Chandigarh

StateCommission

CC/66/2024

SANDEEP BISHT - Complainant(s)

Versus

M/S OMAXE NEW CHANDIGARH DEVELOPERS PRIVATE LIMITED - Opp.Party(s)

SAVINDER SINGH GILL

11 Nov 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

 

Consumer Complaint No.	:	66 of 2024
Date of Institution	:	27.06.2024
Date of Decision	:	11.11.2024

 

1]       Sh. Sandeep Bisht S/o Sh. Sohan Lal Bisht R/o H.No.1660, Industrial Area, Phase-2, Ramdarbar, Near Ambedkar Bhawan, Chandigarh – 160002.

2]       Smt. Prema Rani W/o Sh. Sandeep Bisht R/o H.No.1660, Industrial Area, Phase-2, Ramdarbar, Near Ambedkar Bhawan, Chandigarh – 160002.

...Complainants.

Versus

1]       M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901, through its CEO-cum Director Sh. Bhupendra Singh and Directors Sh. Kamal Kishore Gupta and Ms. Shalini Barathi.

2]       Sh. Bhupendra Singh, CEO-cum-Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali. Punjab-140901.

3]       Sh. Kamal Kishore Gupta, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

4]       Ms. Shalini Barathi, Director of M/s Omaxe Chandigarh Extension Developers Private Limited, having its office at India Trade Tower, First Floor, Baddi-Kurali Road, New Chandigarh, Mullanpur, District S.A.S. Nagar, Mohali, Punjab-140901.

….Opposite Parties.

 

BEFORE:

JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MR. RAJESH  K. ARYA, MEMBER

 

ARGUED BY:      

 

Sh. Savinder Singh Gill, Advocate for the complainants.        

Sh. Arjun Sharma, Advocate for the opposite parties (on VC).

 

PER  RAJESH  K. ARYA, MEMBER

                   This complaint has been filed by the complainants, seeking possession of the unit purchased by them alongwith compensation for the period of delay etc., as they are aggrieved of delay and latches; deficiency in providing service, negligence and adoption of unfair trade practice on the part of opposite parties. It has been alleged by the complainants that despite the fact that they have made payment of substantial sale consideration of ₹65,02,000/- including GST against total sale consideration of ₹71,18,555/- excluding GST, as referred to in the chart below, yet, the opposite parties have not offered  legal and valid possession of the unit for want of development and construction at the project site and the requisite occupation and completion certificate. On the other hand, the opposite parties have offered fit-out possession of the said unit, vide letter dated 11.03.2024, Annexure C-3, which was never sought for by the complainants. It has been further stated that even the demand raised in the said fit-out possession letter is arbitrary and it is infact a demand letter, issued under the garb of fit-out possession. Details with regard to the project in dispute; unit purchased by the complainants; payments made by them etc. are given below:-

 

Project	“The Lake”, Village Bharounjian, Mullanpur, New Chandigarh, District SAS Nagar, Mohali, Punjab
Booked on	31.08.2021
Apartment No.	TLC/VICTORIA-C/FIRST/103
Area of the unit	super area appx. 1260 sq. ft.
Total cost	₹71,18,555/- excluding GST,
Amount paid	₹65,02,000/- (31.08.2021 to till date)
Agreement	23.12.2021 (Ann.C-1)
Due date of possession	31.07.2023 [as per clause 7.1 of agreement to Sell]
Possession offered or not	Not yet. Only fit-out possession offered
Delay in years	14 months, 26 days (till date)
Allottee	Original allottee

 

                   Alleging aforesaid acts as deficiency in rendering service and unfair trade practice on the part of the opposite parties, the complainants have filed the instant complaint seeking directions to the opposite parties to deliver possession of the apartment, complete in all aspects, including occupation and completion certificate; execute sale deed thereof; pay compensation by way of interest @12% p.a. on the deposited amount of ₹65,02,000/-; not to charge any delayed payment interest; quash letter dated 11.03.2024; pay compensation of ₹3,00,000/- for mental agony and harassment besides ₹50,000/- as litigation expenses.

