The allotment letter of BBD SUN BREEZE Apartment
project of opposite party, it has been clearly mentioned that within the period of 36 months above project will be handed over the complainants but no development activity are seen at the present time in the project and as per the term and condition of the opposite party, the possession was to be handed over within 36 months but opposite party failed to do so.
The complainant has written several letters to opposite party regarding the progress of work but opposite party has not given any reply or information regarding construction status. On personal site visit the complainant observed that the work is at halt since more than a year and tried to contact the opposite party but no one gave time to talk on this matter.
The opposite parties are acting as builder and developer within the territorial jurisdiction of the Hon’ble Commission because the value of services above 1 crore rupees and are engaged in the development and construction of the residential units forthwith.They also develop the projects with all the basic civic amenities assuring the consumer of the market that they possess legal title on the land on which the project is situated and developed by them, opposite parties assure and promise to the consumer in the market that the possession and the fully developed unit with all the civic amenities shall be provided to the consumer within a period of 36 months from the date of allotment letters. It is assured by the opposite parties that the payment towards the unit is to be made by the complainant at the stage of development which is to be completed by the opposite parties within a period of 36 months. However, it is submitted that even after all the payment for the said unit the opposite parties delayed the delivery of possession of the flat.
It is pertinent to point out here that they opposite parties assured all the buyers that they are in the possession of the land on which the units are being developed by them and the consumer shall be provided the possession of the unit within a period of 36 months i.e. August, 2016. It is the commitment of the developer that the unit shall be situated in a fully developed project endowed with all the basic civic amenities.
The complainant is the consumer of the opposite party who has deposited the amount towards purchase of unit and the opposite party has neither provided occupancy certificate and completion certificate nor executed the sale deed for the unit/flat of SUN BREEZE apartment even after the expiry of the total period of 3 years which is clear negligence on the part of the opposite parties and covered under the provisions of the consumer Protection Act.
The opposite parties in an arbitrary and illegal manner issued the letters of intimation of offer of possession but no occupancy certificate and completion certificate was attached with the intimation of possession. Non issuing of occupancy and completion certificate by the opposite parties till date is clear negligence and deficiency in service on the part of the opposite parties.
The opposite parties did not make any effort to hand over the possession of the unit to the complainant nor issued occupancy and completion certificate in the stipulated time and as such there is no alternative with the complainant except to demand the interest on delay on the deposited amount.
From the aforementioned facts, it is amply clear that the opposite parties obtained huge sum of money from the entire customer of the project and instead of putting the same for the construction of the unit, misappropriated the same, for which the opposite parties are liable to produce the expenditure and account statement of the scheme before this Hon’ble Commission.
The complainant requires the residential unit in order to own his accommodation and for his personal use as well as for his family requirements, however, in view of serious deficiency in service, the complainants are to suffer irreparable loss and injury for which the opposite parties are required to pay compensation and damages apart from the punitive damages.
This complaint case is maintainable before this Hon’ble Commission under the provisions of the Consumer Protection Act, 2019 and this Hon’ble Commission has both pecuniary as well as territorial jurisdiction to entertain and adjudicate the present complaint.
Since the opposite parties have not complied with their own terms and conditions regarding delivery of possession of the unit in question in stipulated time even though the amount as desired by the opposite parties has been deposited by the complainant, as such opposite parties is liable to pay interest @ 24% per annum from the date of deposit of amount till the date of actual possession of flat/unit in question. In addition to this, the complainants are also entitled to get compensation of Rs.10,00,000.00 towards harassment and mental agony and opposite party be directed to pay Rs.20,00,000.00 @ 10.50 to complainant and also be direced to pay Rs.10,00,000.00 to complainants on account of damages due to deficiency in service of the opposite party and also opposite parties be directed to pay Rs.5,00,000.00 towards cost of litigation.
The opposite parties filed their written statement stating therein that M/s Viraj Construction Private Limited is a company incorporated under the Companies Act having its registered office at 55, Purana Quila, Lucknow and having its corporate office at BBD, Viraj Tower, Vibhuti Khand, Gomti Nagar, Lucknow and is developing an integrated township under the supervision of Lucknow Development Authority in village Sarai Seikh, Semra and Shahpur, Pargana, Tehsil and District Lucknow in the name and style of BBD Green City.
Further entire construction of the township developed by M/s Viraj Construction Pvt. Ltd. is under the supervision of Lucknow Development Authority as per the policy of the Government of Uttar Pradesh for development on integrated township which has been subsequently modified from time to time.
It is relevant to state here that M/s Viraj Construction Private Limited was founded with the vision to create a never before standards in real estate. Its high levels of integrity and dedication have made the company one of the most respected real estate developers visionaries from diverse fields found a common ground to provide an integrated township and giving commercial complex the professional edge, adding fun to entertainment centers, providing education with sound infrastructure and delivering homes with the advantages of both, comfort and conveniences.
There is no deficiency of service on the part of the answering opposite party and as such, the present complaint is liable to be dismissed. It is submitted that the present complaint is a sheer abuse of process of this Hon’ble Forum and has been filed by the complainants with a malafide intention to unjustly enrich themselves at the cost of the opposite party.
It is submitted that the manner in which the complainant has made allegations against the answering opposite party regarding allotment of flat and deficiency in service caused to the complaint are absolutely false and malafide. The allegations by the complainant relating to the alleged deficiency in service caused by the opposite party and demands of the complainant only suggest that the complainant has not come before this Hon’ble forum with clean hands.
It is submitted that the complainant no.1 has sought relief of refund of his amount deposited with oppose party. However, the complainants no.2 and 3 as well as complainants no.4 & 5 has sought possession of the units allotted to them as well as execution of sale deeds for the said units. The complainants have sought different reliefs and as such their interest cannot be common as provided under section 35(c) of the Act.
It is submitted that in view of the decision of the Hon’ble National Commission in Consumer Case no.97 of 2016, (Ambrish Kumar Shukla vs. Ferrous Infrastructure Pvt. Ltd.) the Hon’ble Commission has held as under:-
“The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf of or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them therefore will not be maintainable. If for instance, 100 flat buyers / plot buyers in a project have a common grievance against the Builder / Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 aggrieved persons will be compelled either to file individual complaints or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have been the Legislative intent. The term ‘persons so interested’ and ‘persons having the same interest’ used in Section 12(1)(c) mean, the persons having a common grievance against the same service provider. The use of the words “all consumers so interested’ and “on behalf of or for the benefit of all consumers so interested”, in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief and consequently having a community of interest against the same service provider.”
By pursuing the aforesaid, it is necessary that all the consumers/complainants are to be of the same project having common grievances. However, in the present case, by pursuing the reliefs sought the grievance of the complainants appears to be a different and complaint is not maintainable.
It is also submitted that as per the order sheet dated 7.9.2021 of the present case, it appear that neither any application under section 35(1)(c) read with section 49 of the Act was filed nor any request was made from this Hon’ble Commission by the complainants.
