State Consumer Disputes Redressal Commission
Tanima Srivastava And Amit Sidana vs N.H. Matcon,Aero Homes And Ors on 25 April, 2019
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. 1. Consumer Complaint No.394 of 2018 Date of Institution: 14.05.2018 Order Reserved on: 22.04.2018 Date of Decision : 25.04.2019 1 Tanima Srivastva w/o Sh. Amit Sidana, R/o House No. 1284, Progressive Enclave, Sector 50-B, Chandigarh. 2. Amit Sidana, s/o Sh. Bhupinder Sidana, R/o House No. 1284, Progressive Enclave, Sector 50-B, Chandigarh. .....Complainants Versus 1. N.H Matcon, through its Partner, Regd. Office at SCO-3, Level one, Royale Estate, Chandigarh Ambala Highway, Near IDBI Bank, Zirakpur, Mohali, Punjab. 2. Nitin Bansal s/o Sh.ML Bansal, Partner M/s N.H Matcon, r/o House No. 1704, Sector 21, Panchkula, Haryana. 3. Union Bank of India, Head Office at 239, Vidhan Bhavan Marg, Nariman Point, Mumbai 4700021, Branch Office at SCO No.63, Sector 32-C, Chandigarh U.T through its Manager or its authorized representative. ..Opposite parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Sh. Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh.Kirti Kumar, Advocate For opposite party no.1 &2: None For opposite party no.3 : Sh. Naren Partap Singh, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2. Consumer Complaint No.395 of 2018 Date of Institution : 14.05.2018 Order Reserved on: 22.04.2019 Date of Decision : 25.04.2019 1 Manik Sethi, s/o Sh. Parmohan Sethi, r/o House no. 1616, Hallomajra, Chandigarh.
2. Smt. Kusum Sethi, D/o Sh. Sat Dev Mahajan, R/o House No. 1616, Hallomajra, Chandigarh.
.....Complainants Versus
1. N.H Matcon, through its Partner, Regd. Office at SCO 3, Level One, Royale Estate, Chandigarh Ambala Highway, near IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal s/o Sh.M.L Bansal, Partner M/s N.H Matcon, r/o House No.1704, Sector 21, Panchkula, Haryana.
....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh.Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. Kirti Kumar, Advocate For opposite parties : None.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3. Consumer Complaint No.396 of 2018 Date of Institution: 14.05.2018 Order Reserved on: 22.04.2019 Date of Decision : 25.04.2019 Deepak Sood s/o Parshotam Lal Sood, r/o 200, East Noleman, St. Central II, 62801 through his special power of attorney, Smt. Savita Ahuja, r/o Flat No. 202, on 2nd Floor in Tower E, Gazipur, Zirakpur District SAS Nagar, Punjab.
.....Complainant Versus
1. N.H Matcon, through its Partner, Regd. Office at SCO 3, Level One, Royale Estate, Chandigarh Ambala Highway, near IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal s/o Sh.M.L Bansal, Partner M/s N.H Matcon, r/o House No.1704, Sector 21, Panchkula, Haryana.
....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh.Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. Kirti Kumar, Advocate For opposite parties : None.
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
4. Consumer Complaint No.397 of 2018 Date of Institution: 14.05.2018 Order Reserved on: 22.04.2019 Date of Decision : 25.04.2019 1 Varun Raina s/o Sh. Dalip Kumar Raina through its special power of attorney Sh. Dalip Kumar Raina s/o Sh. Radha Krishan Raina r/o Hosue No. 604 Block A, Aero Homes, Gazipur, Zirakpur District SAS Nagar Punjab.
2. Mrs. Veena Raina, w/o Sh. Dalip Kumar Raina, r/o House No.604, Block A, Aero Homes, Gazipur, Zirakpur, District SAS Nagar, Punjab.
..Complainants Versus
1. N.H Matcon, through its Partner, Regd. Office at SCO 3, Level One, Royale Estate, Chandigarh Ambala Highway, near IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal s/o Sh.M.L Bansal, Partner M/s N.H Matcon, r/o House No.1704, Sector 21, Panchkula, Haryana.
3. TATA Capital Housing Finance Limited, I- Think Techno Campus Building A 4th Floor Off Pokhran Road 2 Thane West, Mumbai 400602 through its manager or its authorized representative.
....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh.Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. Kirti Kumar, Advocate For opposite parties no.1&2 : None. For opposite party no.3 : Sh. Munish Thakur, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . AND Consumer Complaint No.631 of 2018 Date of Institution: 01.08.2018 Order Reserved on: 22.04.2019 Date of Decision : 25.04.2019 1 Mohit Agarwal s/o Sh. OP Aggarwal, Permanent resident of # 188/13, Holi Ghati, Holi Mohalla, Karnal, Haryana, Email id: [email protected].
2. Shelly Agarwal, w/o Mohit Agarwal, permanent resident of # 188/13, Holi Ghati, Holi Mohalla, Karnal, Haryana.
..Complainants Versus
1. N.H Matcon, through its Partner, Regd. Office at SCO 3, Level One, Royale Estate, Chandigarh Ambala Highway, near IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal s/o Sh.M.L Bansal, Partner M/s N.H Matcon, r/o House No.1704, Sector 21, Panchkula, Haryana. Email.id:[email protected].
....Opposite Parties Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Sh.Rajinder Kumar Goyal, Member.
Present:-
For the complainants : Sh. T.S Khaira, Advocate For opposite parties : None.
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Since common controversy of facts and law is involved in the above-referred complaints and as such, they are being disposed together by this common order, which shall be pronounced in Consumer Complaint no. 394 of 2018 titled as Tanima Srivasta & Amit Sidana versus N.H Matcon, Aero Homes & others.
Facts of Consumer Complaint No.394 of 2018
2. Complaint No.394 of 2018 has been filed by complainants Tanima Srivastava and her husband Sh. Amit Sidana U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a project namely AERO HOMES situated at Village Gazipur Zirakpur Mohali Punjab and gave attractive offer to the complainants. On the allurement of OPs, they booked a residential unit for their own personal use and occupation. They were allotted flat no.402 on 4th Floor in Tower A with super area of 1760 sq. ft with total price of the flat as Rs.35,90,000/-. Allotment letter dated 26.04.2013 was issued to them. OPs have received a sum of Rs.6,90,000/- towards price of the flat. The date of physical handing over the possession was scheduled as 31.12.2013, as per clause 8 of the allotment letter. After issuance of the allotment letter and signing the agreement, the tripartite agreement was executed between the parties on 10.05.2013. The complainants applied for home loan and Union Bank of India sanctioned a home loan of Rs.25,00,000/- to them for sale consideration. OPs have received a total sum of Rs.40,51,005/- from them in lieu of the said residential flat till delivery of possession. As per clause 4(a)(i) of the agreement, the possession was to be delivered to them by 31.12.2013 and as per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession by the OPs, then OPs would be liable to pay compensation amount of Rs.8800/- per month to the purchasers/complainants. As per terms and conditions of the agreement, OPs were bound to deliver the possession of the flat to them by 31.12.2013. The possession was physically taken by complainants on 28.03.2015, but said possession cannot be termed as complete or effective possession, as OPs have not received the completion certificate or occupation certificate and necessary sanctions to offer the possession of the flat from competent authority. At the time of handing over the incomplete possession of the flat in question, they noticed the glaring irregularities in the specifications, workmanship in the flat delivered by OPs to them. The poor construction quality and workmanship in the above flat was manifest from the following shortcomings:-
a. Garbage duct b. 80% green area c. Drivers and Maids room/Rest Room d. Hi tech security e. Not enough backup generators provided for 288 Apartment f. Street lights not provided. g. Various lifts not functional & lifts that are functional are without maintenance. h. Apartment registration. i. No security cameras j. Not enough security staff. k. Wall tiles are falling from the lift walls, tiles cracking on the lift lobby floor. l. Covering for down take pipes in all apartment. m. Tiles in parking area in all buildings. n. No fire fighting arrangement Tower A and hence lives of 32 residents of Tower A put on risk/compromised by OPs. o. Car parking is not allotted till date. p. No video door phone with main gate connectivity in entire Tower A provided. q. No centralized communication system installed in Tower A. r. No Gymnasium, Conference room and club provided till date. s. Construction and Debris is lying under and ground Tower A. t. No purified water provided. u. Loose electric wiring at electric meters junction and no earthlings in Tower A. v. Incomplete roof top. w. Outer wall of the building not painted. x. Illegal sale of roof tops.
