Chandigarh

StateCommission

CC/116/2023

SANDEEP SINGH - Complainant(s)

Versus

SKY LARK HOUSING DEVELOPMENT PVT. LTD. THROUGH ITS DIRECTOR - Opp.Party(s)

NAVEEN SHEOKAND

28 May 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

 

Consumer Complaint  No.	116 of 2023
Date of Institution	20.10.2023
Date of Decision	28.05.2024

 

 

Sh. Sandeep Singh son of Lt. Sh. Sukhminder Singh R/o House No.630, Sector 11, Chandigarh – 160011.

                                                       .…Complainant.

Versus

 

1]      Skylark Housing Development Pvt. Ltd., SCO No.1-4, Commercial Complex, Skylark Enclave, Kharar – Ambala Highway, Sector 115, Mohali, Punjab through its Director.

2]      Amrik Singh son of Kuldip Singh, Director, Skylark Housing Development Pvt. Ltd., House No.1707, Sector 43-B, Chandigarh.

3]      Gurmukh Singh, Managing Director, Skylark Housing Development Pvt. Ltd., SCO No.1-4, Commercial Complex, Skylark Enclave, Kharar – Ambala Highway, Sector 115, Mohali.

4]      Dharminder Kumar, Director, Skylark Housing Development Pvt. Ltd., House No.1707, Sector 43-B, Chandigarh.

5]      Satnam Singh, Director, Skylark Housing Development Pvt. Ltd., House No.1707, Sector 43-B, Chandigarh.

6]      AXIS Bank Loan Centre, SCO 335-336, 1^st to 4^th Floor, Sector 34, Chandigarh through its Manager.

…..Opposite Parties.

 

BEFORE:   JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

MR. RAJESH K. ARYA, MEMBER

 

Argued by:

 

Sh. Naveen Sheokand, Advocate for the complainant.

Opposite Parties No.1 & 3 exparte vide order dated 16.01.2024.

Opposite Parties No.2, 4 & 5 exparte vide order dated 02.04.2024.

Opposite Party No.6 exparte vide order dated 14.05.2024.

               

PER  RAJESH  K. ARYA, MEMBER

Brief facts:

              In brief, the facts of the case are that the complainants booked two apartments bearing No.2604 and 2605 for their and family residential purpose in Tower 2 from the opposite parties in their project, namely, ‘Skylark Apartments Complex’ in Sector 115, Kharar Landran Road, Mohali on 17.12.2013 and an agreement was executed between the parties. The complainants opted for Comfy Home (Standard) with covered parking, total basic sale price of the apartment was Rs.2,761.70 per sq. ft, which comes to Rs.52,50,000/-. They paid Rs.45,12,236/- for each apartment, totaling Rs.90,24,472/-) for the period from 08.02.2015 to 16.02.2015. As per Para 2 of the Agreement dated 17.12.2013, the possession of the units in questions were to be handed over by the opposite parties only on payment of entire consideration alongwith other dues. It has been stated that the clauses in the Buyer’s Agreement are one sided, unreasonable and in favour of the opposite parties only and they were made to sign already prepared documents. It has been stated that nowhere in the agreement, it is mentioned that when the possession will be given to the complainants and the opposite parties bound the complainant to sign the agreement on dotted lines, which is serious deficiency on their part and the agreement is itself null and void, when there is lack of basic clauses in the agreement.

2]                It has been stated that the opposite parties verbally assured that possession would be given within 36 months and the construction of the project was in full swing. It has been stated that the opposite parties were bound to give possession of the apartments within 36 months of the agreement complete in all respect.

Relief sought by the complainant:

3]                Thus, the complainants by way of filing the present complaint is seeking possession of the apartments in question with completion of all amenities mentioned in the brochure; interest @12% p.a. on the deposited amount as delay compensation; Rs.5,00,000/- as compensation for causing financial risk, hardship, mental agony, harassment and emotional disturbance besides claiming Rs.70,000/- as litigation expenses.

Opposite parties No1 to 5 proceeded exparte & right to file reply of opposite party No.6 stood extinguished:

4]                It is apposite to mention here that despite due service of notice upon all the opposite parties on different dates, neither anybody put in appearance on behalf of opposite parties No.1 to 5 nor they chose to contest the allegations leveled in the complaint, and as such, they were proceeded against exparte. However, on behalf of opposite party No.6 – AXIS Bank, Sh. Shivoy Dhir, Advocate appeared on 16.01.2024 and sought time to file Vakalatnama, reply and evidence/affidavit. However, on the next date of hearing, neither he appeared nor reply and evidence/affidavit was filed, therefore, the right of opposite party No.6 to file reply was extinguished in view of judgment of Hon’ble Supreme Court of India in case titled ‘New India Assurnace Co. Ltd. Vs. Hilli Multipurpose Cold Store Pvt. Ltd.’, Civil Appeal No.10941-10942 of 2013. On 14.05.2024, when none appeared on behalf of opposite party No.6, it was proceeded against exparte.

