State Consumer Disputes Redressal Commission
Kaushalya Rani vs M/S Suksha Developers Pvt. Ltd. on 9 August, 2024
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 108 of 2023
Date of Institution : 20.09.2023
Date of Decision : 09.08.2024
1. Kaushalya Rani aged about 72 years w/o Mulakh Raj r/o 892 Opposite
Municipal Park, Ward no. 5, Rania (137) Rania, Sirsa, Haryana, 125076
2. Bhajan Lal aged about 39 years s/o Mukand Lal, Baliyala (168) Baliala,
Fatehabad, Haryana 125051
3. Mamta Rani aged about 38 years w/o Pardeep Kumar, Baliyala, Baliala,
Fatehabad, Ratia, Haryana 125051
4. Neena Kumar w/o Jodha Ram, Baliyala, Fatehabad, Haryana 125051
...... Complainants
Versus
1. M/s Sukhsha Developers Pvt. Ltd., B-107, First Floor, Business
Complex, Elante Mall, Industrial Area, Phase -1, Chandigarh 160001
through its Managing Director
2. M/s Manhattan Infra Services Pvt. Ltd., having its registered office at B-
107, First Floor, Business Complex at Elante Mall, Industrial Area,
Phase-1, Chandigarh-160001 through its AR
3. Bharat Mittal, Director, M/s Sukhsha Developers Pvt. Ltd., having its
registered office at B-107, First Floor, Business Complex, Elante Mall,
Industrial Area, Phase -1, Chandigarh - 160001
4. Binder Pal Mittal, Director, M/s Sukhsha Developers Pvt. Ltd., having
its registered office at B-107, First Floor, Business Complex, Elante
Mall, Industrial Area, Phase -1, Chandigarh - 160001
....Opposite parties
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.
MR. PREETINDER SINGH, MEMBER.
Present:- Ms.Manju Goyal, Advocate for the complainants.
Sh.Vishal Singal, Advocate for Sh.Sajeev Sharma, Advocate for the opposite parties.
Sh.Pranab Bansal, Advocate proxy for Sh.Sandeep Bhardwaj, Advocate on behalf of Greater Mohali Area Development Authority, SAS Nagar, Mohali.
Sh.Babneet Singh, Advocate on behalf of MC, Zirakpur. (GMADA & MC, Zirakpur - not party to the case) JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The complainants have made following assertions in their complaint against the opposite parties qua purchase of plot no.53, measuring 249.69 square yards, in their project located at Pocket-1, Village 2 Nagla, Zirakpur, SAS Nagar, Punjab, against which they have already paid an amount of Rs.51 lacs for the period from 20.09.2021 to 23.11.2021:-
(i) that though as per clause 7.1 of the agreement dated 17.11.2021, possession of the plot in question was to be delivered by 31.12.2021, yet, the opposite parties failed to do so;
(ii) that paper possession was offered by the opposite parties vide letter dated 16.12.2021, Annexure C-4 because neither the development work like water, sewerage, electricity connection, parks, internal roads etc. was completed at the project site nor the same was accompanied by completion certificate to be issued by the competent authorities;
(iii) that even the advance maintenance charges for 27 months till 31.03.2024 stood illegally received by the opposite parties to the tune of Rs.80,533/- under the threat of cancellation of the plot in question;
(iv) that even the sale deed was executed on 21.03.2023 in the absence of development work at the project site and it was also containing various terms and conditions which were one-sided favouring the opposite parties only;
(v) that unfair trade practice on the part of the opposite parties is writ large because it came to the notice of the complainants that the plot in question stood mortgaged by them with the IDBI Trusteeship Private Limited and same was got removed, after much persuasion and that too after receipt of amount of Rs.12.50 lacs, whereafter new agreement was signed between the parties.
2. By stating that the aforesaid acts and conduct of the oppsotie parties amounted to deficiency in providing service, the complainants have sought following relief in this complaint:-
a. "...the present complaint be allowed b. the opposite party be directed to pay compensation by way of interest @ 18% per annum, on the deposited amount for the period of delay in delivering possession and in execution of conveyance deed till obtaining completion certificate. c. to direct the opposite party to provide basic amenities such as water, sewerage, parks, roads etc. d. Refund the amount of maintenance charges of Rs.80,533/- paid under duress e. restraining the opposite party from demanding the Maintenance Charges till the completion certificate is obtained.3
f. Compensation to the tune of Rs.5,00,000/- for causing mental harassment, agony and financial hardship due to the actions/omissions.
g. Award compensation u/s 14 (hb) of the Consumer Protection Act, 2019 on account of following unfair trade practice with large number of persons.
h. Litigation expenses to the tune of Rs.1,00,000/-.... Any other relief or direction to which the complainants may be entitled to in the facts and circumstances of the present case be also granted..."
