Chandigarh

StateCommission

CC/387/2018

Nirdosh Kumar - Complainant(s)

Versus

M/s Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Devinder Kumar, Adv.

15 Feb 2021

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Complaint case No.	:	387 of 2018
Date of Institution	:	16.10.2018
Date of Decision	:	15.02.2021

 

1. Nirdosh Kumar Thakur son of Sh.Mohinder Singh.
2. Sunita Thakur wife of Sh.Nirdosh Kumar Thakur.

Both residents of H.No.523/E/SF, Omaxe Ambrosia, OMAXE New Chandigarh, Distt. S.A.S. Nagar.

•  

Versus

 

1. M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., Zonal Office at India Trade Tower, 1^st Floor, Baddi Kurali Road, New Chandigarh, Mullanpur, District SAS Nagar, Punjab-140901 (Old Address: Regional Office at SCO No.139-140, First Floor, Sector 8-C, Madhya Marg Chandigarh-160008) through its Authorized Signatory.
2. :- Corporate Office:-10 L.S.C. Kalkaji, New Delhi-110019.
2. Kamal Kishore Gupta, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., 88 Gali No.10, Madhur Vihar, New Delhi-110092.
3. Krishan Kumar Aggarwal, Director of M/s Omaxe Chandigarh Extension Developers Pvt. Ltd., 88, 13-B, Sector 8, Main Bazar, Mandi, Adampur, Hisar-125052.
4. Greater Mohali Area Development Authority, Puda Bhawan, Sector 62, SAS Nagar, Mohali through its Chief Administrator.

…..Opposite Parties

BEFORE:       JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                      MRS. PADMA PANDEY, MEMBER

                      MR. RAJESH K. ARYA, MEMBER

 

Present through Video Conferencing:-    

                     
Sh.Devinder Kumar, Advocate for the complainants.

Sh.Gazi Mohd. Umair, Advocate for opposite parties no.1 to 3.

Sh.Anuj Kohli, Advocate for opposite party no.4.

 

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   It is the case of the complainants that they had paid almost the entire sale consideration to opposite parties no.1 to 3 towards purchase of flat bearing no.AIFC/SF/523E, Second Floor, measuring 1425 square feet, in their project named “Ambrosia G+2 Independent Floor Chandigarh”, Mullanpur, SAS Nagar, Mohali, Punjab (in short the unit), possession whereof was to be delivered on or before 21.04.2016 i.e. within a period of 15 months from the date of execution of allotment letter/agreement dated 22.01.2015, Annexure C-3 or within extended period of 6 months i.e. 21.10.2016, as envisaged under clause 7 (a) thereof, yet, opposite parties no.1 to 3 failed to do so. However, when possession of the said unit was offered vide letter dated 21.06.2017, Annexure C-11, it was found that the same was a paper possession because neither the unit was complete as it was suffering from various major defects; nor the lift was made available in the tower wherein the said unit is located. Even the area of the unit has been arbitrarily and unilaterally increased by opposite parties no.1 to 3, from 1425 square feet to 1646 square feet, as a result whereof, its price also stood increased from Rs.41,52,403.41ps. to Rs.49,86,718.41ps. It has been stated that even opposite party no.4 in connivance with opposite parties no.1 to 3 issued occupation certificate dated 07.07.2017, Annexure C-17, of an incomplete unit. Even the area mentioned in the said occupation certificate was not correct because instead of 152.92 square meters it has been wrongly mentioned therein as 212.85 square meters. It has been averred that number of requests made by the complainants to the opposite parties, to redress their grievances did not yield any result.

2.           By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainants have filed this complaint seeking following reliefs:-

 

1. “To direct the OP No. 1 to 3 to pay interest @ 15% on the deposited amount towards compensation for the period of delay i.e. from 23.11.2012 till lift is made functional and shortcomings are completed.
2. To pay compensation of Rs.3,00,000/- for delay in issuance of Allotment Letter;
3. To direct the OP No. 1 to 3 to pay to the Complainant a sum of Rs.3.00 lacs towards harassment suffered by the Complainant;
4. To direct the OP No. 1 to 3 to pay the interest of Rs.71 ,057/- which was received by the OP No. 1 to 3 from the complainant for reason of delay on their part;
5. To direct the OP No. 1 to 3 to pay litigation expenses of Rs.55,000/- for forcing the present litigation;
6. To direct OP No.4 to pay compensation of Rs.10.00 lacs for issuing invalid occupation certificate before installation of Lift in the  flat/project.
7. Any other order, direction, relief which this Hon'ble Commission deems fit under the circumstances may be granted…”

 

