provide modular kitchen to the complainants, whereas, on the other hand, it was no where committed to provide modular kitchen to the appellants/ complainants.
13.           The first question that falls for consideration is, as to whether, the complainants in these complaints are entitled to get any benefit of GST paid by them to the respondent/builder or not.  It may be stated here that we are convinced with the findings of the District Commission to the effect that the complainants have failed to place on record any Rules/Regulations framed by the Government to hold that they are entitled to get benefit out of the GST amount already paid by them to the builder/respondent, for the under construction residential units. In these appeals also, there is nothing on record, which could convince this Commission to pass any order in favour of the complainants as far as the benefit of GST is concerned. As such, plea taken by the complainants in this regard stands rejected.
14.           The next question that falls for consideration is, as to whether, the complainants in these cases are entitled to get any delayed compensation for any delay in delivery of possession of their respective units or not. It may be stated here that counsel for the appellants/complainants has specifically contended that by the date of filing the consumer complaints before the District Commission, neither construction work was completed nor basic amenities and facilities were provided at the project site nor necessary approvals/sanctions were obtained by the respondent/builder.  On the other hand, counsel for the respondent/builder contended with vehemence that possession of the respective units stood offered to the complainants, complete in all respects, in January 2021 itself, yet they failed to take over the same, as a result of which, various reminders followed by cancellation notices were sent to them, but even then the complainants did not come forward to make the remaining payment and to take over possession of the respective units, as a result of which, ultimately the allotment of units in question stood cancelled by  the respondent/builder, in the manner stated above.

                   It may be stated here that since both the parties are leveling allegations against each other, as such, this Commission has to find out, as to whether, when possession of the units in question was offered to the complainants, construction and development work was complete at the project site and as to whether, the opposite party was in a  position to deliver the possession of the said units to the complainants or not.  It is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals including completion certificates have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present cases, the respondent/builder has failed to place on record even an iota of convincing evidence to prove that by January 2021 i.e. before offering possession of the units in question to the complainants, the project was complete in all respects,. Had the development/construction activities  been completed at the project site by January 2021, then it was for the respondent/builder, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/ construction activities are completed or not, but it miserably failed to do so. On the other hand, the appellants/complainants had placed on record photographs of the project site including the tower in which the units in question are located, perusal whereof clearly reveals that still lot of construction work is pending at the project site, what to speak of providing basic amenities. Not only as above, there is another reason with this Commission to hold that by January 2021, when possession of the units in question was offered to the complainants, the project was not ready because there is a partial completion certificate Annexure C-49 on record, which reveals that the same had been issued by the Municipal Council, Zirakpur only on 15.09.2021. Thus, when the partial completion certificate itself was issued on 15.09.2021, then how the respondent/builder issued possession of the units in question in January 2021 has not been justified by it. Furthermore, even this partial completion certificate in the absence of final completion certificate, cannot be said to be sufficient to say that the project in question was complete in all respects including the basic amenities. Under Section 14 (1) of CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties of the Punjab Apartment and Property Regulation Act, 1995 says that the project proponent is duty bound to obtain occupation and completion certificates from the competent authority before offering possession of a unit/plot. Further, Section 3 (2) (j) of the said Chapter provides that no person shall be allowed to enter into possession until an occupation certificate required is duly given by the appropriate authority and no person shall take possession of an apartment until such occupation certificate is obtained. The Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015 held that the allottee is not obliged to take possession of the unit in the absence of completion certificate. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

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......."

