Per Mrs. M. Shreesha,Presiding Member

This Consumer Complaint is filed under Section 21(a)(i) of the Consumer Protection Act, 1986 (for short “the Act”) by the Complainants against the Opposite Parties seeking the following reliefs:-

“a) Pay the price of the flat as ₹100,00,000/- with current market price or remove the deficiency in services mentioned in the complaint.

b) Pay the costs of ₹50,000/- on account of legal notice issued and ₹5,00,000/- as costs of the present proceedings.

c) Pay ₹25,00,000/- for harassment and damages for the deficiency in service rendered to the complainants.  The above said total amount of ₹1,30,50000/- was to be paid with 18% till realization of the above-said amount.

d) This Hon’ble Forum may be pleased to pass any other/further order as it deems fit and proper upon the facts and circumstances of this complaint.”

2.       The facts in brief are that the Complainants purchased flat No. G-1304 on the 13^th Floor, Maple Heights, “C” Block, Sushant Lok-1, having super area measuring about 3225 sq. ft. in Tower No. G forming part of the complex “Maple Heights” Gurugram, Haryana.  It is averred that a Registered Sale Deed was executed between the Complainants and Sh. Ravi Kant Jain, arrayed as the 8^th Opposite Party on 22.03.2010 for a total consideration of ₹10,000,000/-.  It was agreed between the parties that Sh. Ravi Kant Jain would transfer all his rights and title interest in the subject flat.  It is averred that the Complainants purchased this property for residential purpose.  It is further averred that OP-1 to 5 entered into an agreement with OP-6 Company M/s Brilliant Portfolios Ltd. for transfer of construction and sale rights of 6,00,000 sq. ft. of FAR area on a part of land admeasuring 8 acres as undivided part of the plot of land admeasuring 11.47 Acres of OP-7 Company namely M/s Superior Builders Pvt. Ltd.  In pursuant to the agreement, the Developer Companies constructed a Multi Storied Residential Complex under the name and style of Maple Heights.  It is stated that on 19.06.2004 one more agreement was executed between Superior Builders Pvt. Ltd. for selling the apartment in Maple Heights and by virtue of this agreement a conveyance deed was executed with Sh. Ravi Kant Jain.  After the Complainants got executed a Registered Sale Deed on 23.02.2010, they were informed that the said Project did not have the Occupation Certificate and filed an RTI application dated 23.06.2016 seeking information with respect to Occupation Certificate and the same was forwarded to the District Town Planner, Gurugram on 30.06.2016.  It is pleaded that on 06.07.2016 Senior Town Planner, Gurugram Circle replied requesting the complainant to inspect the relevant office record and take the relevant information on payment of applicable charges as per the RTI Act, 2005.  On 07.09.2016, the Deputy Commissioner constituted a Committee to visit and inspect the structural conditions of Maple Heights.  On 12.10.2016, the Complainant once again addressed a letter to Director of Town & Country Planning Chandigarh and also to Additional Chief Secretary, Directorate of Town & Country Planning seeking copy of the Occupation Certificate of Maple Heights, if issued.  A Complaint was also registered on 13.10.2016 with Confederation of Real Estate Developers Association of India (CREDAI), as Occupation Certificate was not obtained by the Developer Companies in the last 10 years. 

3.       It is further pleaded that it is only on account of non-availability of Occupation Certificate that the Complainants are facing problems namely not getting municipal treated water, illegal sewage connection, non-provision of electricity meter in the individual  name by DHBVN, non-availability of fire fighting equipment, unlicensed lifts etc. apart from seepage in the basement.  It is also stated that the Developer Companies have converted the garden area into surface parking without any legal consent or permission taken from the Complainants and other flat purchasers; that the renovation work was done by using sub-standard material; that the softener water plant was not functioning and that the Builder Companies adopted unfair trade practice by opening various illegal shops etc.  The Complainant got issued a legal notice on 12.10.2016 but there was no proper response.  The Complainant also raised these issues specially with respect to charges levied in the name of security and maintenance charges to the Society Association.  It is averred that the Developer has created this Association which is to be declared as null and void.  It is further pleaded that the Developer Companies did not remove the defects in the construction and did not obtain the Occupation Certificate on account of which the Complainant is unable to enjoy legal possession of his house with complete title, water and electricity and other Government benefits and seeks compensation of ₹20,00,000/- for mental agony along with the above-noted reliefs.

