Delhi

New Delhi

CC/48/2020

Balvinder Singh - Complainant(s)

Versus

M/S. Ambition Builders Pvt. Ltd. - Opp.Party(s)

28 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC-48/2020

IN THE MATTER OF:

1. Balvinder Singh

S/o Sh. Charanjeet Singh,

R/o WZ 32 B, Vishnu Garden,

Part-I, Punjabi Market,

New Delhi – 110018.

 

2. Surinder Jeet Singh

S/o Late Sh. Bakhshish Singh,

R/o D-10A, MIG Flats,

Maya Puri, New Delhi – 110064.

                   ...Complainants

Versus

 

M/s Ambition Builders Pvt. Ltd.

64, Scindia House, Connaught Place,

New Delhi – 110001.

Also at :

Tower-B, Iris Park,

Sohna Road, Sector-48,

Gurgram – 122018 (Haryana)

…Opposite Party

 

Quorum:

Ms. Poonam Chaudhry, President

Sh. Bariq Ahmad, Member

                                                          Date of Institution:04.02.2020

                                            Date of Order              : 28.03.2023

ORDER

Poonam Chaudhry, President:

 

1. The brief facts are that on 8^th September, 2010, the complainants herein booked two separate units of 2 BHK flats in Avalon Homes project of the opposite party, under Construction Linked Plan (CLP) and each of the complainants paid an amount of Rs.5,000/- by way of cheque. It is further stated that through a communication dated dated.27.12.2010, the opposite party allotted two flats being No.B-1/309 and B-1/308 in the said project to the Complainant No.1 and Complainant No.2 respectively. The basic sale price of each flat was Rs.9,93,000/-. Accordingly, both the complainants and the opposite party entered into respective Apartment Buyers’ Agreement on the same day.
2. It is also submitted that as per Clause 4(a) of Article 4 of the said agreement, the possession of the above mentioned flats was to be delivered by the opposite party to the complainants herein within a period of 36 months from the date of agreement. It is further alleged that both Complainants have paid a total sum of Rs.10,32,949/- which includes Rs.9,93,000/-, towards basic sale price of each flat  and also service tax etc. Thus, as per the version of the complainants all the payments as demanded by the opposite party were made from time to time. Even documentation charges towards transfer of possession with IFMS charges were paid by the complainants. The last installment of the payment was paid by the complainants on 1^st January, 2016. 
3. It is also alleged that the opposite party vide letter dt.6the July. 2015 offered possession of the flat to the complainants and asked the complainants to complete the necessary formalities such as payment of final installment of 5%, registration of Lease deed, payment of advance maintenance charges, issuance of necessary no objection certificate from the financing bank etc. within 21 days from the date of receipt of the letter. The complainants allege that though the opposite party was insisting for payment and other formalities but till date, the opposite party had not applied for the Completion Certificate. The Opposite Party vide their email dt.20^th July, 2015 the opposite party informed the complainants that due to laxity on the part of the site contractor, the possession of the flats had been deferred and new possession date would be advised after evaluation of the site work by 5^th August, 2015.  The opposite party also informed the complainants that the flats shall be ready to be handed over within a week of the registration of sale deed.
4. The opposite party vide their email dated 5^th August,2015 again informed the complainants herein that the date of possession was re-scheduled as 25^th September. 2015.  The complainants state that even as on 25^th September, 2015, the opposite party was not having the completion certificate with them.
5. Further, vide email dated 29^th October, 2015, the opposite party informed the complainants that they had applied for the Completion certificate and shall provide a copy of the same to the complainants upon receipt of the same. It is submitted by the complainants that even thereafter various communications were sent by the complainants to the opposite party about Completion Certificate but the same was not provided by the opposite party to the complainants. The complainants thereafter visited the office of the opposite party many times as also made several phone calls to enquire about the Completion Certificate but neither a copy of the same was provided by them to the complainants nor any satisfactory answer was given.
6. The opposite party sent a letter dated 23^rd November, 2018 for payment of pending dues towards holding and maintenance charges to the complainant No.1 and threatening to initiate civil/criminal proceedings to recover the said charges. The complainant No.1 sent a reply to the opposite party vide his letter dated 20^th December, 2018 denying any outstanding demand and once again requested to provide a copy of the completion and occupancy certificate to get the sale deed executed. The complainant No.1 once again sent a letter to the opposite party thereby requesting them to provide a copy of the completion and occupancy certificate in respect of Avalon Homes.  However, no reply was received to the said letter. The complainants further state that even thereafter on various enquiries made, no response was received from the opposite party and no copy of completion and occupancy certificate was provided to the complainants herein.
7. Thus, the present complaint before this Commission. Notice was issued by this Commission to the opposite party on 21^st October, 2020 for 2^nd November, 2020. An affidavit of service was filed by the complainant No. 1 stating that the Dasti notice could not be served as the employees of the opposite party refused to receive the same. However, the complainants have served notice on the opposite party by email as also by DTDC courier with the report ‘successful delivery’. Mr. Lokesh Kumar, Advocate, appeared for the opposite party on 31^st March, 2021 and filed his Vakalatnama. Thereafter on four different dates subsequently, none appeared for opposite party. The opposite party was proceeded ex parte on 20^th September, 2021. An application was filed by the opposite party containing the heading below the cause title as ‘Application for setting aside ex parte of opposite party and accepting the application under Section 8 of the Arbitration Act (as Amended upto date)’ with the following prayer:-

