State Consumer Disputes Redressal Commission
Sunaini Sharma vs Ansal Housing & Construction Ltd. on 25 March, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 847 of 2016 Date of Institution : 28.11.2016 Date of Decision : 25.03.2019 Sunaini Sharma W/o Dharminder Sharma, R/o H.No.865, Sector 12, Panchkula. Dharminder Sharma S/o Dwarka Nath Sharma, R/o H.No.865, Sector 12, Panchkula. (Both presently living at H.No.1544, Sector 15, Panchkula.) ...... Complainants V e r s u s Ansal Housing & Construction Limited, Registered and Head Office: 15, UGF, Indra Prakash, 21, Barakhambha Road, New Delhi-110001, through its Managing Director/Director/ Partner/Authorized Signatory. Ansal Housing & Construction Limited, 2nd Floor, GNG Towers, Building No.10, Sector 44, Near Huda City Centre Metro Station, Gurgaon, Haryana, through its Managing Director/Director/Partner/Authorized Signatory. Ansal Housing & Construction Limited, SCO 817, First Floor, NAC Mani Majra, Chandigarh, through its Managing Director/Director/Regional Manager/Branch Manager/ Authorized Signatory. Ansal Housing & Construction Limited, Zirakpur Site Office, near PSEB Grid, Nabha Road, Babhat Zirakpur through its Managing Director/Director/Partner/Authorized Signatory. .....Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR.RAJESH K ARYA, MEMBER.
Argued by:- Sh.Munish Goel, Advocate for the complainants alongwith Ms.Sunaini Sharma, complainant no.1 in person.
Sh.Pardeep Solath, Advocate for the opposite parties.
PER PADMA PANDEY, MEMBER This complaint had earlier been dismissed by this Commission, vide order dated 30.11.2016, on the ground of limitation. Feeling aggrieved against order dated 30.11.2016, the complainants went in appeal bearing No.42 of 2017, which was allowed by the National Commission, vide order dated 31.07.2017 and the case was remitted back to this Commission to decide it on merits, by holding as under:-
"It has been agreed that the impugned order may be set aside and the complaint may be decided on merits after giving an opportunity to the OP to file its written version taking all such plea as may be open to it in law. The impugned order is accordingly set aside and the matter is remitted back to the concerned State Commission to decide the complaint on merits. The complaint shall be taken as having been filed within the prescribed period of limitation............"
The complainants, had filed this compliant, seeking possession of flat bearing no.FIR 501, measuring 1742 square feet, @ Rs.2095/- per square feet, purchased by them, for their residential purpose, for total sale consideration of Rs.31,90,473/- (after discount) in a project launched by the opposite parties, under the name and style 'Woodbury Apartments', Zirakpur, Punjab. An alternative prayer has also been made by the complainants, seeking refund of the amount paid alongwith interest, compensation, etc., in case, the opposite parties are not in a position to deliver physical possession of the unit, in question, complete in all respects.
The unit, in question, was allotted in favour of the complainants, vide letter dated 29.10.2009 Annexure C-7 containing detailed terms and conditions. It is specific case of the complainants that despite making payment of Rs.36,62,331/- till 20.01.2012 towards price of the said unit, the opposite parties failed to deliver actual physical possession thereof. On the other hand, paper possession had been offered by the opposite parties, vide letter dated 25.04.2011 Annexure C-14, as upon visit thereafter, by the complainants, at the project site, it was found that neither the unit was fully constructed nor basic amenities as promised were provided at the project site nor occupation and completion certificates were obtained from the Competent Authorities. As such, representation was made to the opposite parties, in writing, vide letter dated 23.05.2011, in the matter. Deficiencies and defects in the unit and also basic amenities which were not in existence, were reported to the opposite parties, in writing. Request was made to cancel offer of possession letter dated 25.04.2011 and issue a fresh one, after completing the construction and development work. When despite giving reminders, nothing positive came out, the complainants visited the office of the opposite parties, a number of times, and claimed possession of the unit, complete in all respects, including occupation and completion certificates but to of no avail. Matter was also brought to the notice of the opposite parties, by way of sending various emails but it did not work. It is specific case of the complainants, that despite the fact that number of requests were made to the opposite parties, to redress their grievance, they were interested only in raising demands towards remaining price of the said unit. Even by the date of filing this complaint, the opposite parties were not in a position to deliver actual physical possession of the unit, in the developed project.