4.       Opposite Parties 1 to 4 filed their Written Version denying all the allegations made by the Complainant and stated that the Complainant is not a ‘Consumer’; that there is no privity of contract with the Complainant, that OP-1 to 5 have handed over all the rights, titles and interest in the construction of the said premises to OP-6 with the right to enter into Agreement to Sale with respect to the apartment constructed by it; it is denied that these Opposite Parties did not obtain any Occupation Certificate on account of which the Complainant is forced to pay additional water tax, electricity charges and property tax; it is also denied that the Complainant was deprived to get Ganga water and was forced to use ground water and that Occupation Certificate was issued by DTCP in the year 2003 and the Declaration under HAOA is also filed.  It is further averred that the Complaint is barred by limitation as the subject premises was handed over to the Complainant by OP-8 on 16.03.2006.  It is stated that they did not render any service to the Complainant and hence  seek dismissal of the Complaint qua them. 

5.       OP-5 filed their Written Statement stating that the Complaint is not maintainable as it is barred by limitation; that there is no privity of contract between the Complainant and OP-5; that OP-5 neither develops the Project nor apply for any approvals from the authorities; that the Complainant could not produce any documents to CREDAI establishing that there was any direct involvement of OP-5; that there is no cause of action against OP-5 and hence deficiency of service cannot be attributed to them.

6.       OP-6 filed their Written Version stating that M/s Ansal Properties and Industries Limited along with its Associates Companies obtained licences for the residential colony Sushant Lok, Gurgaon on a plot of land admeasuring 11.47 acres on which 874069 sq. ft. of FAR was permitted by the concerned Authorities, out of which 263811  sq. ft. was built by Ansal and for the remaining 610258 sq. ft. of FAR an agreement dated 17.06.1998 was entered into with OP-6 M/s Brilliant Portfolios Limited.  OP-6 was given rights to construct said area on its own cost and dispose of and realize the sale proceeds.  OP-7 entered into an agreement with OP-6 on 11.10.2000 entitled the OP-6 for booking/allotment with the allottees and to sign the agreement in this regard with the potential buyers. 

7.       It is averred that M/s Rephcons International approached OP-6 on 16.06.2004 seeking allotment of a residential unit and an Agreement was entered into on 19.06.2004 accepting the application for allotment of apartment G-1304 for a basic sale consideration of ₹31,15,350/-.  The Complainant was requested to go through all the terms of the Sale Deed and the Agreement was signed only after the Complainant had read and accepted the terms.  An option was also given to the Complainant to withdraw from the scheme if he chooses to do so.  It is averred that the Complainant was well aware of the terms and conditions of the Sale Deed right from its inception especially with respect to title and ownership of the property.  Thereafter M/s Rephcon sold the apartment to Mr. Ravi Kant Jain arrayed as OP-8.  A letter dated 08.08.2005 was sent by M/s Rephcon International to OP-6 informing them that they seek to transfer the title to OP-8 and requested that all payments made by them be transferred to OP-8.  Thereafter the present Complainant has purchased the said flat from OP-8 vide the Sale Deed dated 22.03.2010. 

8.       It is averred that OP-6 performed its part of the contract by completing the construction of the subject area as per the terms of the agreement and the requested licences and sanctions were duly obtained by OP-1 to 5 in accordance with law.  It is further averred that OP-6 cannot be held liable as the construction of the project was completed in consonance with law and the Occupation Certificate was duly obtained and hence it cannot be said that there was any deficiency of service on their behalf.  It is further stated that no cause of action arose against the OP-6 and that a letter dated 07.09.2016 shows that the Complainant has been filing frivolous Complaints which was also stated by Maple Heights Condominium Association. 

9.       OP-7 filed their Written Statement stating that the Complainants only after going through all the terms of Sale Deed executed the same and now for the present Complaint attempting to go behind the registered written deeds without either seeking cancellation and/or any relief with respect thereto, which is not permissible in law. It is averred that OP-7 had a very limited scope of work and contribution in the subject flat and the requisite licences and sanctions were obtained by OP-1 to 6 in accordance with law and OP-7 cannot be made liable for any act as the Complaint itself is not maintainable against OP-7.  It is denied that the Complainants are entitled for payment of damages and they seek dismissal of the Complaint with costs.

