Chandigarh

StateCommission

CC/81/2016

Ritesh Trikha - Complainant(s)

Versus

Puma Realtors Private Limited - Opp.Party(s)

Paras Money Goyal, Adv.

15 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Consumer Complaint	:	81 of 2016
Date of Institution	:	02.03.2016
Date of Decision	:	15.07.2016

 

1. Ritesh Trikha S/o Sh. Sudesh Trikha, resident of #5672, Sector 38 (West), Chandigarh.
2. Nidhi Trikha W/o Sh. Ritesh Trikha, resident of #5672, Sector 38 (West), Chandigarh.

 

……Complainants.

Versus

1. Puma Realtors Private Limited, a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Corporate Office at SCO No.6-8, First and Second Floors, Sector 9-D, Chandigarh – 160009 (India) through its Managing Director.
2. The Managing Director, Puma Realtors Pvt. Ltd., a Company incorporated under the Companies Act, 1956 (An IREO Group Company), Registered Office at No.5, Dhanraj Chambers, 1st Floor, Satbari, New Delhi-110074.

….Opposite Parties.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT

SH. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER.

               

Argued by:

 

Sh.  Paras Money Goyal, Advocate for the complainants.

Sh. Ramnik Gupta, Advocate for Opposite Parties.

 

PER DEV RAJ, MEMBER

            The facts, in brief, are that complainant no.1 did not own any residential accommodation house/flat in Mohali in his name and, as such, always dreamt of owing a residential accommodation of his own where he could reside with his family. Complainant No.1 as per his requirements requested the sales staff of the Opposite Parties to provide a flat on the ground floor with a private garden. IREO sales staff reverted to the query of complainant no.1 and apprised him that a flat at ground floor is available only in resale. On the insistence of complainant no.1, deal was struck and complainant no.1 was offered a flat in Gardenia Block – B having super area of 1813 Sq. ft. with 2 parking spaces, Apartment No.2, Category Premium, Ground Floor. The said property was arranged in re-sale from one Smt. Charanjit Madan and Sh. Jasmeet Madan, who had purchased the said property vide Apartment Buyer’s Agreement dated 27.05.2011 (Annexure C-1) at total consideration money of Rs.60,35,589/- @Rs.2,900/- per sq. ft. Complainant No.1 paid the amount towards the sale consideration to the earlier owners alongwith the premium and paid the transfer fee to the Opposite Parties and got the endorsement in respect of the flat, in question, in their names. The complainants kept on making payment to the Opposite Parties under Construction Linked Plan. Complainant No.1 also opted for loan from ICICI Bank towards part payment of the flat, in question, and is paying EMI of Rs.40,000/- approximately per month.  Complainant No.1 has paid an amount of Rs.57,13,393.73 as against the total sale consideration of Rs.60,35,589/-, as reflected in account statement (Annexure C-2).

2.         As per Clause 13.3 of the Agreement, possession of the flat was to be delivered by the Opposite Parties within 30 months from the date of the Agreement, which stood expired in November, 2013. As per the complainants, possession has not been delivered till date and, as such, there is willful and intentional delay of more than 27 months from the cut-off date for offering the possession. It was further stated that in default of delivering possession within the stipulated period, as per Clause 13.4 of the Agreement, the complainants were entitled to delay compensation @Rs.7.5 per sq. ft. per month, which came to be Rs.13,597.50 per month, which does not in any way safeguard the interest of the complainants being inadequate. It was further stated that the builder, namely, L & T, to whom the project had been entrusted for construction, had withdrawn and some local builder has been engaged, as per Annexure C-4. It was further stated that the development/construction work at site has come to a standstill.