The OPs have not completed the project, as per the assurance given by OPs to them. OPs are grossly deficient in providing services to them. No facilities as assured have been given by OPs therein, in as much as there is no clubhouse, no power backup nor there was any CCTV camera installed etc. There was a delay of 15 months in offering the above possession to them though incomplete or ineffective at that time. The promised date of possession was 31.12.2013 and possession was actually handed over to them on 28.03.2015. The charges of Rs.40,000/- per month and Rs.8800/- per month should be paid by OPs to them till execution of sale deed or till completion certificate was obtained by OPs from the competent authority. They alleged deficiency in service on the part of OPs, besides indulgence in unfair trade practice. They seek below noted relief against OPs :-
OPs be directed to obtain all sanctions, approvals and permissions from the competent authorities, especially occupation and completion certificate in accordance with PAPRA Act and rules.
OPs be directed to execute the sale deed in favour of complainants and to complete the flat in all respects in accordance with promised specifications and standards as per the brochure/agreement.
OPs be directed provide the details of the common project in question and be directed to assign a parking space and directed to pay monthly assured earning amounting to Rs.40,000/- to them from December 2013 till occupation certificate was obtained by OPs.
OPs be directed to pay the amount on delayed possession as stipulated in agreement @ Rs.8800/- per month from 31.12.2013 till obtaining the completion certificate by OPs.
OPs be directed to pay Rs.90,000/- for club and maintenance charges, as OPs have failed to provide any maintenance in the project.
OPs be directed to refund the excess amount and external electrician charges, EDC and to refund the processing fee, legal fee or other charges.
OPs be directed not to sell roof tops or grant roofs rights, as it was illegal as per MC Zirakpur, hence use of roof top be declared/directed common for all residents of that tower to avoid litigation in future.
OPs be directed to pay Rs.10,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
3. Upon notice, OPs no.1 and 2 appeared and filed written statement and contested the complaint of the complainant. It was admitted by OPs that complainant purchased a flat for their residential purposes from them. It was averred that the complainants have not impleaded the necessary parties i.e maintenance agency, as the OPs were not maintaining the society now and as such, on this ground, the complaint is liable to be rejected. The complainants were offered possession, vide letter dated 30.11.2014. As per clause 2(f) of the agreement, the OPs have right to forfeit the entire amount of the earnest/registration money deposited by complainants in case of non-payment of installments within time. The timely payment of each installment and other charges payable under the agreement were specifically made the essence of this agreement. The complainants have not paid the full amounts of the flat to OPs. They have not paid the full and final amount till date, even after taking the physical possession in complete in all respects. The outstanding amounts due towards the complainants was more than Rs.4,50,000/- inclusive of EEC, service tax, interest and late payment charges. The OPs have already taken the required permissions from the concerned authorities. Any deficiency in service and unfair trade practice was denied by OPs on their part. Rest of the averments of the complainants were denied by OPs and they prayed for dismissal of the complainants.
4. The complainant no.2 tendered in evidence his affidavit as Ex.C-A along with copies of documents Ex.C-1 to Ex.C-10 and copy of document Mark A and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Sh. Vishal Mehta Authorized Signatory of OPs as Ex.OP1&2/A along with copies of document Ex.op-1 to Ex.OP-2 and closed the evidence, whereas OP no.3 closed the evidence without tendering any document in support of their case.
Fact of Consumer Complaint No.395 of 2018
5. Complaint No.395 of 2018 has been filed by complainants Manik Sethi and Smt Kusum Sethi U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a project namely AERO HOMES situated at Village Gazipur Zirakpur Mohali Punjab and gave attractive offers to complainants. On the allurement of OPs, they booked a residential unit for their own personal use and occupation. They were allotted flat no.304 on 3rd floor in Tower A with super area of 1760 sq. ft, total price of the flat was Rs.37,00,000/- including other charges. Allotment letter dated 29.05.2015 was issued to them. OPs have received a sum of Rs.7,00,000/- towards price of the flat. The buyers agreement was executed between the parties on 23.05.2015. The date of physical handing over the possession was agreed as 30.09.2015, as per clause 8 of the allotment letter. After issuance of the allotment letter and signing the agreement, they applied for home loan and ICICI Bank Pvt. Ltd sanctioned a home loan of Rs.28,15,000/- to them. OPs have received a sum of Rs.37,00,000/- from them in lieu of the said residential flat till delivery of possession. As per clause 4(a)(i) of the agreement, the possession was to be delivered to them by 30.09.2015 and as per clause 4(a)(ii) of the agreement, in the event of delay in handing over the physical possession by the OPs, then OPs would be liable to pay compensation amount of Rs.8800/- per month shall be paid to purchasers/complainants. As per terms and conditions of the agreement, OPs were bound to deliver the possession of the flat to them by 30.09.2015. The possession was physically taken by complainants, but the said possession cannot be termed as the complete or effective possession, as OPs have not received the completion certificate or occupation certificate and necessary sanctions to offer the possession of the flat. At the time of handing over the incomplete possession of the flat in question, they noticed glaring irregularities in the specifications, workmanship and promises delivered by OPs to them. The poor construction quality and workmanship in the flat was manifest from the following shortcomings:-
a. Garbage duct b. 80% green area c. Drivers and Maids room/Rest Room d. Hi tech security e. Not enough backup generators provided for 288 Apartment f. Street lights not provided. g. Various lifts not functional & lifts that are functional are without maintenance. h. Apartment registration. i. No security cameras j. Not enough security staff. k. Wall tiles are falling from the lift walls, tiles cracking on the lift lobby floor. l. Covering for down take pipes in all apartment. m. Tiles in parking area in all buildings. n. No fire fighting arrangement Tower A and hence lives of 32 residents of Tower A put on risk/compromised by OPs. o. Car parking is not allotted till date. p. No video door phone with main gate connectivity in entire Tower A provided. q. No centralized communication system installed in Tower A. r. No Gymnasium, Conference room and club provided till date. s. Construction and Debris is lying under and ground Tower A. t. No purified water provided. u. Loose electric wiring at electric meters junction and no earthlings in Tower A. v. Illegal sale of roof tops.
The OPs have not completed the project, as per the assurances given by them to complainants. OPs have been grossly deficient in providing services to them. No facilities, as assured have been given by OPs in as much as there was no club house, no power backup nor there was any CCTV camera installation thereat There was a delay of 15 months in offering the possession to them though incomplete or ineffective at that time. The promised date of delivery of possession was 30.09.2015 and possession was actually handed over on prescribed time. The charges of Rs.8800/- per month should be paid by OPs to complainants till execution of sale deed or till completion certificate was obtained from the competent authorities. They alleged deficiency in service on the part of OPs and indulgence in unfair trade practice as well. They seek below noted relief against OPs :-
OPs be directed to obtain all sanctions, approval and permissions from the competent authorities, especially occupation and completion certificate in accordance with PAPRA Act and rules.
OPs be directed to execute the sale deed in favour of complainants and to complete the flat in all respects in accordance with promised specifications.
OPs be directed to provide the details of the common project in question and further OPs directed to assign a parking space for complainants and issue parking allotment letter.
