State Consumer Disputes Redressal Commission
Manish Choure vs M/S Ambika Realcon Pvt Ltd on 21 September, 2023
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STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 19 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
1. Manish Choure son of Ramesh Chandra Choure R/o C-705, Florence Park,
New Chandigarh.
2. Sonali Choure w/o Manish Choure R/o C-705, Florence Park, New
Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009. Email:-
[email protected]
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301. Email:[email protected]
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
.....Opposite Parties
================================================================
Complaint case No. : 09 of 2022
Date of Institution : 01.02.2022
Date of Decision : 21.09.2023
1. Naveen Kumar Pathak son of Sh.Trilok Pathak
2. Smt.Mukta Sharma w/o Shri Naveen Kumar Pathak
R/o FP/PRIMROSE/C/303 in Florence Park, New Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18-19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. M/s Vishnu Facilities, Florence Park, through its Managing Director, 1218,
12th Floor, DLF Tower B, District Centre, Jasola, New Delhi-110025.
3. Real Estate Regulatory Authority, First Floor, Block-B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
2
===============================================================
Complaint case No. : 10 of 2022
Date of Institution : 01.02.2022
Date of Decision : 21.09.2023
Rajinder Katoch s/o Parmod Singh Katoch R/o FP/PRIMROSE/B/1403 in
Florence Park, New Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18-19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. M/s Vishnu Facilities, Florence Park, through its Managing Director, 1218,
12th Floor, DLF Tower B, District Centre, Jasola, New Delhi-110025.
3. Real Estate Regulatory Authority, First Floor, Block-B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
================================================================
Complaint case No. : 11 of 2022
Date of Institution : 01.02.2022
Date of Decision : 21.09.2023
1. Shri Vishal s/o Late Sh.Satpal
2. Smt.Lakshmi Devi w/o Late Shri Satpal
R/o FP/PRIMROSE/C/202 in Florence Park, New Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 12 of 2022
Date of Institution : 01.02.2022
Date of Decision : 21.09.2023
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Mrs.Amarjeet Kaur w/o Mr.Harpal Singh, r/o B-406, Florence Park, New
Chandigarh.
...Complainant
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 20 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
1. Rajesh Kumar Sharma s/o Jagdish Sharma R/o FR/PRIMROSE/C/203 in
Florence Park, New Chandigarh.
2. Mrs. Bhawna Kumari w/o Rajesh Kumar Sharma R/o
FR/PRIMROSE/C/203 in Florence Park, New Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 21 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
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Jugjeev Kaur D/o Late Surinder Singh R/o PRIMROSE A-906, Florence Park,
New Chandigarh.
...Complainant
Versus
1. M/s Ambika Realcon Pvt. Ltd., Ambika Florence Park, Through its
Managing Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
EMAIL ID: [email protected]
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Ambika Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra,
SAS Nagar (Mohali), Punjab -140301. EMAIL ID:
[email protected]
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 22 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
Smt.Sudesh Kumari w/o Shri Sukh Dev Singh R/o FP/PRIMROSE/B/1505 in
Florence Park, New Chandigarh.
...Complainant
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 23 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
Priyanka Raizada w/o Sumit Prashar R/o FP/PRIMROSE/C/506 in Florence
Park, New Chandigarh.
5
...Complainant
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 24 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
1. Smt. Chandra Prahba Gupta w/o Sandeep Kumar Gupta R/o
PRIMROSE/B/401 in Florence Park, New Chandigarh.
2. Sandeep Kumar Gupta h/o Chandra Prabha Gupta R/o PRIMROSE/B/401
in Florence Park, New Chandigarh.
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009.
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301.
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
E-MAIL ID: [email protected]
.....Opposite Parties
===============================================================
Complaint case No. : 25 of 2023
Date of Institution : 03.03.2023
Date of Decision : 21.09.2023
1. Shri Vinod Kumar Singh (Age 47 years) s/o Late Vakil Singh, R/o A-701,
Florence Park, New Chandigarh. Mobile No.8360602717 Email ID:
[email protected]
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2. Urmila Singh (age 65 years) w/o Late Kamlesh Kumar Singh, R/o A-701,
Florence Park, New Chandigarh. Mobile No.8360602717 Email ID:
[email protected]
...Complainants
Versus
1. M/s Ambika Realcon Pvt. Ltd., Florence Park, Through its Managing
Director, SCO 18- 19, 1st Floor, Sec -9D, Chandigarh - 160009. Email:-
[email protected]
2. Shri Vishnu Facilities Management LLP, Through its Managing Director,
B/003, Florence Park, Sector 14 Mullanpur, Village Dhodhe Majra, SAS
Nagar (Mohali), Punjab -140301. Email:- [email protected],
[email protected]
3. Real Estate Regulatory Authority, First Floor, Block B, Plot No. 3, Sector
18A, (Near Govt. Press U.T.), Madhya Marg, Chandigarh - 160018
.....Opposite Parties
===============================================================
Present in all cases:-
Sh.Saksham Arora, Advocate for the complainant(s).
Sh.Manpreet Singh Longia, Advocate for opposite party no.1
Sh.Munish Gupta and Sh.Manjinder Kumar, Advocates for opposite party no.2
None for opposite party no.3 (RERA)
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MRS. PADMA PANDEY, MEMBER
MR. RAJESH K. ARYA, MEMBER MR. PREETINDER SINGH, MEMBER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT The aforesaid complaints have been filed by the respective complainants, seeking directions to opposite parties no.1 and 2 to pay compensation for the period of delay in delivery of possession of their respective units; provide all basic amenities contained in the brochure like club, sewerage treatment plant, DG sets etc.; remove all the defects in the units; not to carry out construction activities at night time; etc.
2. It has been alleged by the complainants in these complaints as under:-
a. Despite the fact that they have made payment of substantial sale consideration, as referred to in the chart below, yet, the opposite parties no.1 and 2 have offered possession of the units, without completing the development and basic amenities at the project site; b. the area of the units have been arbitrarily and illegally enhanced from the actual area as a result of which they were forced to make payment of extra amount towards difference in area;7
c. maintenance charges are being charged at higher rates and that too in the absence of possession and basic amenities, unsafe LPG supply, improper parking space, non backup of power supply etc. d. that all the basic amenities like club, sewerage treatment plant etc. as promised vide the brochure and also agreement have not been provided by opposite party no.1 at the project site.