3.         It was further stated that in the Agreement, the Opposite Parties had offered various amenities viz. multipurpose hall, swimming pool, gym, badminton and basket ball courts, kids play area with seesaws, baby slides, sandpit, jogging tracks, which facilities have not been started to be developed in the project. It was further stated that the Opposite Parties unilaterally withdrew the garden, which was initially offered and which was the prime basis for the purchase of the property in addition to ground floor facilities and sunlight in the back-yard. It was further stated that the Opposite Parties did not disclose that a tower is to be constructed in the adjacent plot exactly behind the flat of the complainants, which will restrict the sunlight and ventilation for all times to come. It was further stated that although private garden was part of the approved layout in the drawings, but the ground floor flat drawing did not have any access to the garden area. It was further stated that now the Opposite Parties intended to wash off their hands from their  earlier commitment of providing private greens on the pretext that some mandatory requirement is to be fulfilled by using the said area as fire tender path. It was further stated that the Opposite Parties have unilaterally constructed approximately 70 flats over existing towers thereby causing lot of inconvenience to the complainants and, as such, additional construction shall put burden on the existing common amenities. It was further stated that the complainants are apprehensive that the Opposite Parties shall not apply for regular electricity connection with the Govt. Department and shall keep on supplying the electricity at exorbitant rates to the occupants by installing generator sets. It was further stated that as per Annexure-I, annexed to the Agreement, the Opposite Parties have not taken upon themselves to provide modular kitchen and their intent is only to offer incomplete modular kitchen i.e. by providing cupboards only in the lower portion of the kitchen and not in the upper portion. It was further stated that the acts of the Opposite Parties amounted to deficiency, in rendering service and indulgence into unfair trade practice.

4.         Alleging deficiency, in rendering service, and indulgence into unfair trade practice, on the part of the Opposite Parties, the complainants filed the instant complaint under Section 17 of the Consumer Protection Act 1986 (in short 1986 Act) seeking directions to the Opposite Parties to handover possession of the flat, in question, complete in all respects, with all amenities including complete modular kitchen i.e. lower cupboards as well as upper cupboards with modular fittings & for providing the ACs provision in all the rooms; pay compensation for delayed possession as per Clause 13.4 of the Agreement, alongwith interest @15% per annum; Rs.15,00,000/- as compensation for not providing private garden, on account of harassment and mental agony;  and Rs.50,000/- as litigation charges.

5.         The Opposite Parties, in their written statement, took-up certain preliminary objections, to the effect, that the complaint was liable to be dismissed, due to existence of arbitration Clause No.34 in the Plot Buyer’s Agreement dated 27.05.2011; that the complainants did not hire any services of the Opposite Parties, as the parties did not enter into any contract for hiring the services; that the allegations in the complaint being of contractual nature, were only triable by the Civil Court and that the complainants are not consumers as they did not buy any goods.

