JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

The predecessor in interest of the complainant/respondent booked a residential flat with the appellant in a project which the appellant was to develop in Mullanpur area of District SAS Nagar, Mohali.  An allotment letter allotting Unit No.553 on the ground floor was issued to him.  He paid an initial amount of Rs.4,00,000/- to the appellant followed by payment of Rs.6,00,000/-  by the respondent on 21.05.2011.  The allotment was transferred to the complainant / respondent on 21.5.2011, which was followed by an allotment letter dated 30.8.2011 issued to him by the appellant.  The allotment was made at the sale price of Rs.54,45,000/- which was later revised to Rs.61,68,460.70p.  The allottee had paid Rs.59,06,758.87p to the appellant by the time he was asked vide letter dated 20.8.2015 to take possession on paying the balance amount of Rs.3,93,087/- alongwith Service Tax.  The case of the complainant is that when he visited the site on receipt of the aforesaid letter, he found that the development was nowhere complete and there were a large number of defects/deficiencies in the flat offered to him.  This is also his case that right compensation for the period for which possession had been delayed, was not credited in his account.  The complainant therefore, approached the concerned State Commission by way of a consumer complaint. 

2.      The complaint was resisted by the appellant which admitted the payment made by the complainant but alleged that the allotment was made to the original allottee, cancelled on account of non-payment of the remaining amount by the allottee.  Later on, the cancellation was recalled, on the request of the respondent / complainant.   The occupancy certificate is stated to have been paid by the appellant on 02.09.2015.

3.      The State Commission vide impugned order dated 03.6.2016 directed as under:

(i)      To immediately withdraw the letter dated  20.7.2015, vide which the offer of provisional possession of the flat, which was incomplete in many respects, was made;

(ii)      to rectify/remove all the defects, as mentioned in the complaint and to complete the flat as per the terms and conditions of the allotment letter within a period of two months and to offer the possession of the complete flat immediately after the rectification / removal of those defects;

(iii)     To pay penalty at the rate of Rs.10/- per square foot per month for the built up area of the flat from 20.6.2014 till the actual delivery of physical possession to the complainant;

(iv)     To pay interest at the rate of 12% per annum on the total amount deposited by the complainants from the date of different payment till the delivery of actual physical possession;

(v)     To pay Rs.3,00,000/- as compensation for the harassment and mental agony suffered by the complainant; and

(vi)     To pay Rs.11,000/- as costs of litigation.

4.      Being aggrieved from the order passed by the State commission, the appellant is before this Commission.

5.      When this appeal came up for hearing, Mr. Viay Motwani, Special D.G.(DR) of CPWD was appointed as the Court Commissioner to investigate the flat in question and submit his report in the light of the objections of the complainant as contained in his letter dated 13.10.2016.  The fee of the Local Commissioner was initially to be shared between the parties but the final order with respect to his fee and expenses of executing the commission was to be passed at the time of final hearing.

6.      Mr. Vijay Motwani has thereafter submitted a report, pointing out some defects and deficiencies in the flat which was offered to the complainant.  He was thereafter requested to give a fair estimate of the amount which would be required to remove the said defects and deficiency.  Mr. Motwani has given a supplementary report estimating the cost of removing the said defects and deficiencies at Rs.2,18,646/-.

7.      Considering the report of the Local Commissioner, the appellant should not only pay the aforesaid amount of Rs.2,18,646/- to the complainant / respondent, it should also bear the entire cost of executing the commission, defects or deficiencies having been found in the flat which the appellant had offered to the complainant.

8.      Since the complainant was not expected to accept the possession of the flat which had some defects or deficiencies, he cannot be held responsible for the delay in accepting the possession. The appellant should have offered the flat free from any defects or deficiency to the complainant.  By not offering possession of the flat free from defects and deficiencies, the appellant delayed the possession of the flat and therefore, it must pay an adequate compensation to the complainant for the said delay.

9.      Considering all the facts and circumstances of the case, the appeal is disposed of with the following directions:

(i)      The appellant shall pay compensation in the form of the simple interest @ 8% per annum to the complainant / respondent from the committed date of possession i.e. 2 ½ years from the date of start of the construction till the date on which the possession was actually taken. The opposite party/appellant shall calculate the amount of compensation in terms of terms of this direction and pay the sum to the complainant / respondent.

(ii)      The appellant shall pay the fee of the Local Commissioner to the extent the sum was borne by the complainant / respondent.

(iii)     The appellant shall pay a sum of Rs.2,18,646/- to the complainant / respondent for removing the defects and deficiencies in the flat delivered to him.  The possession of the flat has already been taken by the complainant.

(iv)    The payment in terms of this order shall be made within four months from today.