3. Details with regard to the project in dispute; units purchased by the complainants; payments made by them etc. of these complaints are given below:-
S.N CC Project Unit no. and Total cost Agreement Possession Possession Offered No. super area as as per date date and delivered on per agreemen agreement t (Rs.)
1. 19 of Florence 705, 7th Floor, 5035640/- 19.02.2018 30.04.2020 Offered on 27.02.2021 2023 Park, New 1270 sq. ft. (Ann. A-1) (Clause 7.1 of (Annexure A-5 colly.) Chandigarh, Primrose-C agreement) Delivered on SAS Nagar, Tower 09.06.2021 Mohali, Pb.
2. 09 of Florence 303, 3rd Floor, 5866600/- 21.06.2017 20.06.2020 (36 Offered on 27.02.2021 2022 Park, New 1575 sq. ft. (Ann. A-1 months as per (Annexure A-6) Chandigarh, Primrose-C colly. ) Clause 28 (a) Delivered on SAS Nagar, Tower of agreement) 20.05.2021 Mohali, Pb.
3. 10 of Florence 1403, 14th 3910401/- 29.09.2020 31.12.2020 Offered on 23.03.2021 2022 Park, New Floor, 1690 sq. (Ann. A-1 ) (Clause 7.1 of (Annexure A-5) Chandigarh, ft. Primrose-B agreement) Delivered on SAS Nagar, Tower 10.05.2021 Mohali, Pb. (Relocated)
4. 11 of Florence 202, 2nd Floor, 5237040/- 15.05.2018 31.03.2020 Offered on 27.02.2021 2022 Park, New 1270 sq. ft. (Ann. A-1) (Clause 7.1 of (Annexure A-4) Chandigarh, Primrose-C agreement) Delivered on SAS Nagar, Tower 24.04.2021 Mohali, Pb.
5. 12 of Florence 406, 4th Floor, 5156464/- 31.07.2017 30.07.2020 (36 Offered on 18.03.2021 2022 Park, New 1520 sq. ft. (Ann. A-2) months as per (Annexure A-3) Chandigarh, Primrose-B Clause 28 (a) Delivered on SAS Nagar, Tower of agreement) 25.05.2021 Mohali, Pb.
6. 20 of Florence 203, 2nd Floor, 6534142/- 07.02.2020 30.06.2020 Offered on 03.03.2021 2023 Park, New 1690 sq. ft. (Ann. A-1) (Clause 7 of (Annexure A-4) Chandigarh, Primrose-C agreement) Delivered on SAS Nagar, Tower 27.05.2021 Mohali, Pb.
7. 21 of Florence 906, 9th Floor, 5572218.4 12.03.2018 30.06.2020 Offered on 18.01.2022 2023 Park, New 1520 sq. ft. 0 (Ann. C-3) (Clause 7.1 of (Annexure C-9 colly.) Chandigarh, Primrose-A agreement) Delivered on SAS Nagar, Tower 11.03.2022 Mohali, Pb.
8. 22 of Florence 1505, 15th 5077280/- 28.09.2020 31.12.2020 Offered on 15.03.2021 2023 Park, New Floor, 1270 sq. (Ann. A-1) (Clause 7.1 of (at page 46 & 47) Chandigarh, ft. Primrose-B agreement) Delivered on SAS Nagar, Tower 10.05.2021 Mohali, Pb.
9. 23 of Florence 506, 5th Floor, 5190160/- 24.08.2017 23.08.2020 (36 Offered on 27.02.2021 2023 Park, New 1520 sq. ft. (Ann. A-2) months as per (Annexure A-3) Chandigarh, Primrose-C Clause 28 (a) Delivered on SAS Nagar, Tower of agreement) 23.05.2021 Mohali, Pb.
10. 24 of Florence 401, 4th Floor, 5395050/- 22.03.2018 30.06.2020 Offered on 03.03.2021 2023 Park, New 1520 sq. ft. (Ann. A-1) (Clause 7.1 of (at page 44) Chandigarh, Primrose-B agreement) Delivered on SAS Nagar, Tower 26.05.2021 Mohali, Pb.
11. 25 of Florence 701, 7th Floor, 5572218/- 19.01.2019 30.06.2020 Offered on 18.01.2022 2023 Park, New 1520 sq. ft. (Ann. C-3) (Clause 7.1 of (Ann. C-9) 8 Chandigarh, Primrose-A agreement) Delivered on SAS Nagar, Tower 11.03.2022 Mohali, Pb.
4. It has been stated that even the terms and conditions contained in the agreement(s) are one-sided, highly favourable to the opposite parties no.1 and 2 and the same are unfair contracts. Every efforts made by the complainants in the matter, for redressal of their grievances were ignored by the opposite parties. Hence these complaints.