Reply of the opposite parties:-

2.           The opposite parties, in their written reply, while admitting factual matrix of the case with regard to sale and allotment of the unit in question to the complainants in the project in question; payments made by them as mentioned in the complaint etc. took various objections/pleas as under:-
   1. that the complainants being investors did not fall within the definition of consumer;
   2. that the complaint is liable to be dismissed on the ground of mis-joinder and non-joinder of necessary parties because the complainants have not paid any consideration amount to either the CEO-cum-Director or the Directors and further the Managing Director/ Directors being the agents of the Company in their fiduciary duty cannot be personally held liable in the matter;
   3. that the terms and  conditions contained in the agreement have been drafted strictly as per the approval of the RERA and as such the same cannot be challenged by the complainants;
   4. that in the face of provision of settlement of disputes between the parties through an arbitrator, this complaint is not maintainable;
   5. the total payment received from the complainants till  date is ₹61,92,380.95 as against the claim of ₹65,02,000/-;
   6. that partial completion certificate stood received on 20.12.2023 for the unit in question and only thereafter, possession of the unit  was offered vide letter dated 11.03.2024, Annexure C-3 for fit-outs to save time of both the parties;
   7. that demands of payment have been raised by the opposite parties strictly as per agreement;
   8. that as per Section 18 of Real Estate (Regulation and Development) Act, 2016, in case, the possession is delayed and the allottee wishes to continue with the possession, all he/she is entitled to is interest for every month of delay, till handing over of the possession and that the compensation shall only be granted where the allottee is seeking to withdraw from the project in question thereby seeking refund.
3.           While denying the rest of the averments made in the complaint, the opposite parties have prayed for dismissal of the complaint.
4.  
5.           In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written reply of the opposite parties. 
6.           The parties led evidence, in support of their case and also filed written arguments.
7.           We have heard the Counsel for the parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
8.           First of all we deal with the preliminary objections raised by the opposite parties as under:-

Whether the complainants are consumer or not?

8.           First coming to the objection taken by the opposite parties to the effect that the complainants do not fall within the definition of ‘consumer’, it is significant to mention here that the opposite parties have failed to place on record any cogent and convincing evidence in support of this objection. To prove the objection that the unit in question has been purchased by the complainants to indulge in ‘purchase and sale of units’ i.e. for earning profits, the onus lies upon the opposite parties but they failed to do so. Thus, because in the present case, the opposite parties failed to discharge their onus, especially, when still the complainants are seeking possession of their unit, hence, we hold that they fall under the definition of consumer as defined under the Act. Our this view is supported by the observations made by the Hon’ble National Commission in Kavit Ahuja vs. Shipra Estates, I (2016) CPJ 31. As such, objection taken in this regard stands rejected.

 

Whether complaint is liable to be dismissed for non-joinder & mis-joinder of necessary parties?

 

9.           As far as objection taken to the effect that the complaint is bad for non-joinder and mis-joinder of necessary parties because the complainants have not paid any consideration amount to either the CEO-cum-Director or the Directors and further the Managing Director/ Directors being the agents of the Company in their fiduciary duty cannot be personally held liable in the matter, it may be stated here that the Officers like CEO, Managing Director and Directors are holding such important positions in the Company (a juristic person), where they are directly involved with the decision-making process and will be jointly and severally liable alongwith the Company, for all its  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. As such, objection taken in this regard stands rejected.

 

Arbitration:-

10.           The next question that falls for consideration is, as to whether, in the face of existence of Arbitration clause in the agreement aforesaid jurisdiction of this Commission is barred, as has been contended by opposite parties?  It may be stated here that this issue has already been set at rest by the larger Bench of the Hon’ble National Commission in a case titled as  Aftab Singh  Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and  Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon’ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.

 

Observations/findings of this Commission.

11.            It is coming out of the record that an independent unit No.TLC/VICTORIA-C/FIRST/103 having super area appx. 1260 sq. ft. was allotted to the complainants by the opposite parties for total sale consideration of ₹71,18,555/- excluding GST, as per SCHEDULE-C-2, at Page 41 of the complaint which was part of Agreement for Sale dated 23.12.2021, Annexure C-1, against which total amount of Rs.65,02,000/- including GST of ₹3,09,619.05 stood paid by the complainant before filing of this complaint, as is evident from, demand letter/Reminder-2 dated 07.05.2024 (at page 44 of the paper book). As per Clause 7.1 of the aforesaid Agreement to Sale dated 23.12.2021, possession of the unit in question was to be handed over on 31.07.2023, which has not been delivered to the complainants till date.  It is also an admitted fact that possession of the unit in question has not been delivered so far by the opposite parties to the complainants. Not even a single reason has been assigned by the opposite parties, as to why they failed to deliver possession to the complainants by the committed date or even thereafter. Though they have claimed that they have obtained partial completion certificate in respect of the unit in question, yet, the same is not on record. There is also nothing on record that occupation and completion certificates have been obtained by the opposite parties qua the unit and also the project in question. Thus, in the absence of these certificates, it cannot be presumed that the project has been completed or near completion.
12.           In order to wriggle out of the situation, Counsel for the opposite parties submitted that fit-out possession has already been offered to the complainants to save time of both the parties. In our considered view, this submission is of no use to the opposite parties. Mere sending of letter dated 11.03.2024, Annexure C-3 for fit-outs of the unit in question, in no way can be termed as possession letter. 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. Our this view is supported by the observations made by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi 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…..”