10.     Vide order dated 16.11.2017, OPs 8 & 9 have been set ex-parte as none has appeared on their behalf despite service of notice.

11.        The Complainant filed the true typed copy of conveyance deed dated 16.03.2006 executed between OP-8 Sh. Ravi Kant Jain and OP-1 to 6 as Annexure C-1, typed copy of registered sale deed dated 22.03.2010 executed between the Complainants and Sh. Ravi Kant Jain as Annexure C-2, true copy of letter dated 30.06.2016 forwarded to District Town Planner, Gurgaon as Annexure C-3, letter dated 06.07.2016 as Annexure C-4, copy of order dated 07.09.2016 issued by Deputy Commissioner, Gurgaon as Annexure C-5, true copy of letter issued to Director of Town & Country Planning, Chandigarh as Annexure C-6, true copy of e-mail dated 13.10.2016 as Annexure C-7, true copy of communication on e-mail to the Complainant as Annexure C-8 in support of their case.

12.        Opposite Parties 1 to 4 have filed copy of the Board Resolution dated 16.08.2016 and 27.01.2016 as Annexure A (colly), copy of Occupation Certificate dated 03.04.2003 as Annexure B and copy of the Declaration u/s 2 of the HAOA, 1983 as Annexure C in support of their case.

13.     Opposite Party No. 5 has filed board resolution dated 29.05.2017  in their support.   

14.     Opposite Party No. 6 filed copy of board of resolution dated 06.02.2018 as Annexure OP-1, copy of agreement dated 17.06.1998 as Annexure OP-2, copy of agreement dated 11.10.200 as Annexure OP-3, copy of agreement with M/s Rephcon International as Annexure OP-4, copy of minutes of board of directors meeting dated 30.06.2005 at Annexure  OP-5, copy of occupation certificate as Annexure OP-6 and copy of letter dated 07.09.2016 at Annexure OP-7 in support of their case.

15.     Opposite Party No. 7 filed copy of Board Resolution dated 06.02.2018 as Annexure OP-1, copy of the agreement dated 17.06.1998 entered into Opposite Party No. 1 to Opposite Party No. 5 with Opposite Party No.6 as Annexure OP-2, copy of the agreement dated 11.10.2000 between Opposite Party No. 6 and Opposite Party No. 7, copy of the agreement with M/s Rephcon International as Annexure OP-4 and copy of the minutes of Board of Directors meeting dated 30.06.2005 and letter dated 08.08.2005 as Annexure OP-5, copy of the letter dated 07.09.2016 as Annexure OP-6 in support of their case. 

16.     Complainant, who was present in person, submitted that Occupation Certificate was not given and the possession and the Registered Sale Deed executed for the subject flat i.e. G-1304 is illegal.  He further submitted that it was only because of not having an Occupation Certificate that he had to pay excess water and electricity charges and also property tax.  He also raised the issue of Developer Companies having used sub-standard material with respect to construction and has stated that there was no fire-fighting equipment, the lifts are not licensed and that the garden area was converted into surface parking which was not in accordance with law. 

17.     Learned Counsel appearing for OPs 1 to 5 submitted that there is no privity of contract between the Complainants and the OP-1 to 5 as the entire sale consideration was paid to OP-6 and also that the Complainants sold the subject flat during the pendency of the Complaint.  Against this submission, the Complainant submitted that the buyer had backed out though he received some cheques.