The complainants have tried to mislead this Hon’ble Commission by joining the different cause of action to make jurisdiction of this Hon’ble Commission as provided under Section 47 of the Consumer Protection Act. This Hon’ble Commission has no pecuniary jurisdiction to admit the entertain this complaint, since the consideration paid or promised for:
a. Complainant no.1 Sri Vinod Kumar Shukla is Rs.62,89,150.00 (without tax)
b. Complainants no.4 & 5 Sri Om Prakash Arya and Anand Swaroop Arya is Rs.46,42,571.00 (without tax)
c. Complainants no.2 & 3 Sri Alakh Niranjan Arya and Mr. Omkar Arya is Rs.45,83,570.00 (without tax)
All the above amounts for the three different units of Complainant no.1 Sri Vinod Kumar Shukla, Complainants no.2 & 3 Sri Alakh Niranjan Arya and Mr. Omkar Arya and Complainants no.4 & 5 Sri Om Prakash Arya and Anand Swaroop Arya are below Rupees One Crore.
The present complaint of the complainants can only be tries by the District Commission, under section 34 of the Act. Thus, this complaint is liable to be dismissed on this ground alone. The relevant portions of the sections are reproduced below;
47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
34. (1) Subject to the other provisions of this Act, the District Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration does not exceed one crore rupees:
The above mentioned aspect has been clarified by the Hon’ble National Commission in M/s Pyari Devi Chabiraj Steels Pvt. Ltd. vs. National Insurance Company Ltd. & ors., Consumer Case no.833 of 2020:
“It appears that the Parliament, while enacting the Act of 2019 was conscious of this fact and to ensure that Consumer should approach the appropriate Consumer Disputes Redressal Commission whether it is District, State or National only the value of the consideration paid should be taken into consideration while determining the pecuniary jurisdiction and not value of the goods or services and compensation, and that is why a specific provision has been made in Sections 34 (1), 47 (1) (a) (i) and 58 (1) (a) (i) providing for the pecuniary jurisdiction of the District Consumer Disputes Redressal Commission, State Consumer Disputes Redressal Commission and the National Commission respectively. ……….
From a reading of the aforesaid provisions it is amply clear that for determining the pecuniary jurisdiction of the District Commission, State Commission or National Commission the value of the goods or services paid as consideration alone has to be taken and not the value of the goods or services purchased/ taken. Therefore, we are of the view that the provision of Section 58 (1) (a) (i) of the Act of 2019 are very clear and does not call for any two interpretations.”
The condition precedent of complying the provisions under section 35(c) has not been fulfilled and the application under section 35(c) of the Act is not maintainable.
It is further submitted that the complainants have joined several cause of action in the present complaint which is not permissible and the present complaint is liable to be dismissed on this ground alone.
On the above preliminary objections mentioned above the present complaint is liable to be dismissed. The complainants with some wrongful and malafide intention have not submitted the true and correct facts and the answering opposite party crave leave of this Hon’ble Commission to state the correct and material facts as under:
Facts of complainant no.1 Sri Vinod Kumar Shukla.
One Mr. Vinod Kumar Shukla moved an application dated 1.11.2013 for allotment of an apartment with the opposite party M/s Viraj Constructions Pvt. Ltd. in the project Sun Breeze Apartment-II and deposited Rs.4,12,360.00 on 7.11.2013. In the application form submitted by the complainant it was categorically provided:-
9- I/we agree that the amount paid with the application and in installments as the case may be, to the extent of 10% of sale consideration of the apartment shall collectively constitute the earnest money.
10(i) I/we understand and agree that timely payment of installments of basic cost and allied/additional cost, Govt. Levy etc. pertaining t the said apartment is the essence of the terms of booking/allotment. If I/we fail/default in making payment of due amount within stipulated time then the Company shall have rights mentioned herein below.
(a) to keep on abeyance/suspension of the booking of cancel the allotment of the said apartment;
(b) to forfeit/deduct the earnest money together with any brokerage, dealer commission and interest on installments due but unpaid and interest on delayed payments.
(c) to re-allocate the provisional allotment of the said apartment which includes change in area and location of the said apartment.
(ii) If the Company opts to exercise the rights mentioned in sub-clause (a) and (b) as above, then the balance amount shall be refundable to me/us without any interest, after the said apartment is allotted to some other intending allottee(s) and after compliance of certain formalities by the allottee(s).
(iii) If the Company opts to exercise the rights mentioned in sub-clause (c) as above and as a result thereof, there are any changes in dimensions, size etc. of the said apartment, then the price towards increase/decrease of re-allotted apartment shall be dealt (pain/adjust) in a manner detailed in this application Form.
(iv) Further, if any discount/concession, in whatsoever way, has been given by the Company in the basic sale price/ payment terms to me/us in lieu of my/our consensus for timely payment of installments and other allied/additional cost, then I/we hereby authorize the Company to withdraw such discount/concession and demand the payment of such discount/concession amount as a part of sale consideration amount, which I/we hereby agree to pay immediately. The company in its absolute discretion may condone the delay by charging penal interest @24% p.a. on all outstanding dues from their respective due dates.
11- I/we further agree that in case of payment plan with discount option, if I/we fail to pay the installments in the promised time frame, then the discount payment plan shall be automatically considered as interest free time linked installment plant. In concurrence of the same the company shall take the step detailed in sub-clause (iii) and (iv) of Cause l0 and shall have right to withdraw rebates of any other discounts provide in the payment plan with discount option of the said apartment. The payment plans are annexed hereby as annexure-A.
In respect of the application for allotment of Mr. Vinod Kumar Shukla unit bearing no.SBAII/T12/401 measuring 1775 sq. ft. situated at BBD Green City, Lucknow comprising of 3 BHK apartment was offered for a total consideration of Rs.62,89,150.00 (without tax) and a welcome letter dated 21.11.2013 was sent to the complainant Mr. Vinod Kumar Shukla.
On 30.11.2013 a demand for the stage of 45th day of the allotment for Rs.4,52,244.00 was raised by the opposite party with the due date 10.12.2013 which demand was finally paid by the complainant with delay. On 8.5.2014 an allotment letter was sent to the complainant which was executed between the parties.
It is submitted that as the unit was under the Gold Coin scheme on 1.2.2014 the opposite party provided a 10 gm. Gold coin to the complainant Mr. Vinod Kumar Shukla. On 8.1.2014 demand for the stage of 90th day of the allotment for Rs.13,16,848.00 (including previous demand) was raised by the opposite party for the due date 30.1.2014 and the said demand was paid by the complainant finally on 30.8.2014 and there is a delay on the part of the complainant Mr. Vinod Kumar Shukla for approx. 7 months.
On 8.3.2014 demand due for the stage on start of excavation for Rs.15,37,185.00 (including previous dues) was raised with the due date 1.4.2014 and the said demand paid on 30.8.2014 to the opposite party by the complainant with delay. On 7.6.2014 demand due for the stage laying of stilt slab for Rs.20,83,126.00 (including previous dues) was raised by the opposite party for the due date 1.7.2014 which demand was paid by the complainant on 30.8.2014.
