KUNDAN KUMAR KUMAI

Brief facts of the complainant case is that, the complainant had decided to purchase one flat of 3BHK on ownership basis, being flat no. 2H on the second floor of the Block II of the building known as SBM UPOHAR, measuring about 1186 sq.ft of super built-up area, including undivided proportionate share in all common parts together with undivided share of A Scheduled Land and one Car Parking Space together with the promised facilities described in Schedule B. The consideration money for the above B Schedule Flat and Car Parking Space, was fixed at Rs, 22,69,269 /- (Twenty-two lakh sixty-nine thousand two hundred sixty-nine) only.

It also needs to be mentioned, that the OPs No. 1, 2 and 3 had engaged Ops no. 4 and 5 to develop their A Schedule Land, for the purposed parking and 4 storied residential building comprising 4 blocks being no. I, II, III and IV, on the A Schedule Land. After taking necessary permission and approval for the building plans, the Ops had prepared one brochure, which showed the total numbers of flat of the proposed G+4 storied building of 15 blocks to including features amenities and typical floor plan of each block and the project was named as SBM UPOHAR.

The complainant, then booked one B Scheduled flat on 18/01/2015, by making a payment of Rs. 61,854/- (Sixty-one thousand eight hundred fifty-four) only, by cheque bearing no. 872982 dated 18/01/2015 and the above cheque was en-cashed on 21/08/2015. At the time of booking, one oral agreement was executed between the Ops and the complainant, wherein, the Ops had jointly agreed and promised to provide the facilities amenities and features, shown in the brochure,

It was agreed to provide the B Schedule Flat along with the Car Parking Space, along with the facilities amenities and features, after completion of all the works of the said on going project, following and completing the process of registration and also other legal formalities within 36 months from the date of execution of the said oral agreement.

In pursuance of the oral agreement one Deed of Flat Buyer’s Agreement was executed on 06/11/2015, in between the Ops and complainants, wherein the Fourth Schedule of part 1 clearly showed, that the complainant had made a payment of sum of Rs. 61,854/- (Sixty-one thousand eight hundred fifty-four) only, on 18/01/2015.    

The complainant had applied for home loan, from proforma OP on 05/12/2015, with all documents and the proforma OP had sanctioned loan of Rs. 19,80,000/- (Nineteen lakh eighty thousand) only on 23/12/2015. The complainant then paid a sum of Rs. 11,00,000/- (Eleven lakhs) only, to OP no. 4 and 5 by cheque bearing no. 782553 dated 07/01/2016 and the OP no. 4 and 5, issued money receipt no. 828 dated 08/01/2016. The complainant further paid a sum of RS. 50,000/- (Fifty thousand) only, to OP no. 4 and 5 on 19/03/2016 by cheque no. 872987 dated 19/03/2016 and the OP No. 4 and 5, issued money receipt no. 902 dated 19/03/2016, the complainant further paid a sum of Rs. 1,70,000/- (One lakh seventy thousand) only on 14/03/2017, by cheque no. 311687 dated 14/03/2017 against which OP no. 4 and 5, issued money receipt no. 112 dated 14/03/2017. The complainant had paid a sum of Rs. 3,80,000/- (Three lakh eighty thousand) only,   by cheque no. 31190 dated 08/08/2016 against which money receipt had been issued by OP No. 4 and 5, being no. 895 dated 08/08/2016. Therefore, the complainant had paid altogether, a sum of Rs. 17,61,854/- (Seventy lakh sixty-one thousand eight hundred fifty-four) only.

In the meanwhile, OP No. 4 and 5 instructed the complainant to execute another Flat Buyer’s Agreement by disclosing that there were some typographical errors in the Fourth schedule on the part 1 of the payment schedule, regarding casting and mentioning of the floor. On going through the same, the complainant observed, that the complainant had erroneously mentioned, in the schedule as G+6 instead of G+4 and the complainant agreed to execute another Flat Buyer’s Agreement.  One supplement re-agreement was executed on 14/07/2016, showing, that the subsequent supplementary agreement dated 14/07/2016, was effective on and from 18/01/2015.