By stating that the aforesaid act and conduct of the opposite parties amounted to deficiency in providing service and adoption of unfair trade practice, this complaint has been filed by the complainants.
Upon notice, joint reply was filed by the opposite parties, wherein, the fact regarding purchase of the unit, in question, by the complainants; price of the unit mentioned in the complaint; amount paid by the complainants towards price of the unit; execution of Letter of Allotment dated 29.10.2009 containing detailed terms and conditions, is not seriously disputed. However, it was stated that the unit, in question, was purchased for future gain. Other family members of the complainants have also purchased units in the said project, as such, the complainants being investors, would not fall within the definition of consumer, as defined under Section 2 (1) (d) of Act. Various objections were taken like this Commission did not vest territorial jurisdiction to decide this complaint; the complaint filed is barred by limitation; complicated/serious questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature, as such, only Civil Court has jurisdiction to entertain and decide this complaint; and that the complainants were defaulters in making payment towards price of the said unit.
On merits, it was stated that possession of the unit had been offered to the complainants, vide letter dated 25.04.2011. They were asked to get register the sale deed also. However, they delayed the process of taking actual physical possession of the unit, by not clearing their outstanding dues. It was pleaded that development and construction work at the project site was completed and the opposite parties had applied for occupation and completion certificates with the Competent Authorities, in the year 2012 but the said Authorities failed to issue the same, due to latches and delay in Official work. As such, delay, if any, was on the part of the Competent Authorities, for which the opposite parties cannot be held responsible. The remaining averments were denied being wrong. It was prayed that the complaint having no substance, be dismissed with cost.
In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and repudiated those, contained in written version of the opposite parties.
The contesting parties led evidence, in support of their case.
We have heard the contesting parties, and have gone through the evidence and record of the case, very carefully.
Before going into merits of the case, it is significant to mention here that at the time of arguments, Counsel for the complainants, on getting instructions from complainant no.1 who was also present in person, stated that looking at the facts and circumstances of the case, alternate prayer for refund of the amount paid towards price of the unit, may be considered, to which, no objection was raised by Counsel for the opposite parties.
Coming to the merits of the case, the first question, that falls for consideration, is, as to whether, the complainants are speculators, and that they have purchased the unit, in question, for earning profits i.e. for resale, as and when there is escalation in the prices of real estate, therefore, they would not fall within the definition of consumer, as defined by Section 2 (1) (d) of the Act., as alleged by the opposite parties. It may be stated here that there is nothing, on record to show that the complainants are property dealers and are indulged in sale and purchase of property, on regular basis. In their complaint, it has been specifically stated by the complainants that the unit, in question, was purchased by them for their personal use. At the same time, if other family members/relatives of the complainants have purchased unit(s) in their individual capacity, in the project of the opposite parties, with a view to live in the neighborhood of each other, is not a ground to say that they (complainants) are investors. Thus, in the absence of any cogent evidence, in support of the objection raised by the opposite parties, mere bald assertion to that effect, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case.
The next question that falls for consideration, is, as to whether, this Commission has got territorial jurisdiction to entertain and decide this complaint or not.
According to Section 17 of the Act, a consumer complaint can be filed, by the complainants, before the State Consumer Disputes Redressal Commission, within the territorial Jurisdiction whereof, a part of cause of action arose to them. Furthermore, Section 17 (2) (a) and (c) of the Act, reads thus:-
"Section 17 in the Consumer Protection Act, 1986
17. [(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) .......................
(c) the cause of action, wholly or in part, arises.]"
It is specifically stated that a consumer can file a complaint in the State Commission, within the limits of whose jurisdiction, the opposite party(s) actually and voluntarily resides or carries on business. As such, this Commission has to find out two factors, first whether the opposite parties have any branch office at Chandigarh and secondly, whether, any part of cause of action accrued to the complainants at the said Branch Office at Chandigarh or not. It may be stated here that we have gone through the record of the case, which reveals that in the brochure Annexure C-3, it has been clearly mentioned by the opposite parties that they have their branch office (Chandigarh Office) at SCO 817, 1st Floor, N.A.C. Manimajra, Chandigarh 160101. As such, it is proved that the opposite parties were actually and voluntarily carrying out their business at their Chandigarh Office, also.