18.     Learned Counsel appearing for the Opposite Parties 6 and 7 submitted that M/s Ansal are the Licence Holders of the entire project and the Conveyance Deed entered into on 16.03.2006 was between OPs 1 to 5 and Sh. Ravi Kant Jain.  A perusal of the Conveyance Deed dated 16.03.2006 shows that M/s Ansal Properties & Industries Ltd. for itself and on behalf of the remaining vendees entered into an agreement dated 17.06.1998 with M/s Brilliant Portfolio Ltd. for the transfer of construction of sale rights of 6,00,000 sq. ft. of FAR area on the part of land admeasuring 8 acres which is part of the undivided plot of admeasuring 11.47 acres.  In pursuance of agreement dated 17.06.1998, Builder constructed a multi-storey residential complex under the name and style of Maple Heights.  Material on record evidences that the Builder Company entered into an agreement with OP-7 M/s Superior Builders Pvt. Ltd., who was permitted to enter into agreement to sale the apartments in Maple Heights and by virtue of the agreement dated 19.06.2004 entered into between M/s Superior Builders Pvt. Ltd. and the vendees, Sh. Ravi Kant Jain became the owner of apartment bearing No. G-1304 for a sale consideration of ₹13,15,530/-.  It is also not in dispute that OP-6 & 7 stepped into the shoes of OPs 1 to 5.  The receipt issued in favour of the Complainants herein dated 22.083.2010 read together with the sale deed evidences that the sale deed was executed between Mr. Ravi Kant jain and the Complainant herein for flat G-1304 for a sale consideration of ₹10,000,000/- and that all taxes, cesses, dues and demands in respect of the property has been paid and cleared by the vendor up to the date of execution of the sale deed.  Therefore, we find force in the contention of the Learned Counsels appearing for the Opposite Parties that the Complainant was very much in the knowledge of the ownership and title of the subject property and the taxes being paid as he had purchased the property from Sh. Ravi Kant Jain vide a Sale Deed executed on 22.03.2010.  There is a declaration by the vendor which is reproduced as hereunder:-

“THE VENDOR DECLARES AND ASSURES THE VENDEE

a)      That the above said property hereby conveyed was his self purchased/acquired Property by virtue of conveyance deed mentioned herein above and that no one else except the VENDOR has rights, claims, interest and concern whatsoever in the PROPERTY hereby conveyed or any part thereof.

b)      That the PROPERTY hereby conveyed is free from all sorts of encumbrances, charges, legal flaws, liens, taxes, dues, demands, liabilities, notification, mortgages, court-decree and attachments etc.

c)       That the contents of these presents are true and correct, if at any time hereafter the assurance and contents contained hereinabove are found to be incorrect due to any defect in the title of the VENDOR or his rights to sell the PROPERTY hereby conveyed or any part thereof and the VENDEE suffers any loss then the VENDOR shall be liable to make good the loss thus suffered by the VENDEE and keep the VENDEE saved, harmless and indemnified through VENDOR properties movable and immovable against all losses, costs, damages and expenses occurring thereby to the VENDEE.

d)      That the Vendee can get the said property mutated/transfer in their names as owner in the records of the concerned authorities on the basis of this sale deed or its certified true copy.”

19.     Having taken possession in the year 22.03.2010 and got executed a Registered Sale Deed, filing the Complaint in the year 2017 is beyond limitation as Section 24A of the Act stipulates that the Complaint should be filed within two years from the date of cause of action. In the instant case cause of action took place on the day the Sale Deed was registered.  The contention of the Complainant that since the Occupation Certificate was given to him the cause of action is a continuing one is untenable as the Occupation Certificate, as can be seen from the record, was issued in the year 2003.  Be that as it may the sale of the flat to the Complainants was the second sale and they were very much in the knowledge of the facilities provides, the title and ownership of the said Project.  The Counsel for OP-6 submitted by way of affidavit that the Occupation Certificate in respect of the building still subsists notwithstanding any purported rejection of the completion certificate of the entire project.   Having regard to the facts and circumstances of the case, at the cost of repetition, it is observed that the Complainants purchased flat G-3104 on second sale.  They were very much in the knowledge of the title and ownership and the taxes that were being paid, the Occupation Certificate, which is filed before this Commission bearing Memo. No. 5191 dated 03.04.2003 and the sale deed executed in favour of the Complainant dated 22.03.2010.   There is no documentary evidence on record to establish that the Opposite Parties had given an illegal and unlawful possession of the subject flat.  It is also evidenced from FBR-VI issued by the Director Town & Country Planning that the composition charges amount of ₹2,15,649/- were also paid for the variations and that permission was granted for occupation of the building.  Lastly, the Complaint is also barred by limitation as the Sale Deed was executed on 23.02.2010 and the Complaint was filed on 18.08.2017.  Hence this Complaint is dismissed on both limitation as well as on merits.