6.         On merits, it was stated that the complainants of their own purchased the allotment rights of the apartment from its original allottees namely, Ms. Charanjit Madan and Mr. Jasmeet Madan, from the open market and accordingly, got transferred the allotment rights in their favour. It was further sated that the Opposite Parties were taking bookings at basic sale price of Rs.4,000/- per sq. ft. in February, 2013, while booking by the said original allottees had been made at BSP of Rs.3,118.75 per sq. ft. in February 2011. It was further stated that the complainants, out of their own negotiation agreed to get allotment of the apartment in resale in open market. It was denied that the basic sale price was Rs.2,900/- per sq. ft. It was further stated that the complainants and the original allottees entered into an agreement to sell on 3.1.2013 and after payment of sale consideration, executed a nomination/transfer agreement dated 13.2.2013.It was further stated that the Opposite Parties assigned all the rights with respect to the apartment in favour of the complainants vide letter dated 19.2.2013. It was further stated that amount of Rs.60,35,589/- included external development chargers and the then prevailing service tax, which was subject to statutory amendments from time to time. It was denied that the apartment, in question, was having additional 100 sq. ft. area of garden attached with the same. It was stated that only super area of 1813 sq. yard was agreed to be sold with the said original allottees. It was denied that the total value of the apartment in question, was increased many fold, as alleged. The apartment was agreed to be premium because of being located in Low Rise Tower having Ground + 3 floors as compared to other towers being developed by the Opposite Parties having Ground + 7/8 floors. It was further stated that the payment of Rs.57,13,393.73 included service tax as applicable at the time of execution of the Agreement. It was further stated that the payment of last and final installment amount of Rs.2,82,715/- towards BSP and Rs.54,390/- towards IFMS besides the applicable service tax is yet to be paid on receipt of occupation certificate, as per the agreed payment plan. It was further stated that the commencement date for possession period does not commence from the date of agreement only but on approval of the building plans or fulfillment of the preconditions imposed thereunder, whichever is later. The building plans of the IREO Rise were approved on 18.01.2012 and hence, it being the later date than the Agreement, would be the commencement date for the possession period. It was further stated that the complainants very well knew about the status of the development of the tower at the time when they applied for assignment of the apartment in their favour vide application dated 13.02.2013. It was further stated that in terms of Clause 13.4 of the Agreement, the complainants duly agreed to receive liquidated damages from the end of the grace period i.e. 30 months + 6 months i.e. w.e.f. 17.1.2015 till possession is actually offered as per said clause. It was further stated that after start of construction in the project, the same is continuously being carried on. It was further stated that the Opposite Parties engaged L&T for getting construction in the project in order to deliver best in class project to its customers and the said L&T Company has carried out majority of the construction/development work. With regard to the change of contract from L&T to M/s    Akalia Constructions, it was stated that it was not the case of the complainants that after having publicized L&T as the contractor to construct IREO Rise project, the Opposite Parties did not engage the said contractor. It was further stated that in any case, the work in Gardenia Block/Tower, where the apartment has been allotted to the complainants, is till date being developed by L&T only. It was further stated that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. It was further stated that the Opposite Parties never proposed to offer possession of the apartment without completing the amenities. It was further stated that the construction work in the Gardenia Block, in which the apartment allotted to the complainants is situated, has already been completed by L&T and finishing work is in progress.

7.         It was specifically denied that the Opposite Parties initially offered any rear courtyard/private garden/private green area, which was alleged to be the prime basis for purchase of the apartment, in question. It was further stated that the Opposite Parties are in progress of obtaining approvals for additional areas as agreed under Clauses 10.10 and 22.3 of the Agreement.

8.         It was further stated that the Opposite Parties vide application dated 26.11.2013 applied online for approval of electrical layout plan and grant of NOC to the PSPCL after submitting requisite details and PSPCL duly granted NOC dated 08.07.2015. It was further stated that the Chief Electrical Inspector to Govt. of Punjab approved the electrical installations laid in the project for commission of the same vide its NOC dated 07.08.2015. It was further stated that the Opposite Parties duly applied online vide RID No.15250 dated 27.08.2015 for the release of electric connection for the IREO Rise Project and PSPCL duly granted feasibility clearance dated 20.11.2015 for release of load/connection on the project. It was further stated that the Opposite Parties requested GMADA to comply with and deposit amount of Rs.37,19,763/- with PSPCL being already paid by the Opposite Parties as part of EDC to GMADA vide letter dated 29.3.2016 and also deposited Bank Guarantee dated 22.3.2015 for amount of Rs.3,24,10,301/- plus Rs.2.97 Lacs towards Advance Consumption Deposit on 12.4.2016 in compliance to demand notice dated 28.12.2015. It was further stated that all formalities have been duly complied with and no dues remain to be paid or deposited on the part of Opposite Parties towards energization of the electrical connection by PSPCL.

9.         It was further stated that the Opposite Parties have already constructed underground water tanks duly connected with the approved bore well, which have further been connected to the overhead tanks of each tower with pumping system to supply the water for domestic use. It was further stated that the Opposite Parties have already constructed and installed underground STP for the disposal of the sewage to meet the norms and requirements of Ministry of Environment. It was further stated that it was nowhere agreed that modular kitchen comprising of both upper and lower portion would be provided.

