DR. SADHNA SHANKER, MEMBER

1.       The present two appeal executions have been filed under Section 73 of the Consumer Protection Act, 2019 (for short “the Act”) in challenge to the Orders dated 06.10.2021 (02 nos.) of the State Commission passed in Execution Applications No. 178 and No. 326 of 2020 in Consumer complaint 125 of 2019 and No. 534 of 2019, respectively, whereby the Execution Applications are disposed of.

2.      As these two appeal executions have been filed against the similar orders dated 06.10.2021 (02 nos.) of State Commission, these have been taken up together and they are being decided by this common order.

3.       The complainants filed consumer complaints no. 125 of 2019 and No. 534 of 2019 before the State Commission.

4.       In consumer complaint no. 125 of 2019 filed by Dr. Mudit Kumar and Dr. Monika Sachdeva, the State Commission, vide its orders dated 03.06.2019, while disposing of the complaint, directed the opposite party as under:

(a) to obtain 'Completion Certificate' and 'Occupancy Certificate' in respect of the flat/project in question from the competent authorities concerned within a period of three months and hand over the copies thereof to the complainants, failing which to pay interest at the rate of 9% per annum on the total amount paid by the complainants towards the total sale consideration of the flat in question from 03.09.2019 till such certificates are obtained and delivered to them;

 (b)  to comply with the provisions of Section 17(2) given in Chapter IV of the Punjab Apartment Ownership Act, 1995 and provide registered maintenance society to the complainants within three months;

(c) to provide all the facilities like Club, Chemist Shop, Creche, Child Care Facility etc. as agreed in the Buyer's Agreement within three months;

(d) not to charge maintenance charges till the date of obtaining the Completion Certificate and Occupancy Certificate from the concerned competent authority; and

(e) to pay 22,000/-, as litigation expenses within three months.

5.       Similarly, in consumer complaint no. 534 of 2019 filed by Virpal Kaur, the State Commission, vide its orders dated 09.10.2019, while disposing of the complaint, directed the opposite party as under:

(i) to obtain ‘Completion Certificate’ and ‘Occupancy Certificate’ in respect of flat / project in question from the competent authorities concerned and provide the copies thereof to the Complainant;

(ii) to pay compensation for delay in delivery of possession at the rate of 12% on the entire amount deposited by her towards sale consideration of the flat from the date of filing of the complaint (as prayed for) till obtaining of Completion and Occupation Certificates from the competent authorities by them;

(iii) to provide all the agreed facilities as per Brochure Ex.C-1 and agreement Ex. C-2 to the Complainant;

(iv) to provide the Registered Residents Welfare Association to Complainant, according to the provisions of Punjab Apartment Ownership Act, 1995;

(v) to adjust the amount Rs.1,58,265/- charged on account of maintenance charges from the Complainant, after obtaining 'Completion Certificate' and 'Occupancy Certificate' in respect of the flat / project in question from the competent authorities concerned not to charge maintenance charges till the issuance of such certificates;

(vi) to pay composite litigation expenses and compensation for the mental agony and harassment suffered by the complainant to the tune of Rs.75,000/-;

6.       The complainants filed execution applications No. 178 and No. 326 of 2020 before the State Commission to comply with the Orders dated 03.06.2019 and 09.10.2019 of the State Commission.

7.       The State Commission, vide its orders dated 06.10.2021, disposed of the execution applications, observing that the judgment debtors have complied with the decree in toto.

8.       The main question for our consideration is as to whether the Orders dated 03.06.2019 and 09.10.2019 of the State Commission have been complied with or not.