 

Thus, in our considered opinion, by not offering and delivering possession of the unit in question by the promised date i.e. 31.07.2023 or even thereafter, without giving any plausible reasons for the said delay, the opposite parties are deficient in providing service and guilty of adoption of unfair trade practice, which has definitely caused mental agony and harassment to the complainants. Thus, in our considered view, the complainants are entitled to get delayed compensation for the period of delay in delivery of possession.

13.           Now we will decide as to what amount of compensation should be granted to the complainants, for the period of delay in offering of possession of their unit.  Counsel for the complainant placed reliance on Shree Rajeev Nohwar & Anr. Vs. M/s Sahajanand Hi Tech Construction, Consumer Compliant No.346 of 2014 decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi on 06.05.2016. It may be stated here that on account of delay in actual delivery of possession of the unit to the complainants, they have suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. 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 actual physical possession. 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). Furthermore, 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 actual physical possession is delivered. 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 actual physical possession is delivered. Recently also, the Hon’ble National Commission in Anshuman Sinha & Anr. Versus M/s. Jai Prakash Associates Ltd., Consumer Case No. 1245 of 2016, decided on 01 February 2024 has awarded interest @9% p.a. from the committed date of delivery till actual physical possession is delivered. Relevant part of the  said order is reproduced hereunder:-

“…..Resultantly, the complaint is allowed in terms aforesaid to the extent that the opposite party shall pay delay compensation @ 9% p.a. on the total amount paid by the complainant with effect from 05.09.2011, that is expected date of delivery till the date of offer of possession, that is 24.12.2015 within a period of three months…”

 

However, the facts of Shree Rajeev Nohwar & Anr. (supra) are not applicable to the complainants, as they are distinguishable from the present case. In the present case, the complainants are still empty handed and have to approach this Commission for redressal of their grievance by way of filing this complaint. Under above circumstances, in our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession of their unit i.e. 31.07.2023, till delivery of legal and valid possession thereof, that will meet the ends of justice.

14.           The opposite parties cannot wriggle out from their liability  and also cannot demand delayed interest, by saying that the complainants defaulted in making payment of remaining amount, in view of principle of law laid down 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 or reasonable period, it cannot expect the allottee(s) to go on paying instalments 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 and construction work was not carried out at the site, the payment of further instalments was rightly stopped by the purchaser. In the instant case also, if the complainants, after making payment of substantial amount, did not make the remaining part payment as demanded vide letter dated 11.03.2024 (ibid), when they came to know that there is a delay in completing the construction and development activities, on the part of the opposite parties and also the opposite parties are still not serious in the matter, they were right in doing so, in view of principle of law, referred to above. 
15.           In our concerted view, the complainants are also held entitled to compensation on account of mental agony and physical harassment suffered due to deficiency in rendering service and unfair trade practice on the part of the opposite parties.

 

 

Relief granted by this Commission as under:-

 

16.           For the reasons recorded above, this complaint is partly accepted with costs and the opposite parties, jointly and severally, are directed as under:-
    1. To deliver actual physical possession of the unit in question, to the complainants, complete in all respects, after obtaining occupation and completion certificates from the competent Authorities, within a period of 45 days from the date of receipt of a certified copy of this order, on receipt of the remaining amount due from them, without charging any delayed penalty or interest thereon. 
    2. To pay to the complainants, compensation by way of interest @9% p.a. starting from 31.07.2023  till 30.11.2024, on the entire amount deposited by them (including the amount, if any, deposited during pendency of this complaint), 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 interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
    3. To pay to the complainants, compensation by way of  interest @9% p.a. on the amounts deposited, w.e.f. 01.12.2024, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects. 
    4. To pay to the complainants, compensation to the tune of Rs.1,00,000/- for causing them mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and 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 the said amounts shall carry interest @9% p.a. from the date of default till realization.
17.           Miscellaneous application No.565 of 2024 stands disposed of having been rendered infructuous.
18. Certified copies of this order be sent to the parties free of charge, forthwith.
19.           File be consigned to Record Room after completion.

Pronounced.

11.11.2024

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 [RAJESH K. ARYA]

MEMBER

Ad