Inspite of the above agreements, the Ops had failed to complete the projects and also towards handing over the physical possession of the flat to the purchaser including the complainant, within 36 months and thereby unnecessarily lingering the process of giving effective registration of the purchase flat for their illegal and malafide gain. The complainant visited the project site on several occasion and verbally requested for physical possession of the B Schedule Flat along with the Car Parking Space. The complainant had been compelled to keep his family members in a rented accommodation at a monthly rent of Rs. 8,500/- (Eight thousand five hundred) only, as the Ops. had failed to provide the B Schedule Flat along with the Car Parking Space, amenities, features and facilities. Such failure on the part of the Ops resulted in the non-registration of the flats for which reason, the complainant was subjected to escalating registration charges for no fault of his. In this regard, the complainant sent an e-mail on 27/12/2017, but as there was no response another e-mail had been sent on 20/01/2018 after the 36 months had elapsed, but the Ops had not bothered to reply. Again on 20/07/2018, the complainant sent an e-mail to the Ops, asking for the date of hand over of the B Schedule Flat along with the Car Parking Space, amenities, features and facilities. But still there was no response. Such attitude of the Ops and the non-registration of the B Schedule Flat along with the Car Parking Space, resulted not only in financial loss, as the complainant had to bear the burden of paying rent Rs. 8,500/- (Eight thousand five hundred) only and the escalating registration charges and mental pain and agony. The complainant thus preferred this complaint with necessary prayers.

The Ops no. 1 to 5 had appeared, to contest the claim by filing written version wherein, they have challenged the complainant’s legality to file the case before this forum on the ground, that the parties were governed by the arbitration clause in the agreement dated 06/11/2015. That apart, they have challenged the complainant’s authority to file this case on the ground that the complainant had not full filled the obligations of payment. Moreover, the amenities, features and facilities were a part of the project and were an ongoing process and the same would be completed after all the flats had been sold and the management would be handed over to the lawful association. Furthermore, it was agreed in the agreement that only the building would be completed within 36 months and the same had been completed and the families had also shifted and started living in the said flats. The Ops have also denied the existence of any oral agreement between the parties and the complainant had not done the registration because of his own choice. It is therefore prayed for dismissal of the case.

Both the complainant and the OP no.  4 had been examined on oath and furnished certain documents, which had been kept in the records.

Decision with reasons

The main grievance of the complainant against the Ops particularly Ops No. 4 and 5, is that the common facilities and amenities mentioned in Schedule C of the complaint was not completed within their stipulated period of 36 months from the date of agreement, 18/01/2015, for which reason the complainant could not take affective registration and physical possession of the Schedule B flat and one Car Parking space. That apart, the agreement had been for the amenities, features and facilities mentioned in the brochure, but the inspection report dated 24/02/2022 revealed that most of them were in incomplete position. Thus, the complainant suffered mental agony and prayed for compensation, as per prayer made in the complaint.

The Ops on the other hand, have challenged the contention of the complainant on the ground, that the complainant had not made the full payment, as agreed upon vide Fourth schedule of the Flat Buyer’s Agreement.   Their further contention is that, the agreement of 36 months was for the completion of the building and not towards the entire project as the same was an ongoing process and the same would be completed after all the flats had been sold. They have also challenged the legality of the inspection report as this commission did not have the power to allow the conduction of such inspection.

As far as the legality, relating to the inspection report dated 24/02/2022 is concerned, the principles percolating from the judgements passed by the Hon’ble Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad and the Hon’ble Madras High Court in Shiva Shakti Builders & Anr Vs. Shiva’s Palace Phase-1 Flat Owners’ Association & Anr reported in IV (2008) CPJ 109 and Ramaniyam Real Estates Ltd. Vs. Triveni Apartments Owners’ Welfare Association reported in AIR 1999 Madras 24, respectively, emphasizes the legality and necessity, for holding such commissions and therefore, the contention of the Ops, in this regard cannot be accepted.