Written reply of OP No.1:-
5. Their claim has been contested by opposite party no.1 on numerous grounds, inter alia, a. that the complainants have concealed material facts from this Commission;
b. that this Commission did not vest with pecuniary and territorial jurisdiction to entertain these complaints;
c. that because opposite party no.1 had paid interest on the loan amount raised by the complainants to the bank concerned, under subvention scheme, as such, they are not entitled to get interest for any delay in offering possession of the respective units; d. that the complaint is bad for non joinder of financial institution(s) as necessary party(s), from which the complainants have obtained housing loan against their respective units;
e. that the complaints are bad for mis-joinder of opposite party no.3 as necessary party, which has nothing to do with the controversy involved therein;
f. that the complainants were not regular in making payments towards price of their unit(s), yet, in many cases, they were not charged delayed payment interest, in good faith;
g. that since the complainants themselves defaulted in making payment towards their unit(s), as such, the time period of possession automatically stood extended;
h. that as per the own admission of the complainants, possession of the unit was to be delivered within a period of 36 months plus 6 months grace period, therefore possession offered was well within time period;
i. that all the permissions and sanctions stood granted by opposite party no.3 in accordance with the provisions of RERA;
j. that possession of the units were offered after obtaining partial completion certificate from the competent authorities and even occupation certificates were also obtained;
9k. that the competent Authorities extended the period of completion of the project for six months, vide circular dated 28.10.2020 because of COVID-19;
l. that most of the amenities like intercom, convex mirror in basement, parking, children parks, sand pit for children to play, benches and commons areas etc., as depicted in the photographs, Annexure R-1/5 stood provided at the project site;
m. that the complainants did not raise any protest while taking possession of their units:
n. that as per clause no.11.3 of the agreements, the complainants themselves had agreed to pay the maintenance charges, which shall be fixed by the company only;
o. that club house and its allied facilities are under construction and would be offered to the residents at the project site after completion of the entire project, which is scheduled to be completed by 31.12.2023 as extended by 6 months by opposite party no.3 due to COVID-19;
p. that in the face of existence of arbitration clause in the agreements, this Commission is having no jurisdiction to decide these complaints and only an arbitrator can adjudicate the same;
Written reply of OP No.2:-
6. Opposite party no.2 also, while reiterating some grounds taken by opposite party no.1 regarding non maintainability of complaints qua arbitration clause contained in the agreements, territorial & pecuniary jurisdiction etc. contested these complaints on numerous grounds, inter alia:-
a. that the complaints being false and frivolous are not maintainable; b. that the complainants have concealed material facts from this Commission;
c. that because permission to file joint complaint(s) has not been sought by the complainants as such the same are liable to be dismissed on this ground alone;
d. that possession of unit(s) stood delivered to the complainants(s) after obtaining occupation and partial completion certificates, therefore, opposite party no.2 is charging maintenance charges from the complainants for maintaining common areas, security, open gym, parking, lifts etc.;
e. that because allegations of cheating have been raised by the complainants against the opposite parties as such these complaints need to be relegated to the civil court;10
f. that the complainants are liable to pay delayed payment interest as per the provisions of RERA, in case, they fail to make payment of the maintenance charges;
g. that since opposite party no.2 is a separate legal entity, as such, independent complaints were required to be filed by the complainants, therefore these complaints are liable to be dismissed on this ground alone;
h. that the complaint(s) is bad for non joinder of financial bank/institution as necessary party, from which they have obtained housing loan;
i. that complex question of law are involved in these complaints therefore the same cannot be adjudicated by this Commission; j. that on account of pandemic due to COVID-19, the time period of ongoing projects were extended by the RERA and State of Haryana;
7. On merits, purchase of the respective units in question by the complainants in each complaint in the manner stated therein; payments made by them as mentioned in the complaints; dates on which possession of the said units were offered and delivered as mentioned in the respective complaints have not been disputed by opposite parties no.1 and 2. However, while denying remaining averments of the complainants, prayer has been made to dismiss the complaints against opposite parties no.1 and 2.
Written reply of OP No.3:-
8. Opposite party no.3 filed short reply stating therein that since the complainants have initiated proceedings under the provisions of CPA 2019, as such, they cannot invoke any provision of RERA; that only one relief against opposite party no.3 qua clubbing of entire project under one RERA number has been sought by the complainants which cannot be awarded by this Commission; that since the complainants have sought almost all the reliefs against opposite party no.1 and 2, as such, these complaints are not maintainable against opposite party no.3. Prayer has been made to dismiss these complaints against opposite party no.3.
9. In the separate rejoinders filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in written statement filed by the opposite parties.
10. This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of 11 filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents.
11. On the date of arguments, none put in appearance on behalf of opposite party no.3-RERA. Accordingly, we have heard the contesting parties and have gone through the entire record of the cases, including the written arguments and other documents including miscellaneous applications, very carefully.
Preliminary objections and findings of this Commission:-
Territorial jurisdiction:-
12. First coming to the objection taken by opposite party no.1 with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) 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, 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...."
Bare perusal of the above said provisions of sub-sections (a) and (b) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the opposite party(s) actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Sub- section (c) of Section 47 (4) of the said Act, further clarifies that the State Commission within whose jurisdiction a part of cause of action, wholly or in part arises, shall have the territorial jurisdiction to entertain and decide the consumer complaint.
Furthermore, it is settled law that even an infinitesimal fraction of a cause of action will be a part of the cause of action and confer jurisdiction on the Court/ Tribunal/Fora within the territorial limits of which that occurs. Cause of action, wholly or in part, may be accrued at the following places:-.
(i) the place where the contract was made;12
(ii) the place where the contract was to be performed or performance thereof completed;
(iii) the place wherein performance of the contract any money to which the suit relates was expressly or implied payable.
(iv) the cause of action, wholly or in part, arises;
It is significant to mention here that in the present cases, it is evident that the agreements in question have been executed at Chandigarh and also in condition no.30/31 of the said agreements, the address of the company has been clearly written as SCO No.18-19, 1st Floor, Sector 9D, Chandigarh and SCO No.64-65, 2nd Floor, Sector 17-A, Chandigarh. Not only as above, these addresses are also found on various letters like allotment letters, tripartite agreements, brochures of the project in question, No Dues Certificates issued by opposite party no.1 to the complainants, offer of possession letters in respect of respective units. Not only as above, it is also coming out from clause 7 (viii) of the maintenance agreement, Annexure OP-2/1 (in CC No.19 of 2023) that the maintenance charges were to be deposited by the complainants against their respective units in "Axis Bank, Plot No.3, Punjab Municipal Bhavan, Sector 35-A, Chandigarh", meaning thereby that opposite parties no.1 and 2 are actually and voluntarily carrying on business from their branch office at Chandigarh and are working for gain, where a part of cause of action, referred to above, have arisen. As such, now at this stage, opposite parties no.1 and 2 cannot wriggle out of the same. It is therefore held that this Commission at Chandigarh has territorial jurisdiction to entertain these complaints because a part of cause of action accrued in favour of the complainants at Chandigarh, as explained above. In this view of the matter, all the applications filed for dismissal of these complaints for want of territorial jurisdiction stand dismissed with no order as to cost.