On 6.9.2014 demand due for the stage laying of 1st Floor slab for Rs.7,51,563.00 (including previous dues) was raised by the opposite party for the due date 1.10.2014 which demand was paid by the complainant on 21.10.2014. On 5.1.2015 demand due for the stage laying of 3rd Floor slab for Rs.5,73,895.00 (including previous dues) was raised by the opposite party for the due date 1.2.2015 which demand was paid by the complainant finally on 1.7.2015. On 19.5.2015 demand due for the stage laying of 5th Floor slab for Rs.5,56,412.00 (including previous dues) was raised by the opposite party for the due date 15.6.2015 which demand was paid by the complainant finally on 1.2.2016. On 16.9.2015 and 21.1.2016 demand due for the stage laying of 7th Floor slab for Rs.5,62,582.00 (including previous dues) was raised by the opposite party for the due date 15.10.2015 which demand was paid by the complainant finally on 2.3.2016. On 27.1.2016 demand due for the stage laying of 9th Floor slab for Rs.8,68,109.00 (including previous dues) was raised by the opposite party for the due date 1.3.2016 which demand was paid by the complainant finally on 18.4.2016.
On 27.12.2018 the complainant moved an application dated 27.12.2018 for the change of unit from project Sub Breeze Apartment-II to project Sun Breeze Apartment-I and on the request of the complainant the opposite party changed the unit of complainant from SBAII/T12/401 to SBAI/T6/ 903. All the amount deposited by the complainant was adjusted in the new unit allotted to the complainant Mr. Vinod Kumar Shukla on 10.1.2019. On 28.2.2019 demand due for the stage on internal plaster and flooring for Rs.92,892.00 (including previous dues) was raised by the opposite party for the due date 16.3.2019 which demand was not paid by the complainant.
On 7.8.2019 intimation for the fit out possession was sent to the complainant with demand of Rs.5,55,171.00 within 45 days of the said letter however the complainant has not paid the said amount. Thereafter, the complainant on 24.1.2020 requested for the change of the unit from SBAI/T6/903 to SBA/T6/1201 and also stated for the waiver of the interest amount. The complainant agreed for the possession by 31.3.2020. The opposite party also confirmed the change from SBAII/T12/401 to SBA/T6/1201 to the complainant and requested that the balance amount be deposited however the complainant has not deposited the said demanded amount.
On 1.6.2020 intimation letter was again sent to the complainant for the amount Rs.11,01,250.00 (with previous dues) for the due date 22.3.2020 but said demand has not been paid by the complainant. The opposite party has raised the demand from the complainant on 4.1.2021 but the complainant has not paid and approached this Hon’ble Commission.
It is relevant to state here that under the terms of the allotment it has been specifically provided that the possession of the unit would be delivered within the stipulated time subject to timely payment of the allottee/complainant. Admittedly there has been delay in payment of various installments by the complainant.
The complainant having breach of the terms of the allotment cannot compel the opposite party to perform its part of obligations within the stipulated time. Further, it is noteworthy to mention here that on account of certain unforeseen circumstances which are beyond the control of the opposite party the completion of the unit has been delay for no fault of the opposite party.
As far as the facts of the complainants no.2, 3, 4 and 5 are concerned, they have already withdrew their complaint. So there is no need to innumerate the written statement in relation to these 4 complainants.
We have heard the learned counsel for the complainant Sri Vishnu Kumar Mishra and ld. counsel for the opposite parties Sri Sachin Garg and perused the evidence and documents filed by the parties.
Before going further, our intentions have been drawn towards the order of this court dated 8.3.2022.
We have perused the order dated 8.3.2022 which is as follows:-
“08.03.2022
परिवादीगण की ओर से उपस्थित विद्वान अधिवक्ता श्री सारांश सरकार एवं विपक्षीगण की ओर से उपस्थित विद्वान अधिवक्ता श्री सचिन गर्ग को विस्तृत रूप से सुना।
विपक्षीगण की ओर से उपस्थित विद्वान अधिवक्ता श्री सचिन गर्ग द्वारा परिवाद की ग्राह्यता के सम्बन्ध में अपना विरोध कथन प्रस्तुत किया तथा यह कथन किया कि प्रस्तुत परिवाद 05 परिवादियों द्वारा सामूहिक रूप से इस न्यायालय के सम्मुख प्रस्तुत किया गया है, जो इस न्यायालय द्वारा पोषणीय नहीं है।
परिवादीगण की ओर से पूर्व में उपस्थित विद्वान अधिवक्ता श्री विष्णु कुमार मिश्रा को उक्त सम्बन्ध में अपना स्पष्टीकरण प्रस्तुत किये जाने हेतु समय प्रदान किया गया था, साथ ही इस न्यायालय के सम्मुख पूर्व में प्रस्तुत माननीय सर्वोच्च न्यायालय द्वारा सिविल अपील संख्या-1779/2021 ब्रिगेड इण्टरप्राइजेज लिमिटेड बनाम अनिल कुमार वीरमनि आदि में पारित निर्णय दिनांक 17.12.2021 की ओर न्यायपीठ का ध्यान आकृष्ट किया, जिसके सन्दर्भ में परिवादीगण की ओर से उपस्थित विद्वान अधिवक्ता श्री सारांश सरकार द्वारा हमारा ध्यान उक्त न्याय निर्णय के पैराग्राफ 34, 35, 38, 39 एवं 41 की ओर आकृष्ट किया, जो निम्नवत् है:-
“34. A careful reading of the above provisions would show that there is no scope for the contention that wherever there are more consumers than one, they must only take recourse to Order I Rule 8 CPC, even if the complaint is not on behalf of or for the benefit of, all the consumers interested in the matter. There may be cases where only “a few consumers” and not “numerous consumers” have the same interest. There is nothing in the Act to prohibit these few consumers from joining together and filing a joint complaint. A joint complaint stands in contrast to a complaint filed in a representative capacity. For attracting the provisions of Section 35(1)(c), the complaint filed by one or more consumers should be on behalf of or for the benefit of numerous consumers having same interest. It does not mean that where there are only very few consumers having the same interest, they cannot even join together and file a single complaint, but should take recourse only to independent and separate complaints.”
“35. It is true that Section 2(5)(i) uses the expression “a consumer”. If the vowel “a” and the word “consumer” appearing in Section 2(5)(i) are to be understood to exclude more than one person, it will result in a disastrous consequence while reading Section 2(5)(vi). Section 2(5)(vi) states that in the case of death of a consumer, “his legal heir or legal representative” will be a complainant. Unless the words “legal heir” and “legal representative” are understood to mean ‘legal heirs’ and ‘legal representatives’, a meaningful reading of the provision may not be there.”