3. The opposite parties in their joint written reply while admitting factual matrix of the case with regard to purchase of the plot in question by the complainants, in the manner stated in the complaint; payments made by them; and that possession of the said plot has been delivered on 17.01.2023 and also sale deed has been executed between the parties on 21.03.2023, took numerous pleas/ objections as under:-
i. that this complaint is not maintainable because the complainants are investors and not consumers; ii. that because possession of the plot has been delivered to the complainants on 17.01.2023 and sale deed has also been executed on 21.03.2023, now the complainants have no cause of action to file this complaint;
iii. that for any delay in delivery of possession of the plot, the complainants are entitled to get delayed compensation, as per terms and conditions of the agreement;
iv. that delay in delivery of possession took place due to COVID-19 which falls under force majeure circumstances and even the Hon'ble Supreme Court vide SUO MOTU Writ Petition No.3 of 2020 has passed various orders giving relaxation of limitation period, therefore, the period from March 2020 till May 2022 is required to be excluded from the time schedule for delivery of possession of the said plot; v. that in case of sale of immovable property, time is never regarded as essence of contract;
vi. that this Commission has no jurisdiction to entertain and decide this complaint, as the same is maintainable before the RERA only;
vii. this Commission is not vested with pecuniary and territorial jurisdiction to entertain this complaint;4
viii. that the complainants never raised any protest while taking over possession or registration of sale deed in respect of the plot in question;
4. On merits, it has been stated that the plot in question was sold to the complainants for total price of Rs.62.50 lacs vide RERA Notified agreement dated 17.11.2021, Annexure R-2. Due to typographical mistake, sale consideration of the said plot was mentioned as Rs.50 lacs, which stood corrected prior to registration of conveyance deed. Prayer has been made to dismiss this complaint with heavy cost.
5. This Commission afforded adequate opportunities to the contesting parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents including written arguments.
6. We have heard the contesting parties and have carefully gone through the entire record of the case, including the written arguments.
7. First, we will deal with the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of 'consumer' as they purchased the plot in question to earn profits. It may be stated here that the objection raised is not supported by any documentary evidence and, as such, the onus shifts to the opposite parties to establish that the complainants have purchased the plot in question to indulge in 'purchase and sale of plots' for earning profits, as was held by the Hon'ble National Commission in Kavit Ahuja Vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. Even otherwise, in the present case, the complainants have already taken possession of the plot in question and sale deed has also been executed, as such, in this view of the matter, objection taken by the opposite parties stands rejected.
8. The next question that falls for consideration is, as to whether, this Commission has territorial jurisdiction to entertain and decide this complaint? To answer this question, we need to refer Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) which provides as under:-
".....47. (4) 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, 5 ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any 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, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the complainant resides or personally works for gain...."
In this case, it is coming out from all the documents placed on record like allotment letter dated 17.11.2021, Annexure C-1; agreement for sale dated 17.11.2021, Annexure C-2; email dated 18.12.2021, Annexure C-4 and offer of possession letter dated 16.12.2021 were issued by the opposite parties from their Registered Office located at B-107, FF, Business Complex at Elante Mall, Ind. Area, Ph.1, Chandigarh-160001, meaning thereby that they were carrying on business from their Registered Office and were also personally working therefrom for gain. In this view of the matter, objection taken by the opposite parties qua territorial jurisdiction of this Commission being devoid of merit, stands rejected.
9. The next question that falls for consideration is, as to whether, this Commission has pecuniary jurisdiction to entertain and decide this complaint? It may be stated here that as per Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, the State Commission shall have jurisdiction to entertain complaints where the value of the goods or services paid as consideration, exceeds rupees fifty lacs, but does not exceed rupees two crores. In the present case also, since admittedly, an amount of Rs.62.50 lacs stood paid by the complainants towards price of the plot in question, therefore this Commission is having pecuniary jurisdiction to entertain and decide this complaint. As such, objection taken by opposite parties to the effect that this Commission lacks pecuniary jurisdiction to entertain and decide this complaint being devoid of merit, stands rejected.