“That the applicant/opposite party accordingly prays  that the decree passed ex parte on 20.09.2021 against the applicant/opposite party in the aforementioned case be set aside and the aforementioned case be tried in the presence of the applicant/opposite party and the applicant/opposite party be given chance to prove is.”

 

8. In the meantime an application was also filed by the complainants seeking amendment of prayer clause to the complaint with the following prayers:-

“ (a)   To withdraw all the maintenance and holding charges and any other charges demanded by the opposite party from the Complainants hereinabove.

(b)      To refund the entire amount received from the Complainants along with interest @ 12% till the date of actual payment.

(c)       To pay interest @ 24%  per annum to each Complainants  on the amount paid by the Complainants from the promised date of delivery in terms of the Apartment Buyer’s Agreement till the date of actual payment.

(d)      To pay Rs. 1,00,000/- (Rupees One lakhs) to each Complainants as compensation for mental torture, harassment, inconvenience and financial loss at the hands of the Opposite Party.

(e)       To pay Rs. 25,000/- (Rupees Twenty Five Thousand) to each Complainants towards cost of litigation, and

(f)       To pass such and other further order as this Hon’ble Forum may deem fit and appropriate in the facts and circumstances of the case in favour of the Complainants and against the Opposite Party in the interest of justice, equity and fair play.”

 