Pecuniary jurisdiction:-
13. As far as objection taken with regard to pecuniary jurisdiction is concerned, it may be stated here that in exercise of powers conferred by provisos to sub-section (1) of Section 34, sub-clause (i) of clause (a) of sub-
section (1) of section 47 and sub-clause (i) of clause (a) of sub-section (1) of section 58 read with sub-clauses (o), (x) and (zc) of sub-section (2) of section 101 of the Consumer Protection Act, 2019, the Central Government has notified the Consumer Protection (Jurisdiction of the District Commission, the State Commission and the National Commission) Rules, 2021, to the effect that the State Commission shall have jurisdiction to entertain the complaints where the value of the goods or services paid as consideration exceeds fifty lacs but does not exceed rupees two crore. In the present cases, if sale consideration of 13 the units in question received by opposite parties no.1 and 2 from the complainants, as mentioned in the chart above also (except 10 of 2022), is taken into consideration it fell above Rs.50 lacs and below Rs.2 crore.
At the same time, it is also significant to mention here that the complainants have challenged various terms and conditions mentioned in the respectively agreements and have termed it as unfair contract. We have also perused the said agreement(s) and found that there are number of other terms and conditions which clearly go to show that the same are one sided, harsh, oppressive and unconscionable to the complainants like the date of submission of application with the competent authority for obtaining occupation and completion certificate shall be reckoned the date of completion of the development/possession of the tower (clause 7.1 of agreement in CC No.10 of 2022; in case of cancellation of the unit for default on the part of the complainants, opposite party no.1 shall refund the amount received after deducting 10% of the total price and that too without any interest on the remaining amount (clause 9.3 (ii) of agreement in CC No.10 of 2022 etc.. In our considered opinion, the act of thrusting these one sided, harsh, oppressive and unconscionable conditions upon the complainant(s), amounts to imposing upon the complainant(s) unreasonable charge, obligation and condition which had put him to disadvantage. Thus, this act and conduct of opposite parties also covered the provisions of Section 2 (46) (ii) (v) and (vi) of CPA 2019, which gives reason to this Commission to say that it was a case of 'unfair contract'. Under these circumstances, objection taken by opposite parties no.1 and 2 that in CC no.10 of 2022 to the effect that since the sale consideration of the unit in question fell below Rs.50 lacs as such this Commission is not vested with pecuniary jurisdiction being devoid of merit stands rejected. In this view of the matter, objection taken by the opposite parties no.1 and 2 regarding pecuniary jurisdiction of this Commission stands rejected and it is held that all these complaints are maintainable under Section (2) 46 and 47 of CPA 2019. Resultantly, miscellaneous applications moved by opposite parties no.1 and 2 seeking dismissal of these complaints on account of pecuniary jurisdiction stand dismissed and are disposed of, accordingly.
Arbitration:-
14. Now coming to the objection taken with regard to Arbitration is concerned, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon'ble National Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/contracts between the buyer and the Builder cannot circumscribe 14 the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard also stands rejected.
Joint complaints by co-owners:-
15. Now coming to the objection taken by opposite party no.2, to the effect that applications seeking permission to file joint complaints, wherein the complainants have purchased the respective units jointly, have not been filed by them, as such, the said complaints are liable to be dismissed on this ground alone, it may be stated here that because the respective units stood purchased jointly by the complainants, they were not required to file any application seeking permission to file joint complaints. This view taken by this Commission is supported by the judgment of the Hon'ble National Commission titled as Karnail Singh & 2 Ors. Vs. M/s. Emerald Lands (India) Private Limited & 5 ors., Consumer Case No. 2809 of 2018, decided on 02 Jan 2019, wherein the three complainants who had jointly been allotted plot in a project, moved an application under Section 12(1)(c) of the Act, which was rejected by it saying that it is wholly misconceived and the complaint was treated to have been filed under Section 12(1)(a) of the Act. Relevant part of the said order is reproduced hereunder:-
"..The present Complaint appears to have wrongly been filed along with an Application under Section 12(1)(c) of the Consumer Protection Act, 1986 (hereinafter referred to as the Act) on behalf of three Complainants. As all the three Complainants have jointly been allotted Plot No. D-110, admeasuring 1290.98 sq. yards in Imperial Golf Estate at Village Mullanpur and Talwandi Khurd, District Ludhiana (Punjab) by Opposite Party No.1, the Application filed under Section 12(1)(c) of the Act is wholly misconceived and is hereby rejected. The Complaint is treated to have been filed under Section 12(1)(a) of the Act..."
Merits of the case:-
16. Now coming to the merits of this case, it may be stated that there is no dispute with regard to the fact that the complainants have purchased the respective units aforesaid, in the said project of opposite party no.1, as per details given in the chart above. It is also coming out from the "No Dues Certificates" issued by opposite party no.1 to each of the complainants, which are placed on record by the complainants in their respective cases, wherein it has been specifically mentioned that the company/opposite party no.1 has 15 received full and final payment against and that there are no dues against the company and the company has no objection if the unit is registered in favour of the buyer/complainant(s). It is also an admitted fact that as on today, all the complainants are in possession of their respective units, yet, these complaints have been filed by them, as they are aggrieved of delay in delivery of possession of their units; offering of possession with incomplete development and basic amenities as promised in the brochure and agreements;
arbitrary increase in area of the respective units; construction work on adjoining towers at night time; defects in construction work especially parking areas; charging of maintenance charges in the absence of basic amenities especially club house, sewerage treatment plant, tennis court, cricket pitch, large swimming pool, nursery school cum crèche etc.
17. Under above circumstances, now further following questions fall for consideration before this Commission:-
a. Whether all the basic amenities/facilities as promised by opposite party no.1 vide brochure Annexure A-3 and agreements have been provided at the project site or not?
b. Whether, opposite party no.2 can charge full maintenance charges in the absence of all the basic amenities/facilities or not? c. Whether, opposite party no.1 can increase the area of the unit(s) at the time of offering possession thereof or not? d. Whether the complainants are entitled to get compensation for the period of delay in delivering possession of their respective units and if yes, to what extent?