10.       It was further stated the Opposite Parties vide their letter dated 19.06.2015 (Annexure OP-17) offered to its allottees, including the complainants, for upgradation in specifications, for installation of Split ACs in the living/dining room and overhead cabinets in the kitchen at a nominal charges and the complainants were to opt for the aforesaid upgrades and to confirm their acceptance within a period of 15 days of the receipt of the said letter but the complainants never opted for the same. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

11.       The complainants filed rejoinder, wherein they reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.

12.       The complainants, in support of their case, submitted their separate affidavits, by way of evidence, alongwith which, a number of documents were attached.

13.       The Opposite Parties, in support of their case, submitted the affidavit of Sh. Rohit Tanwar, their Authorised Representative, by way of evidence, alongwith which, a number of documents were attached. 

14.       We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully. 

15.       It is evident, on record, that original allottees namely, Ms. Charanjit Madan and Mr. Jasmeet Madan purchased Apartment No.002, Category Premium, on Ground Floor in Tower “Gardenia Block B” having a tentative super area of 1813 sq. ft. at the basic sale price of Rs.3,118.75 per sq. ft. of super area i.e. Rs.56,54,300.50 as the Basic Sale Price besides external development charges @100/- per sq. ft. of the super area, and an Apartment Buyer’s Agreement was executed on 27.05.2011. The above apartment was transferred in the name of the complainants by the Opposite Parties and endorsement dated 13.02.2013 to this effect was made  on the Apartment Buyer’s Agreement executed       between the original allottees and the Opposite Parties. Admittedly, the complainants paid an amount of Rs.57,13,393.73 to the Opposite Parties as against the total sale consideration of the flat i.e. Rs.60,35,589/-. It was admitted that the construction work in Gardenia Tower, in which the apartment allotted to the complainants is situated, has already been completed by L&T and finishing work is in progress. It was also admitted that all the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over. It has been specifically averred that no additional flats are being constructed in the Tower in which apartment of the complainants is situated, though they could do so as agreed under Clause 10.10 and 22.3 of the Agreement. The Opposite Parties also admitted that they never proposed to offer possession of the apartment without completing the amenities.

16.       During arguments, Counsel for the complainants stated that he did not wish to press the issues relating to change of contract from L & T to M/s Akalia Constructions and provision for the electricity, water and sewerage.

17.       The first question, that falls for consideration, is, as to whether, in the face of existence of arbitration clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has jurisdiction to entertain the consumer complaint or not. With a view to appreciate the controversy, in its proper perspective, reference to Section 3 of the Consumer Protection  Act, 1986, is required to be made, which reads as under ;

            “3.Act not in derogation of any other law.—

The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force.”

            Section 3 of the Act, is worded in widest terms, and leaves no manner of doubt, that the provisions of the Act, shall be, in addition to, and not in derogation of any other law, for the time being, in force. The mere existence of arbitration Clause, in the Agreement, would not oust the Jurisdiction of this Commission, in view of the provisions of Section 3 of the Act.  Similar principle of law, was laid down, in  Fair Engg. Pvt. Ltd. & another Vs N.K.Modi III (1996) CPJ 1 (SC) and C.C.I Chambers Coop. Housing Society Ltd. Vs Development Credit Bank Ltd. III (2003) CPJ 9 (SC). Recently, it was also so said by the National Commission, in a case titled as Lt. Col. Anil Raj & anr. Vs. M/s. Unitech Limited, and another, Consumer Case No. 346 of 2013, decided on 02.05.2016. Relevant portion of the said case, reads thus:-

“In so far as the question of a remedy under the Act being barred because of the existence of Arbitration Agreement between the parties, the issue is no longer res-integra.  In a catena of decisions of the Hon’ble Supreme Court, it has been held that even if there exists an arbitration clause in the agreement and a Complaint is filed by the consumer, in relation to certain deficiency of service, then the existence of an arbitration clause will not be a bar for the entertainment of the Complaint by a Consumer Fora, constituted under the Act, since the remedy provided under the Act is in addition to the provisions of any other law for the time being in force. The reasoning and ratio of these decisions, particularly in  Secretary, Thirumurugan Cooperative Agricultural Credit Society Vs. M. Lalitha  (Dead) Through LRs. & Others  - (2004) 1 SCC 305; still holds the field, notwithstanding the recent amendments in the Arbitration and Conciliation Act, 1986.  [Also see: Skypak Couriers Ltd. Vs. Tata Chemicals Ltd. - (2000) 5 SCC 294 and National Seeds Corporation Limited Vs. M. Madhusudhan Reddy & Anr. - (2012) 2 SCC 506.] It has thus, been authoritatively held that the protection provided to the Consumers under the Act is in addition to the remedies available under any other Statute, including the consentient arbitration under the Arbitration and Conciliation Act, 1986.”