Now coming to the question, as to whether, any cause of action arose to the complainants at the said Chandigarh Office of the opposite parties, it may be stated here that we have gone through the contents of payment receipt dated 27.08.2009 Annexure C-4, which revealed that an amount of Rs.31,733/- has been received by the opposite parties at Chandigarh, as the said receipt bears round stamp of "Chandigarh" office. Furthermore, even letters dated 23.05.2011 and 09.07.2011, wherein the complainants took up issues regarding incomplete work in the unit, in question, were addressed to Chandigarh Office of the opposite parties, receipt of which has not been disputed. In view of above, it can safely be said that the Company is running its business from the said place at Chandigarh and also the fact that cause of action accrued to the complainants at Chandigarh, as such, this Commission has got territorial jurisdiction to entertain the present complaint, in view of the provisions of Section 17 (2) (a) and (c) of the Act. Objection taken by the opposite parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
As far as objection regarding limitation is concerned, the same is not sustainable now, in view of order dated 31.07.2017 passed by the National Commission, in appeal bearing No.42 of 2017.
It is not disputed that the complainants had purchased flat bearing no.FIR 501, measuring 1742 square feet, @ Rs.2095/- per square feet, in the said project, on making payment of Rs.36,62,331/-, as per demands raised by the opposite parties, from time to time. As per Clause 22 of Letter of Allotment dated 29.10.2009 Annexure C-7 containing detailed terms and conditions, possession of the unit was to be delivered within a reasonable time, subject to force majeure circumstances. The complainants have levelled a specific allegation in their complaint that only paper possession had been offered by the opposite parties, vide letter dated 25.04.2011 Annexure C-14, as upon their visit thereafter, at the project site, it was found that neither the unit was fully constructed nor basic amenities as promised were provided at the project site nor occupation and completion certificates had been obtained from the Competent Authorities.
On the other hand, the opposite parties have claimed that it was only after completing the construction and providing basic amenities, as promised, that possession of the unit was offered to the complainants. Under these circumstances, it is required of this Commission, to ascertain, as to whether, the said offer of possession made vide letter dated 25.04.2011 was a genuine one or not.
It is well settled law that before offering and delivering possession of residential unit(s), to the buyers, the builder/developer is legally bound to provide all the amenities promised by way of brochure etc. required for smooth and comfortable life and also after obtaining occupation and completion certificates, failing which the buyer(s) is at liberty to say no to the said offer. Consequences of non-obtaining of occupation certificate by the builder/developer before offering possession of the unit(s) has been discussed by the National Commission in Sanjay Kumar Airen & Anr. Vs Sahara Prime City Limited & Anr., Consumer Case No. 988 of 2015, decided on 05 Jan 2017. Relevant part of the said order reads thus:-
"Moreover, this is not the case of the OP in the reply filed by it that it has obtained the requisite occupancy certificate in respect of the bungalow allotted to the complainants. In the absence of occupancy certificate, neither the OP can offer possession of the bungalow to the complainants nor can they occupy the same".
Consequences of non-obtaining of occupation certificate by the builder/developer before offering possession of the unit(s) were reiterated by the National Commission in Brajesh Kumar Sengar & Anr. Vs. M/S. Unitech Ltd. & Anr., Consumer Case No. 244 of 2015, decided on 04 Jan 2017. Relevant part of the said order reads thus :-
".................... Be that as it may, the fact remains that the Occupancy Certificate of the flat in question having not been obtained so far by the OPs, the complainants cannot be compelled to keep on waiting for the OPs to obtain the said certificate and the complaint has to proceed on its merits. The learned counsel for the OPs wants it to place on record the information that the Occupancy Certificate was applied on 26.8.2015. She further submits that the Occupancy Certificate could not be issued since certain formalities are yet to be complied............"