“38. Therefore, the proper way of interpreting Section 35(1) read with section 2(5), would be to say that a complaint may be filed: (i) by a single consumer; (ii) by a recognised consumer Association; (iii) by one or more consumers jointly, seeking the redressal of their own grievances without representing other consumers who may or may not have the same interest; (iv) by one or more consumers on behalf of or for the benefit of numerous consumers; and (v) the Central Government, Central Authority or State Authority.”
“39. It must be remembered that the provisions of the Consumer Protection Act are in addition to and not in derogation of the provisions of any other law for the time being in force, by virtue of Section 100. Even Section 38 which prescribes the procedure to be followed by the Commission for enquiring into the complaint, does not expressly exclude the application of the provisions of CPC. Though Subsections (9), (11) and (12) of Section 38 make specific reference only to a few provisions of the Code of Civil Procedure, the principle behind Order I Rule 1 enabling more than one person to join in a suit as plaintiff is not expressly excluded.”
“41. In view of the above, the appeal is allowed, the impugned order of the National Commission is modified to the effect that the complaint filed by the respondents shall be treated as a joint complaint filed on behalf of only the respondents herein and not as a complaint filed in a representative capacity on behalf of or for the benefit of all the owners of all the 1134 flats. Persons who wish to implead themselves as parties to the complaint filed by the respondents, may be allowed by the National Commission to do so, provided their grievance is also limited to the grievance as projected by the respondents in their consumer complaint. The intervenors herein, in view of what is stated in their application, shall also be allowed to be impleaded in the consumer complaint. The intervention application is closed with the above direction. There shall be no order as to costs.”
माननीय सर्वोच्च न्यायालय द्वारा पारित उपरोक्त निर्णय में उपरोक्त अपील में भी जो तथ्य थे, लगभग समान तथ्य प्रस्तुत परिवाद में भी ग्राह्यता के सम्बन्ध में उल्लिखित किये गये हैं, जिन्हें हमारे द्वारा सुविचारित करते हुए उपरोक्त न्याय निर्णय में माननीय सर्वोच्च न्यायालय द्वारा दिये गये आदेश के परिशीलन के अनुसार यह तथ्य पाया गया कि Joint Complaint /सामूहिक लोगों द्वारा यदि सुसंगत तथ्यों के अन्तर्गत परिवाद प्रस्तुत किया जाता है तथा परिवाद में तथ्यों में कोई भिन्नता नहीं पायी जाती है तब उपरोक्त तथ्यों को दृष्टिगत रखते हुए प्रस्तुत परिवाद/शिकायत पत्र यदि समूह द्वारा अथवा सामूहिक रूप से समान पीडि़त व्यक्तियों द्वारा प्रस्तुत किया जाता है तब वह इस न्यायालय के सम्मुख ग्राह्य है, जैसा कि पैरा 41 में माननीय सर्वोच्च न्यायालय द्वारा ब्रिगेड इण्टरप्राइजेज लिमिटेड (सुप्रा) के वाद में निर्धारित किया गया है।
अतएव विपक्षीगण की ओर से उपस्थित विद्वान अधिवक्ता के कथन अर्थात् परिवाद की ग्राह्यता के सम्बन्ध में आपत्ति का समुचित परीक्षण करने के उपरान्त परिवाद की ग्राह्यता पायी जाती है।
तद्नुसार विपक्षीगण के विद्वान अधिवक्ता को प्रस्तुत परिवाद के सम्बन्ध में विस्तृत प्रस्तर अनुसार अपना उत्तर शपथ पत्र 03 सप्ताह की अवधि में प्रस्तुत करने हेतु समय प्रदान किया जाता है। तद्नुसार उत्तर शपथ पत्र विपक्षीगण के विद्वान अधिवक्ता कार्यालय में परिवादीगण के विद्वान अधिवक्ता को प्रति प्राप्त कराकर दिनांक 28.03.2022 तक प्रस्तुत करें, जिसका प्रत्युत्तर शपथ पत्र परिवादीगण के विद्वान अधिवक्ता कार्यालय में दिनांक 31.03.2022 तक प्रस्तुत करें।
प्रस्तुत परिवाद को सुनवाई हेतु दिनांक 01.04.2022 को इस पीठ (माननीय न्यायमूर्ति श्री अशोक कुमार, अध्यक्ष एवं माननीय श्री राजेन्द्र सिंह, सदस्य) के सम्मुख सूचीबद्ध किया जावे।“
Against this order the opposite party went in appeal to the Hon’ble NCDRC who by its order dated5.8.2022 held that:
“9. From the above, it is clear that to file a joint Complaint the Complainants should have same interest. In the instant case, the prayers made by the Complainants are different and not same.
10. In view of the aforesaid discussion, this is not a fit case for granting permission under Section 35 (1) (c) of the Act. The State Commission erred in allowing the application under Section 35 (1) (c) of the Act. The First Appeal is accordingly allowed, impugned order is set aside and the application under Section 35 (1) (c) of the Act is dismissed. There will be no order as to costs.”
After that an application has been moved by the complainants no.2 to 5 dated 26.11.2022 praying to withdraw the case with liberty to file fresh complaint. On this application this court on 2.3.2023 permitted to withdraw the complaint on behalf of the complainants no.2 to 5 with permission to file fresh complaint and thereafter, in this case only one complainant remained present.
The counsel for the opposite party prayed that this complaint should be dismissed as a whole and the complainant no.1 should have been directed file fresh complaint. The argument has no force as we should not permit multiplication of suit and in this particular complaint case, now only complainant is there to contest the case.
Counsel for the opposite party also raised an objection that now as there is only one complainant and his share is less than Rs. 1 crore and when this complaint was filed before this Hon’ble State Commission, pecuniary jurisdiction of this Hon’ble Commission was from Rs.2 crore to Rs.10 crores and the complainant no.1 has sought a relief only for Rs.52,75,663.00. If the complainant is permitted to withdraw the case and to file a fresh complaint, the pecuniary vision would be Rs.52,75,663.00 which is valid in the pecuniary jurisdiction of this Court. So after change of circumstances we shall treat this complaint as if it has been filed now.
Section 47 of the Consumer Petition Act 2019 is as follow:
47. (1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction—
(a) to entertain—
(i) complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore: Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
(ii) complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;
As we know now the jurisdiction has been from Rs.50 lakh to Rs.2 crores. Here in S/47 (1)(a)(i) the word used is “the value of the goods or services paid as consideration”. The gist of this is the world ‘or’. In the Merriam-Webster English dictionary cache that ‘or’ means that it is used as a function word to indicate an alternative. Conjunction is our was that joined together other words or group of words. A connects words, phrases, and clauses of equal importance. The main coordinating conjunctions are and, or, and but.
They bought apples, pears, and oranges.
You can wait either on the steps or in the car.
The paintings are pleasant but bland.
So here or is in between two was which are of equal importance and either this may be taken or that may be taken but not conjointly.
In Cambridge dictionary the word ‘or’ means to connect different possibilities.
Is it Tuesday or Wednesday today?
You can pay now or when you come back to pick up the paint.