3.           Their claim has been contested by opposite parties no.1 to 3, on numerous grounds, inter alia, that the complainants did not fall under the definition of consumer; that this Commission did not vest with pecuniary and territorial jurisdiction; that since the present case relates to an immovable property, as such, time was not to be considered as essence of the contract; that this Commission is not competent to decide this complaint under summary proceedings as it needs to be adjudicated by way of filing voluminous evidence; that in the allotment letter/agreement, it was mentioned that the company shall make its best efforts to deliver possession of the unit within a period of 15 months + 6 months totaling 21 months from the date of execution of allotment letter/agreement; that possession of the unit in question was offered to the complainants vide letter dated 21.06.2017, Annexure C-11, for fit-out works; that thereafter possession of the unit was handed over to them on 02.11.2017 after completing the construction work and basic amenities and that too on obtaining occupation certificate dated 07.07.2017; that for any delay in offering possession, interests of the complainants were safeguarded by way of penalty clause contained in the allotment letter/agreement; that since no protest was raised by the complainants at the time of taking over possession of the unit in question, now they cannot file this complaint; that they ceased to be consumer after taking over possession of the unit in question; that all the demands raised from the complainants towards the said unit were legal; that extra amount, if any, was demanded towards enhanced area as per terms and conditions of the allotment letter/agreement; that defects if any of minor nature whenever reported by the complainants were removed by the company; that the fact that the lift is not installed is denied; and that opposite parties no.2 and 3 have been  wrongly impleaded and their names need to be deleted from the array of parties.
4.           On merits, purchase of the unit in question; execution of allotment letter/agreement; payments made by the complainants towards the unit in question; sending of emails by the complainants; and delay in delivery of possession of the unit in question have not been disputed by opposite parties no.1 to 3. Prayer has been made to dismiss the complaint with costs.
5.           Opposite party no.4 in its written version pleaded that for dispute, if any, between the complainants and opposite parties no.1 to 3, it shall not be held responsible; that no service has been provided by opposite party no.4 to the complainants as such complaint against it be dismissed on this ground alone; that the complaint is bad of misjoinder of parties; that opposite parties no.1 to 3 had applied for issuance of occupation certificate vide letter dated 14.06.2017 stating therein that construction of the unit has been completed on 12.05.2017; that there was no discrepancy in the occupation certificate issued in respect of the unit in question, as it was issued after getting the site inspected by the field staff and compliance of other conditions; that in case no reply was given to the complainants under RTI, they were having legal remedy to pursue the matter in that regard; that existence of lift was not a pre-condition for issuance of occupation certificate because there were staircases in the tower wherein the unit in question is located; and that requisite court fees has not been paid by the complainants for filing this complaint. Prayer has been made to dismiss the complaint against opposite party no.4 by levying heavy cost upon the complainants.
6.           This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the parties have adduced evidence by way of affidavits and also produced numerous documents including rejoinder and written arguments.
7.           We have heard the contesting parties and having also gone through the entire record of the case, including the rejoinder as well as written arguments filed by the complainants, wherein, they have reiterated all the averments made in their complaint, very carefully.
8.           Following questions arise to be decided in this consumer complaint:-
   1. Whether the complainants fall within the definition of consumer?
   2. Whether this Commission is vested with pecuniary and territorial jurisdiction to entertain this complaint?
   3. Whether this complaint is maintainable under summary proceedings or not?
   4. Whether time was essence of the contract?
   5. Whether the provision of lift was given in the building layout plan in respect of the tower wherein the unit in question is located?
   6. Whether the possession offered to the complainants vide letter dated 21.06.2017, Annexure C-11 was legal and valid or not?
   7. Whether there was any deficiency in rendering service on the part of the opposite parties?
   8. Whether the complainants ceased to be consumer after taking over possession of the unit in question?
   9. Whether this complaint is bad for misjoinder of parties?
   10. Whether correct fees has been paid by the complainants or not?

 

9.           First coming to the objection taken by opposite parties no.1 to 3 regarding pecuniary jurisdiction, it may be stated here that this complaint has been filed under the Consumer Protection Act, 1986, under which, for determining pecuniary jurisdiction, this Commission is required to take into consideration the value of the goods and compensation claimed if any. In the present case, if total value of the unit purchased by the complainants and compensation claimed are clubbed together, the same exceeds Rs.20 lacs and fell below Rs.1 crore. Thus, this Commission has got pecuniary Jurisdiction to entertain and decide this complaint filed under CPA 1986. Objection taken in this regard stands rejected.
10.           Now coming to the objection raised with regard to territorial jurisdiction, 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/Fora within the territorial limits of which that occurs. In the instant case, record reveals that letters dated 09.05.2012, Annexure C-1 and  23.11.2012, Annexure C-2 have been issued from Office of the Company at SCO 139-140, First Floor, Sector 8C, Madhya Marg, Chandigarh. Not only as above, even the allotment letter/agreement containing detailed terms and conditions pertaining to the unit in question, was also executed at Chandigarh, as it bears round stamp of the said office. Furthermore, even in clause 59 (e) of the allotment letter/agreement communication address of the company has been mentioned as SCO 139-140, 1^st Floor, Sector 8C, Madhya Marg, Chandigarh meaning thereby that the Company was actually and voluntarily residing and carrying on business from its Regional Office at Chandigarh and personally works for gain thereat. Thus, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. Objection taken in this regard stands rejected.
11.           As far as objection taken to the effect that the complainants did not fall within the definition of ‘consumer’, it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to opposite parties no.1 to 3 to establish that the complainants have purchased the unit in question to indulge in ‘purchase and sale of units’ as was held by the Hon’ble National  Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. In this view of the matter, objection taken in this regard stands rejected. 
12.           The complainants through their Counsel contended with vehemence that since possession of the unit, so offered vide letter dated  21.06.2017, Annexure C-11, was a paper possession because  neither the unit was complete as it was suffering from various major defects; nor the lift was made available in the tower wherein the said unit was located; and also it was found that the area of the unit stood increased arbitrarily and unilaterally, resulting into increase towards its price, but when the complainants  took up the matter with opposite parties no.1 to 3, number of times, orally as well as by way of sending emails, their grievances were never redressed.