 

            In view of the above, and also in the face of ratio of judgments, referred to above, the arguments raised by the Counsel for the Opposite Parties, stand rejected.

18.         The next question, that falls for consideration, is, as to whether, there is a contract to sell an apartment only, to the complainants and no service was to be provided as alleged, by the Opposite Parties, to them (complainants) and, as such, they would not fall within the definition of ‘consumer’. It may be stated here that the stand taken by the Opposite Parties, needs rejection, in view of Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014 (AIR 2014 S.C. 1766), wherein the Hon’ble Supreme Court, while placing reliance on Municipal Corporation, Chandigarh &Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, held that though it was not a condition precedent but there is an obligation on the part of the Administration to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees. Thus, since, it was bounden duty of the Opposite Parties to provide basic facilities and infrastructure to make the flat habitable, as such, it cannot be said that only an apartment was to be delivered to the complainants, without any amenities/facilities. Under similar circumstance, in Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc., II (2012) CPJ 4 (SC),  the National Commission, held as under:-

“In the light of the above pronouncement of this Court the High Court was perfectly justified in holding that the activities of the appellant-company in the present case involving offer of plots for sale to its customers/members with an assurance of development of infrastructure/ amenities, lay-out approvals etc. was a ‘service’ within the meaning of clause (o) of Section 2(1) of the Act and would, therefore, be amenable to the jurisdiction of the fora established under the statute. Having regard to the nature of the transaction between the appellant-company and its customers which involved much more than a simple transfer of a piece of immovable property it is clear that the same constituted ‘service’ within the meaning of the Act. It was not a case where the appellant-company was selling the given property with all 7 Page 8 advantages and/or disadvantages on “as is where is” basis, as was the position in U.T. Chandigarh Administration and Anr. v. Amarjeet Singh and Ors. (2009) 4 SCC 660. It is a case where a clear cut assurance was made to the purchasers as to the nature and the extent of development that would be carried out by the appellant company as a part of the package under which sale of fully developed plots with assured facilities was to be made in favour of the purchasers for valuable consideration. To the extent the transfer of the site with developments in the manner and to the extent indicated earlier was a part of the transaction, the appellant-company had indeed undertaken to provide a service. Any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers like the respondents”.

In view of above facts, the plea taken by the Opposite Parties, in this regard, stands rejected.

19.       Another objection raised by the Opposite Parties was that since the complainants sought enforcement of the Agreement, only a Civil Court has the jurisdiction, and as such, consumer complaint was not maintainable. It may be stated here, that the complainants hired the services of the Opposite Parties, for purchasing an apartment , in question, in the manner, referred to above. According to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to  hand over possession of the apartment, in question, within a period of thirty months, from the date of execution of the same (Agreement). Section 2 (1) (o) of 1986 Act, defines ‘service’ as under:-

“service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both,  housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”

20.       From the afore-extracted Section 2(1)(o) of 1986 Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs.  Union Of India and  Ors. Etc.’s case (supra),  it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression ‘service’ of any description. Housing construction or building activity carried on by a private or statutory body constitutes ‘service’ within the ambit of Section 2(1)(o) of 1986 Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors.’s case (supra). Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable. Not only this, as stated above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have remedy to file a suit in the Civil Court, the alternative remedy provided under Section 3 of 1986 Act, can be availed of by them, as they fall within the definition of a consumer, as stated above. In this view of the matter, the objection of the Opposite Parties, in this regard, being devoid of merit, must fail, and the same stands rejected.