OPs be directed to pay the amount on delayed possession as stipulated in the agreement @ Rs.8800/- per month from 30.09.2015 till completion certificate was obtained by OPs.
OPs be directed to pay Rs.90,000/- as club charges as there was no club in existence and also refund the maintenance charges as OPs failed to provide any maintenance.
OPs be directed to refund the excess amount, external electrician charges/EDC charges.
OPs be directed not to sell roof tops or grant roofs rights, as it was illegal as per MC Zirakpur, hence use of roof top be declared/directed common for all residents of that tower to avoid litigation in future.
OPs be directed to pay Rs.10,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
6. Upon notice, OPs no.1 and 2 appeared and filed written statement and contested the complaint of the complainant. It was admitted by OPs that complainant purchased a flat for their residential purposes. It was averred that the complainants have not arrayed the necessary party in the complaint i.e. maintenance agency as the OPs are not maintaining the society now, on this ground, the complaint is liable to be rejected. The complainants were offered possession, vide letter dated 28.08.2015 and thereafter they had taken the possession. As per clause 2(f) the agreement, the OPs have right to forfeit the entire amount of the earnest/registration money deposited by complainants in case of non-payment of installments within time. Timely payments of each installment and other charges payable under the agreement was specifically made the essence of this agreement. The complainants have not paid the full amount of the flat to OPs. The complainants have not paid the full and final amount till date, even after taking the physical possession in complete in all respects. The outstanding amount due towards the complainants was more than Rs.3,50,000/- inclusive of EEC, Service tax, interest and late payment charges. The OPs have already taken the required permissions from the concerned authorities. Any deficiency in service and unfair trade practice on the part of OPs was denied by them. Rest of the averments of the complainants were denied by OPs and they prayed for dismissal of the complainants.
7. The complainant no.1 tendered in evidence his affidavit as Ex.C-A along with copies of documents Ex.C-1 to Ex.C-7 and copy of document Mark A and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Sh. Vishal Mehta Authorized Signatory of OPs as Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-2 and closed the evidence.
Facts of Consumer Complaint No. 396 of 2018
8. Complaint No.396 of 2018 has been filed by complainant Deepak Sood U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a project namely AERO HOMES situated at Village Gazipur Zirakpur Mohali Punjab and gave attractive offer to complainant. On the allurement of OPs, he booked a residential unit for his own personal use and occupation. He was allotted flat no.202 on second floor in Tower E with super area of 1760 sq. ft, total price of the flat was Rs.30,90,000/- inclusive of club charges etc. The promised date of possession was 30.06.2013 and possession actually handed over on 26.11.2013. OPs have received sum of Rs.33,21,662/- from him in lieu of residential flat till possession. As per clause 4(a)(i) of the agreement, the possession shall be delivered to them by 30.06.2013 and as per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession by the OPs then OPs liable to pay compensation amount of Rs.8800/- per month shall be paid to purchasers/complainant. As per terms and conditions of the agreement, OPs bound to deliver the possession of the flat to them by 30.06.2013. The possession was physically taken by complainant but the said possession cannot be termed as the complete or effective possession as OPs have not received the completion certificate or occupation certificate and necessary sanctions to offer the possession of the flat. At the time of handing over the incomplete possession of the flat in question, he noticed glaring irregularities in the specifications, workmanship, promises and delivered by OPs to him. The poor construction quality and workmanship in the flat was manifest from the following shortcomings:-
a. Garbage duct b. 80% green area c. Drivers and Maids room/Rest Room d. Hi tech security e. Not enough backup generators provided for 288 Apartment f. Street lights not provided. g. Various lifts not functional & lifts that are functional are without maintenance. h. Apartment registration. i. No security cameras j. Not enough security staff. k. Wall tiles are falling from the lift walls, tiles cracking on the lift lobby floor. l. Covering for down take pipes in all apartment. m. Tiles in parking area in all buildings. n. No fire fighting arrangement Tower A and hence lives of 32 residents of Tower A put on risk/compromised by OPs. o. Car parking is not allotted till date. p. No video door phone with main gate connectivity in entire Tower A provided. q. No centralized communication system installed in Tower A. r. No Gymnasium, Conference room and club provided till date. s. Construction and Debris is lying under and ground Tower A. t. No purified water provided. u. Loose electric wiring at electric meters junction and no earthlings in Tower A. v. Illegal sale of roof tops.
The OPs have not completed the project as per the assurance given by them to complainants. OPs have grossly deficient in providing services to them. No facilities as assured have been given by OPs in as much as there was no club house, no power backup nor there was any CCTV camera installed etc. There was a delay of 15 months in offering the possession to them though incomplete or ineffective at that time. The promised date of possession was 30.06.2013 and actually handed over physical possession to him on 26.11.2013. The charges of Rs.8800/- per month should be paid by OPs to complainants till execution of sale deed or till completion certificate was obtained. They alleged deficiency in service on the part of OPs and indulged in unfair trade practice. They seek below noted relief against OPs :-
OPs be directed to obtain all sanctions, approval and permissions from the competent authorities, especially occupation and completion certificate in accordance with PAPRA Act and rules.
OPs be directed to execute the sale deed in favour of complainants and to complete the flat in all respects in accordance with promised specifications.
OPs be directed to complete the flat in all respects in accordance with promises specifications and standards as per brochure/agreement under the agreement.
OPs be directed to provide the details of common project in question and further directed to assign a parking space for complainant and issue parking allotment letter.
OPs be directed to pay monthly assured earning amounting to Rs.40,000/- to complainant from November 2013 till obtaining the occupation certificate by OPs and OPs be directed to pay Rs.8800/- per month from 30.06.2013 till completion certificate was obtained by OPs.
OPs be directed to pay Rs.90,000/- as club charges as there was no club in existence and also refund the maintenance charges as OPs failed to provide any maintenance.
OPs be directed not to sell roof tops or grant roof rights, as it is illegal as per MC Zirakpur, hence use of roof top be declared/directed common for all residents of that tower to avoid litigation in future.
OPs be directed to pay Rs.10,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
9. Upon notice, OPs no.1 and 2 appeared and filed written statement and contested the complaint of the complainant. It was admitted by OPs that complainant purchased a flat for their residential purposes. It was averred that the complainants have not complainants have not arrayed the necessary party in the complaint i.e maintenance agency as the OPs were not maintaining the society now, on this ground, the complaint is liable to be rejected. The complainant was offered possession, vide letter dated 28.06.2013, thereafter they taken the possession. The agreement dated 10.05.2012 was executed between the parties. The complainant took the possession on 26.11.2013 with his own wish. The timely payment of each installment and other charges payable under the agreement shall be the essence of this agreement. The complainant has not paid the full amount of the flat to OPs. He has not paid the full and final amount till date even after taking the physical possession in complete in all respects. The outstanding amount due towards the complainant was more than Rs.5,50,000/- inclusive of EEC, service tax, interest and late payment charges. The OPs have already taken the required permissions from the concerned authorities. Any deficiency in service and unfair trade practice was denied by OPs. Rest of the averments of the complainant were denied by OPs and they prayed for dismissal of the complainant.
10. Ms. Savita Ahuja-attorney of complainant tendered in evidence his affidavit as Ex.C-A along with copies of documents Ex.C-1 to Ex.C-8 and copy of document as Mark A and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Sh. Vishal Mehta Authorized Signatory of OPs as Ex.OP-A along with copies of document Ex.op-1 to Ex.OP-2 and closed the evidence.