                   On the other hand, the opposite parties, through their counsel, while placing heavy reliance on occupation certificate dated 07.07.2017 contended with vehemence that valid offer of possession in respect of the unit in question was made to the complainants; and that some minor defects which were reported by the complainants in the unit were removed. As far as non provision of lift is concerned, it was contended that provision of lift in the face of staircase in the tower in question, was not a pre-condition for issuance of occupation certificate.

13.           Under above circumstances, the moot question which falls for consideration is, as to whether, possession of the unit in question offered to the complainants vide letter dated 21.06.2017, Annexure C-11 was a genuine one or not? It may be stated here that before issuance of offer of possession of a unit/flat to the buyer, it is mandatory for the builder/developer to complete the construction and development activities; provide basic amenities at the project site; and obtain valid occupation and completion certificates from the competent authorities. In the present case, when we go through the contents of the offer of possession letter dated 21.06.2017, it is found that still the development was not complete, as it was mentioned therein that the same is on the verge of completion and that final finishing touching work in the unit was pending. It is also coming out from the record that when possession of the unit in question was, for the first time, offered to the complainants, vide letter dated 21.06.2017, the same stood challenged by them by way of sending emails dated 30.08.2017, 05.09.2017, 11.09.2012, 09.10.2017, 16.10.2017, 23.10.2017, 30.10.2017 and on 01.11.2017, wherein following issues were raised by them:-
    1. Unit was not complete;
    2. Mason/repair work still going on in the unit;
    3. Stairs from the bottom to top were full of malba;
    4. The sewerage points  of unit were blocked;
    5. No outlet was provided for washing machine;
    6. No holders were provided for electricity;
    7. No locking system was provided in the sliding doors of the unit;
    8. Lift was not installed in the tower;
    9. Delayed compensation has not been paid for the period of delay;
    10. Occupation and completion certificates were not provided; and
    11. that the area of the unit in question has been unilaterally and arbitrarily increased from 1425 square feet to 1646 square feet resulting into increase in the price thereof.

 

It is also coming out from the record that at one point of time, in response to the email sent by the complainants, opposite parties no.1 to 3 vide email dated 26.10.2017, intimated that as per confirmation given by the handover team of the company, possession of the unit will be handed over on 31.10.2017. It is further coming out from the record that vide email dated 01.11.2017, Annexure C-27, the complainants informed opposite parties no.1 to 3 that despite the shortcomings/defects noted above, they are ready to take possession of the incomplete unit because they were constrained to vacate the rented accommodation where they were presently residing. It was under those compelling circumstances that the complainants requested opposite parties no.1 to 3 to permit them to enter the said unit for getting the necessary work done at their own, in order to solemnise Jagran already fixed for 13.11.2017. However, salt was added to their miseries, when after taking over possession of the unit in question on 02.11.2017, for carrying out the necessary works on their own, the complainants found number of other major defects therein, as under:-

1. Ropes were found under the constructed beams while doing air conditioning work;
2. Glass railing on front side was not properly grouted; and  
3. Cracks were found in the walls of the unit.

14.           As such, the complainants vide emails dated 14.01.2018 and 30.03.2018, Annexure C-28 and C-33 respectively, alongwith the photographs showing cracks in the walls of the unit;  ropes in the beams of the structure and other defects, brought the above facts to the knowledge of opposite parties no.1 to 3. It was also intimated that the occupation certificate dated 07.07.2017, scanned copy of which was provided to them vide email dated 12.09.2017, Annexure C-18, was a manipulated document because the work of the unit had not been completed even by March 2018. However, there is nothing on record that the said emails were even responded by opposite parties no.1 to 3, what to speak of redressal of grievances raised by the complainants. Yet, in order to wriggle out of the situation, it has been submitted by the opposite parties as under:-
    1. that increase in area of the unit in question from 1425 square feet to 1646 square feet was in accordance Clause 16 of the allotment letter/agreement and now the complainants cannot challenge the same;
    2. that legal and valid possession complete in all respects was handed over to the complainants and that too after obtaining occupation certificate dated 07.07.2017 from opposite party no.4; and  
    3. that defects if any pointed out by the complainants after taking over possession were removed and the unit was made habitable.

 

It is significant to mention here that it has been noted by this Commission that in the reply filed by opposite parties no.1 to 3, to defeat the claim of the complainants, entire focus has been shifted on occupation certificate dated 07.07.2017 only. Opposite party no.4 also, in its written reply has given a lot of stress on the occupation certificate issued by it in respect of the unit in question to say that the unit in question was complete in all respects on the date when the said certificate had been issued.