Evidence and written arguments of the complainant:

5]                The complainant led evidence in support of his case and also filed written arguments.

Observations/findings of this Commission:

6]                We have heard the learned Counsel for the complainant and have also gone through the record and the written arguments filed by the complainant carefully.

7]                It is evident on record that the complainants were allotted two apartments bearing No.2604 and 2605 in II Block/Tower at 2^nd Floor having super area of 1901 sq. ft. (approx.), the basic sale price whereof was Rs.52,50,000/- each i.e. @Rs.2,761.70 per sq. ft (for each apartment). Flat Buyer’s Agreements/Allotment Letters (Annexures C-1 and C-2) were issued on 17.12.2013 respectively by the opposite parties. It is further evident that a Tripartite Agreement, Annexure C-5, was also executed between the parties and the AXIS Bank (Opposite Party No.6) as the said Bank agreed to disburse the amount as per the construction of the apartment. The complainant, in all, paid an amount of Rs.90,24,472/- to the Opposite Parties.  No doubt, in the absence of any written version & evidence from the side of the opposite parties, who chose not to appear before this Commission despite due service, the averments made in the complaint have gone unrebutted yet we would like to deal with the rival contentions of the complainant as under. 

Clauses of the Agreement being unfair & unreasonable.

8]                First, we will deal with the contention of the complainant qua the certain clauses of the Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2) being unfair, unreasonable and unconscionable. Bare perusal of the Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2) transpires that Para 2 of these agreements/allotment letters says that the allottees shall adhere to the payment schedule given in the agreement and the possession shall be handed over only on payment of entire consideration along with other dues. The complainant has termed the clauses in the Buyer’s Agreement one sided, unreasonable and in favour of the opposite parties only. It is further his case that nowhere in the agreement, it is mentioned as to when the possession will be given to the complainant. It may be stated here that the definition clause under sub-section (46) of Section 2 of the Consumer Protection Act, 2019 (hereinafter referred to as “the 2019 Act”) gives a very broad meaning of unfair contract. As in the other provisions, it does not restrict itself to the few illustrative circumstances mentioned under sub-clause (i) to (vi).  Ultimately, it is for the State Commission or the National Commission to declare a contract as unfair contract. It is so held by Hon’ble Supreme Court of India in M/s Texco Marketing Pvt. Ltd. Versus TATA AIG General Insurance Company Ltd. & Ors., Civil Appeal No.8249 of 2022 decided on 09.11.2022 in Para 34 as under:-

“34.   We are of the view that the incorporation of such one-sided and unreasonable clauses in the apartment buyer's Agreement constitutes an unfair trade practice under Section 2(1)(r) of the Consumer Protection Act. Even under the 1986 Act, the powers of the consumer fora were in no manner constrained to declare a contractual term as unfair or one-sided as an incident of the power to discontinue unfair or restrictive trade practices. An “unfair contract” has been defined under the 2019 Act, and powers have been conferred on the State Consumer Fora and the National Commission to declare contractual terms which are unfair, as null and void. This is a statutory recognition of a power which was implicit under the 1986 Act.”

9]                Not only above, similar view is held by Hon’ble Supreme Court of India in Pioneer Urban Land and Infrastructure  Ltd. Vs. Govindan Raghvan, AIR 2019 Supreme Court 1779.  In the instant case, Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2) are totally silent with regard to the actual date of delivery of the possession of the apartments in question. Rather, Clause 2 thereof, saying that possession shall be handed over only on payment of entire consideration along with other dues is totally against the interest of the complainants. Therefore, in view of law cited above, we are of the view that a term of a contract (Clause 2 referred to above) will not be final and binding as the complainant has succeeded in establishing that he had no option but to sign on the dotted line, on a contract framed by opposite parties No.1 to 5 - builder. Thus, the contractual terms of the Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2) are ex-facie one-sided, unfair, and unreasonable. The incorporation of such one-sided clauses in the agreements constitute an unfair trade practice on the part of opposite parties No.1 to 5 since they adopted unfair methods or practices for the purpose of selling the apartments.

10]              In view of the above discussion, we have no hesitation in holding that the terms of the Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2) were wholly one-sided and unfair to the complainant. Thus, opposite parties No.1 to 5  cannot seek to bind the complainant with such one-sided contractual terms.