Furthermore, since the property is situated in Punjab, even as per Section 3 (2) j, CHAPTER II Regulation of Promotion of Construction, Sale, Transfer and Management of Apartments, Plots and Properties of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), it has been made clear that a Promotorshall not allow any person to enter into possession, until an occupation certificate required under any law is duly given by the appropriate authority, under that law and no person shall take possession of an apartment, until such occupation certificate is obtained. Relevant part of said Chapter reads thus:-
"(j) not allow person to enter into possession until an occupation certificate required under any law is duly given by the appropriate authority under that law and no person shall take possession of an apartment until such occupation certificate is obtained ;"
Consequences of non-obtaining of completion certificate by the builder/developer before offering possession of the unit(s) have also been discussed by the 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 thus:-
".............. Admittedly in the year 2012 or even in 2013, when the possession is claimed to have been offered, the Respondent was not possessed of the completion certificate from the authorities concerned. As a matter of fact, it is conceded that requisite completion certificate has been recently received in the year 2015. If that be so, offer of possession, stated to have been made to the Complainant in the year 2012, was no offer at all. An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate."
Consequences of non-obtaining of completion certificate by the builder/developer before offering possession of the unit(s) were reiterated by the National Commission in M/S. R.K. CONSTRO Projects Pvt. Ltd. Vs Amol Subhash Chavan & 4 Ors., Revision Petition No. 2942 of 2017, decided on 24 Oct 2017. Relevant part of the said order reads thus :-
"Having heard the learned Counsel and perused the material on record, I am of the view that the Revision Petition is bereft of any merit. Since the stand of the Petitioner before the lower Fora was that the possession of the flat was offered to the Respondent/Complainant on 25.02.2011, on a pointed query to the learned Counsel, he has candidly admitted that even till this date, Completion Certificate for the project, wherein the flat in question is located, has not been received by the Petitioner. The specious plea is that the competent Authority has now stopped issuing Completion Certificates in respect of such projects.
In view of the admitted position that the Completion Certificate has not yet been obtained by the Petitioner, the plea that the possession of the flat was offered in the year 2012 itself is of no consequence. The Complainant was not obliged to accept the flat without Completion Certificate, even if it is assumed for the sake of argument that its possession was offered in the year 2012. Under the given circumstances, as rightly observed by the Fora below that the Petitioner not being in a position to deliver the possession of the flat to the Complainant, complete in every respect, the direction to the Petitioner/Developer to refund the amount received from the Complainant as far back as in the year 2011 with simple interest @ 11% p.a. cannot be faulted with.............."
Furthermore, it is also well settled law that before offering and delivery possession of residential unit(s), to the buyers, the builder/developer is legally bound to provide all the basic amenities promised by way of agreement etc. required for smooth and comfortable life. It was so said by the Supreme Court of India in Haryana State Agricultural Marketing Board vs. Bishamber Dayal Goyal and Ors., Civil Appeal No.3122 of 2006, decided on 26.03.2014. In that case, the Supreme Court, while placing reliance on Municipal Corporation, Chandigarh & Ors. vs. Shantikunj Investment (P) Ltd. & Ors., (2006) 4 SCC 109, held that it is an obligation on the part of the service provider to provide necessary facilities such as roads, drainage, drinking water, sewerage, street lighting etc. etc., for full enjoyment of the same by allottees, even if the same are not mentioned in the agreement etc. The contents of the judgments referred to above, as also of Section 3 (2) j of the PAPRA, leaves no doubt, that in the absence of basic amenities/facilities and also occupation & completion certificates, the opposite parties could neither offer possession of the unit to the complainants nor the complainants were bound to accept such incomplete offer, if it is made.
In the present case, the opposite parties claimed to have offered possession of the unit, in question, on 25.04.2011. However, it is not disputed that the said offer was challenged by the complainants, by way of sending letters dated 23.05.2011, 09.07.2011 and also vide emails dated 17.02.2012, 15.02.2013 and 03.05.2013 on the ground that the unit is not livable for want of various defects and amenities such as bathroom work not complete; no water; no electricity; kitchen work not complete; glass window panes not provided; flooring incomplete; painting and polishing work not done; no parking place etc. However, despite the fact that number of letters/emails, referred to above, were sent to the opposite parties, not even a single one was replied. Whereas, on the other hand, salt was added to the miseries of the complainants, by the opposite parties, by raising demand of the remaining amount of Rs.35,242.12 ps., vide letter dated 13.01.2016. During arguments also, Counsel for the opposite parties failed to give any satisfactory reply, when he was asked to place on record any cogent evidence to prove that when possession of the unit was offered in 2011, it was complete in all respects. It is well settled law that the onus to prove that the project has been completed and the area/site, in question, is fully developed, and also that the unit is ready for delivery of possession is on the builder/opposite parties. It was so said by the 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, it is very strange that not even a single document has been placed on record, by the opposite parties, to prove that when possession of the unit had been offered on 25.04.2011, construction of the unit was complete and basic amenities were in existence. In case, the unit is ready and all the construction and development activities had been undertaken at the project site, then it was for the opposite parties, 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, all these development and construction activities, had been undertaken and completed at the site or not, but they failed to do so. As such, in the absence of such evidence, it is held that possession so offered vide letter dated 25.04.2011 was only a paper one.