Facts of Consumer Complaint No. 397 of 2018
11. Complaint No.397 of 2018 has been filed by complainants Varun Raina and Mrs. Veena Raina U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a project namely AERO HOMES situated at Village Gazipur Zirakpur Mohali Punjab and gave attractive offer to complainants. On the allurement of OPs, they booked a residential unit for his own personal use and occupation. He was allotted flat no.604 on 6th floor in Tower A with super area of 1760 sq. ft, total price of the flat was Rs.44,90,000/- inclusive of club charges etc. OPs have received a sum of Rs.5,60,000/- and Rs.1,00,000/- towards price of the flat as per letter dated16.04.2013. After issuance of the allotment letter and signing of the agreement to sell , they applied for a home loan and sanctioned home loan by TATA Capital Housing Finance Ltd for Rs.40,50,000/- and amount of Rs.35,20,000/- was sanctioned as home loan. The date of physically handing over of the possession was agreed as 31.12.2013 as per clause 8 of the said letter. They paid installments on time as and when demanded by OPs, as stipulated in the schedule of payment plan. OPs have received a total a sum of Rs.44,90,000/- from them in lieu of said residential flat till possession. As per clause 4 (a) (i) of the agreement, the possession shall be delivered to them by 31.12.2013 and as per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession by the OPs then OPs liable to pay compensation amount of Rs.8800/- per month shall be paid to purchasers/complainant. The promised date of possession was 31.12.2013 and possession actually handed over on 23.10.2015 to complainants. The possession was physically taken by complainants, but the said possession cannot be termed as the complete or effective possession, as OPs have not received the completion certificate or occupation certificate and necessary sanctions to offer the possession of the flat. At the time of handing over the incomplete possession of the flat in question, they noticed glaring irregularities in the specifications promises and delivered by OPs to them. The poor construction quality and workmanship in the flat was manifest from the following shortcomings:-
a. Garbage duct b. 80% green area c. Drivers and Maids room/Rest Room d. Hi tech security e. Not enough backup generators provided for 288 Apartment f. Street lights not provided. g. Various lifts not functional & lifts that are functional are without maintenance. h. Apartment registration. i. No security cameras j. Not enough security staff. k. Wall tiles are falling from the lift walls, tiles cracking on the lift lobby floor. l. Covering for down take pipes in all apartment. m. Tiles in parking area in all buildings. n. No fire fighting arrangement Tower A and hence lives of 32 residents of Tower A put on risk/compromised by OPs. o. Car parking is not allotted till date. p. No video door phone with main gate connectivity in entire Tower A provided. q. No centralized communication system installed in Tower A. r. No Gymnasium, Conference room and club provided till date. s. Construction and Debris is lying under and ground Tower A. t. No purified water provided. u. Loose electric wiring at electric meters junction and no earthlings in Tower A. v. Illegal sale of roof tops. w. Outer wall of the building not painted x. Illegal sale of roof tops.
The OPs have not completed the project as per the assurance given by them to complainants. OPs have grossly deficient in providing services to them. No facilities as assured have been given by OPs in as much as there was no club house, no power backup nor there was any CCTV camera installed etc. There was a delay of 15 months in offering the possession to them though incomplete or ineffective at that time. The promised date of possession was 31.12.2013 and actually handed over physical possession to them on 23.10.2015. The charges of Rs.40,000/- per month and Rs.8800/- per month should be paid by OPs to them till execution of sale deed or till completion certificate was obtained. They alleged deficiency in service on the part of OPs and indulged in unfair trade practice. They seek below noted relief against OPs :-
OPs be directed to obtain all sanctions, approval and permissions from the competent authorities, especially occupation and completion certificate in accordance with PAPRA Act and rules.
OPs be directed to execute the sale deed in favour of complainants and to complete the flat in all respects in accordance with promised specifications.
OPs be directed to complete the flat in all respects in accordance with promises specifications and standards as per brochure/agreement under the agreement.
OPs be directed provide the details of the common project in question and further OPs be directed to assign a parking space for complainant and issue parking allotment letter.
OPs be directed to pay monthly assured earning amounting to Rs.40,000/- to complainant from October 2015 till obtaining the occupation certificate by OPs and OPs be directed to pay Rs.8800/- per month from 31.12.2013 till completion certificate was obtained by OPs.
OPs be directed not to sell roof tops or grant roof rights, as it is illegal as per MC Zirakpur hence use of roof top be directed/directed common for all residents of that tower to avoid litigation in future.
OPs be directed to pay Rs.90,000/- as club charges as there was no club in existence and also refund the maintenance charges as OPs failed to provide any maintenance and OPs be directed to pay external charges/EDC charges.
OPs be directed to pay Rs.10,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
12. Upon notice, OPs no.1 and 2 appeared and filed written statement and contested the complaint of the complainant. It was admitted by OPs that complainant purchased a flat for their residential purposes. It was averred that the complainants have not complainants have not arrayed the necessary party in the complaint i.e maintenance agency as the OPs were not maintaining the society now, on this ground, the complaint is liable to be rejected. The complainant was offered possession, vide letter dated 30.11.2014, thereafter they taken the possession. The agreement dated 16.04.2013 was executed between the parties. The timely payment of each installment and other charges payable under the agreement shall be the essence of this agreement. The complainant has not paid the full amount of the flat to OPs. He has not paid the full and final amount till date even after taking the physical possession in complete in all respects. The outstanding amount due towards complainants was more than Rs.6,90,000/- inclusive EEC, service tax, interest and late payment charges. The OPs have already taken the required permissions from the concerned authorities. Any deficiency in service and unfair trade practice was denied by OPs. Rest of the averments of the complainant were denied by OPs and they prayed for dismissal of the complainant.
13. Sh. Dalip Kumar Rania special attorney of complainant tendered in evidence his affidavit as Ex.C-A along with copies of documents Ex.C-1 to Ex.C-10 and closed the evidence. As against it; OPs no.1 and 2 tendered in evidence affidavit of Sh.Vishal Mehta Authorized Signatory of OPs as Ex.OP1&2/A along with copies of document Ex.OP-1 to Ex.OP-2 and closed the evidence.
Facts of Consumer Complaint No. 631 of 2018
14. Complaint No.631 of 2018 has been filed by complainants Mohit Agarwal and Shelly Agarwal U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that OPs floated a project namely AERO HOMES situated at Village Gazipur Zirakpur Mohali Punjab and gave attractive offer to complainants. On the allurement of OPs, they booked a residential unit for his own personal use and occupation. They were allotted flat no.505 on 5th floor in Tower D with a super area of 1760 sq. ft, total price of the flat was Rs.40,00,000/- and Rs.60,000/- as club charges, total sum of Rs.41,60,000/- OPs have received a sum of Rs.6,00,000/- towards price of the flat. After issuance of the allotment letter and signing of the agreement to sell , they applied for a home loan and they were sanctioned home loan by India Bulls Housing Finance Ltd for Rs.28,00,000/-. The date of physically handing over of the possession was stated as 30.06.2013 as per clause 8 of the allotment letter dated. 27.02.2012 (Ex.C-5). The compensation for delayed possession was provided in Clause 16 of allotment letter i.e. Rs.8800/- per month for the period of delay. They paid installments on time as and when demanded by OPs as stipulated in the schedule of payment plan. OPs have received a total a sum of Rs.42,07,289/- from them in lieu of said residential flat till 14.10.2013, whereas cost of the flat was Rs.40,00,000/-. Buyer's agreement was executed between the parties on 27.02.2012. OPs have charged EDC charges as Rs.2,00,000/-, club along with service tax amounting to Rs.67,416/-, annual maintenance and misc. charges amounting to Rs.29,663/-, which were not maintainable. As per clause 4 (a) (i) of the agreement, the possession shall be delivered to them by 30.06.2013 and as per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession by the OPs then OPs liable to pay compensation amount of Rs.8800/- per month shall be paid to purchasers/complainants. As per terms and conditions of the agreement, the OPs were bound to deliver the possession of the flat to them by 30.06.2013. OPs thereafter committed the another deficiency in service and also breach of commitment when they offered the physical possession to them, which was taken by complainants on 07.08.2014 but the said possession cannot be termed as the complete or effective possession as OPs have not received the completion certificate or occupation certificate and necessary sanctions to offer the possession of the flat. At the time of handing over the incomplete possession of the flat in question, they noticed glaring irregularities in the specifications promises and delivered by OPs to them. The poor construction quality and workmanship in the flat was manifest from the following shortcomings:-
a. Garbage duct b. 80% green area c. Drivers and Maids room/Rest Room d. Hi tech security e. Club f. No enough backup generators provided for 288 Apartment g. Street lights not provided h. Various lifts not functional i. Apartment registration j. Not security cameras k Not enough security staff l. Wall tiles are falling from the lift walls, tiles cracking on the lift lobby floor. m. Covering for down take pipes in all apartment n. Tiles in parking area in all building
The OPs have not completed the project as per the assurance given by them to complainants. OPs have grossly deficient in providing services to them. No facilities as assured have been given by OPs in as much as there was no club house, no power backup nor there was any CCTV camera installed etc. The promised date of possession was 30.06.2013. They alleged deficiency in service on the part of OPs and indulged in unfair trade practice. They seek below noted relief against OPs :-
OPs be directed to obtain all sanctions, approval and permissions from the competent authorities, especially occupation and completion certificate in accordance with PAPRA Act and rules.