15.           First we will decide the issue as to whether, the complainants are liable to pay amount for increased area of the unit or not? We have gone through clause 16 of the allotment letter/agreement, wherein it has been agreed to between the parties that since the area of the unit was tentative and subject to change upon approval of final building plan or completion of construction of the project, the same was liable to be increased/decreased and accordingly the price thereof was to be calculated keeping in mind such increase/decrease in the area and the allottee was liable to pay the same. It was further agreed that if the increase in area is upto 10% of the total area, the company shall charge the same at the rates, which were prevalent at the time of booking and if the increase in area is beyond that, then at the present market rate. However, in the present case, though there has been an increase of 221 square feet of area, which is more than 10%, yet, opposite parties no.1 to 3 have levied old rates prevalent at the time of booking i.e. Rs.2807/- per square feet for enhanced area of 221 square feet. In our considered view, though opposite parties no.1 to 3 should have taken consent of the complainants or should have given prior notice to them before increasing any area of the unit in question, irrespective of the fact that the parties have agreed for the same, yet, because they have not charged any excessive rate on the said increased area, we are not passing any adverse order in this regard but they are directed to be careful in future in this regard.  
16.           Now we will decide as to whether, legal and valid possession of the unit in question was delivered to the complainants or not. As stated above, after offering possession of the unit in question, vide letter dated 21.06.2017, Annexure C-11 for carrying out fit-out works, it was found by the complainants that the unit was not complete and major defects, referred to above, were found therein, which were brought to the notice of opposite parties no.1 to 3 by way of sending numerous emails. It is also coming out from the record that though the defects aforesaid were not removed by opposite parties no.1 to 3, yet, the complainants took possession of the said unit for carrying out fit-out works, based on the assurance that the defects will be removed by the company shortly. However, salt was added to their miseries when they found major cracks in the walls of the unit; and ropes were found in the structure when they were getting the work for installation of air conditioners. At the same time, it was also found that lift was not installed in the said tower. Under those circumstances, the complainants again wrote emails dated 14.01.2018 and 30.03.2018 alongwith photographs of the defects in the unit but there is nothing on record to prove that the said defects have been removed by opposite parties no.1 to 3. Had the said defects been removed by opposite parties no.1 to 3, they could have placed on record the affidavits of the persons who have done the same. As such, it is held that opposite parties no.1 to 3 were negligent and deficient in providing service to the complainants on this count.  
17.           Now we will decide, as to whether, it was mandatory to provide lift/elevator on the part of opposite parties no.1 to 3 in the said tower or not? Before deciding this question, we feel necessary to mention here that despite the fact that possession of the unit was offered for fit-out works vide letter dated 21.06.2017, Annexure C-11 and the complainants were handed over possession thereof on 02.11.2017, yet, it is coming out from the record that lift was installed in the said tower only on 22.01.2019. This fact is proved from the email dated 23.01.2019, Annexure C-40, whereby the complainants informed opposite parties no.1 to 3 that the lift has been installed on the said date, yet, the same has not been made operational. In response to the said email, it was confirmed by opposite parties no.1 to 3 vide email dated 25.01.2019 that the lift has been installed and is duly operational. Thus, had the lift in the said tower been installed earlier to 22.01.2019, then opposite parties no.1 to 3 would have definitely challenged the contents of email sent by the complainants with regard to installation of the lift on 22.01.2019. It is therefore held that the lift in question had been installed in the tower in question, only on 22.01.2019 i.e. after a huge delay of more than 1 year, of offer of possession for fit-out works and delivery of possession of incomplete unit to the complainants on 02.11.2017.

                   At this stage, another question which falls for consideration is, as to whether, lift was mandatory to be provided by opposite parties no.1 to 3 as per building layout plan or not?. In order to come to any conclusion, this Commission vide order dated 16.12.2019, directed Greater Mohali Area Development Authority, S.A.S. Nagar, Mohali, Punjab to place on record building plan of Flat No.523 E/SF, which was allotted to the complainants on 23.11.2012 and to verify, as to whether there was provision of lift at the time of approving the building plan. In response thereto, opposite party no.4 placed on record copy of approved building plan Annexure OP-4/3 of flat no.523-E which is the subject matter of this complaint, which was got sanctioned by opposite parties no.1 to 3 from Empanelled Architect under Self Certificate Scheme. We have gone through the said building plan Annexure OP-4/3 and found that there was a provision of lift at the time of approval thereof, meaning thereby that opposite parties no.1 to 3 were bound to provide lift  in the said tower before offering and delivering possession of the unit in question. It is therefore held that by not installing the lift in the said tower at the time of offering possession of the unit in question or at the time of handing over possession thereof to the complainants on 02.11.2017, opposite parties no.1 to 3 were deficient in providing service and also indulged into unfair trade practice.