There is another reason, as to why, it has been held above, by this Commission that possession of the unit, so offered, vide letter dated 25.04.2011 was only a paper one and the complainants were not bound to take over the same. It has been admitted by the opposite parties only, in para no.6 of their written reply that they had applied for issuance of occupation and completion certificates in the year 2012 (07.12.2012) to the Govt. Authorities, which remained pending with them for a long time. This candid admission of the opposite parties, in itself, is sufficient to prove that possession so offered by them, vide letter dated 25.04.2011 in the absence of occupation and completion certificates, is nothing but a paper possession. Under these circumstances, it is held that since in the present case, neither construction was complete; basic amenities were not in existence; and also, occupation and completion certificates had not been obtained from the Govt. Authorities, by the date when possession was offered vide letter dated 25.04.2011, the complainants were right in not taking over the same.
A plea was also taken by the opposite parties that they had applied for occupation and completion certificates with the Govt. Authorities on 07.12.2012, which were kept pending for a long time and if the same were not issued, the fault lays upon them (Govt. Authorities), and not the opposite parties. We do not agree with the plea raised. We have gone through the letter dated 28.12.2012 (at page 253 of the paper book) and found that it was in a very clear-cut manner intimated by Office of the Municipal Council, Zirakpur to the opposite parties that "the documents sent by the Company for completion certificate are incomplete". The opposite parties were directed to submit the complete set of documents. Thereafter, the opposite parties again sent some documents vide letter dated 07.03.2013 to the said Authority for issuance of completion and occupation certificates, which too appears to be incomplete, as a result whereof, the opposite parties, vide letter dated 10.06.2013, were again directed to do the needful. Documents were again sent by the opposite parties on 21.11.2013 to the Executive Officer, MC Zirakpur. Thereafter, the opposite parties kept silent, as there is no correspondence on record with the Govt. Authorities and ultimately, after a deep slumber, they wrote letter dated 15.02.2017 (at page 268 of the paper book) to the Executive Officer, Municipal Council, Zirakpur, to take up case for issuance of completion and occupation certificates. However, the said certificates were obtained only in the year 2018, which fact is not disputed by the parties. Facts narrated in this paragraph, which are taken from the record only, reveal that it was on account of fault on the part of the opposite parties, in not submitting complete documents, required for issuance of completion and occupation certificates, in one-go, that the Govt. Authorities, kept on demanding the same, resulting into delay in the matter. Had the opposite parties submitted the complete set of documents to the Govt. Authorities, in the first attempt there would not have any delay in issuance of the said certificates. The opposite parties should not have expected issuance of the said certificates by the Govt. Authorities, on the basis of submission of incomplete documents. As such, it is held that fault if any, lays on the part of the opposite parties and not the Govt. Authorities, for which they cannot seek any immunity out of it. Even otherwise, it is settled law that if delay occurred on account of some defect or deficiency on the part of the builder/developer itself, the statutory authorities cannot be blamed for the said delay. It was so said by the National Commission in Vikash Arora & Anr. Vs M/s. Bengal Unitech Universal, Consumer Case No. 654 of 2015, decided on 09 Jan 2017. Relevant part of the said order reads thus:-
"The written version of the OP does not show what is the time normally taken for grant of such approvals and permissions and what was the time actually taken in this case. The reply does not indicate the objections if any taken by the statutory authorities to the applications of the OP seeking the requisite approvals and permissions. If the delay occurred on account of some defect or deficiency on the part of the OP itself, the statutory authorities cannot be blamed for the said delay. Moreover, the delay in this case was very substantial, more than five years from the committed date of possession having already expired and the completion of the flat allotted to the complainants nowhere being in sight".