OPs be directed to execute the sale deed in favour of complainants and to complete the flat in all respects in accordance with promised specifications.
OPs be directed to complete the flat in all respects in accordance with promises specifications and standards as per brochure/agreement under the agreement.
OPs be directed to assign a parking space for complainant and issue parking allotment letter and directed to provide details of common area and facilities and breakup of super area.
OPs be directed to pay Rs.30,000/- for the month of October 2013 till August 2014 and OPs be directed to pay Rs.8800/- per month from 30.06.2013 till completion certificate was not obtained by OPs.
OPs be directed to refund the excess amount under head of external electrification charges/EDC charges amounting to Rs.2,00,000/- and also refund the maintenance charges as OPs have failed to provide any maintenance.
OPs be directed not to sell the roof tops or grant roof rights, as it was illegal as per MC Zirakpur and to refund the payment of amount of Rs.67,416/- illegally charges for club and service tax upon the above said amount, as there was no club in existence and also no construction on the site for the club.
OPs be directed to pay Rs.5,00,000/- as compensation for mental harassment and Rs.50,000/- as litigation expenses.
15. Upon notice, OPs no.1 and 2 appeared and filed written statement and contested the complaint of the complainants. It was admitted by OPs that complainants purchased a flat for their residential purposes. It was averred that the complainants have not arrayed the necessary party in the complaint i.e maintenance agency as the OPs were not maintaining the society now, on this ground, the complaint is liable to be rejected. The complainant was offered possession, vide letter dated 28.06.2013, thereafter they have taken the possession on 07.08.2014. The agreement dated 27.02.2012 was executed between the parties. The timely payment of each installment and other charges payable under the agreement shall be the essence of this agreement. The complainants have not paid the full amount of the flat to OPs. The payment was still due towards complainants and instead of making the payments, they filed the complaint just to harass and to extract money from OPs. Force Majeure clause incorporated universally only after full payment was made to the promoter/OPs as per terms and conditions of the agreement. The time is essence of the agreement clause has been incorporated in the agreement. Timely payment of each installment and other charges payable under the agreement shall be essence of this agreement. It shall be incumbent on the purchaser(s) to comply with the terms of the payments and or/other terms and conditions of sale as stipulated in the agreement. The outstanding amount was due towards the complainants as Rs.4,58,955/- inclusive EEC, service tax, interest and late payment charges. The OPs have already taken the required permissions from the concerned authorities. The complainants also liable to pay electrification charges as per agreement clause 5(d) of the agreement. As per clause 2(f) of the agreement, the developer/OPs have right to forfeit the entire amount of earnest/registration money deposited by them/purchasers in case of non-payment of installments within time. Any deficiency in service and unfair trade practice was denied by OPs. Rest of the averments of the complainant were denied by OPs and they prayed for dismissal of the complainant.
16. The complainant produced his affidavit along with copies of documents Ex.C-1/1 to Ex.C-1/3 and Ex.C-2 to Ex.C-45. On the other hand, OPs produced affidavit of Vishal Mehta on behalf of OPs along with copies of document Ex.OP-1 to Ex.OP-3.
17. The submissions of learned counsel for the parties have been heard at considerable length and evidence coupled with pleadings of the parties has been analyzed by us.
Findings of Consumer Complaint No. 394 of 2018
18. The complainants applied for residential accommodation in AERO HOMES launched by OPs taken in by the brochure. They were allotted flat no.402 on 4th floor in Tower A with a super area of 1760 sq. ft. The total price of the flat was Rs.35,90,000/- including club charges. The date of delivery of the allotted flat was scheduled as 31.12.2013 as per clause 8 of the allotment letter. In the event of delay in delivery of possession, Rs.8800/- was to be paid by OPs to complainants for the period of delay as per clause 16 thereof. Ex.C-1 is application form for allotment of flat in AERO HOMES at Gazipur Zirkapur Punjab. Ex.C-2 is brochure given out by OPs in this case. Ex.C-3 is layout plan. Ex.C-4 is allotment letter dated 26.04.2013. Flat buyers agreement is Ex.C-5 executed between the parties of this flat for total price of Rs.35,90,000/-. As per clause 4(a)(i) of the agreement, possession was to be delivered to complainants by OPs by 31.12.2013, subject to force majeure circumstances. As per clause 4(a)(ii) of the agreement, in the event of delay in handing over the physical possession of the flat by the developer/OPs, the compensation amount of Rs.8800/- per month shall be paid to purchasers/complainants. The other terms and conditions were stipulated in buyers agreement between the parties. The complainants obtained loan from OP no.3 for payment of the price of the allotted flat to OPs in this case. Tripartite agreement was executed on 10.05.2013, vide Ex.C-6 between the parties. The complainants have paid the substantial amounts of sale consideration to OPs and this fact is not disputed before us. The complainants seek directions, as mentioned in the complaint against OPs in this case.
19. To refute this evidence of the complainants, OPs took plea that there is an arbitration clause in buyers agreement and hence consumer complaint is not maintainable before this Commission. The complainants were offered possession about three years ago by OPs, but they have not received it and as such complaint is barred by time. The possession of the flat was offered on 30.11.2014 to complainants. They received the possession of the flat from OPs, but took no interest in the execution of the conveyance deed thereafter in their favour. They are still to pay Rs.4,50,000/- to OPs including EEC, service tax, interest and late payment charges. Some delay took place in the project in delivery of possession on account of non-compliance of designs specifications, building material, quality of construction and so on. OP no.3 is financer and its primary concern is with regard to refund of the amount financed by it in this case only.
20. From evaluation of above referred evidence on the record, we find that despite receipt of the major amounts of sale consideration, OPs have not yet obtained completion certificate of this project from the competent authority under PAPRA Act 1995, so as to deliver its possession to the complainants. This is deficiency in service on the part of OPs and consequently, OPs are directed to obtain all sanctions , approvals and permissions from the competent authority with regard to completion of the project and to execute the sale deed of the project in favour of complainants, subject to making payment of balance due, if any, by complainants to them and also bearing registration and sale expenses by the complainants. OPs are also liable to complete the project in all respects, as per specifications and standards in the brochure and buyers agreement, with facilities as agreed upon. Rest of the terms and conditions are strictly governed either by brochure or buyers agreement between the parties in this case. The complainants seek penalty for late delivery of possession of the flat from OPs. The OPs are liable to pay penalty charges @ 5/- per sq. ft , which comes to Rs.8800/- for delay in late delivery of possession from the scheduled date of delivery of possession as agreed upon under clause 4(a)(ii) in buyers agreement by the parties. So far as relief of complainants for charges of club membership is concerned, it is governed by clause 2(k) of buyers agreement. The complainants are liable to pay Rs.90,000/- as club membership registration charges to OPs only from the time when club becomes functional in the project. No such direction can be given for refund of the service tax, external electricity charges and EDC, as case is strictly governed by buyers agreement executed between the parties in this case as well as statutory law. With regard to relief of complainant regarding not selling the roof-tops or grant roof rights to all residents of tower to use it commonly, the case is strictly governed by the buyers agreement between the parties in this case. In case buyers agreement does not permit the OPs, in that eventuality, they will indulge in unfair trade practice, whereas if buyers agreement entitles the OPs to do so, then they can do it only. The complainants are also entitled to Rs.55,000/- as compensation for mental harassment and cost of litigation.