Are you listening to me or not?
‘or’ conjunction (POSSIBILITIES)used to connect different possibilities
Is today Tuesday or Wednesday?
So here also when the two possibilities are connected by ‘or’ it means either this or that.
According to Collins Dictionary You use or to link two or more alternatives.
'Tea or coffee?' John asked.
Spread the inside of the loaf with olive paste or pesto sauce for extra flavour.
He said he would try to write or call as soon as he reached the Canary Islands.
Students are asked to take another course in English, or science, or mathematics.
You use or to give another alternative, when the first alternative is introduced by 'either' or 'whether'.
Items like bread, milk and meat were either unavailable or obtained only on the black market.
Either you can talk to him, or I will.
I don't know whether people will buy it or not.
You use or between two numbers to indicate that you are giving an approximate amount.
Everyone benefited from limiting their intake of tea to just three or four cups a day.
When I was nine or ten someone explained to me that when you are grown up you have to work.
You use or to introduce a comment which corrects or modifies what you have just said.
The man was a fool, he thought, or at least incompetent.
There was nothing more he wanted, or so he thought.
Therefore it is clear that the world ‘or’ is a connection and it tells us to possibilities in the section “value of the goods or services paid as consideration,”. So we can take either value of the goods or services paid as consideration. In this case the value of goods more than 52 lakhs therefore this court has pecuniary jurisdiction to try this case.
Now in the present case the allotment letter has been issued to the complainant on 01.11.2013 the allotment letter/agreement has been executed on 25 December 2013. The cost of the unit has been mentioned as ₹ 6,289,150/– in this cost basic sale price, floor charges, facing charges, lump-sum maintenance deposit, power backup charges, club membership, parking charges, external development charges, firefighting charges have been included. Payment schedule has been attached with this agreement. Para 21 of this agreement says, “the possession of the shall be given in 36 months from the date of allotment letter or extended period as permitted by the allotment letter”.It means that the possession of the flat was to be delivered on or before 24 December 2016. In other words we may take the date as 01.01.2017 for delivery of possession of the said flat
Before going through the evidence, pleading and documents on record, we should know the basic objective of the Consumer Protection Act.
The Consumer Protection Act, came into existence and implemented in 1986, provides Consumer Rights to prevent consumers from fraud or specified unfair practices. It safeguards and encourages and gives an opportunity to consumers to speak against insufficiency and flaws in goods and services. If traders, manufacturers and distributors follow any foul trade, this act protects their rights as a consumer.
On which products are these right applicable?
This Protection Act covers entire goods and services of all sectors that are public, private, or cooperative sectors, except those exempted by the central government. The act provides a floor for a consumer where one can file their complaint against the product and the forum takes an action against the concerned supplier and compensation is granted to the consumer for the inconvenience he/she has encountered.
Objectives of consumer protection act
- To Provide better and all round protection to consumer.
- To Provide machinery for the speedy redressal of the grievances.
- To Create framework for consumers to seek redressal.
- To Provide rights to consumers.
- To Safeguarde rights of Consumers.
Let us know more about the rights and responsiblities of consumer
Consumer Rights
Listed below are the Rights of the Consumer
- Right to Safety- Before buying, a consumer can examine on the quality and guarantee of the goods and opt for ISI or AGMARK products.
- Right to Choose- Consumer must have the right to choose from a variety and number of goods and in a competitive price
- Right to be informed- The buyers must be provided with complete information with all the necessary and adequate details of the product, make her/him act wise, and change the buying decision.
- Right to Consumer Education- The consumer must be aware of his/her rights and avoid exploitation.
- Right to be heard- The consumer will get due attention to express their grievances at a suitable platform.
- Right to seek compensation- The consumer has the right to seek or ask for redressal against unfair and inhumane practices or exploitation of the consumer.
Consumer Responsibilities
- Responsibility to be aware – A consumer has to be careful of the safety and quality of products and services before purchasing.
- Responsibility to think independently– Consumer should be well bothered about what they want and need and hence make independent choices.
- Responsibility to speak out- The buyer should be fearless to speak out their problems and tell to traders what they exactly want
- Responsibility to complain- It becomes the consumer’s responsibility to express and file a complaint about their dissatisfaction with goods or services in a sincere and fair manner.
- Responsibility to be an Ethical Consumer- Consumer must be fair and not engage themselves with any deceptive practice.
The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumers Councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith (Preamble).
The Act Inter alia, seeks to promote and protect the rights of consumers such as —
(1) right to be protected against marketing of goods which are hazardous to life and property;
(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) right to be assured, wherever possible, access to variety of goods at competitive prices;
(4) right to be heard and to assured that customers’ interests will receive due consideration at appropriate forums.
(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and
(6) Right to consumer education
The objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels.
The Act applies to all goods and services, except if otherwise provided by the Central Government by Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe the principle of natural justice and are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi judicial bodies have also been provided.
Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and redressal of consumers’ grievances are the two aspects of the Act. It makes good the loss a consumer suffers and increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and not contrary to attempted objective of the enactment.
Extent of Consumer Protection:
While other legislations may be either punitive or preventive, the Consumer Protection Act compensates the consumer. The provisions of the Act are in addition to and not in derogation of the provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt Ltd v Go Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act, 1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those which may be available under other existing laws. Existence of an arbitration clause in the agreement is no bar to the entertainment of complaint by the Redressal Agency as the remedy under the Act is in addition to the provisions of any other law. However, the Consumer Forums under the Act have not taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is voluminous or complicated the parties will be referred to the appropriate Civil Court.
Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality, quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.
With the passage of time, the populace of the country is on hike and so are their opinions. Their opinion forms the basis for their interpretation, it may be a good or a bad interpretation. What would happen in the situation where people starting interpreting the laws? We might be flooded with several interpretations. The interpretations will be in such huge number that the laws will become unclear. This is the reason why lawmakers, while making the law, formulate itin accordance with the aim, set out by them, before penning down the legislations. The aim of any legislation defines the basis of the act. It becomes the ground norm of the act, based upon which the judiciary interprets the disputed texts.
The aim of any act forms the indispensable element, because it acts as the cord that delivers the real intention of the legislators behind the act. Whenever there is clash between two legislations, it is the aim of the legislation which makes the judges to derive at the endpoint in deciding which law has the superseding effect. It is through the doctrine of pith and substance that judges are able to derive at the major inclination towards one act over another act. This inclination is decided on the basis of the aim/goal of the act and the facts of that particular case.
Somewhat similar situation aroused in front of Supreme Court in the case of Aftab Singh and Others v. Emaar MGF Land Limited and Another ( Review Petition (C) Nos. 2629-2630 of 2018 in Civil Appeal Nos. 23512-23513 of 2017)CONSUMER PROTECTION ACT (CPA)
The beneficial legislation of Consumer Protection Act aims at reducing the grievances of the all classes of customers by providing them the preferential treatment. According to the Consumer Protection Act, the consumer dispute is the entity where the consumer/ customers have been given the convenient safeguards against ample exploitation like bad customer service, faulty goods or any unfair trade practices. The interest of the customers is protected by setting up, the three tier quasi-judicial consumer Redressal machinery which are at national, state and district levels as per section 9 of Consumer Protection Act. The Consumer Protection Act, 1986 (CPA) has been enacted in light of certain concerns related to public policy and the benefit of consumer.