However, without going more deeply into this issue, we have been consistently holding that mere obtaining partial completion certificate, in the absence of final complete certificate is of no use to a builder. In none of the Acts/ Rules/Regulations like PARPA etc. which are applicable to the projects located in Punjab, the Competent Authorities have given immunity to the builders/developers from obtaining final completion certificate in respect of a project, before offering possession of units/plots therein to the prospective buyers.  Not only as above, even this partial completion certificate is of no help to the respondent/builder because in para no.10 thereof, it has been clearly mentioned that  it  shall be the responsibility of the respondent/builder to comply with the directions given by the Punjab Pollution Control Board (PPCB). It is further found mentioned after para no.11 of the said partial completion certificate that in case the conditions contained in it are not met with by the respondent/builder the said certificate will be cancelled. However, on the other hand, the appellant/complainant has placed on record RTI information dated 07.03.2022, Annexure C-51 having been obtained from the PPCB wherein it was clearly intimated to one prospective buyers of the same project that the respondent/builder has not installed mechanical composter for the bio-degradable components for garbage treatment and that the PPCB Board has initiated action against the respondent/builder and have issued show cause notice to it in the matter. Under these circumstances, it can easily be said that though partial completion certificate in respect of the tower in question stood obtained by the respondent/builder, yet, the respondent/builder has miserably failed to prove on record that the project  is complete in all respects even by the date when arguments were heard in these cases.  However, despite that, the allotment of the units in question was cancelled by the respondent/builder arbitrarily and illegally. Under these circumstances, the District Commission was right in directing the respondent/builder to restore the allotment of the respective units of the complainants and also to deliver possession thereof complete in all respects.  However, at the same time, in our considered opinion, once the District Commission ordered the respondent/builder to deliver possession of the units in question to the complainants, it was required of it to award delayed compensation for the period of delay in delivering possession of the said units to the complainants but it fell into an error by not doing so. Thus, in our considered opinion, the appellants/complainants  are entitled to get compensation for the period of delay in delivery of possession of their respective units. Under these circumstances, the question arises as to what amount of compensation, the appellants/complainants are entitled to get, for the period of delay in delivery of possession of their respective units.  It may be stated here that it a matter of common parlance that for purchasing the unit/plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within a reasonable period of three years from the date of booking (as in the present cases, agreements have not been executed between the parties) the complainants suffered mental agony, hardships and financial loss. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon’ble Supreme Court of India has upheld the order of the Hon’ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-

“……8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.

9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC….”

Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon’ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019,  by making reference to the earlier order passed by it in Himanshu Arora’s case (supra).

                   In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.  The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case.   Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered.  As such, in the present cases also, the appellants/complainants deserve just and fair compensation for the period of delay in delivery of possession to them by the respondent/builder. In our considered opinion, if we grant interest @9% p.a. to the appellants/complainants on the entire amount deposited by them, from reasonable period of three years from the date of bookings of the respective units, till delivery of possession thereof, that will meet the ends of justice.

15.           Now coming to the next question, as to whether, the respondent/builder can charge maintenance charges from the appellants/complainants or not?. It may be stated here that once it is held that the respondent/builder has not offered actual possession of the units in question to the complainants for want of completion certificate, basic amenities at the project site and also necessary permissions qua treatment of garbage etc. it cannot demand the said maintenance charges before delivering actual physical possession to the appellants/complainants, complete in all respects.  It is therefore held that the respondent/builder cannot charge maintenance charges from appellants/complainants till delivery of actual physical possession of their respective units, complete in all respects.
16.           The next question that falls for consideration is, as to whether, the respondent/builder can charge PLC from the appellants/complainants or not. It may be stated here that from the perusal of price list and payment plan, Annexure R-1 (in CC No.341 of 2021) and also Annexure R-1 (in CC No.367 of 2021) (at pages 353 of the respective paper books), which are signed by the respective appellants/complainants also, it is clearly coming out that the appellants/complainants have agreed to pay PLC, over and above the basic sale price of the respective units. Thus, once the appellants/complainants are signatory to the said documents-Annexure R-1, now they cannot wriggle out of the same. As such, plea taken by the appellants/complainants that they are not liable to pay PLC against their respective units stand rejected.
17.           As far as plea taken by the appellants/complainants qua non awarding of litigation expenses by the District Commission is concerned, it may be stated here that it is settled principle of law, that the cost of litigation awarded by the Courts/Foras, must provide adequate indemnity to the successful litigant, for the expenditure incurred by him/her, for prosecuting the litigation. The cost of litigation should not be too meagre, to discourage the genuine litigants, from approaching the Courts/Foras, for redressal of their grievance. In Vinod  Seth vs. Devinder Bajaj  (2010) 8 SCC 1, it was held by the Hon`ble Supreme Court of India that the litigation cost awarded by the Courts or Foras, should not be a punishment to the defeated party, but as a recompense to the successful party, for the expenses to which he/she had been subjected, or for whatever appeared to the Courts/Foras,  to be the legal expenses incurred by the party, for prosecuting his/her suit or defence. The principle of law laid down in the aforesaid case is fully applicable to the facts of the instant cases. The appellants/complainants are thus entitled to get litigation expenses, especially, when they are the successful litigants. The order of the District Commission requires modification, in this regard.
18.           Now coming to the question, as to whether, the District Commission was right in directing the respondent/builder to provide modular kitchen in the respective units in question or not?. It may be stated here that to prove that the respondent/builder was liable to provide modular kitchen in the said units, the appellants/complainants have relied upon brochure Annexure C-1. We have perused this document very minutely and found that only modular switches of the kitchen were to be provided by the respondent/builder and not the entire modular kitchen. Under these circumstances, the District Commission fell into an error in directing the respondent/builder to provide modular kitchen in the units in question. The order of the District Commission needs modification to this extent also.
19.           As far as plea taken by the appellants/complainants for enhancing of compensation for mental agony and harassment is concerned, it may be stated here that it is settled law that consumer commission are required to  award just and fair compensation and are not to enrich the consumers. Therefore, the reliefs already being awarded by this Commission in these appeals, over and above the compensation of Rs.1 lac each awarded by the District Commission for mental agony and harassment, shall take care of all the losses suffered by the appellants/complainants in these cases.
20.           For the reasons recorded above, the orders impugned passed by the District Commission needs modification. Resultantly, all these four appeals are partly allowed. The orders  dated 15.05.2023 passed by the District Commission in consumer complaints bearing no.341 of 2021 and 367 of 2021  are modified and the opposite party-M/s Amazing Real Estate Private Limited is directed as under:-