Findings of Consumer Complaint No. 395 of 2018
21. The complainants applied for residential accommodation in AERO HOMES launched by OPs as given in by the brochure. They were allotted flat no.304 on 3rd floor in Tower A with a super area of 1760 sq. ft. The total price of the flat was Rs.37,00,000/- including other charges. The date of delivery of the allotted flat was scheduled as 30.09.2015 as per clause 8 of the above letter. In the event of delay in delivery of possession, Rs.8800/- was to be paid by OPs to complainants for the period of delay, as per clause 16 thereof. Ex.C-1 is brochure given out by OPs in this case. Ex.C-2 is the layout plan. Ex.C-3 is allotment letter dated 29.05.2015 in favour of complainants. Ex.C-4 is buyers agreement dated 23.05.2015 between the parties. Ex.C-6 is loan transaction details. Ex.C-7 is possession letter. As per clause 4(a)(i) of the agreement, the possession was to be delivered to complainants by OPs by 30.09.2015, subject to force majeure circumstances. As per clause 4(a)(ii) of the agreement, in the event of delay in handing over the physical possession of the flat by the developer/OPs, the compensation amount of Rs.8800/- per month shall be paid to purchasers/complainants. The other terms and conditions were stipulated in buyer's agreement between the parties. The complainants have paid the substantial amounts of sale consideration to OPs and this fact is not disputed before us. The complainants seek directions, as mentioned in the complaint against OPs in this case.
22. To refute this evidence of the complainants, OPs took plea that there is an arbitration clause in buyer's agreement and hence consumer complaint is not maintainable. The complainants were offered possession about three years ago by OPs but they have not received it and complaint is barred by time. The possession of the flat was offered on 28.08.2015 to complainants. The complainants received the possession of the flat from OPs, but took no interest in the execution of the conveyance deed thereafter. The complainants are still to pay Rs.3,50,000/- to OPs including EEC, service tax, interest and late payment charges. Some delay took place in the project in delivery of possession on account of non-compliance of designs specifications, building material, quality of construction and so on. OPs relied upon affidavit of Vishal Mehta authorized signatory of OPs as Ex.OP-1-2/A. Ex.OP-1 is possession letter in favour of complainants. Ex.OP-1/A is maintenance agreement executed between the parties. Ex.OP-2 is letter dated 18.l2.2013 addressed to Executive Officer Municipal Council Zirakpur regarding applying for occupancy certificate of the project on the record.
23. From evaluation of above referred evidence on the record, we find that despite receipt of the major amounts of sale consideration, OPs have not received completion certificate of this project so as to deliver its possession to the complainants. This is deficiency in service on the part of OPs and consequently, OPs are directed to obtain all sanctions, approvals and permissions from the competent authority with regard to completion of the project and to execute the sale deed of the project in favour of complainants, subject to making payments of balance due, if any by complainants to them and bearing registration and sale expenses by the complainants. OPs are also liable to complete the project in all respects, as per specifications and standards of the brochure and buyers agreement with facilities, as agreed upon. Rest of the terms and conditions are strictly governed either by brochure or buyers agreement between the parties in this case. The complainants seek penalty for late delivery of the possession from OPs. The OPs are liable to pay penalty charges @ 5/- per sq. ft, which comes to Rs.8800/- for delay in late delivery of possession from the scheduled date of delivery of possession as agreed upon under clause 4(a)(ii) of buyers agreement. So far as relief of complainants for charges of club membership is concerned is governed by clause 2(k) of buyers agreement. The complainants are liable to pay Rs.90,000/- as club membership registration charges to OPs only from the time when club become functional in the project, otherwise not. No such direction can be given for refund of the service tax, external electricity charges and EDC as case is strictly governed by buyers agreement executed between the parties in this case. With regard to relief of complainant regarding not selling the roof-tops or grant roof rights to all residents of tower to use it commonly, the case is strictly governed by the buyers agreement between the parties in this case. In case, buyers agreement does not permit the OPs, in that eventuality they will indulge in unfair trade practice only, whereas if buyer's agreement entitles the OPs to do so, then they can do it. The complainants are also entitled Rs.55,000/- as compensation for mental harassment and cost of litigation.
Findings of Consumer Complaint No. 396 of 2018
24. The complainant applied for residential accommodation in AERO HOMES launched by OPs taken in by the brochure. He was allotted flat no.202 on 2nd floor in Tower E with a super area of 1760 sq. ft. The total price of the flat was Rs.30,90,000/- including other charges. The date of delivery of the allotted flat was scheduled as 30.06.2013 as per clause 8 of the above letter. In the event of delay in delivery of possession Rs.8800/- was to be paid by OPs to complainant for the period of delay as per clause 16 thereof. Ex.C-1 is brochure given out by OPs in this case. Ex.C-2 is layout plan. Ex.C-3 is allotment letter dated 10.05.2012 in favour of complainant. Ex.C-4 is buyers agreement executed between the parties on 10.05.2012. Ex.C-8 (colly) is receipt dated 08.05.2012 for Rs.8,00,000/-received from complainant. Ex.C-6 is possession letter in favour of complainant. Ex.C-7 is maintenance agreement executed between the parties. Ex.C-8 is general power of attorney. As per clause 4(a)(i) of the agreement, the possession was to be delivered to complainant by OPs by 30.06.2013, subject to force majeure circumstances. As per clause 4(a)(ii) of the agreement, in the event of delay in handing over the physical possession of the flat by the developer/OPs, the compensation amount of Rs.8800/- per month shall be paid to purchaser/complainant. The other terms and conditions were stipulated in buyer's agreement between the parties. The complainant has paid the substantial amounts of sale consideration to OPs and this fact is not disputed before us. The complainant seek directions as mentioned in the complaint against OPs in this case.
25. To refute this evidence of the complainants, OPs took plea that there is an arbitration clause in buyers agreement and hence consumer complaint is not maintainable. The complainants were offered possession about three years ago by OPs but they have not received it and complaint is barred by time. The possession of the flat was offered on 28.06.2013 to complainant. The complainant received the possession of the flat from OPs, but took no interest in the execution of the conveyance deed thereafter. The complainants are still to pay Rs.5,50,000/- to OPs including EEC , service tax, interest and late payment charges. Some delay took place in the project in delivery of possession on account of non-compliance of designs specifications, building material, quality of construction and so on. OPs relied upon affidavit of Vishal Mehta authorized signatory of OPs as Ex.OP1-2/A. Ex.OP-1 is letter dated 18.12.2013 addressed to Executive Officer Municipal Council Zirakpur regarding occupancy certificate of the project. Ex.OP-2 is statement of account.