10. Now coming to the objection raised by the opposite parties to the effect that because possession of the plot has been delivered to the complainants on 17.01.2023 and sale deed has also been executed on 21.03.2023, as such, now the complainants have no cause of action to file this complaint. It may be stated here that perusal of contents of the complaint reveals that the complainants are aggrieved of the material irregularities qua non providing of basic amenities at the project site; demanding full maintenance charges in the absence of amenities; non 6 obtaining of completion certificates qua the project in question etc. Under these circumstances, even if the complainants have taken over possession of the plot in question and sale deed has also been executed without any protest, it does not mean that the complainants have forfeit their right to claim amenities as promised by the opposite parties and also other pending grievances qua the plot in question. Our this view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in Debashis Sinha & Ors. Versus M/s R.N.R. Enterprise Rep. By Its Proprietor/Chairman, Kolkata & Ors., 2023 LiveLaw (SC) 92. As such, objection taken by the opposite parties in this regard also, being devoid of merit, stands rejected.
11. There is no dispute with regard to the fact that the complainants had paid the entire sale consideration to the opposite parties in respect of the plot in question. It has also not been disputed by the opposite parties that as per clause 7.1 of the agreement dated 17.11.2021, possession of the plot in question was to be delivered by 31.12.2021, yet, they failed to do so and it was ultimately delivered on 17.01.2023 i.e. after a delay of more than 12 months. At the time of arguments, Counsel for the complainants contended with vehemence that since possession so offered vide letter dated 16.12.2021, Annexure C-4 was mere a paper possession, as the same was offered in the absence of development work and basic amenities, and also the same was not supported by completion certificate, yet, it was under compelling circumstances that they took over the same on 17.01.2023 (Annexure R-4).
On the other hand, Counsel for the opposite parties contended with vehemence that when possession of the plot in question was offered, the project was complete in all respects.
12. Thus, at this stage, the moot question which needs to be decided by this Commission is, as to whether, possession of the plot in question, so offered vide letter dated 16.12.2021, Annexure C-4 was a genuine one? It is significant to mention here that during the course of arguments, Counsel for the complainants referred to some photographs (Annexure C-10) of the project in question, wherein their plot is located. Original photographs were also shown to this Commission, wherein, it transpired that the project land was not developed, rather at the raw stage. It was also argued by Counsel for the complainants that the basic amenities like roads, street lights, STP, parks and potable water have not been provided at the project site. Under those circumstances, this Commission vide order dated 16.02.2024, sought following documents/information from the Chief Administrator, Greater Mohali Area 7 & Development Authority, SAS Nagar, Mohali, Executive Officer, MC Zirakpur, Distt. SAS Nagar, Mohali & Chief Environmental Engineer, Punjab Pollution Control Board (PPCB), SAS Nagar, Mohali, with a direction to depute Senior Officer at the spot and after inspection submit the report regarding :-
1. Whether the layout plans have been duly approved by the MC Zirakpur or Greater Mohali Area Development Authority or any other competent authority ? If yes, the authenticated copy thereof be supplied to this Commission.
2. Whether roads have been constructed in the project site where the plot, in question, is situated ?
3. Whether street lights have been provided ?
4. Whether potable water is there?
5. Whether STP has been installed? If yes, is it functional?
6. Whether parks are there?
7. Whether parking is available?
8. Whether environmental certificate has been provided to the project?
In compliance to the said order, Sh.Ashok Patharia, Executive Officer Municipal Council Zirakpur, by way of his affidavit dated 30.04.2024 clearly intimated this Commission that the MC Zirakpur has not done any work related to street lights in the project in question; MC Zirakpur has not done any work related to tube well for drinking water in the project in question; that MC Zirakpur has not done any development relating to parks in the project in question etc. It has also been stated by him in his affidavit that no record of any kind related to the project in question exists with the Municipal Council Zirakpur as it has not been transferred by the GMADA. There is another RTI information dated 12.03.2024, issued by the PSPCL, Patiala, in respect of the project in question, to one Sh.Parveen Nayak, informing that no electric connection is available for the project in question and that it will not be made available till NOC is obtained from PSPCL. Similarly, the Punjab Pollution Control Board, vide letter dated 13.03.2024 has also informed this Commission that the project proponent has not obtained consent to establish/NOC and that the disposal arrangement of treated waste water are not adequate for the project in question.
It may be stated here that it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals including completion certificates have been obtained in respect thereof, is on the builder/ developer. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First 8 Appeal No.873 of 2013 decided on 29.09.2014. As stated above, it is very strange that in the present case not even an iota of convincing evidence has been placed on record by the opposite parties to prove that development works and basic amenities were completed at the project site, in the year 2021, when possession of the plot was offered or even by 2023 when possession was delivered to the complainants. In case, the development/ construction activities were undertaken and completed at the project site by 2021 or even thereafter, 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/construction activities, are completed at the site or not but they failed to do so.