Basic amenities as per brochure:-
18. Now we will deal with the question, as to whether all the basic amenities and facilities as promised by opposite party no.1 vide brochure Annexure A-3 and agreements, have been provided at the project site or not? Importance of brochure:-
Before adjudicating the controversy as to whether the amenities mentioned in the brochure especially the club house, sewerage treatment plant, tennis court, cricket pitch, large swimming pool, nursery school cum crèche etc. have been provided or not, it is necessary to discuss about the importance of brochure. It may be stated here that it is settled law that brochure is part of the promise, on which the contract is based and therefore, promises made therein could not be override or prevailed by any subsequent contract because it is based on such alluring promises given by the builder vide the brochure only that the buyers enters into the contract for purchasing units/plots in the project. Our this view is supported by the observations made 16 by the Hon'ble National Commission in Brig. (Retd.) Kamal Sood vs M/S.Dlf Universal Ltd. on 20 April, 2007, FA No.557 of 2003. Importance of brochure was also discussed by the Hon'ble National Commission in Yash Pal Marwaha vs Pushpa Builders Ltd. and anr. on 5 September, 2005, wherein despite the fact that possession had been offered and sale deed was also executed, even then, because the amenities promised in the brochure were not provided to the buyer, the builder was ordered to refund the amount paid alongwith interest to the complainant. Recently also, Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors Versus DLF Southern Homes Pvt. Ltd. Civil Appeal No. 6239 of 2019, decided on 24.08.2020, the Hon'ble Supreme Court of India held that since the amenities as provided in the brochure have not been made available at the project site, as such, the complainant therein is entitled to compensation by way of interest and also the penalty clause as provided in the agreement.
In order to move ahead, it is necessary to reproduce the relevant contents of the brochure Annexure A-3 (CC No.19 of 2023) pertaining to the project in question, as under:-
"GENERAL
1. ENTRY BOULEVARD
2. MAIN GATE/GUARD ROOM
3. TOWER ENTRY/DROP OFF POINT
4. BASEMENT ENTRY AND EXIT
5. NURSERY SCHOOL CUM CRÈCHE LANDSCAPING
6. BOBOLI GARDEN
7. KIDS LAWN a. FLYING FOX b. FANTASY WORLD c. TODDLERS CORNER d. GULLIVER'S WORLD
8. YOGA AND MEDIATION LAWN
9. ZEN PARK AND SENIOR CITIZEN PARK
10. REFLEXOLOGY GARDEN
11. WATER FEATURES
12. GAZEBO
13. TREE COURT a. FLEUR-DE-LIS (GARDEN OF FLOWERS) CLUBBING
14. CLUB IRIS
15. SWIMMING POOL LARGE
16. KIDS POOL WITH WATER SLIDE
17. AQUA THEME
18. PARTY LAWN SPORTS
19. TENNIS COURT
20. BADMINTON COURT
21. CRICKET PITCH WITH BOWLING MACHINE
22. JOGGING TRACK
23. HALF BASKET BALL COURT
24. OPEN GYM..."17
Since Counsel for the complainants while relying upon the brochure and also agreements aforesaid contended that the basic amenities aforementioned especially the club house, sewerage treatment plant, tennis court, cricket pitch, large swimming pool, nursery school cum crèche etc. have not been provided at the project site, as such the possession so delivered cannot be said to be complete possession and the company cannot charge maintenance charges in the absence of the said remaining promised amenities. On the other hand, Counsel for the opposite parties no.1 and 2 while placing reliance on photographs Annexure R-1/5 colly. contended that almost all the basic amenities have been provided at the project site. However, we have perused the said photographs and did not find the basic amenities like club house, tennis court, cricket pitch, large swimming pool, nursery school cum crèche which are mentioned in the brochure Annexure A-3. Not only as above, it has been candidly admitted by opposite party no.1 in its written reply in para no. 17 that club house and its allied facilities are under construction and would be offered to the residents at the project site after completion of the entire project and that the construction of club is going on in full swing and is likely to be completed soon. Relevant part of the said para is reproduced hereunder:-
"17. That as already submitted above, the present project namely Ambika Florence Park is to be completed in three phases and all the promised facilities including club and its allied facilities would be offered to the residents including the present complaints on the completion of entire project..."
From the candid admission of opposite party no.1 in para no.17 of its reply to the effect that the club and allotted facilities around the tower in question is still under construction and is going to be completed soon, it can easily be said that all the basic amenities as promised by the company vide the brochure Annexure A-3 were not provided at the project site at the time of offering and delivering possession of the respective units to the complainants. Though admittedly, some of the facilities like intercom, convex mirror in basement, parking, children parks, sand pit for children to play, benches and commons areas etc., as depicted in the photographs, Annexure R-1/5 have been provided by opposite party no.1 at the project site, yet, club house, tennis court, cricket pitch, large swimming pool, nursery school cum crèche have still not been constructed and provided at the project site. It is significant to mention here that, no doubt, possession of the respective units in question has been taken over by the complainants, yet, that fact will not snatch away their right to claim compensation for the period of delay in delivery of possession of their respective units and also for non availability of the promised amenities referred to above. Not only as above, deficiency in providing service is writ large on the 18 part of opposite party no.1 because it is also coming out from the record that though in condition no.1 (1.2) (v) of the agreement dated 19.02.2018, it has been clearly mentioned that the total price of apartment includes pro rata share in the common area and one covered card parking, yet, the said covered car parking was provided after huge delay of delivering possession of the respective units, to the complainants. It is therefore held that by not providing all the basic amenities as promised vide brochure and agreement, referred to above, and on the other hand, forcing the complainants to pay huge maintenance charges, opposite parties no.1 and 2 indulged into unfair trade practice and are also deficient and negligent in providing service, which needs to be deprecated.