                   However, it is very significant to mention here that despite the fact that perusal of building plan Annexure OP-4/3 reveals that opposite parties no.1 to 3 were bound to provide lift  in the said tower, yet, in order to mislead this Commission, Ms.Amaninder Kaur, Estate Officer of opposite party no.4, while relying upon field inspection report dated 29.06.2017 in respect of the unit in question,  filed affidavit dated 19.01.2019 stating therein that the existence of lift was not a pre-condition for issuance of occupation certificate. Relevant part of the said para is reproduced hereunder:-

“…Consequently based on the report of the field staff and based on the compliance of all conditions and formalities’ by the developer, Occupation Certificate dated 07.07.2017 was issued to the developer for the Occupation/use of Stilt Floor, Upper Ground Floor, First Floor, Second Floor and Mumty Only and in cases like the present one, the existence of working lift is not a pre-condition for issuance of Occupation certificate as the staircases are very much in existence….”

 

Similarly, Sh.Rohit Gupta, Estate Officer of opposite party no.4 also while relying upon the field inspection report dated 29.06.2017 aforesaid, filed false affidavit dated 13.07.2019 stating therein that occupation certificate dated 07.07.2017 was issued after compliance of all conditions and formalities by the developer. It seems that the above two Officers of opposite party no.4 tried to conceal the truth from this Commission and infact they mislead this Commission. These two erring Officers submitted false affidavits, just with a view to mislead this Commission, which act needs to be deprecated and appropriate findings in this regard will be passed in succeeding part of this order

18.           Now coming to the authenticity of occupation certificate, reliance whereupon has been heavily placed by the opposite parties to prove that legal and valid possession of the unit in question had been offered and delivered to the complainants. In the first instance, in the face of email 22.01.2019 referred to above, it is proved that by 07.07.2017 i.e. the date when the said occupation certificate was issued there was no lift in the tower in question. Secondly, it is also proved on record that the quality of the construction was so poor that when the complainants tried to start work with regard to installation of air conditioners, the walls of the unit developed cracks and also ropes were found therein meaning thereby that the safety of the building was compromised by opposite parties no.1 to 3 by using inferior quality of material, which was blindly endorsed by opposite party no.4 by issuing occupation certificate. Furthermore, the fact that at the time of issuance of the said occupation certificate, the provision of lift which was required under the said building plan was not installed, has been candidly admitted by opposite party no.4 in its written statement and to wriggle out of the same, it has been stated that since staircases were provided in the said tower, provision of lift was not a pre-condition for issuance of occupation certificate. This submission of opposite party no.4 is falsified when we refer building plan Annexure OP-4/3 aforesaid.          It may be stated here that as per settled law occupation certificate is issued only if the company has complied with all the required building standards, local laws and it is safe to occupy. However, in the present case, opposite party no.4 has over- sighted the said mandatory requirements, which turned into a costly mistake, jeopardizing the legal status of the dream home of the complainants. Furthermore, the importance of the occupancy certificate cannot be overstated, as it seals the legal status of the property and protects the ownership rights. Simply put, without a legal and valid occupation certificate a building has not been awarded a ‘pass certificate’. However, in the present case, opposite party no.4 has failed to perform its duty for the reasons best known to it. In this view of the matter, the said occupation certificate being defective is not sustainable in the eyes of law and is accordingly ordered to be quashed.   
19.           Furthermore, there is nothing on record that  completion certificate in respect of the project in question has been obtained by opposite parties no.1 to 3. It is settled law that a builder/developer cannot offer and deliver possession of residential unit in the absence of valid occupation and completion certificates and even if the buyers, in the absence of the said certificates had taken possession thereof and have even executed sale deeds also, it cannot be said that the said possession was a valid possession. Our this view is supported  by the recent findings given by the Hon’ble National Commission in Ansal Properties & Infrastructure Ltd. Vs. Preeti Singhal Revision Petition No. 1945 of 2019, decided on 10 Jan 2020, wherein it was observed as under:-

“…………It is well settled by a catena of decision of the Hon’ble Supreme Court that a legal possession cannot be handed over in the absence of requisite completion/occupancy certificates and necessary sanctions from the Authorities concerned.  In view of the same, even if the Complainant had taken possession of the plots in question way back in the year 2010 and the sale deeds were also executed then, it cannot be said that the said possession was a valid possession and, therefore, the Complainant was not required to carry out construction work and pay any maintenance charges for the facilities/amenities, in terms of Clause-13 of the Agreement executed between the parties.  Accordingly, till the time the said facilities are provided, the plea of the Petitioner that the Complaint was time barred does not hold water.  The order passed by the District Forum shows that the Complainant had sought four documents, including the necessary approvals obtained from the District Collector and the Local Body in respect of the township.  As stated by the Petitioner, even if some documents were internal documents, executed between it and a third party, we fail to understand what prevented the Petitioner to furnish the approvals/sanctions obtained for the township to the Complainant.  Further, the plea of the Petitioner that the Complainant had purchased the plots for investment purposes is not supported with any documentary evidence and, therefore, it cannot be said that the Complainant is not a ‘consumer’ under Section 2(1)(d) of the Consumer Protection Act, 1986.  The contention of the Petitioner that the Complaint was not maintainable for want of non-joinder of owner of the land is also of no consequence, as the Complainant had not prayed any relief qua the owner of the land.,,,,,,,,,,,”

20.           Since, in the present case, it has been proved that the occupation certificate so issued was not a legal and valid certificate and also at the same time, completion certificate has not been obtained in respect of the project in question, as such, we are of the considered opinion that the possession so offered and delivered to the complainants, which was infact taken over by them under compulsion, being a paper possession is not sustainable in the eyes of law. The opposite parties were deficient in providing service, negligence and adopted unfair trade practice, in that regard, thereby causing lot of mental agony, harassment and financial loss to the complainants, for which they are needed to be suitably compensated.