13. It is significant to mention here that it is settled law that before offering possession of the residential unit/plot, the builder/ developer is legally bound to obtain completion certificate from the competent authorities. An allottee is not obliged to take possession of a residential plot/flat, unless it is complete in every respect, including the completion certificate. It was so said by the Hon'ble National Commission, in Inderjit Singh Bakshi Versus S.M.V. Agencies Private Limited, FA No. 729 of 2013, decided on 30.11.2015. Relevant part of the said order reads as under:-
'....An allottee is not obliged to take possession of a flat unless it is complete in every respect, including the completion certificate....'
14. The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) also, categorically held that legal possession cannot be delivered in the absence of completion certificate issued by the competent authority. It was held in Para No.5 as follows:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/-
was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was 9 meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."
15. Furthermore, Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain completion and occupation certificate from the competent authority, which reads as under:
14. It is the responsibility of the promoter-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5. (2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
16. Even vide clause 7.3 of the agreement, the opposite parties have committed to deliver possession of the plot in question, after obtaining completion certificate. However, in the present case, no completion certificate, if any, issued by the competent authority has been produced by the opposite parties on the record, which itself is violation of above reproduced Section 14 of PAPRA and also clause 7.3 of the agreement. Even till the date of arguments in this complaint, no completion certificate has been produced before this Commission.
Thus, in view of findings given above, we are of the considered opinion that in the absence of any evidence to prove that the project in question was complete in all respects by 2021 or even thereafter and also in the absence of any completion certificate, it can safely be said that the possession so offered vide letter dated 16.12.2021, Annexure C-4, was nothing but a paper possession. However, it is also an admitted fact that possession of the plot in question stood delivered to the complainants only on 17.01.2023 and conveyance deed stood executed on 21.03.2023 i.e. after delay of more than 12 months.
17. To wriggle out of the said delay, a plea has been taken by the opposite parties that it took place on account of COVID -19. It may be stated here that the said pandemic which took place in India in the year March 2020 has no relation whatsoever with the booking of plot done by the opposite parties in November 2021. Even otherwise, even if there was 10 some effect of COVID-19 in the year 2021, then the opposite parties have failed to justify their stand as to why they received huge amount from the complainants in those circumstances and promise was made vide clause 7.1 of the agreement that possession will be delivered on 31.12.2021. It is therefore held that the opposite parties were deficient in providing service and were negligent on this count and in no way can claim immunity, under the garb of alleged force majeure circumstances, referred to above.
18. As far as objection taken by the opposite parties to the effect that in the face of registration of agreement under the provisions under RERA, jurisdiction of this Commission is barred, it may be stated here that the same does not hold field, in view of findings/observations made by the Hon'ble National Commission in Mohit Sharma & Anr. Vs. M/S. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon'ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016, decided on 30 Jul 2019. This objection does not merit acceptance, in view of the ratio of law laid down by the Hon'ble Supreme Court of India in Civil Appeal No. 3581- 3590 of 2020, M/s Imperia Structures Ltd. Vs. 16.01.2023 Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. Relevant part of the said order reads as under:-
".......24. It is, therefore, required to be considered whether the remedy so provided under the RERA Act to an allottee is the only and exclusive modality to raise a grievance and whether the provisions of the RERA Act bar consideration of the grievance of an allottee by other fora.
25. Section 79 of the RERA Act bars jurisdiction of a Civil Court to entertain any suit or proceeding in respect of any matter which the Authority or the adjudicating officer or the Appellate Tribunal is empowered under the RERA Act to determine. Section 88 specifies that the provisions of the RERA Act would be in addition to and not in derogation of the provisions of any other law, while in terms of Section 89, the provisions of the RERA Act shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force. 26. On plain reading of Section 79 of the RERA Act, an allottee described in category (B) stated in paragraph 22 hereinabove, would stand barred from invoking the jurisdiction of a Civil Court. However, as regards the allottees who can be called "consumers" within the meaning of the CP Act, two questions would arise; a) whether the bar specified under Section 79 of the RERA Act would apply to proceedings initiated under the provisions of the CP Act; and b) whether there is anything 11 inconsistent in the provisions of the CP Act with that of the RERA Act.