CC No.341/2021- Ruchi Aggarwal and another Vs. M/s Amazing Real Estate Private Limited.

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest from the appellant(s)/complainant(s) on the payments already made by them.
2. To hand over possession of the unit in question to the appellant(s)/complainant(s) complete in all respects (defect free) and designated car parking slot, after obtaining final completion certificate from the competent authorities, within a period of 2 months from the date of receipt of a certified copy of this order.
3. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant(s)/complainant(s), for the period of delay i.e. after the expiry of period of three years from the date of booking of the unit in question till 31.10.2023 in one go, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter it shall be liable to pay penal interest @ 12% p.a. on the entire accumulated amount of compensation, from the date of default till this amount of compensation is paid.
4. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant(s)/complainant(s), w.e.f. 01.11.2023, onwards (per month), by the 10^th of the following month to the appellant(s)/complainant(s) till possession of the unit in question is actually delivered, as ordered above.
5. To pay compensation of Rs.1 lac for causing mental agony and physical harassment to the appellant(s)/complainant(s) on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily and also cost of  litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, these amounts shall carry interest @9% p.a. from the date of default till realization.
6. To issue fresh statement of accounts to the appellant(s)/complainant(s)  after adjusting, compensation by way of interest, compensation for mental agony etc. and cost, as awarded by this Commission against the opposite party-M/s Amazing Real Estate Private Limited in this order and thereafter only raise the demand of remaining sale consideration, if any, in respect of the unit in question, from the  appellant(s)/complainant(s)

 

C.C. No.367/2021-Indu Aggarwal Versus M/s Amazing Real Estate Pvt. Ltd.

1. To restore the allotment of unit in question, within a period of one month from the date of receipt of a certified copy of this order, without demanding any interest from the appellant/complainant on the payments already made by her.
2. To hand over possession of the unit in question to the appellant/complainant complete in all respects (defect free) and designated car parking slot, after obtaining final completion certificate from the competent authorities, within a period of 2 months from the date of receipt of a certified copy of this order.
3. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant/complainant, for the period of delay i.e. after the expiry of period of three years from the date of booking of the unit in question till 31.10.2023 in one go, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter it shall be liable to pay penal interest @ 12% p.a. on the entire accumulated amount of compensation, from the date of default till this amount of compensation is paid.
4. To pay compensation by way of interest @9% p.a. on the entire amount deposited by the appellant/complainant, w.e.f. 01.11.2023, onwards (per month), by the 10^th of the following month to the appellant/complainant till possession of the unit in question is actually delivered, as ordered above.
5. To pay compensation of Rs.1 lac for causing mental agony and physical harassment to the appellant/complainant on account of  deficiency in providing service and adoption of unfair trade practice by cancelling the allotment of unit wrongly and arbitrarily and also cost of  litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, these amounts shall carry interest @9% p.a. from the date of default till realization.
6. To issue fresh statement of accounts to the appellant/complainant after adjusting, compensation by way of interest, compensation for mental agony etc. and cost, as awarded by this Commission against the opposite party-M/s Amazing Real Estate Private Limited in this order and thereafter only raise the demand of remaining sale consideration, if any, in respect of the unit in question, from the  appellant/complainant.

21.            Certified copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in the connected case files.
22.           The appeal files be consigned to Record Room, after completion and record of the District Commission be sent back, forthwith.

Pronounced

16.10.2023

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

MEMBER

 

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

Rg