9. Both the parties were heard on the aforementioned applications on 21^st April, 2022 and subsequently on 11^th May, 2022.
10. As regard the first application moved by the opposite party moved under Section 8 of the Arbitration Act, 1996, the same has been disposed of by a detailed order of this Commission dated 16^th September, 2022.
11. So far as the prayer of the Opposite Party for setting aside of the ex parte order dated 21^st September, 2021 is concerned, the same was allowed vide order of this Commission dated 16^th September, 2022 on the statement of the Complainants that they had no objection if application is allowed.
12. An application was moved by the complainants seeking amendment in the prayer clause, which was allowed. Amended Complaint be filed and placed on record. 
13. The main issue involved in the present complaint is whether a builder can offer possession of the flats to the home buyers without having a Completion Certificate in respect of the project in which flats of the home buyers are situated.  As per Clause-4(a) of Article 4 of the builder-buyer agreement dated 27^th December, 2010 entered into between the parties,  possession of the flats in question was to be handed over to the buyers within 36 months i.e. by December, 2013. However, the builder offered the possession of the flats only on 6^th July, 2015 i.e. after a delay of about 18 months from the stipulated date of possession.  It is relevant to mention here that even on the date of offer of possession, the flats of the complainants were not in habitable condition and also the builder was not having the completion certificate.  When the flats were inspected by the complainants upon receipt of offer of possession, it was found that the same were not ready and even the opposite party was not having the completion certificate at the time when the offer of possession was issued by the opposite party to the complainants. Upon insisting by the complainants for completion certificate, the date for possession was re-scheduled by the opposite party as 25^th September, 2015.
14. The complainants thereafter vide email dated 29^th October, 2015 enquired about the completion certificate.  Pursuant to which, the O.P. vide email dated 3^rd November, 2015 informed the complainants that they had already applied for the same but the said statement is contrary to their letter dated 28^th July, 2015, as it was not applied in respect of Block B but in respect of blocks A-1 to A-5 and C only.  The flats of the complainants herein are situated in Tower-B,  which is also apparent from their letter dated 23^rd January, 2017 which states that CC was applied only in respect of Blocks A-1 to A-5 & C and not for Block B. Infact the opposite party applied for issuance of the completion certificate only on 23.1.2017 in respect of Towers  B and C and not on 28.7.2015 and by that a period of seven years had already elapsed.  On 28.7.2015, the Opposite Party only applied for Towers A-1 to A-5. The complainants submit that the fact of the matter is that as on this date the Opposite Party had neither applied for the Completion Certificate nor the Gazette Notification dated 24^th October, 2017 regarding deemed completion certificate was in force. It is argued by the Complainants that it is clearly mentioned in the Gazette Notification regarding deemed completion certificate, that the same shall come into force w.e.f. 24^th October, 2017 but the Opposite Paety in their letters addressed to the Secretary, Urban Improvement Trust, Bhiwadi on 25^th April, 2016, 20^th February, 2017 as also on 13^th March, 2017 had informed the said authority that since no reply was received by the Opposite Party from the Urban Improvement Trust, Bhiwadi, it was presumed by them that the completition certificate was already issued. It is not understood as to how the said notification was known to the Opposite Party in advance and they treated the same with retrospective effect. It is further argued by the complainants that in the said letters, it was mentioned by the Opposite Party to the concerned authority, that despite sending reminders by the Opposite Party, completion certificate was not issued; it is not known, when as per the Opposite Party, after expiry of 45 days from the date of applicatiion for issuance of copletion certificate, it was to be treated as Deemed Completiton Certificate, why they were sending reminders to the concerned authority for issuance of completion certificate again and again. The action of the Opposite Party are contradictory to the stand taken by it in the written statement. Thus it is pleaded that the offer of possession is totally illegal and the above conduct of the Opposite Party clearly amounts to deficiency in seervice. Attention of this Commission was drawn to the decision of the Hon’ble Supreme Court of India in Devasis Rudra. The law laid down in Devasis Rudra has further been followed by the Hon’ble National Commission in ‘Sunny Ahuja Vs. Raheja Developers Ltd.’ decided on 3^rd January, 2022 in (CC No. 180/2020). The relevant portion of the judgment of the Hon’ble Supreme Court is reproduced below:-

“It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession.  By 2016, nearly seven years had elapsed from the date of the agreement .  Even according to the developer, the completion certificate was received on 29.3.2016. This was nearly seven years after the extended date for handing over of possession prescribed by the agreement. A buyer can only be expected to wait for possession for a reasonable period.  A period of seven years is beyond what is reasonable.

There is no completion certificate.  Therefore, the delay is inordinate and the consumer cannot be expected to wait indefinitely.

The present complainant cannot be denied the relief of refund and compensation in the light of the settled position.”