As far as the question of the existence of, the arbitration clause between the parties, being a hindrance for fling this case before this commission is concerned, it is well settled, that the Consumer is at liberty to approach this forum irrespective of the existence of such clause. The judgement in Ansal Api Megapolis Buyer’s Association (Regd) & Ors Vs. Ansal Hi-tech Townships Ltd. passed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, reported in 1(2022) CPJ 1(NC), supports the above contention. Hence, the Ops objection in this regard also fails.

As far as the facts, regarding the payment of the consideration money for the B Schedule Flat along with one Car Parking Space, is concerned, it is not disputed, that the full amount of Rs. 22,69,269 /- (Twenty-two lakh sixty-nine thousand two hundred sixty-nine) only, agreed in the Flat Buyer’s Agreement was not handed over by the complainant and a sum of Rs. 17,61,854/- (Seventy lakh sixty-one thousand eight hundred fifty-four) only, had been paid to the Ops. The contention of the complainant for not adhering to the payment schedule, was due to the incompletion of the amenities, features and facilities, which is also not disputed by the Ops on the ground, that the building had been constructed within the stipulated period of 36 months and many families had also taken up residency in the said buildings and the amenities, features and facilities had not been covered by the Flat Buyer’s Agreement.

In such a scenario, when the complainant has been sold a dream of the amenities, features and facilities, while purchasing the schedule B Flat, the Ops cannot shirk, their responsibilities by invoking the logic of unsold flats and an ‘ongoing process’ theory. That apart accepting the above reason would also not be beneficial to the complainant on the ground, that should the flats remain unsold for years, then it would mean, that the complainant would be deprived from the enjoyment of the amenities, features and facilities, which actually could have influenced the complainant, in the purchase of the schedule B Flat. Therefore, the Ops contention becomes unacceptable. The judgement cited in this regard, being WG.CDR. Arifur Rahman khan and Aleya Sultana & Ors Vs. DLF Southern Homes Pvt. Ltd. & Ors reported in IV (2022) CPJ 10 (SC) and Utpal Trehan Vs. DLF Home Developers Ltd. reported in III (2022) CPJ 1(SC) by the Hon’ble Supreme Court are illustrative, though not applicable in view of the different sets of facts. Therefore, a direction to the OP, to complete the amenities, features and facilities, as illustrated in the brochure within six months from the date of this order and to submit the completion certificate from a competent authority to the complainant, would not be out of place.

Under the circumstance, the complainant is entitled to interest @9% on the paid amount of Rs. 17,61,854/- (Seventy lakh sixty-one thousand eight hundred fifty-four) only, from 17/01/2018, till such date the amenities, features and facilities are completed. The complainant is also entitled to a sum amounting to Rs. 8,500/-( Eight thousand five hundred) only per month from 17/01/2018 till the submission of the completion certificate. The complainant is further entitled to Rs. 1,00,000/- (One lakh) only for mental pain and agony and Rs. 50,000/- (Fifty thousand) only towards litigation cost.

It is therefore

Ordered

That the instant case be and the same is allowed on contest but without costs.

The complainant is entitled to interest @9% on the paid amount of Rs. 17,61,854/- (Seventy lakh sixty-one thousand eight hundred fifty-four) only, from 17/01/2018, till such date the amenities, features and facilities are completed. The complainant is also entitled to a sum amounting to Rs. 8,500/-( Eight thousand five hundred) only per month from 17/01/2018 till the submission of the completion certificate. The complainant is further entitled to Rs. 1,00,000/- (One lakh) only for mental pain and agony and Rs. 50,000/- (fifty thousand) only towards litigation cost.

The OPs are also directed to complete the amenities, features and facilities as illustrated in the brochure, within six months from the date of this order and to submit a completion certificate to the complainant.

Copy of the order be handed over to the parties free of costs.