26. From evaluation of above referred evidence on the record, we find that despite receipt of the major amount of sale consideration, OPs have not received completion certificate of this project so as to deliver its possession to the complainants. This is deficiency in service on the part of OPs and consequently, OPs are directed to obtain all sanctions, approvals and permissions from the competent authority with regard to completion of the project and to execute the sale deed of the project in favour of complainants, subject to making payment of balance due, if any by complainants to them and bearing registration and sale expenses by the complainants. OPs are also liable to complete the project in all respects, as per specifications and standards of the brochure and buyers agreement with facilities, as agreed upon. Rest of the terms and conditions are strictly governed either by brochure or buyers agreement between the parties in this case. The complainants seek penalty for late delivery of the possession from OPs. The OPs are liable to pay penalty charges @ 5/- per sq. ft, which comes to Rs.8800/- for delay in late delivery of possession from the scheduled date of delivery of possession, as agreed upon under clause 4(a)(ii) of buyers agreement. So far as relief of complainants for charges of club membership is concerned, it is governed by clause 2(k) of buyers agreement. The complainants are liable to pay Rs.90,000/- as club membership registration charges to OPs only from the time when club becomes functional in the project. No such direction can be given for refund of the service tax, external electricity charges and EDC as case is strictly governed by buyers agreement executed between the parties in this case. With regard to relief of complainant regarding not selling the roof-tops or grant roof rights to all residents of tower to use it commonly, the case is strictly governed by the buyers agreement between the parties in this case. In case buyers agreement does not permit the OPs, in that eventuality they will indulge in unfair trade practice, whereas if buyer's agreement entitle the OPs to do so, then they can do it. The complainants are also entitled Rs.55,000/- as compensation for mental harassment and cost of litigation.
Findings of Consumer Complaint No. 397 of 2018
27. The complainants applied for residential accommodation in AERO HOMES launched by OPs taken in by the brochure. They were allotted flat no.604 on 6th floor in Tower A with a super area of 1760 sq. ft. The total price of the flat was Rs.44,90,000/- including club charges. The date of delivery of the allotted flat was scheduled as 31.12.2013 as per clause 8 of the above letter. In the event of delay in delivery of possession Rs.8800/- was to be paid by OPs to complainants for the period of delay as per clause 16 thereof. Ex.C-A is affidavit of complainant on the record. Ex.C-1 is brochure brochure given out by OPs in this case. Ex.C-2 is layout plan. Ex.C-3 is allotment letter dated 16.04.2013. Ex.C-4 is buyers agreement executed between the parties. Ex.C-6 is provisional interest certificate. Ex.C-7 is possession letter dated 23.10.2015. Ex.C-8 is maintenance agreement dated 23.10.2015 executed between the parties. As per clause 4(a)(i) of the agreement possession was to be delivered to complainants by OPs by 31.12.2013, subject to force majeure circumstances. As per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession of the flat by the developer/OPs compensation amount of Rs.8800/- per month shall be paid to purchasers/complainants. The other terms and conditions were stipulated in buyers agreement between the parties. The complainants obtained loan from OP no.3 for payment of the price of the allotted flat to OPs in this case. The complainants have paid the substantial amounts of sale consideration to OPs, this fact is not disputed before us. The complainants seek directions as mentioned in the complaint against OPs in this case.
28. To refute this evidence of the complainants, OPs took plea that there is an arbitration clause in buyers agreement and hence consumer complaint is not maintainable. The complainants were offered possession about three years ago by OPs but they have not received it and complaint is barred by time. The possession of the flat was offered on 30.11.2014 to complainants. The complainants received the possession of the flat from OPs but took no interest in the execution of the conveyance deed thereafter. The complainants are still to pay Rs.6,90,000/- to OPs including EEC , service tax, interest and late payment charges. Some delay took place in the project in delivery of possession on account of non-compliance of designs specifications, building material, quality of construction and so on. OP no.3 is financer and its primary concern is with refund of the amount financed by it in this case only.
29. From evaluation of above referred evidence on the record, we find that despite receipt of the major amount of sale consideration, OPs have not received completion certificate of this project so as to deliver its possession to the complainants. This is deficiency in service on the part of OPs and consequently OPs are directed to obtain all sanctions , approvals and permissions from the competent authority with regard to completion of the project and to execute the sale deed of the project in favour of complainants, subject to making payment of balance due, if any by complainants to them and bearing registration and sale expenses by the complainants. OPs are also liable to complete the project in all respects, as per specifications and standards of the brochure and buyers agreement with facilities, as agreed upon. Rest of the terms and conditions are strictly governed either by brochure or buyers agreement between the parties in this case. The complainants seek penalty for late delivery of the possession from OPs. The OPs are liable to pay penalty charges @ 5/- per sq. ft ,which comes to Rs.8800/- for delay in late delivery of possession from the scheduled date of delivery of possession as agreed upon under clause 4(a)(ii) of buyers agreement. So far as relief of complainants for charges of club membership is concerned, it is governed by clause 2(k) of buyers agreement. The complainants are liable to pay Rs.90,000/- as club membership registration charges to OPs only from the time when club becomes functional in the project. No such direction can be given for refund of the service tax, external electricity charges and EDC as case is strictly governed by buyers agreement executed between the parties in this case. With regard to relief of complainant regarding not selling the roof tops or grant roof rights to all residents of tower to use it commonly, the case is strictly governed by the buyers agreement between the parties in this case. In case buyers agreement does not permit the OPs, in that eventuality they will indulge in unfair trade practice whereas if buyers agreement entitle the OPs to do so, then they can do it. The complainants are also entitled Rs.55,000/- as compensation for mental harassment and cost of litigation.
Findings of Consumer Complaint No.631 of 2018
30. The complainant applied for residential accommodation in AERO HOMES launched by OPs taken in by the brochure. He was allotted flat no.505 on 5th floor in Tower D with a super area of 1760 sq. ft. The total price of the flat was Rs.40,00,000/- and Rs.60,000/- as club charges, total of Rs.41,60,000/-. The date of delivery of the allotted flat was scheduled as 30.06.2013 as per clause 8 of the above letter. In the event of delay in delivery of possession Rs.8800/- was to be paid by OPs to complainant for the period of delay as per clause 16 thereof. Ex.C-2 is brochure given out by OPs in this case. Ex.C-3 is layout plan. Ex.C-4 is application form for allotment of flat in AERO HOMES project. Ex.C-5 is allotment letter dated 27.02.2012 in favour of complainants. Ex.C-6 is buyers agreement executed between the parties on 27.02.2012. Ex.C-7 is welcome letter dated 03.03.2012. Ex.C-8 is permission to mortgage/NOC. Ex.C-9 is tripartite agreement dated 28.02.2012 executed between the parties. Ex.C-10 to Ex.C-14 are receipts. Ex.C-19 is statement of account.Ex.C-20 is possession letter dated 07.08.2014. As per clause 4(a)(i) of the agreement possession was to be delivered to complainant by OPs by 30.06.2013, subject to force majeure circumstances. As per clause 4(a)(ii) of the agreement in the event of delay in handing over the physical possession of the flat by the developer/OPs compensation amount of Rs.8800/- per month shall be paid to purchaser/complainant. The other terms and conditions were stipulated in buyer's agreement between the parties. The complainant has paid the substantial amounts of sale consideration to OPs, this fact is not disputed before us. The complainant seeks directions as mentioned in the complaint against OPs in this case.
31. To refute this evidence of the complainants, OPs took plea that there is an arbitration clause in buyer's agreement and hence consumer complaint is not maintainable. The complainants were offered possession about three years ago by OPs, but they have not received it and complaint is barred by time. The possession of the flat was offered on 28.06.2013 to complainant. The complainant received the possession of the flat from OPs but took no interest in the execution of the conveyance deed thereafter. The complainants are still to pay Rs.4,58,955/- to OPs. Some delay took place in the project in delivery of possession on account of non-compliance of designs specifications, building material, quality of construction and so on. Ex.OP-1 is letter dated 18.12.2013 addressed to Executive Officer Municipal Council Zirakpur regarding occupancy certificate of the project. Ex.OP-3 is final payment notice.