Stipulated period for handing over the possession:

11]              Now the question which arises for consideration of this Commission is as to what would be the stipulated period for handing over the physical possession of the apartments in question, in the absence of any such clause in the Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013 (Annexures C-1 and C-2). This issue has already been settled at rest by Hon’ble Supreme Court in Civil Appeal No(s).3533-3534 of 2017, titled as ‘M/S Fortune infrastructure (NOW known as M/s Hicon Infrastructure) & Anr.  Vs.  Trevor D'Lima & Ors.’ decided on  12.03.2018, wherein it has been held that "Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract…….”.  Therefore, counting three years from the date of execution of Flat Buyer’s Agreements/Allotment Letters dated 17.12.2013, the possession was required to be given by opposite parties No.1 to 5 to the complainant by 16.12.2016. Admittedly, the possession has not been offered or delivered to the complainant till date. It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. It was so said by the Hon’ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. In the present case, not even an iota of evidence has been placed on record by the opposite parties to prove that the apartments in question are complete and even the development works and basic amenities have been completed at the project site. In case, the construction of the apartments in question, development/construction activities were undertaken and completed at the project site by the stipulated date or till the date of filing complaint by the complainant or even thereafter, then it was for opposite parties No.1 to 5, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, the construction of the apartments in question, all these development/ construction activities, are completed at the site or not but they failed to do so by not filing any reply and supporting evidence.

12]              Not only as above, it is settled law that before offering possession of the residential unit/plot/apartment, the builder/developer is legally bound to obtain completion certificate from the competent authorities. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the completion certificate. It was so said by the Hon’ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-

‘….An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate….’

13]]             The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:

5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."

14]              Furthermore, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificate from the competent authority, which reads as under:-

14. It is the responsibility of the promoter-

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."

15]              However, in the present case, no such documentary evidence qua completion certificate and occupation certificate, if any, issued by the competent authority has been produced by opposite parties No.1 to 5 on record, which itself is violation of above reproduced Section 14 of PAPRA. The complainant requested opposite parties No.1 to 5 umpteen number of times to deliver the possession of the apartments but of no avail. Even, there is no documentary evidence on record to show that opposite parties No.1 to 5 ever communicated the status of the completion of the project/project report, along with proof of development to the complainant at any point of time. Opposite parties No.1 to 5 have further failed to prove, by not appearing and not placing any document on record, that the development of the project was completed within the stipulated timeframe. However, there was no whisper of offer of possession from the side of opposite parties No.1 to 5. Thus, in view of the law laid down by the Hon'ble National Commission in the above noted authorities and the position stated above, without issuance of such a certificate by the competent authority, opposite parties No.1 to 5 cannot be said to be in a legal position to hand over possession of the unit, in question, to the complainants. However, in the instant case, the possession has still not been offered to the complainant and there has been a huge delay of more than 10 years in offering the same, what to talk of its delivery.

1.               Now we will decide as to what amount of compensation should be granted to the complainant, for the period of delay in offering of possession of their apartments. On account of delay in actual delivery of possession of the apartments to the complainant, they have suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon’ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon’ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-

“……Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today.…..”

In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon’ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainant is still empty handed and has to approach this Commission for redressal of his grievance by way of filing this complaint. Under above circumstances, in our considered opinion, if we grant interest @9% p.a. to the complainant on the entire amount deposited by him, from the due date of possession of his apartments i.e. 17.12.2016, as held above, till delivery of possession thereof, that will meet the ends of justice. Besides, the complainant is also held entitled for compensation for mental agony and physical harassment besides awarding litigation expenses.

Relief granted by this Commission as under:-

17]              For the reasons recorded above, this complaint is partly accepted with costs against opposite parties No.1 to 5 and they are, jointly and severally, held liable and directed as under:-

(i)       To deliver actual physical possession of the apartments bearing No.2604 and 2605 in II Block/Tower at 2^nd Floor having super area of 1901 sq. ft. (approx.), in question, to the complainant, complete in all respects, after obtaining occupation and completion certificate from the competent Authorities, within a period of 45 days from the date of receipt of a certified copy of this order, on receipt of the remaining amount due from them, without charging any delayed penalty or interest thereon. 

(ii)      To pay to the complainant, compensation by way of interest @9% p.a. starting from 17.12.2016 till 31.05.2024, on the amount deposited by him, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount (17.12.2016 till 31.05.2024) shall carry interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainant.

(iii)     To pay to the complainant, compensation by way of  interest @9% p.a. on the amount(s) deposited, w.e.f. 01.06.2024, onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the apartments, complete in all respects. 

(iv)     To pay to the complainant, compensation to the tune of Rs.75,000/- for causing him mental agony and harassment and also for deficiency in providing service and adoption of unfair trade practice and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amounts shall carry interest @9% p.a. from the date of default till realization.

18]              However, complaint against opposite party No.6 – AXIS Bank Loan Centre stands dismissed with no order as to cost.

19]              Certified copies of this order be sent to the parties free of charge.

20]              File be consigned to Record Room after completion.

Pronounced.

 28.05.2024

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

 (RAJESH K. ARYA)

MEMBER

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