So it is clear that this act is not in derogation of any act but this act is in addition to other act and it has been enacted for the benefit of the consumers. In the present case the complainant has stated that he deposited total amount of ₹ 6,289,150/– till 01.03.2016. Thus before the cut of date when the delivery of possession was to be held over, the complainant has already deposited ₹ 6,289,150/–. According to complainant thereafter other demands have been raised by the opposite parties only to extract money from the complainant. The complainant has taken loans from the ICICI Ltd bank and paying regular EMI along with his interest on the said scheme after the allotment of the said flat. When the complainant did not get any information regarding completion of the said project, he wrote many letters to the opposite parties regarding delivery of possession. The opposite parties did not respond in positive. The complainant found that the work at the site was halted for more than a year.
The opposite parties have stated that on 27.01.2016 demand due for the stage laying of ninth floor slab for Rs.868,109/– was raised on by him for the due date 01.03.2016 which was paid by the complainant on 18.04.2016. The opposite parties had admitted all the payments are or other demands raised before this date which was paid by the complainant. The opposite parties have said that on 27.12 2018 the complainant moved an application for the change of unit from project Sun Breeze Apartment-II to project Sun Breeze Apartment – 1 and on the request of the complainant the unit has been changed and all the amount deposited by the complainant was adjusted in the new unit allotted to the complainant on 10.01.2019.
Now the most relevant point is this, that the last demand by the opposite parties were made on 27.01.2016 and it was paid by the complainant on 18.04.2016. Thereafter no demand was made till 28.02.2019. Now the period for delivery opposition has already been expired which was in all circumstances was 24.12.2016. No specific reasons have been shown about the delay of the work. When all the demand for a clear by the complainant by18.04.2016, why did the possession of the flat was not deliver to the complainant on or before 24.12.2016 . It means there was clear deficiency of service on the part of the opposite parties. It is also unfair trade practice because they could not fulfill their promise. They have become defaulter on 24.12.2016.
Now the demand been sent to the complainant on 28.02.2019 to demand due for the states on internal plaster and flooring for Rs.92,892/– and this demand was made not paid by the complainant. Again on 07.08.2019 the opposite parties intimated the complainant to take the fit out possession with the demand of Rs.555,171/– and asked him to deposit the amount within 45 days of the said letter. Strange enough why this fit out possession was being given to the complainant? Nothing has been disclosed by the opposite parties. Whether the opposite parties have received the completion certificate and occupancy certificate? Both the certificates are necessary to obtain before offering delivery opposition to the allottee. It is importance should be known by the following legal article.
COMPLETION / OCCUPANCY CERTIFICATE
When buying a home, it is vital to obtain documents, such as the Occupancy Certificate (OC) and Completion Certificate (CC). These are essential documents that allow you to mortgage or sell your home. Hence, homebuyers are advised to take possession of their flat or property only after these documents have been issued.
According to Vikas Bhasin, CMD, Saya Group, “Completion Certificate and Occupancy Certificate are some of the most important documents for a home buyer. Civic authorities can evict the occupants in case of non-availability of the necessary approvals. Before investing in a property, people must be doubly assured that all the certificates and approvals are in place.”
Let us dive a little deeper into the details of these documents and their importance before you make a move to buy your dream home.
Owning a home is the culmination of years of savings, research, and paperwork. After patiently waiting for the construction to be complete, you finally register the property and take possession of your flat. But what if your dream home is declared unauthorised, and you are evicted by the authorities? This is not as far-fetched as it sounds. This nightmare could turn into reality without a crucial link in the property sale process - the Occupancy Certificate (OC).
The majority of apartments in different Indian cities have been occupied by owners without any occupancy certificate. This oversight can turn into a costly mistake, jeopardising the legal status of your dream home. The importance of the occupancy certificate cannot be overstated as it seals the legal status of your property and protects your ownership rights.
Decoding legal documents
To understand the importance of an occupancy certificate and other legal documents, let’s decode the legal jargon and understand their meaning in simple terms. Here’s a ready reckoner of the most important legal documents related to your property:
Occupancy Certificate
An OC certifies that the construction of the building has complied with the approved plans. It is issued by local municipal authorities or the building proposal department once the building has been completed and is ready to be occupied. Simply put, without an OC, your building has not been awarded a ‘pass certificate’.
Completion Certificate
A Completion Certificate (CC) is issued only after the construction meets other building standards like distance from the road, the height of the building, and rainwater harvesting system. A CC alone cannot legalise occupation; the OC is a must.
Commencement Certificate
If you are buying an under construction property, make sure you check the Commencement Certificate before signing the agreement. Many builders do not wait for a Commencement Certificate. This is illegal and can create serious problems in obtaining an OC at a subsequent stage.
Why is it unsafe to buy a flat without OC?
In the absence of a valid OC, the local municipal body can initiate serious action against flat owners. In 2014, residents of a well-known building complex in Mumbai’s upscale Worli area were hit with a bolt from the blue after their complex was declared unauthorised. At the time of possession, buyers overlooked the issuance of an OC from the builder. It was only after that they were forced to evacuate their flats that the writing on the wall became clear to them.
This is just one instance, and if buyers are not careful about getting the OC, they may face the following repercussions:
• In the absence of a valid OC, your building can be demolished as it can be classified as an unauthorised structure.
• The OC is crucial while applying for a home loan or loan to purchase a resale flat. If you wish to sell or hypothecate the property after a lapse of time, you will not be able to do so without a valid OC.
• The water connection, sanitary connection or electricity supply can be disconnected in the absence of an OC.
How to obtain an OC
The OC is obtained from local municipal bodies by submitting an OC application form along with the following documents:
• Commencement Certificate
• Completion Certificate
• Built and Section plan
• NOC for fire and pollution
• Area calculation sheet of floor signed by an authorised architect
• Photographs of the completed building
• Tax assessment with tax paid receipt
• Photographs of rain harvesting and solar panels
• Copy of the sanctioned plan
After submitting the form, authorities inspect the complex and confirm if it has conformed to the approved plan before issuing an OC. Legally and ideally, a builder should submit an application with the municipal commissioner for the OC within 30 days of completion of the property.
How you can apply for an OC
As a flat owner, you can also apply for an OC by approaching the local corporation or municipality, and if all approvals are in place, an OC is issued within 30 days of application. You will have to submit the same documents as the builder to procure an OC.
Know your rights
If the builder refuses to provide an OC, you should consider exercising your legal rights. You can issue a notice against the builder asking him to apply and hand over the copy of the OC within a month. You can also approach consumer forums and file a writ petition demanding the OC.