9.       Before us, learned counsel for the decree holders has argued that the judgment debtor has not complied with the directions of the Orders dated 03.06.2019 and 09.10.2019 of the Hon'ble State Commission and till date neither ‘Completion Certificate’ or ‘Occupancy Certificate’ in respect of flat/project in question was obtained from the competent authorities nor the judgment debtor had paid interest at the rate of 9% per annum on the total amount paid by the complainants towards the total sale consideration of the Flat in question from 03.09.2019. It is also alleged that the judgment debtors have neither complied with the provisions of Section 17 (2) given in Chapter IV of the Punjab Apartment Ownership Act, 1995 nor provided registered maintenance society to the residents. It is further argued that the judgment debtors’ claim to "conditional partial completion certificate" is contrary to, not only the judgment under section 17 of the Act, 2019 but violates the statutory conditions provided for obtaining partial completion certificate.        Further, it was submitted that the Club, Gym, play area for children, STP of project etc. has been constructed by judgment debtor on the land not owned by it. Admittedly, the said 1.05 acres of land belongs and owned by PACL, thus the judgment debtor could not transfer any right over said land or any facility constructed on the said parcel of land. It is trite law that "no one can transfer a better title than he himself possesses". There is a shortage of parking in the project and the guests need to park outside the project or park in such a way the other resident's parking are either blocked or mis-occupied. The pits in the society either electric wire pit or the lift pits are often filled with water and despite several complaints the said problem is not yet resolved. The Developers / judgment debtors promised to install 3 Power Generators, thus power back up is not as per requirement.

10.     Further, it was submitted that there was an incidence of fire in the society in June 2017. Despite that, even today the fire sensors installation is incomplete and not in working condition. A chemist shop was also promised which has not been made till date.

11.     Further, it was argued that the Partial Completion Certificate is also subject to the orders and decisions of the Hon'ble Supreme Court of India in Civil Appeal No.13301 of 2015 Subrata Bhattacharya vs. SEBI and Others which is qua the properties / projects of M/s Pearls Infrastructure (PACL) and pending adjudication in the Hon'ble Supreme Court of India, wherein the Hon'ble Supreme Court has appointed Lodha Committee for auctioning the properties of PACL all over India, to make payment to the investors.

Further, the Partial Completion Certificate also directs the builder to take the ownership of the entire 4.65 acres land before seeking the Final Completion Certificate and in case is unable to acquire ownership/full registry of the site, in that case shall provide additional car parking equivalent to 80 ECS in the form of mechanical parking. It is submitted that the builders have sold all the flats in the project and remained with no vested interest in the project.

12.     Further, it was submitted that the partial completion certificate issued by the competent authority is only for 3.6. acres land and there is no other tower which is to be developed on rest approx 1.05 acres land. The construction works of all towers are completed, but the work of facilities and amenities promised are not yet complete. The builders further breached the terms of Buyer's Agreement i.e. (i) Article 4 (b) (4); (ii) Article 11. It is also pertinent to mention here that the circular dated 09.07.2019 clarifies that the Partial Completion Certificate is given for a portion of the total project wherein services are found to be complete in all respect. However, there is no whisper regarding mandatory completion of the services, enumerated in the impugned judgment dated 06.10.2021 passed by the Hon'ble State Consumer Disputes Redressal Commission.

13.  Further, it was argued  the judgment debtor without obtaining the Completion Certificate and Occupancy Certificate and further after non-compliance with the provisions of Section 17 (2) given in Chapter IV of the Punjab Apartment Ownership Act, 1995 and non-providing of registered maintenance Society to the decree holder with other residents, now through other residents of the society, are demanding maintenance charges towards various heads, which is illegal and in complete violation of the final judgment passed by the State Commission.

14.     Lastly, it was submitted that in case the decree holders are allowed to register a Resident Welfare Association without obtaining the Completion Certificate and Occupancy Certificate, it will be in violation of the provisions of Punjab Apartment and Property Regulation Act, 1995 (PAPRA) wherein Section 17 A of the Act specifically states that the competent authority shall by an order direct to form an association of residents in respect of a colony within a period of five years from the date of issue of completion certificate for maintenance and up-keep of common infrastructure and facilities in the colony. It is clear from the provision that the time for registration of society starts from the date of issuance of the Completion Certificate and for registration, permission for registration of the Association is required from the competent authority. Any registration without obtaining Completion Certificate and the permission from the Competent Authority is in violation of the provisions of PAPRA. In support of their above mentioned arguments, the decree holders placed reliance on following judgments: 