Maintenance Charges:-
19. The next question that falls for consideration is, as to whether, opposite party no.2 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, though admittedly, some of the facilities like intercom, convex mirror in basement, parking, children parks, sand pit for children to play, benches and commons areas etc., as depicted in the photographs, Annexure R-1/5 have been provided by opposite party no.1 at the project site, yet, club house, tennis court, cricket pitch, large swimming pool, nursery school cum crèche have still not been constructed and provided to the complainants 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 opposite party no.1 to refund 30% of the maintenance charges received by it from all the complainants in these complaints that will meet the ends of justice. It is therefore held that the complainants are entitled to get refund of 30% of the maintenance charges paid by them to opposite party no.2 from the date of payment thereof. However, opposite party no.2 shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, as mentioned in the brochure and also the agreement, are provided at the project site. At the same time, it is also held that in case opposite party no.2 has received any maintenance charges from the complainants before issuance of occupation certificate(s) by the competent authorities, it shall be liable to refund the same to the complainants in view of the principle of law laid down by the Hon'ble National Commission in Gurumurthy Thisgarajan and Anita Rao and Ors. ("Complainants") v. VDB. Whitefield Development Pvt. Ltd ("VDB Whitefield"), Consumer Complaint no.763 of 2020, decided on 25.01.2022, wherein it was held that the builders 19 should refrain from coercing flat owners to pay maintenance charges without obtaining OC from the civic authority.
Increase in area of the units:-
20. The next question that falls for consideration is, as to whether, opposite party no.1 can increase the area of the unit(s) at the time of offering possession thereof or not? It may be stated here that we have gone through the contents of condition no.1.6 of the agreement, Annexure A-1 and found that it has been agreed to between the parties that opposite party no.1 can make addition and alteration to the extent of 5% in the sanctioned plans, layout plans and specifications etc. without the previous written consent of the allottees. Relevant part of the said condition is reproduced hereunder:-
"...1.6 It is agreed that the Promoter shall not make any additions and alterations beyond the extent of 5 percent in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, without the previous written consent of the Allottee. Provided that the Promoter may make such minor additions or alterations as may be required by the Allottee, or such minor changes or alterations as per the provisions of the Act. Provided further that if the authority competent to issue approvals is of the view that certain changes in the project are necessary, he may on application of the Promoter do so for the reasons to be recorded in writing and in that case consent of allottee shall not be required...."
It is significant to mention here that we have gone through each case very minutely and found that the increase in area of the respective units, except, in CC No.09 of 2022, is ranging between 4% to 6% only, which is averagely permissible under clause 1.6 referred to above. Under these circumstances, plea taken by the complainants that they are entitled to get refund of the differential amount paid towards increase in area of the respective units stands rejected.
As far as increase in area in CC No.09 of 2022 is concerned, it may be stated here that the original area of the unit in question in this complaint was 1575 square feet, whereas, it is coming out from the record i.e. offer of possession letter dated 27.02.2021, Annexure A-6 that the area of the unit has been increased to 1825 square feet i.e. 250 square feet excess, which is around 16% in excess of the original area of the unit. There is nothing on record that any written consent was obtained by opposite party no.1 in that regard. In our considered opinion before charging for any excess area, over and above the limits mentioned in the agreement, the builder is bound to share the actual reason for increase in the super area, based on the comparison of the originally approved buildings and finally approved buildings, so that 20 the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. A similar question, as to whether, the builder can charge for excess area fell for determination before the Hon'ble National Commission in Pawan Gupta vs Experion Developers Pvt. Ltd., consumer complaint bearing no.286 of 2018, decided on 26 August, 2020, which was answered in favour of the allottees by holding that by increasing the area at the final stage of possession, without any justification is an unfair trade practice on the part of the builder/developer. Relevant part of the said order reads as under:-
"...... In fact, this is a common practice adopted by majority of builders/developers which is basically an unfair trade practice. This has become a means to extract extra money from the allottees at the time when allottee cannot leave the project as his substantial amount is locked in the project and he is about to take possession. There is no prevailing system when the competent authority which approves the plan issues some kind of certificate in respect of the extra super area at the final stage. There is no harm in communicating and charging for the extra area at the final stage but for the sake of transparency the opposite party must share the actual reason for increase in the super area based on the comparison of the originally approved buildings and finally approved buildings. Basically the idea is that the allottee must know the change in the finally approved lay-out and areas of common spaces and the originally approved lay-out and areas. In my view, until this is done, the opposite party is not entitled to payment of any excess area. Though the Real Estate Regulation Act (RERA) 2016 has made it compulsory for the builders/developers to indicate the carpet area of the flat, however the problem of super area is not yet fully solved and further reforms are required......"
Civil Appeal No(s).3312/2020 filed by the builder against the order dated 26.08.2020 aforesaid passed by the Hon'ble National Commission was dismissed by the Hon'ble Supreme Court of India, while holding that the complainant is entitled to get refund of the amount paid towards the excess area. Under these circumstances, if we order opposite party no.1 to refund the amount received from the complainant(s) in this case, for increase in area, over and above 5% of the original area of the unit in CC No.09 of 2022, that will meet the ends of justice.
Delayed compensation:-
21. The next questions that falls for consideration is, as to whether, the complainants are entitled to get compensation for the period of delay in delivering possession of their respective units and if yes, to what extent? It is clearly depicting from the afore-extracted table that there was delay on the part of opposite party no.1 in delivering possession of the respective units to the complainants. At the time of arguments also, when a specific query was put to counsel for opposite party no.1, as to why delay has been caused in completing 21 the project, counsel for opposite parties no.1 and 2 jointly stated that it was on account of force majeure circumstances i.e. due to COVID-19 the construction and development was put at halt for some period and that the competent Authorities extended the period of completion of the project, vide circular dated 28.10.2020, Annexure R-1/2 because of COVID-19. It may be stated here that this Commission is also not oblivious of the fact that lockdown in the country was announced in March 2020. Resultantly, the competent Authorities extended the period of completion of the project, for a period of 6 months because of COVID-19. Thus, in our considered opinion, opposite party no.1 is entitled to get immunity of these 6 months from the actual date of possession of the units in question to the complainants. However, it is coming out from the record that even by the extended period of 6 months also, possession of the units in question was not offered to the complainants. Thus, in our considered opinion, by not offering and delivering possession of the units in question by the promised dates or even within the extended period of 6 months due to COVID-19, referred to above, opposite party no.1 is deficient in providing service and guilty of adoption of unfair trade practice. 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...."