32. From evaluation of above referred evidence on the record, we find that despite receipt of the major amount of sale consideration, OPs have not received completion certificate of this project so as to deliver its possession to the complainants. This is deficiency in service on the part of OPs and consequently OPs are directed to obtain all sanctions, approvals and permissions from the competent authority with regard to completion of the project and to execute the sale deed of the project in favour of complainants, subject to making payment of balance due, if any by complainants to them and bearing registration and sale expenses by the complainants. OPs are also liable to complete the project in all respects, as per specifications and standards of the brochure and buyers agreement with facilities as agreed upon. Rest of the terms and conditions are strictly governed either by brochure or buyers agreement between the parties in this case. The complainants seek penalty for late delivery of the possession from OPs. The OPs are liable to pay penalty charges @ 5/- per sq. ft ,which comes to Rs.8800/- for delay in late delivery of possession from the scheduled date of delivery of possession as agreed upon under clause 4(a)(ii) of buyers agreement. So far as relief of complainants for charges of club membership is concerned, it is governed by clause 2(k) of buyers agreement. The complainants are liable to pay Rs.90,000/- as club membership registration charges to OPs only from the time when club become functional in the project, otherwise not. No such direction can be given for refund of the service tax, external electricity charges and EDC as case is strictly governed by buyers agreement executed between the parties in this case. With regard to relief of complainant regarding not selling the roof tops or grant roof rights to all residents of tower to use it commonly, the case is strictly governed by the buyers agreement between the parties in this case. In case buyers agreement does not permit the OPs, in that eventuality they will indulge in unfair trade practice whereas if buyer's agreement s the OPs to do so, then they can do it. The complainants are also entitled Rs.55,000/- as compensation for mental harassment and cost of litigation.
33. The next point raised by counsel for the OPs is that there is an arbitration clause in allotment letter in all the above complaints and hence consumer complaint is not maintainable. We find no force in this submission of OPs in all the above referred complaints. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Limited and another Vs. Aftab Singh" was filed by OP before the Top Court of the country, which has since been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the presence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum.
Decision of Consumer Complaint no.394 of 2018
34. This complaint titled as "Tanima Srivastava and another versus H.H Matcon and another" is accepted and below noted directions are issued to OPs in favour of complainants:-
OPs are directed to obtain requisite sanction/approval permission from the competent authority particularly completion certificate under PAPRA Act 1995 and to execute the sale deed of the allotted flat in favour of the complainants, subject to clearance of all sale dues by complainants to OPs and subject to bearing registration and stamp expenses by the complainants.
OPs are directed to complete the flat and project in all respects by providing amenities therein as agreed in the brochure and buyers agreement.
OPs are directed to provide the details of the common area and facilities and the breakup of super area of the flat and project in question to complainants.
OPs are directed to pay the penalty amount of delayed possession @ Rs.8800/- per month from 31.12.2013 till completion certificate to complainants.
OPs shall refund the amount of Rs.90,000/- as club membership to complainants, in case, it is not functional on the spot, failing which, the complainants will not be entitled for this amount.
OPs are directed to pay Rs.55,000/- as compensation and cost of litigation to complainants.
Decision of Consumer Complaint no.395 of 2018
35. This complaint titled as "Manik Sethi and another versus H.H Matcon and another" is accepted and below noted directions are issued to OPs in favor of complainants:-
i) OPs are directed to obtain requisite sanction/approval permission from the competent authority particularly completion certificate under PAPRA Act 1995 and to execute the sale deed of the allotted flat in favour of the complainants, subject to clearance of all sale dues by complainants to OPs and subject to bearing registration and stamp expenses by the complainants.
ii) OPs are directed to complete the flat and project in all respects by providing amenities therein as agreed in the brochure and buyers agreement.
iii) OPs are directed to provide the details of the common area and facilities and the breakup of super area of the flat and project in question to the complainants.
iv) OPs are directed to pay the penalty amount of delayed possession @ Rs.8800/- per month from 30.09.2015 till completion certificate to the complainants.
v) OPs shall refund the amount of Rs.90,000/- as club membership to complainants, in case, it is not functional on the spot, failing which, the complainants will not be entitled for this amount.
vi) OPs are directed to pay Rs.55,000/- as compensation and cost of litigation.
Decision of Consumer Complaint no.396 of 2018
36. This complaint titled as "Deepak Sood versus H.H Matcon and another" is accepted and below noted directions are issued to OPs in favour of complainants:-
OPs are directed to obtain requisite sanction/approval permission from the competent authority particularly completion certificate under PAPRA Act 1995 and to execute the sale deed of the allotted flat in favour of the complainants, subject to clearance of all sale dues by complainants to OPs and subject to bearing registration and stamp expenses by the complainants.
OPs are directed to complete the flat and project in all respects by providing amenities therein as agreed in the brochure and buyers agreement.
OPs are directed to provide the details of the common area and facilities and the breakup of super area of the flat and project in question.
OPs are directed to pay the penalty amount of delayed possession @ Rs.8800/- per month from 30.06.2013 till completion certificate.
OPs shall refund the amount of Rs.90,000/- as club membership to complainants, in case, it is not functional on the spot, failing which, the complainants will not be entitled for this amount.
OPs are directed to pay Rs.55,000/- as compensation and cost of litigation.
Decision of Consumer Complaint no.397 of 2018
37. This complaint titled as "Varun Raina and another versus H.H Matcon and another" is accepted and below noted directions are issued to OPs in favour of complainants:-
i) OPs are directed to obtain requisite sanction/approval permission from the competent authority particularly completion certificate under PAPRA Act 1995 and to execute the sale deed of the allotted flat in favour of the complainants, subject to clearance of all sale dues by complainants to OPs and subject to bearing registration and stamp expenses by the complainants.
ii) OPs are directed to complete the flat and project in all respects by providing amenities therein as agreed in the brochure and buyers agreement.
iii) OPs are directed to provide the details of the common area and facilities and the breakup of super area of the flat and project in question.
iv) OPs are directed to pay the penalty amount of delayed possession @ Rs.8800/- per month from 31.12.2013 till completion certificate.
v) OPs shall refund the amount of Rs.90,000/- as club membership to complainants, in case, it is not functional on the spot, failing which, the complainants will not be entitled for this amount.
vi) OPs are directed to pay Rs.55,000/- as compensation and cost of litigation.
Decision of Consumer Complaint no.631 of 2018
38. This complaint titled as "Mohit Agarwal and another versus M/s N.H Matcon and another" is accepted and below noted directions are issued to OPs in favour of complainants :-
i) OPs are directed to obtain requisite sanction/approval permission from the competent authority particularly completion certificate under PAPRA Act 1995 and to execute the sale deed of the allotted flat in favour of the complainants, subject to clearance of all sale dues by complainants to OPs and subject to bearing registration and stamp expenses by the complainants.
ii) OPs are directed to complete the flat and project in all respects by providing amenities therein as agreed in the brochure and buyers agreement.
iii) OPs are directed to provide the details of the common area and facilities and the breakup of super area of the flat and project in question.
iv) OPs are directed to pay the penalty amount of delayed possession @ Rs.8800/- per month from 30.06.2013 till completion certificate.
v) OPs shall refund the amount of Rs.90,000/- as club membership to complainants, in case, it is not functional on the spot, failing which, the complainants will not be entitled for this amount.
vi) OPs are directed to pay Rs.55,000/- as compensation and cost of litigation.
39. Arguments in the above complaints were heard on 22.04.2019 and the order were reserved. Certified copies of the order be communicated to the parties under rules.
40. The compliance of the order in all the above complaints be made by OPs in two months period from the date of receipt of certified copy of this order.
41. The above complaints could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER April 25, 2019 (ravi)