21.       The next question, which falls for consideration, is, as to whether the construction of approximately 70 flats over the existing tower(s) by the Opposite Parties is at the cost of existing common facilities/amenities and against the agreed terms and conditions. Since the Opposite Parties specifically stated that no additional flats are being constructed in the Tower in which apartment of the complainants is situated, though they could do so as agreed under Clause 10.10 and 22.3 of the Agreement, the objection of the complainants, therefore, being without any basis, is not tenable.

22.       The next question, which falls for consideration, is, as to whether the Opposite Parties by not providing split AC fitting and complete modular kitchen were deficient in rendering service. As per Annexure I, the Opposite Parties were to make provision for split AC and modular kitchen. The provision and specifications, so mentioned in Annexure-I appended to the Agreement, at Page 64 of the file, qua the aforesaid two facilities, are extracted hereunder:-

KITCHEN	MODULAR KITCHEN	Fitted modular Kitchen, SS Sink, CP fittings, provision for RO system, built-in hob/chimney.
	COUNTERTOP	Granite
AIR CONDITIONING		Provision for Split AC in all bedrooms, drawing & dining room.

 

Admittedly, the provision in accordance with the specifications in the Apartment Buyer’s Agreement was not made. It was argued on behalf of the Opposite Parties that it was nowhere agreed that modular kitchen comprising of both upper and lower cabinets/cupboards was to be provided. It was further argued that it was nowhere mentioned that portion above the working slab is a must for a modular kitchen. The Opposite Parties cannot draw their own conclusion that modular kitchen would be complete, even if the cupboards are provided only below the slab. Had it been so mentioned in the specifications, the position would have been different. When it is clearly mentioned that modular kitchen is to be provided, it would mean that modular kitchen with cup-boards below and above the slab is to be provided. The Opposite Parties have also not been able to clarify, why the provision of split AC fittings was not made. Therefore, the Opposite Parties are clearly deficient in not providing these facilities in the Apartment. They are, therefore, liable to provide modular kitchen with cup-boards upper the slab also and so also the provision for split AC fittings in the bedrooms and drawing & dining room.

23.       The next question, which falls for consideration, is, as to whether the complainants are entitled to the facility of private garden or access to the garden area, as alleged. The complainants have stated in their complaint that private garden was a part of approved layout drawings but the ground floor drawing did not show any access to the garden area. On the other hand, the case of the Opposite Parties is that the original allottees vide application dated 9.2.2011 applied for booking of residential apartment, which clearly mentioned “tentative super area & size” at tentative payment plan without there being any mention of private greens/garden or rear backyard, as the same was never a part of the bargain. It was further case of the Opposite Parties that in terms of Clause 3.6 of the Agreement, it was only the specific area that was agreed to be sold/transferred/conveyed under the Agreement. It may be stated here that by purchasing the apartment in question from the original allottees and by getting the same transferred in their favour vide endorsement dated 13.02.2013, the complainants stepped into the shoes of the original alottees and all rights in the apartment in question and other obligations stood transferred in their favour. The definition of ‘Common Areas’ in the Agreement, to which the complainants, would have access, does not include ‘Private Greens/Garden”. Further the super area of the apartment, in question, would be the sum of specific area of the apartment and the indivisible pro-rata share of the said apartment in the common areas up-to its periphery (excluding the areas retained in the ownership of the Company). There is no mention of ‘Private Greens’ in the Agreement. When no such facility of ‘Private Greens’ was ever committed to the original allottees, from whom the ownership rights have flown in favour of the complainants, question of giving the benefit of such facility to the complainants would never arise. No cogent evidence has been led by the complainants to substantiate their averment that any promise was made by the Opposite Parties to the complainants to have any access to the Private Greens/garden. There is no mention in the complaint whether any consideration was paid by the original allottees for the alleged facility of Private Greens/garden to the Opposite Parties or the complainants ever paid towards the same subsequently. Thus, when the complainants did not pay anything towards the facility viz. Private Greens/garden, which was never promised by the Opposite Parties or mentioned in the Agreement, the complainants cannot be granted the said benefit. Therefore, this averment of the complainants, being devoid of any substance, stands rejected.