Thereafter also, irrespective of what was mentioned in the agreements, 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 22 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. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat......"
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. In Basanta Kumar Nandy & 14 Ors. Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in our considered opinion, in the present cases, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due dates of possession onwards, keeping in mind the immunity of 6 months on account of the circular referred to above, as detailed below, till delivery of actual possession thereof, that will meet the ends of justice.
No. CC No. Agreement Possession date Possession date Possession Delay
date after adding 6 delivered
months on
1. 19 of 2023 19.02.2018 30.04.2020 (Clause 30.10.2020 09.06.2021 7 months, 11 days
(Ann. A-1) 7.1 of agreement)
2. 09 of 2022 21.06.2017 20.06.2020 20.12.2020 20.05.2021 5 months, 1 day
(Ann. A-1) (36 months as per
Clause 28 (a) of
agreement)
3. 10 of 2022 29.09.2020 31.12.2020 (Clause 30.06.2021 10.05.2021 NIL
(Ann. A-1 ) 7.1 of agreement)
4. 11 of 2022 15.05.2018 31.03.2020 (Clause 31.09.2020 24.04.2021 6 months, 26 days
(Ann. A-1) 7.1 of agreement)
5. 12 of 2022 31.07.2017 30.07.2020 30.01.2021 25.05.2021 3 months, 26 days
(Ann. A-2) (36 months as per
Clause 28 (a) of
agreement)
6. 20 of 2023 07.02.2020 30.06.2020 (Clause 30.12.2020 27.05.2021 4 months, 28 days
(Ann. A-1) 7.1 of agreement)
7. 21 of 2023 12.03.2018 30.06.2020 (Clause 30.12.2020 11.03.2022 14 months, 12
(Ann. C-3) 7.1 of agreement) days
23
8. 22 of 2023 28.09.2020 31.12.2020 (Clause 30.06.2021 10.05.2021 NIL
(Ann. A-1) 7.1 of agreement)
9. 23 of 2023 24.08.2017 23.08.2020 (36 23.02.2021 23.05.2021 3 months, 1 day
(Ann. A-2) months as per Clause
28 (a) of agreement)
10. 24 of 2023 22.03.2018 30.06.2020 (Clause 30.12.2020 26.05.2021 4 months, 27 days
(Ann. A-1) 7.1 of agreement)
11. 25 of 2023 19.01.2019 30.06.2020 (Clause 30.12.2020 11.03.2022 14 months, 12
(Ann. C-3) 7.1 of agreement) days
At the same time, it is also held that if opposite party no.1 has paid interest to the banks/financial institutions concerned under subvention scheme as agreed under the respective tripartite agreement(s), that has no concern, whatsoever, with the delay compensation to be paid by it to the complainants for delay in delivery of possession of the respective units.
22. By not offering and delivering physical possession of the respective units in question to the complainants by the promised dates and on the other hand, forcing them to take over possession in the incomplete project, the complainants have definitely gone through tremendous mental agony, harassment besides financial loss. One can imagine the plight of the complainants in this situation. They have been deprived of the use of their respective units on account of the default committed by opposite party no.1. It can hardly be disputed that the deprivation of the user of a self- owned house amounts to a serious injury to the flat buyer who have booked it for the purpose of having a shelter over head and therefore, have either to live in a rented accommodation or an accommodation which is not suitable or convenient to them. Also, we need to appreciate the satisfaction and enjoyment one would have if he lives in a house of choice owned by him as against living in a rented accommodation or in an accommodation which is not owned by him or is not otherwise suitable or convenient to him. It is well settled that the word 'Compensation' is of very vide connotation and once the Consumer Commission is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate the complainant for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble 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. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, the Hon'ble Supreme Court held that the provisions of the Act enable a consumer to claim and empower the Commission to redress any injustice done. A Consumer Fora is entitled to award not only value of goods or services but also to compensate a consumer to injustice suffered by him. However, sounding a 24 note of caution to the effect that the compensation cannot be awarded in all cases on a uniform basis or at a uniform rate, the Court has observed that loss has to be determined by the Fora keeping in view a number of factors like loss of rent which could have been earned if possession had been delivered or the rent a consumer had to pay because of non-delivery of possession on time etc. Under these circumstances, the complainants are required to be suitably compensated for the tremendous mental agony and harassment suffered by them.
Objection regarding financial institution/bank not impleaded party to these complaints:-
23. As far as objection taken to the effect that the complaints in which the complainants have availed housing loan from the bank/financial institutions, have failed to implead them as necessary party, as such, the same should be dismissed on this ground alone, it may be stated here that opposite parties no.1 and 2 have failed to clarify, as to what prejudice has been caused to them in such a situation, especially, when all the complainants are in possession of their respective units and not seeking refund of their respective amounts paid. However, irrespective of the fact that the said bank/financial institution has been made party to the complaints or not, this Commission in each and every complaint(s) filed before it, wherein refund is ordered, gives direction to the effect that the bank/financial institution, if any, from which the complainants/consumers have raised housing loan for payment of installments, shall have the first charge of the amount payable, if any. However, since in the present complaints no such direction is required to be given, as such, objection taken in this regard is rejected having been rendered infructuous.
Objection regarding complicated questions of facts and law:-
24. Now coming to the contention raised by opposite party no.2 to the effect that complicated question of facts and law are involved in these cases and the allegations of cheating etc. cannot be adjudicated by this Commission under summary proceedings, as such, the complainants need to be relegated to the civil court, it may be stated here that these are the simple cases relating to delay in delivery of possession of the respective units to the complainants; non provision of all the basic amenities at the project site, which were promised by the company vide brochure aforesaid; charging of full maintenance charges in the absence of complete basic amenities; and some defects of leakage in parking areas, which act amounts to deficiency in rendering service and negligence on the part of opposite parties no.1 and 2.