Some canny builders simply present the receipt of the OC and dupe gullible customers. But you shouldn’t accept anything less than the actual OC as the receipt may be dated.
Landmark legislations like the Real Estate Regulatory Act (RERA) have been passed to regulate the sector, promote transparency and protect consumer rights. However, consumers must be vigilant and understand their rights and responsibilities towards owning a property. Documents like OC are essential and ensure the security of your investment.
Going forward, real estate experts believe that the OC should be made mandatory for the registration of flats and essential services. Until then, buyers must ensure builders get all the necessary approvals before handing over a property.
A Completion Certificate (CC) is an important legal document that certifies that a building is constructed according to the laid down norms and master plan of the city. This document has all the information related to the project, such as the building materials used, building height, and building plan, among other things like provision for green belt.
In a nutshell, this document certifies that the building adheres to all the prevailing rules and has not violated any norms. In fact, this document is to be shown compulsorily to the authorities to obtain electricity and water connection.
Builders are allowed to obtain a provisional Completion Certificate when there are minor works left in the project. Authorities then provide a provisional certificate valid for six months. After the expiry of the six months, the developer is bound to get a final CC.
Who issues a Completion Certificate?
Local authorities issue the Completion Certificate after a thorough inspection of the premises. If the developer violates no rules, authority issues a Completion Certificate.
Why is Completion Certificate important?
Buyers must be aware of the fact that if they are buying or moving into a property that does not have a Completion Certificate, they might be making a risky investment choice. The civic authorities hold the power to slap heavy penalties on the developer, leading to stalling or cancellation of the registered layout of the project. In case the building is already occupied, residents may also have to face eviction in extreme cases.
Difference between Occupancy Certificate and Completion Certificate
Occupancy Certificate examines and certifies a property for adherence to bye-laws, civic amenities, electricity, sanitation and other clearances. On the other hand, a Completion Certificate is a document that certifies that a property is fit for possession by the buyers.
Clarifying the difference, Deepak Kapoor, Director, Gulshan Homz, says, “Completion Certificate is just a reaffirmation that the building has been constructed as per the building byelaws and the layout plan has been approved by various concerned authorities. Occupation Certificate signals that there is no violation of building construction norms, and thus, the structure is safe for occupants.
Generally, these documents are not required at the time of registry, and hence, buyers tend to overlook or ignore these. But for their own benefit and peace of mind, it is warranted that buyers of both ready-to-move-in as well as under-construction properties check these documents before taking possession. This would help avoid any unnecessary dispute or confrontation in the future.”
Not a single word has been said about these certificates by the opposite parties. Whether any offer has been given by the opposite party to pay penalty regarding delay in delivery of possession? No such averments made in the written statement. On one side the complainant was paying the EMI to the concerned bank with heavy rate of interest and on the other side the builders are not in a position to handover the possession of the said unit to the complainant. In the absence of completion certificate or occupancy certificate, delivery of possession is no possession in the eye of law.
The Hon’ble Supreme Court on occupancy certificate by the builders.
Supreme Court: The bench of Dr. DY Chandrachud* and AS Bopanna, JJ has held that failure on the part of the builder to provide occupancy certificate is a continuing breach under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 and amounts to a continuing wrong.
Factual Background
The appellant is a co-operative housing society. The respondent constructed Wings ‘A’ and ‘B’ and entered into agreements to sell flats with individual purchasers in accordance with the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 (MOFA). The members of the appellant booked the flats in 1993 and were granted possession in 1997. According to the appellant, the respondent failed to take steps to obtain the occupation certificate from the municipal authorities.
There was an obligation on the respondent to provide the occupancy certificate and pay for the relevant charges till the certificate has been provided, however, the respondent time and again failed to provide the occupancy certificate to the appellant society. For this reason, a complaint was instituted in 1998 by the appellant against the respondent. The NCDRC on 20 August 2014 directed the respondent to obtain the certificate within a period of four months. Further, the NCDRC also imposed a penalty for any the delay in obtaining the occupancy certificate beyond these 4 months. Since 2014 till date, the respondent failed to provide the occupancy certificate.
In the absence of the occupation certificate, individual flat owners were not eligible for electricity and water connections. Due to the efforts of the appellant, temporary water and electricity connections were granted by the authorities. However, the members of the appellant had to pay property tax at a rate 25% higher than the normal rate and water charges at a rate which was 50% higher than the normal charge.
Analysis
Obligations of Promoter under MOFA
Section 3 of the MOFA imposes certain general obligations on a promoter. These obligations inter alia include making disclosures on the nature of title to the land, encumbrances on the land, fixtures, fittings and amenities to be provided, and to not grant possession of a flat until a completion certificate is given by the local authority. The responsibility to obtain the occupancy certificate from the local authority has also been imposed under the agreement to sell between the members of the appellant and the respondent on the latter.
Sections 3 and 6 of the MOFA indicate that the promoter has an obligation to provide the occupancy certificate to the flat owners. Apart from this, the promoter must make payments of outgoings such as ground rent, municipal taxes, water charges and electricity charges till the time the property is transferred to the flat-owners. Where the promoter fails to pay such charges, the promoter is liable even after the transfer of property.
Limitation
In the instant case, the appellant submitted that since the cause of action is founded on a continuing wrong, the complaint is within limitation.
Section 24A of the Consumer Protection Act 1986 provides for the period of limitation period for lodging a complaint. A complaint to a consumer forum has to be filed within two years of the date on which the cause of action has arisen.
Section 22 of the Limitation Act 1963 provides for the computation of limitation in the case of a continuing breach of contract or tort. It provides that in case of a continuing breach of contract, a fresh period of limitation begins to run at every moment of time during which the breach continues.
A continuing wrong occurs when a party continuously breaches an obligation imposed by law or agreement. The continuous failure to obtain an occupancy certificate is a breach of the obligations imposed on the respondent under the MOFA and amounts to a continuing wrong.
The appellants, therefore, were entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.
“Rejecting the complaint as being barred by limitation, when the demand for higher taxes is made repeatedly due to the lack of an occupancy certificate, is a narrow view which is not consonance with the welfare objective of the Consumer Protection Act 1986.”
Consumer
Section 2(1)(d) of the Consumer Protection Act defines a ‘consumer’ as a person that avails of any service for a consideration. A ‘deficiency’ is defined under Section 2(1)(g) as the shortcoming or inadequacy in the quality of service that is required to be maintained by law.
In the present case, the NCDRC had held that the appellant is not a ‘consumer’ under the provisions of the Consumer Protection Act as they have claimed the recovery of higher charges paid to the municipal authorities from the respondent. Extending this further, the NCDRC observed that the respondent is not the service provider for water or electricity and thus, the complaint is not maintainable.
The respondent was responsible for transferring the title to the flats to the society along with the occupancy certificate. The failure of the respondent to obtain the occupation certificate is a deficiency in service for which the respondent is liable. Thus, the members of the appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for the consequent liability (such as payment of higher taxes and water charges by the owners) arising from the lack of an occupancy certificate.