24.       The next question, that falls for consideration, is, as to whether there is delay in delivering possession of apartment to the complainants and whether the complainants are entitled to delivery of possession of the apartment. As stated above, according to Clause 13.3 of the Agreement, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were liable to deliver physical possession of apartment, within a period of 30 months, from the date of execution of the same (Agreement). Period of 30 months expired on 26.11.2013. On account of force majeure circumstances, referred to above, the opposite parties were entitled to advantage of 180 days grace period. The Opposite Parties have failed to place, on record, any cogent evidence or justification to seek extension of 180 days. However, it is an admitted fact that possession of the unit, in question, has not been offered, even by the date of filing the instant complaint, or even till date, despite the fact that 95% of the sale consideration i.e. Rs.57,13,393.73 out of Rs.60,35,589/-, has been paid by the complainants, for want of basic amenities at the site.  No doubt, the Opposite Parties have admitted in their written statement that the amenities and facilities shall be completed and made available for the residents by the time, possession, complete in all respects, of all the apartments is handed over, yet, they failed to place, on record, any cogent and convincing evidence, that  construction of the unit is going to be complete in the near future and also that development in area is in progress. The Opposite Parties were, therefore, duty bound to hand over possession within 30 months i.e. by 26.11.2013. The Opposite Parties have not so far applied for occupation certificate. No doubt in letter dated 31.12.2015 (Annexure C-4), the Opposite Parties have stated that they would be offering possession from June 2016 onwards in a phased manner, the fact remains that possession has still not been offered. The Counsel for the Opposite Parties could not give any firm date, by which the Opposite Parties would be handing over possession. Clearly there is delay in delivering possession. By making a misleading   statement, that possession of the unit, was to be delivered within the maximum period of 30 months from the date of execution of the Agreement and within further extended period of 180 days and by not abiding by the commitment made despite payment of around 95% payment by the complainants, they (Opposite Parties) were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainants are certainly entitled to physical possession of the unit, in question.

25.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, if so, at what rate, for delay in delivering physical possession of the unit beyond the time stipulated in the Agreement. It may be stated here that in case titled Capt. Gurtaj Singh Sahni & anr. Vs Manager, Unitech Limited & anr., consumer complaint bearing no.603/2014, decided on 02.05.2016, the Hon'ble National Commission, directed the opposite party/builder to pay interest  on the deposited amount, for the period of delay, till delivery of possession of the unit. Relevant contents of the said order reads thus:-

“8.   If the compensation for the delay in construction is restricted to what is stipulated in the Buyers Agreement, there will be no pressure upon the builder to complete the construction since he will be more than happy to keep on paying paltry compensation of about 3% per annum of the capital investment, instead of arranging funds at much higher cost, to complete the construction.

9.      xxxxxxxxxxxxx

10.    For the reasons stated hereinabove, the complaints are disposed of with the following directions:

(1)         xxxxxxxxxxxxxx

(2)     The opposite party shall pay compensation in the form of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate.”

26.      No doubt in the Buyer’s Agreement, some scope for delay due to unavoidable circumstances was kept, in mind, for compensating the complainants for delay but it does not mean that even in the event of inordinate delay, that too without justified reasons, in completing the construction and delivering the possession, the complainants would be entitled to meagre compensation of Rs.7.50 per sq. ft. of super area, which is much less than the bank rate for loan or fixed deposit. If the argument of the opposite parties is to be accepted, it would lead to absurd situation and would give an unfair advantage to the unscrupulous builder, who might utilize the consideration amount meant to finance the project, by the buyer, for its other business ventures, at nominal interest of 3 to 4 per cent, as against much higher bank lending rates. This could never be the intention of legislation that if such a proposition is accepted, it would result in defeating the object of Consumer Protection Act.       The judgments relied upon by the Opposite parties in Kailash Nath Associates Vs. Delhi Development Authority and another, (2015) 4 Supreme Court Cases 136 and Fateh Chand Vs. Balkishan Dass, (1964) 1 SCR 515 : AIR 1963 SC 1405, are distinguishable on facts and are, thus, of no help to the Opposite Parties.