Another plea was taken by the opposite parties, in their written version that since serious questions of facts and law are involved in the present complaint, only the Civil Court has power to adjudicate the same, and this Commission did not have the jurisdiction to adjudicate the present complaint. It may be stated here that the complainants hired the services of the opposite parties, for purchasing the built-up unit, in question, in the manner, referred to above. It is a simple case of non-delivery of actual physical possession of the unit in question and on the other hand, offering paper possession by the opposite parties, in the absence of basic amenities, development and necessary certificates, which act amounts to deficiency in rendering service, negligence and adoption of unfair trade practice. Section 2 (1) (o) of the Act, defines service as under:-
"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service".
From the afore-extracted Section 2(1)(o) of the Act, it is evident that housing/construction, also comes within the definition of a service. In Narne Construction P. Ltd., etc. etc. Vs. Union Of India and Ors. Etc., II (2012) CPJ 4 (SC) it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law, was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). No complicated questions are involved in this case. Under these circumstances, the complaint involves the consumer dispute, and the same is maintainable under the Act. Not only as above, Section 3 of the Act, provides an alternative remedy. Even if, it is assumed that the complainants have a remedy to file a suit, in the Civil Court, the alternative remedy provided under Section 3 of the Act, can be availed of by them, as they fall within the definition of a consumer. In this view of the matter, plea taken by the opposite parties, in this regard, being devoid of merit, must fail, and the same stands rejected.
Though during pendency of this complaint, on orders of this Commission, possession of the unit was taken over by the complainants on 03.02.2018, still some of the major deficiencies pointed out i.e. water seepage in bathroom walls of guest room and master bedroom; leakages from sanitary fittings; defects in stairway landings; were not removed/rectified by the opposite parties. Apart from that no firefighting arrangements were made; no intercom facility within the complex including security gate; no rain water harvesting system was installed; no shopping facility was provided etc. etc. This fact was brought the notice of this Commission, by way of placing on record relevant letters, sent to the opposite parties, after taking over possession of the unit. Under above circumstances, at the time of arguments, Counsel for the complainants, on getting instructions from complainant no.1, who was present in the Court, pressed alternate prayer for refund of the amount paid, to which no objection was raised by Counsel for the opposite parties.
As such, under peculiar facts and circumstances of the case, this Commission is of the view that if alternative prayer made by the complainants, with regard to refund of the amount paid, alongwith interest, compensation etc. (to which no objection has been raised by the opposite parties, through their Counsel), is allowed, that will meet the ends of justice. Since, this Commission is going to order refund of the amount paid alongwith interest, compensation and costs, the complainants shall handover back the keys of the flat, if in their custody, to the opposite parties, within a period of seven (07 days), from the date of receipt of certified copy of this order.
As far as plea taken to the effect that the complainants were defaulters in making payment towards price of the said unit, it may be stated here that when the opposite parties themselves were deficient in providing service, negligent and adopted unfair trade practice, in the manner explained above, they cannot expect the complainants to make payment of the remaining amount. The Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, has held that if the builder is at fault in not delivering possession of the unit by the stipulated date, it cannot expect the allottee(s) to go on paying instalments to it. Under these circumstances, in no way, the complainants can be termed as defaulters. Objection taken in this regard, stands rejected.
No other point, was urged, by the contesting parties.
For the reasons recorded above, this complaint is partly accepted, with costs, and the opposite parties, jointly and severally are directed as under: -
To refund the amount of Rs.36,62,331/- to the complainants, alongwith interest @12% p.a., from the respective dates of deposits onwards.
To pay compensation, in the sum of Rs.1.50 lacs for causing mental agony and physical harassment, to the complainants, as also escalation in prices.
To pay cost of litigation, to the tune of Rs.40,000/- to the complainants.
The payment of awarded amounts mentioned at sr.nos.(i) to (iii) shall be made by the opposite parties to the complainants, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, the amount mentioned at sr.no.(i) thereafter shall carry penal interest @15% p.a., instead of @12%, from the date of default and interest @12 % p.a., on the amounts mentioned at sr.nos. (ii) and (iii) from the date of filing of this complaint, till realization.
However, it is made clear that first charge of the due amount out of the amount awarded, will rest with the financial institution/bank concerned, in case, the complainants have raised any housing loan, for making payment towards price of the said unit.
Certified Copy of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
25.03.2019 Sd/-
[JUSTICE JASBIR SINGH (RETD.)] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
[RAJESH K ARYA] MEMBER Rg.