                   At this stage, it is significant to mention that the Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, ‘defects in goods’ and ‘deficiencies in services’ and it works and protects consumers even in situations where they do not know their rights. Thus, in the absence of a specific prayer, it is still open to the Courts/Foras/Tribunals to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case. Our this view is supported by the  findings given by the Hon’ble National Commission in BPTP Ltd. Vs. Pradeep Sharma, First Appeal No. 1516 of 2019 decided on 23 Dec 2019. Relevant part of the said order is reproduced hereunder:-

“……With regard to the objection of the Developer that the Complainants are not entitled for the relief other than prayed for in the Complaint, the Hon’ble Supreme Court as well as this Commission in catena of judgments has laid down the principal that in the absence of a specific prayer, it is still open to the Courts to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case…...” 

In this view of the matter, it is also held that opposite parties no.1 to 3 are not liable to charge any CAM/maintenance charges from the complainants till delivery of legal and valid possession of the unit, in view of findings given by the Hon’ble National Commission in  Ansal Properties & Infrastructure Ltd.`s case (supra).

21.           As far as objection taken by opposite parties no.1 to 3 to the effect that  time was not the essence of contract, it may be stated here that, in the absence of any force majeure circumstances, having been faced by opposite parties no.1 to 3, they were legally bound to deliver possession of the unit in question, by the committed date i.e. 21.04.2016 i.e. within a period of 15 months from the date of execution of allotment letter/agreement dated 22.01.2015, Annexure C-3 or within extended period of 6 months i.e. 21.10.2016.  Other than the Clause referred to above, there is no Clause, which speaks about the period/date for delivery of possession of the unit to the complainants. Thus, opposite parties no.1 to 3 cannot wriggle out of the commitments made vide the Clause aforesaid, with regard to time period for delivery of possession of the unit. It is therefore held that time was unequivocally made the essence of contract. In view of above, plea taken by the opposite parties no.1 to 3 to the effect that time was not essence of the contract or that no definite period was given to offer possession of the unit, being devoid of merit stands rejected.
22.           As far as objection taken by opposite parties no.1 to 3 that since possession of the unit in question has been handed over to the complainants on 02.11.2017, as such they ceased to be consumers is concerned, the same is devoid of merit, in view of findings given by the Hon’ble National Commission in Vikas Garg Vs. Emmar MGF Land Ltd. & Anr., Consumer Case No. 739 of 2017, decided on 09 Jan 2019, wherein it was held that even if possession has been taken over and sale deed has been executed, buyer can file consumer complaint for getting his remaining grievances redressed. Not only as above, a similar question as to whether a buyer ceases to be consumer after taking over possession or execution of sale deed in respect of the unit/plot also fell for determination before the Hon’ble Supreme Court of India in Wg. 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, which was answered in favour of the consumer and against the builder holding that flat purchasers who obtained possession or executed deeds of conveyance will not lose their right to make a claim for compensation for the delay in  handing over the same. As such, objection taken by opposite parties no.1 to 3, in this regard, stands rejected.
23.           To defeat the claim of the complainants, it has also been submitted by opposite parties no.1 to 3 that since the complainants have taken over possession of the unit in question, without any protest, as such, no immunity is now available to them to file this complaint. We do not agree with the contention raised. It may be stated here that opposite parties no.1 to 3 failed to produce any evidence, wherefrom it is evident that the complainants have expressly waived of their right for claiming any remaining compensation in the matter, which is available to them under the law and also to get their pending grievances redressed. Our this view is supported by the findings given by the Hon’ble National Commission in Vivek Kishorchandra Mehta &Anr. Vs. Puranik Builders Pvt. Ltd. &Anr., First Appeal No. 522 of 2017, decided on 03 Oct 2018, wherein it was held as under:-

“……….Hence, the finding of the State Commission does not stand on a firm legal footing.  So far as the question of protest by the complainants while receiving the amount is concerned, any protest on their part would have denied them the benefit of receiving the amount of refund and the prudence at that time demanded that they should first accept the refund and later claim for interest. Hence, both the grounds on which the complaint has been dismissed by the State Commission are not sustainable…..”