 

15. Further, in another leading judgment, the Hon’ble Supreme Court of India in Experion Developers Pvt. Ltd. VS. Sushma Ashok Shiroor, 2022  LIVE LAW (SC) 352  (C.A.6044 OF 2029 decided on 7^th April, 2022- paragraph -15) has hld as under:-

“We may hasten to clarify that the power to direct refund the amount and to compensate a consumer for the deficiency in not delivering the apartment as per the terms of Agreement is within the jurisdiction of the Consumer Courts.  Under Section 14 of the Consumer Protection Act, if the Commission is satisfied….that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to return  to the complainant the price or as the case may be, the charges paid by the complainant.  ‘Deficiency’ is defined under Section 2(g) to include any shortcoming or inadequacy in performance which has been undertaken by a person in pursuance of a contract or otherwise relating to any service.

A consumer invoking the jurisdiction of the Commission can seek such relief as he/she considers appropriate.  A consumer can pray for refund of the money with interest and compensation.   The consumer could also ask for possession of the apartment with compensation.  A consumer can also make a prayer for both in the alternative.  If a consumer prays for refund of the amount, without an alternative prayer, the commission will recognize such a right and grant it”.

 

16. Yet in another case, a Coordinate Bench of the Hon’ble Supreme Court in ‘Bangalore Development Authority v. Syndicate Bank’, (2007) 6 SCC 711, has held that when possession of the allotted plot/flat/house is not delivered within the specified time, the allottee is entitled to a refund of the amount paid, with reasonable interest thereon from the date of payment till the date of refund.
17. In ‘Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr., 2008 CPJ 48 SC (decided on 10^th July, 2008), the Hon’ble Apex Court has held that Even if such a provision for providing completion certificate or payment of penalties is not found in the agreement, the builder cannot escape the liability for securing the completion certificate and providing a copy thereof to the owner if the law requires the builder to obtain certificate for such a building.
18. Likewise in CIVIL APPEAL NO. 12238 OF 2018  Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan and CIVIL APPEAL NO. 1677 OF 2019 Pioneer Urban Land & Infrastructure Ltd. Vs. Geetu Gidwani Verma & Anr., decided on 2^nd April, 2019, the Hon’ble Supreme Court has held as under:-

“9. We see no illegality in the Impugned Order dated 23.10.2018 passed by the National Commission. The Appellant – Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent – Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent – Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. In these circumstances, the Respondent – Flat Purchaser was entitled to be granted the relief prayed for i.e. refund of the entire amount deposited by him with Interest.

 

10. The Civil Appeals are accordingly dismissed, and the Final Judgment and Order dated 23.10.2018 passed by the National Consumer Disputes Redressal Commission is affirmed. The appellant is granted a period of three months from today to refund the amount to the respondent. All pending Applications, if any, are accordingly disposed of”.

 

19. In Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors. (2018) 5 SCC 442, the Hon’ble Apex Court has held that a person cannot be made to wait indefinitely for possession of the flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation, terminating the Apartment Buyer’s Agreement by filing the Consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the Builder. The Respondent – Purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation. 
20. Lastly in support of their contentions, the complainants have drawn attention of this Commission to a decision of the Hon’ble Supreme Court in ‘Lucknow Development Authority v. M.K. Gupta’  (1994) 1 SCC 243 wherein the Hon,ble Supreme Court has held that  when a person hires the services of a builder, or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a “service” as defined by Section 2 (o) of the Consumer Protection Act. The inordinate delay in handing over possession of the flat clearly amounts to deficiency of service.
21. For the foregoing reasons, we are of the view that the complainants are entitled to refund of the entire amount of Rs. 10,32,949.00 each received by the opposite party alongwith interest @ 9% per annum within 4 weeks from the date of receipt of the order failing which Opposite Party will be liable to pay interest @ 15% p.a. till realization. Further, the complainants shall also be entitled to Rs.2,00,000/- each as compensation for mental torture and Rs.50,000/- each towards litigation expenses.

 

          A copy of order be sent to all the parties free of cost. The order be also uploaded in the website of the Commission.

File be consigned to the record room with a copy of the order.

 

(Poonam Chaudhry)

President

 

(Bariq Ahmad)

Member