27.       Thus, keeping in view the principle of law laid down by the Hon'ble National Commission, in the cases, referred to above, award of interest @12% on the deposited amount for the period of delay i.e. w.e.f. 26.11.2013, till delivery of possession of the unit, would meet the ends of justice.

28.            The next question, that falls for consideration, is, as to whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account  of mental agony and physical harassment, and injury caused to them, by not delivering physical possession of the unit to them, by the opposite parties, by the promised date in the Agreement i.e. by 26.11.2013. The complainants purchased the unit, with the hope to have a roof over their head alongwith with their family members, and they also raised loan from ICICI Bank for making part payment of sale consideration of unit, in question, but their hopes were dashed to the ground. Even the possession of unit, in question, was not offered to the complainants, till date by the opposite parties, what to speak of delivery thereof. The complainants underwent a lot of mental agony and physical harassment, on account of the acts of omission and commission of the opposite parties. Compensation claimed by the complainants in the sum of Rs.15 Lacs is on the higher side. As held above, the complainants did not pay anything for private greens/garden and, therefore, the complainants are not entitled to any compensation for the same. For delay in delivering possession beyond the stipulated period, the complainants have been granted interest @12% per annum till delivery of possession. The Opposite Parties have specifically stated that possession of the apartment will be handed over to the complainants on the old rates when booking was made. Thus, the complainants, in our considered opinion, have been adequately compensated by granting interest @12% per annum for the delay period. In addition, they (complainants) will also get the benefit of escalation in the prices. In these circumstances, compensation, on account of mental agony and physical harassment, caused to the complainants, due to the acts of omission and commission of the opposite parties, if granted, to the tune of Rs.1,50,000/-, shall be reasonable, adequate and fair. The complainants, are, thus, held entitled to compensation, in the sum of Rs.1,50,000/-.

29.       No other point, was urged, by the Counsel for the parties, in all the cases.

30.      For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are, jointly and severally, directed as under:-

 

1.    To hand over physical possession of  the unit, allotted in favour of the complainants, complete in all respects, including modular kitchen with cupboards below and above the slab and provision for Split AC (fittings) in all bedrooms, drawing & dining room, to the complainants, within a period of six months, from the date  of receipt of a certified copy of this order, on payment of the amount, legally due against them.
2.    To execute and get registered the sale deed, in respect of the unit, in question, within one month from the date of handing over possession, as indicated in Clause (i) above, on payment of registration charges and stamp duty etc., by the complainants.
3.    To pay compensation, by way of interest @12% p.a., on the deposited amount, to the complainants, from 27.11.2013 to 31.07.2016, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry penal interest @15% p.a. instead of 12% p.a., till realization.
4.    To pay compensation by way of interest @12% p.a. on the deposited amount, due to the complainants w.e.f. 01.08.2016, onwards (per month), till possession is delivered, by the 10th of the following month, failing which, the same shall also carry penal interest @15% p.a., instead of 12% p.a.,  from the date of default, till payment is made.
5.    To pay compensation, in the sum of Rs.1,50,000/-, on account of mental agony and physical harassment, caused to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall carry interest @12% p.a., from the date of filing the complaint till realization.
6.    To pay cost of litigation, to the tune of Rs.50,000/-, to the complainants, within two months from the date of receipt of a certified copy of this order, failing which, the same shall also carry interest @12% p.a., from the date of filing the complaint till realization.

31.       Certified copies of this order be sent to the parties, free of charge.

32.       The file be consigned to Record Room, after completion.

Pronounced.

July 15, 2016.

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

[DEV RAJ]

MEMBER

 

 

[PADMA PANDEY]

 MEMBER

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