27. In Malay Kumar Ganguli vs. Dr. Sukumar Mukherjee , it was held by this Court:- "The proceedings before the National Commission are although judicial proceedings, but at the same time it is not a civil court within the meaning of the provisions of the Code of Civil Procedure. It may have all the trappings of the civil court but yet it cannot be called a civil court. (See Bharat Bank Ltd. V. Employees and Nahar Industrial Enterprises Ltd. vs. Hong Kong & Shanghai Banking Corpn . On the strength of the law so declared, Section 79 of the RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any complaint..."
This view has been reiterated by the Hon'ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021. As such, objection taken by the opposite parties in this regard stands rejected.
19. The next question under our consideration is as to whether, time for handing over possession of the plot to the complainants, was essence of the contract or not? It may be stated here that a specific date i.e. 31.12.2021 for delivering possession of the plot to the complainants was committed by the opposite parties, by way of clause 7.1 of the agreement. Other than this Clause contained in the agreement, there is no Clause, which speaks about the period/date for delivery of possession of the plot to the complainants. The opposite parties cannot wriggle out of the commitments made vide Clause 7.1 of the agreement with regard to time period for delivery of possession. Period of possession has to be reckoned in terms of the agreement only and our this view is supported by the principle of law laid down by the Hon'ble Supreme Court of India in M/s. Imperia Structures Ltd. Versus 16.01.2023 Patni and Another, Civil Appeal Diary No.9796/2019, decided on November 02, 2020. Thus, the opposite parties cannot wriggle out of the commitments made vide the clause aforesaid, with regard to time/period for delivery of possession of the plot in question to the complainants, It is therefore held that time was unequivocally made the essence of contract. In view of above, plea of the opposite parties in this regard stands rejected.
20. Now, we will like to decide as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession of the plot in question. On account of delay in actual delivery of possession of the plot to the complainants, they have definitely suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble 12 Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. The opposite parties vide clause no.7.6 has also committed to pay interest for delay in delivery of possession of the plot in question. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No. 11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon'ble Supreme Court of India has upheld the order of the Hon'ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-
"......8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.
9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC...."
21. Thereafter also, similar rate of interest i.e. 9% p.a. was granted by the Hon'ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora's case (supra). In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-
"......Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today......."
22. In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in the present case also, the complainants deserve just and fair compensation for the period of delay in 13 delivery of possession to them by the opposite parties. In our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession onwards till delivery of possession thereof i.e. 01.01.2022 to 16.01.2023, that will meet the ends of justice.
23. The next question that falls for consideration is, as to whether, the opposite parties can charge the full maintenance charges in the absence of all the basic amenities & facilities at the project site or not? It may be stated here that as discussed above, while referring to the photographs and also information supplied by the Government Authorities, some amenities are still not available at the project site. Under these circumstances, we are of the considered opinion that keeping in mind the principle of fair and equity, if we order the opposite parties to charge the maintenance charges to the extent of 50% only till all the basic amenities and facilities, are provided at the project site and completion certificate is obtained from the competent authorities, that will meet the ends of justice At the same time, it is also held that in case the opposite parties have already received any maintenance charges from the complainants before issuance of completion certificate, they shall be liable to refund the same to the extent of 50% out of the same, to the complainants.
24. For the reasons recorded above, this complaint is partly accepted, with costs and the opposite parties, jointly and severally are directed as under:-
i) To provide all the basic amenities and facilities at the project site, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainants, compensation by way of interest @6% p.a. on the entire amount deposited by the complainants against the plot in question, from the date of default, till realization.
ii) To pay to the complainants compensation by way of interest @9% p.a. for delay in delivery of possession of the plot in question, starting from 01.01.2022 to 16.01.2023, on the entire deposited amount, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period (01.01.2022 to 16.01.2023) shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) To refund 50% of the maintenance charges already received by them from the complainants, within a period of 30 days from 14 the date of receipt of a certified copy of this order, failing which, thereafter the said refundable maintenance charges to the extent of 50% aforesaid shall carry interest @9% p.a. from the date of default till these maintenance charges are refunded.
However, it is also made clear that the opposite parties shall continue to charge maintenance charges to the extent of 50% only, till all the basic amenities and facilities are provided and completion certificate is obtained by them from the competent authorities.
iv) To pay to the complainants lumpsum compensation to the tune of Rs.75,000/- for causing them mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
25. Certified copies of this order be sent to the parties, free of charge, forthwith.
26. The file be consigned to Record Room, after completion.
Pronounced.
09.08.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
[PREETINDER SINGH] MEMBER Rg