1. Universal Infrastructure and Ors. V. Dr. Mudit Kumar &Ors. First Appeal No. 1981 of 2019 Date of Judgment 15.12.2023 passed by Hon'ble NCDRC;
2. Universal Infrastructure and Ors. V. Binay Pal Singh &Ors. First Appeal No. 1668 of 2019 Date of judgment 23.08.2019 passed by Hon'ble NCDRC-relevant Para 7 and 10;  
3. Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. V. DLF Southern Homes Pvt. Ltd. and Ors. Civil Appeal No. 6239 of 2019 Date of Judgment 24.08.2020 passed by Hon'ble Supreme Court of India - relevant Para 1, 12, 23-28, 43 and Para 55.
4. Samruddhi Co-operative Housing Society Ltd. V. Mumbai Mahalaxmi Construction Pvt. Ltd. Civil Appeal No. 4000 of 2019Date of Judgment 11.01.2022 passed by Hon'ble Supreme Court of India-relevant Para 2, 3, 15, 19 and 21-22;
5. Madhusudhan Reddy and Ors. V. VDB Whitefield Development Pvt. Ltd. andOrs. Consumer Complaint No. 763 of 2020 Date of judgment 25.01.2022, passed by Hon'ble NCDRC - relevant Para 4, 6, 7, 24 and 26.

15.     The counsel for the judgement debtor rebutted the decree holder’s arguments and argued that the possession of the flat has been taken by the decree holders / complainant on 22.09.2016 and are in continued possession of the same since then and the execution of sale deed in favor of the decree holder / appellants has been done in December, 2017. Therefore, after getting the sale deed executed in the month of December, 2017, no cause of action accrue in favour of the decree holders / complainants.

16.     Further, it is submitted that even before filing of the complaint, not even a single grievance was ever raised by the decree holder / complainant pertaining to the non-availability of the services in the project or about the said flat. Further, it was submitted that the judgment debtor had applied to the competent authority for the issuance of the completion certificate of the complete project way back in the year 2017 itself and subsequent to which an Inspection Committee was constituted, which after recording its finding issued report dated 07.01.2018 for issuance of completion certificate of the whole of the project of the judgment debtor / opposite parties.

17.     Further, it was submitted that the said project is complete in all respect with all the facilities namely, club house, creche, swimming pool, gym, mini cineplex, banquet hall, 4 guest bedrooms, indoor games i.e. billiard and table tennis, outdoor games i.e. basketball court and kids play area and parks/open green area. And accordingly, the partial completion certificate dated 03.12.2019 has been issued by the competent authority which is also being placed on record.

18.     We have considered the rival contentions of learned counsel for the parties and perused materials available on record.

19.      As regards compliance of the orders dated 03.06.2019 and 09.10.2019 of the State Commission is concerned, although the judgment debtor has stated that the Orders dated 03.06.2019  and 09.10.2019 of the State Commission have been complied with but the judgment debtor has not been able to produce any documentary evidence to produce the completion certificate. Additionally, it is stated by the judgment debtor that it had applied for completion certificate of the complete project way back in the year 2017 itself but has not stated that the completion certificate had been obtained. Further, the judgment debtors have stated that they are ready to adjust the interest payable from 03.09.202019 to 03.12.201 but it has not been stated anywhere that the interest had been adjusted or paid to the complainants in compliance of the decree. It is further stated that the judgment debtors have provided all the facilities as directed by the State Commission.

20.     In view of the above, we find merit in the appeal executions before us.

21.     In the result, the appeal executions no. 90 and 91 of 2021 are allowed and the orders dated 06.10.2021 (02 nos.) are set aside and the execution applications are restored to its original number before the State Commission. The State Commission is directed to ensure that the decree(s) are fully satisfied.

22.     The Registry is requested to send a copy each of this Order to the parties and to their learned counsel immediately. It is also requested to forthwith send a copy of this Order to the State Commission by the fastest mode available.