Though, in our considered opinion, it was not necessary for the complainants to expressly reserve their right, yet, in the present case, it is evident from the email dated 01.11.2017, Annexure C-27 that they have, in a very candid manner, intimated opposite parties no.1 to 3 that they will be taking over possession of the unit under assurance that the defects pointed out will be removed. Relevant part of the said email reads as under:- 

“To. customerrelations_Chandigarh <customerrelations_chandigarh@omaxe.com>

Dear Sir,

In continuation of my last email dated 31.10.2017, 1 again visited House No.523E/2nd floor today and found that labour was engaged  there to hand over the possession of the same. On inspection the following major shortcomings were noticed:

 

1. Lift place was opened without starting the work of execution of lift;     
2. Stairs from the bottom to top were full of malba and railing without polish
3. Not only roof of the house in question, even all the roofs of the same block were full of malba;
4. Masson/repair work remains to be carried out
5. Cleanliness in the block was required
6. Large number of flats in the lane needs major construction work
7. No outlet has been provided for washing machine
8. No holder has been provided for the electricity
9. No ventilation/provision of ventilation is provided in complete house
10. No locking system has been provided in the sliding doors of the house etc etc

Despite the shortcomings pointed out above, I am ready to take the possession of the house as on your assurance I have promised with current landlord to vacate my current residence in the month of November 2017 and also solemnise Jagran on 13.11.2017 in my new house but the house in question is not in habitable condition. It clearly proves that you are giving false assurances and only tried to take full amount of possession which I have paid to you on 11.9.2017 whereas occupancy certificate was obtained by you on 7.7.2017

You are again requested to get the work completed asap and also permit us to get the necessary work done on our part so that we may able to solemnise Jagran in the house in question already fixed for 13.11.2017.”

 

In this view of the matter, objection taken in this regard stands rejected.

24.           As far as objection taken to the effect that this Commission is not vested with the power to adjudicate this complaint, under summary proceedings, it may be stated here that it is a very simple case, wherein, opposite parties no.1 to 3 by not delivering the legal and valid possession of the unit in question have adopted unfair trade practice and were also negligent and deficient in providing service. Possession of incomplete unit, as explained above, was offered and delivered to the complainants. At the same time there was delay on the part of opposite parties no.1 to 3 in delivering possession of the unit in question. Therefore, the nature of such transaction is covered by the expression ‘service’.  Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs.  Union of India and Ors. Etc., (supra) II (2012) CPJ 4 (SC) and Haryana Agricultural Marketing Board cases (supra). Relevant part of Haryana Agricultural Marketing Board cases (supra)  is reproduced hereunder:-

“…….We would reiterate that the statutory Boards and Development Authorities which are allotting sites with the promise of development, are amenable to the jurisdiction of consumer forum in case of deficiency of services as has already been decided in U.T. Chandigarh Administration & Anr. v. Amarjeet Singh & Ors.[1]; Karnataka Industrial Areas and Development Board v. Nandi Cold Storage Pvt. Ltd.[2]. This Court in Narne Construction (P) Ltd. v. Union of India [3] referred to its earlier decision in Lucknow Development Authority v. M.K. Gupta [4] and duly discussed the wide connotation of the terms “consumer” and “service” under the consumer protection laws and reiterated the observation of this Court in Lucknow Development Authority v. M.K. Gupta (supra) which is provided hereunder :

“5. In the context of the housing construction and building activities carried on by a private or statutory body and whether such activity tantamounts to service within the meaning of clause (o) of Section 2(1) of the Act, the Court observed: (LDA case, SCC pp. 256- 57, para 6):

“…when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and the other statutory service. If the service is defective or it is not what was represented then it would be unfair trade practice as defined in the Act….”

 

25.           Now coming to the objection taken by opposite party no.4 with regard to court fees, it may be stated here that we have gone through the requisite documents and found that correct fees to the tune of Rs.4,000/- has been paid by the complainants. Thus, objection taken in this regard stands rejected.
26.           Another objection was raised by opposite party no.4 that since it has been unnecessarily impleaded as a party to the complaint, as such, the complaint is liable to be dismissed, on this ground alone. It may be stated here that, since the complainants have also challenged the occupation certificate dated 07.07.2017 issued by opposite party no.4, as such, it was necessary for them to implead it (opposite party no.4) as necessary party to this complaint. Even this Commission also got assistance from opposite party no.4 after passing order dated 16.12.2019, to apprise it as to whether there was a provision of lift in the building plan or not, which fact was proved when building plan Annexure OP-4/3 was submitted by it. Thus, the presence of opposite party no.4 was very much important for proper adjudication of this complaint. It is settled law that the object of the rule is to bring on record all the persons, who are parties to the dispute, relating to the subject-matter, so that the dispute may be determined in their presence at the same time, without any protraction, inconvenience and to avoid multiplicity of proceedings. In Anil Kumar Singh Vs. Shivnath Mishra alias Gadasa Guru (1995) 3 Supreme Court Cases 147, The Hon`ble Supreme Court observed as under; 

“though the court may have power to strike out the name of a party improperly joined or add a party either on application or without application of either party, but the condition precedent is that the court must be satisfied that the presence of the party to be added, would be necessary in order to enable the court to effectually and completely adjudicate upon and settle all questions involved in the suit. To bring a person as party-defendant is not a substantive right but one of procedure and the court has discretion in its proper exercise. The object of the rule is to bring on record all the persons who are parties to the dispute relating to the subject-matter so that the dispute may be determined in their presence at the same time without any protraction, inconvenience and to avoid multiplicity of proceedings”. 

 

                   In view of above, the objection taken by opposite party no.4, in this regard, stands rejected.