[Samruddhi Co-operative Housing Society Ltd v. Mumbai Mahalaxmi Construction Pvt. Ltd, , decided on 11.01.2022]”
Regarding delay of possession the only Supreme Court has held in the following case law,
“In Kolkata West International City Pvt. Ltd. Vs. Devasis RudraCitation : 2019 Latest Caselaw 299 SC
Judgement Date : Mar/2019[Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017], the Hon’ble Supreme Court has held regarding delay in giving possession.
“This appeal arises from the judgment dated 21 November 2016 of the National Consumer Disputes Redressal Commission1. A Buyer's Agreement dated 2 July 2007 was entered into between the appellant and the respondent. The respondent paid an amount of Rs 39,29,280 in 2006 in terms of a letter of allotment dated 20 September 2006. The agreement between the parties envisaged that the appellant would hand over possession of a Row House to the respondent by 31 December 2008 with a grace period of a further six months ending on 30 June 2009.
The respondent filed a consumer complaint before the West Bengal State Consumer Disputes Redressal Commission2 in 2011 1 "NCDRC" "SCDRC" 2 praying for possession of the Row House and in the alternative for the refund of the amount paid to the developer together with interest at 12% per annum. Compensation of Rs 20 lakhs was also claimed. The SCDRC allowed the complaint by directing the appellant to refund the moneys paid by the respondent together with interest at 12% per annum and compensation of Rs.5 lakhs. The NCDRC has modified this order by reducing the compensation from Rs 5 lakhs to Rs 2 lakhs. Mr. Ravinder Narain, learned counsel appearing on behalf of the appellant submits that the primary relief which was sought in the consumer complaint was for delivery of possession. According to the appellant, the completion certificate was received on 29 March 2016, which was intimated to the respondent on 11 April 2016.
Moreover, before the SCDRC, in its written submissions, the appellant had offered possession of the Row House to the respondent. It has also been stated that in a complaint which was filed by an association representing the allottees of 161 Row houses, a settlement was arrived on 11 September 2018 before the NCDRC specifying the date on which possession would be handed over together with interest at 6% per annum instead of 4% as mentioned in the Buyers' Agreement. It was urged that the developer having made a substantial investment in terms of the agreement, a direction for refund is not warranted. It has also been urged that the SCDRC in the course of its decision erroneously observed that the developer was unable to fulfill its obligation to complete the construction within the agreed period and it was not certain when the Row house would be handed over. It was urged that this observation by the SCDRC is contrary to the record since before it, a specific offer of possession was made.
It has been urged on behalf of the respondent by Mr. Supriya Bose, learned senior counsel that a consumer complaint was filed in the year 2011. At that stage, the appellant was bonafide ready and willing to accept possession. However, nearly seven years have elapsed after the extended date for the delivery of possession which expired on 30 June 2009. In spite of this, no offer of possession was forthcoming. Learned senior counsel submitted that the letter dated 22 March 2016 of the developer was conditional and despite the subsequent letter dated 11 April 2016, no formal offer of possession was ever made by the appellant. Moreover, it was urged that the interest awarded by the NCDRC at the rate of 12% is just having regard to the economic loss and hardship suffered by the respondent. While considering the rival submissions, we must at the outset advert to the following clause which was contained in the Buyer's Agreement:
“Unless prevented by circumstances beyond the control of the company and subject to Force Majeure, KWIC shall ensure to complete the said unit in all respect within 31st December 2008 only for the Cluster D. Further there will be a grace period of 6 months (up to 30th June, 2009) from the date of completion. In case the possession is not transferred after expiry of the said grace period, KWIC will be liable to pay prevailing 4 saving Bank interest of the State Bank of India for each month of delay on the money given by the allottee as compensation but no compensation will be paid on account of force majeure reasons." It is the above clause which is pressed in aid by the developer. Under the aforesaid clause, any delay beyond 30 June 2009 would result in the developer being required to pay interest at the prevailing savings bank interest of the State Bank of India.
Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.
The clause which has been extracted in the earlier part of this order will not preclude the right and remedy available to the buyer to claim reasonable interest or, as the case may be, compensation. The essential aspect of the case which is required to be analysed is whether the buyer was entitled to seek a refund or was estopped from doing so, having claimed compensation as the primary relief in the consumer complaint.
The Buyer's Agreement is dated 2 July 2007. In terms of the agreement, the date for handing over possession was 31 December 2008, with a grace period of six months. Even in 2011, when the buyer filed a consumer complaint, he was ready and willing to accept possession. It would be manifestly unreasonable to construe the contract between the parties as requiring the buyer to wait indefinitely for possession. By 2016, nearly seven years had elapsed from the date of the agreement. Even according to the developer, the completion certificate was received on 29 March 2016. This was nearly seven years after the extended date for the handing over of possession prescribed by the agreement. A buyer can be expected to wait for possession for a reasonable period.
A period of seven years is beyond what is reasonable. Hence, it would have been manifestly unfair to non-suit the buyer merely on the basis of the first prayer in the reliefs sought before the SCDRC. There was in any event a prayer for refund. In the circumstances, we are of the view that the orders passed by the SCDRC and by the NCDRC for refund of moneys were justified. Having regard to all the facts and circumstances of the case, we modify the order of the NCDRC by directing that the appellant shall pay interest at the rate of 9% per annum to the respondent instead and in place of 12% as directed by the NCDRC. Save and except for the above modification, we affirm the directions of the NCDRC.
The amount outstanding in terms of the directions of this Court shall be released out of the moneys which have been deposited by the appellant. The balance, if any, that remains shall be refunded to the appellant. The appeal is, accordingly, disposed of. There shall be no order as to costs. Pending application(s), if any, shall stand disposed of.”
Now from all the given circumstances it has been clear that the opposite parties failed to deliver the possession of the unit within the promised time and they now sending different demand to extract the money from the complainant but did not disclose as Homer’s penalty they had to pay to the complainant regarding delay in the delivery of possession to the complainant. As far as fit out possession is concerned, it relates to unfinished work in the flat for which the builder pays for the finish of the work needed in the unit. But no such term has been used in the Consumer Protection Act. The opposite parties have stated that there has been delay in payment of various instalments are by the complainant. But if it has been rectified by the opposite parties, now this question cannot be raised. If the amount was not paid in time they may charge interest according to the agreement or any other condition as mentioned agreement. But once the time of delivery of possession has been expired and before that date every demand was made clear by the complainant, no new demand can be raised after the cut-off date because the possession was not handed over to the complainant. Now the defaulter is opposite parties and not the complainant.
Whether the opposite parties have paid any interest on the amount deposited by the complainant.? Regarding payment of interest on the deposited amount only Supreme Court has said in various judgment if you are being quoted here.
Ghaziabad Development Authority v. Balbir Singh
In the Supreme Court of India
Name of the Case: Ghaziabad Development Authority v.
Balbir Singh