27.           As far as objection taken to the effect that opposite parties no.2 and 3 have been wrongly impleaded as necessary parties to this complaint, it may be stated here these persons being CEO and Directors of the Company are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company and will be jointly and severally liable alongwith the Company, for all the acts done. Similar view was taken by the Hon’ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. Had these persons not been the CEO and Directors of the Company, opposite parties no.1 to 3 could have placed on record the list of other Directors, if any, to prove that they (opposite parties no.2 and 3) are not the Officers/CEO/Directors of the Company but they failed to do so. In this view of the matter, objection taken stands rejected. 
28.           Now the question arises, as to whether, opposite parties no.1 to 3 were justified in receiving delayed payment charges to the tune of Rs.71,057/- from the complainants. It may be stated here that it has been proved on record that even by the date when this complaint has been filed, legal and valid possession of the unit in question has not been delivered to the complainants. Since, the occupation certificate dated 07.07.2017 issued by opposite party no.4 was not a valid certificate and completion certificate has not yet been obtained by the company, as such, the complainants are residing in a house which has not been awarded a ‘pass certificate’ yet. Unit was booked as far as back in 2012 and now it is 2021 and still opposite parties no.1 to 3 are not ready with delivery of actual and legal possession of the unit in question. Under these circumstances, since fault if any, is on the part of the company and not the complainants, resulting into such an inordinate delay, they (complainants) cannot be penalized with delayed interest, in case they had stopped making payments for some short duration. Our this view is supported by the principle of law laid by the Hon’ble Supreme Court of India, in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon’ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser.
29.           For the reasons recorded above, this complaint is partly accepted with costs and  opposite parties no.1 to 3, jointly and severally, are directed:-
    1. To make the lift in the tower in question fully operational, if not yet made, within a period of 7 days from the date of receipt of a certified copy of this order.
    2. To remove all the defects in the unit, pointed out by the complainants within a period of 30 days from the date of receipt of a certified copy of this order and thereafter obtain fresh occupation certificate in respect of the unit in question after getting spot inspection from the competent authority, to ascertain whether the unit is safe for habitation and also to obtain completion certificate from opposite party no.4 or the concerned competent Authority, in respect of the project in question.

                 It is made clear that till compliance of directions given in para no.(i) and (ii) above,  opposite parties no.1 to 3 shall not charge any CAM/maintenance charges from the complainants.

1. To pay compensation @Rs.10/- per square feet per month of the super area of the unit as per penal clause contained in the allotment letter/agreement and also interest @6% p.a. on the entire deposited amount by the complainants, for delay in delivery of actual legal possession of the unit in question, starting from the promised date of delivery of possession i.e. 21.10.2016 till 28.02.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @9% p.a. from the date of default till this payment is made.
2. To pay compensation @Rs.10/- per square feet per month of the super area of the unit aforesaid and also interest @6% p.a. on the entire deposited amount w.e.f. 01.03.2021, onwards (per month), by the 10^th of the following month to the complainants till compliance of directions given in para no. 29 (i)  and (ii) above.

                 Thereafter, the complainants shall be at liberty to get the sale deed executed directly from the Registering Authority or through opposite parties no.1 to 3 (if not yet got done) on making payment of stamp duty charges/other charges as applicable under law, if not yet paid. At the same time they shall be liable to make the remaining payment, if any, towards price of the said unit to opposite parties no.1 to 3, after compliance aforesaid and, in future, shall not be left with any immunity of payment of delayed interest, in case there is any delay in making payments on their part.

1. To refund the amount of Rs.71,057/- received from the complainants towards delayed payment interest, as fault if any was on their (ops no.1 to 3) part, within a period of 30 days from the date of receipt of a certified copy of this order failing which the said amount shall carry interest @9% p.a. from the date of default till realization.  
2. To pay Rs.50,000/-, in lumpsum, towards compensation for causing mental agony and harassment to the complainants and cost of litigation, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.

30.           Opposite party no.4 has also adopted unfair trade practice by issuing invalid occupation certificate aforesaid firstly because the same has been issued in the absence of lift thereby violating the building layout plan and secondly it failed to notice the inferior quality/poor workmanship done in the said unit as its walls developed cracks within a short span of occupation, thereby compromising with the safety of the building and its occupants. As such, in order to curb such practice, opposite party no.4 has attracted burdening of exemplary costs against it. In this view of the matter, opposite party no.4 is directed to deposit Rs.1 lac (One Lac) as punitive damages in the “Consumer Legal Aid Account” No.32892854721, maintained with the State Bank of India, Sector 7-C, Madhya Marg, Chandigarh in the name of Secretary, State  Consumer Disputes Redressal Commission, U.T., Chandigarh, within a period of 30 days from the date of receipt of a certified copy of this order and failure to do so, shall entail legal proceedings against it.

                   However, opposite party no.4 is at liberty to recover the said amount of Rs.1 lac from the aforesaid erring Officers i.e. Ms.Amaninder Kaur, Estate Officer and Sh.Rohit Gupta, Estate Officer, if found guilty, after conducting inquiry against them.

31.           Certified Copies of this order be sent to the parties, free of charge.
32.           The file be consigned to Record Room, after completion.

Pronounced

15.02.2021

 

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PADMA PANDEY)

          MEMBER

 

 

Sd/-

 (RAJESH K. ARYA)

MEMBER

 Rg.