25Misjoinder of parties:-
25. As far as plea taken by counsel for opposite parties no.1 and 2 to the effect that these complaints should be dismissed on the sole ground of misjoinder of opposite party no.3 as necessary party, it may be stated here that opposite parties no.1 and 2 have failed to convince this Commission, as to what prejudice has been caused to them, if opposite party no.3-RERA has been impleaded as necessary party to these complaints, especially, when the complainants have sought relief against it (OP No.3) also, irrespective of the fact that the said relief is awarded to them or not. In this view of the matter, plea taken in this regard being devoid of merit, stands rejected.
Objection regarding separate complaints:-
26. To wriggle out of the situation, counsel for opposite party no.2 also contended with vehemence that since opposite party no.2 is a different legal entity as such separate complaints were required to be filed by the complainants. We have considered the contention raised but do not agree with the same for the reasons recorded hereinafter.
It may be stated here that in clause 11.2 of the agreement, it has been clearly mentioned that the complainants were to sign the maintenance agreement with opposite party no.1 or such maintenance agency as designated by opposite party no.1 only. It is also an admitted fact that opposite party no.2 was to charge the maintenance charges, based on up-keeping and maintenance of all the facilities/amenities to be provided at the project site (as mentioned in the agreement and brochure) by opposite party no.1 only, out of which, number of facilities/amenities referred to above, i.e. club house, tennis court, cricket pitch, large swimming pool, nursery school cum crèche etc. have still not been provided, but on the other hand, it is the definite case of the complainants that opposite party no.2 is charging full maintenance charges from them. Under these circumstances, it can easily be said that cause of action arose to the complainants against opposite parties no.1 and 2 jointly, qua their respective units, located in the project in question, as such, under those circumstances, it cannot be said that these complaints are defective and that independent complaints were to be filed against opposite party no.2. Even otherwise, opposite party no.2 has failed to apprise this Commission, as to what prejudice has been caused to it, in case, opposite party no.1 has also been made a party to these complaints, especially, when no adverse findings have been given by this Commission in this order against opposite party no.2, qua non providing of basic amenities by opposite party no.1 at the project site.
26In this view of the matter objection taken by opposite party no.2 in this regard stands rejected.
Water leakage and flooding in parking area:-
27. Before parting this order, it is significant to mention here that the complainants have also placed on record some photographs of the parking areas and also the CD, perusal of which shows that at some places, there is a leakage of water during rain, as a result of which, rain water is seen accumulated in the parking areas and its surrounding. Infact, it could be said that it was on account of some wrong layout plannings qua rain water disposal that such leakages took place in the parking areas, which could become life hazardous for the users of the said car parking. In this regard, we express our concern with regard to the residents of the said project and as such we direct opposite parties no.1 and 2 that the electricity gadgets like electric wires, switches in the parking areas must be secured in such a manner that the same are beyond the reach of the parking users and there must be safety measures, in case of accumulation of water therein. At the same time, we also deem necessary to direct the Authorities i.e. Greater Mohali Area Development Authority and Chandigarh Housing Board to keep in mind the safety of the occupants and structure of the buildings, at the time of sanctioning the layout/construction plans of the residential/ commercial projects and also issuing occupation and completion certificates in that regard.
Construction activities during night hours:-
28. During the course of arguments, it has also been submitted by counsel for the complainants that opposite party no.1 is in a habit of carrying out construction and development works at the project site during night hours, thereby causing disturbance to the complainants. It may be stated here that during pendency of these complaints, this Commission vide order dated 06.04.2022 has already directed opposite party no.1 not to carry out any construction activity at night from 10:00 PM to 8:00 AM. Relevant part of the said order is reproduced hereunder:-
"....MA/82/2022 & MA/217/2022 filed by the complainant to restrain the Opposite Party No.1 not to cut the electricity/back-up facility of the complainant and not to involve in overnight constructions. Today, Counsel for the complainant has filed third similar application, which is taken on record. Copy supplied. Counsel for Opposite Party No1, while referring to Para 16 at Page 11 of the reply filed today submitted that Opposite Party No.1 does not carry out any construction activity at night and the construction remains in abeyance from 10:00 PM to 8:00 AM. In this view of the matter, the instant applications are disposed of with a direction to Opposite Party No.1 not to initiate any construction activity at 27 night from 10:00 PM to 8:00 AM. Opposite Party No.1 will file compliance report by way of affidavit of the competent authority, to this effect, on or before the next date of hearing..."
The order dated 06.04.2022 passed by this Commission qua non carrying out of construction activity at the project site, at night, from 10:00 PM to 8:00 AM is absolute. Therefore, opposite party no.1 shall not carry out construction activity at the project site, at night, from 10:00 PM to 8:00 AM.
Clubbing of project under one RERA number and stoppage of construction of additional tower at the project site:-
29. As far as plea taken by the complainants to give directions to opposite party no.3 to club the entire project under one RERA number and also to direct opposite party no.1 to stop construction of additional tower at the project site is concerned, it may be stated here that the complainants are at liberty to get their grievance redressed in that regard from the appropriate authority i.e. GMADA/RERA.
Relief:-
30. For the reasons recorded above, all these complaints are partly accepted with costs, against opposite parties no.1 and 2 as under:-
Consumer complaint No. 19 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 30.10.2020 to 09.06.2021, 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 shall 28 carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 09 of 2022:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.29
ii) Opposite party no.1 shall refund the amount received from the complainant(s) in this case, for increase in area, over and above 5% of the original area of the unit in question, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the said payable amount shall carry penal interest @9% p.a. from the date of default till realization.
iii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 20.12.2020 to 20.05.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iv) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
v) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
vi) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, 30 failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
Consumer complaint No. 10 of 2022:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iii) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
iv) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.50,000/- for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.31
Consumer complaint No. 11 of 2022:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 31.09.2020 to 24.04.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and 32 harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 12 of 2022:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 30.01.2021 to 25.05.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, within a period of 30 33 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 20 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 30.12.2020 to 27.05.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party 34 no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 21 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 30.12.2020 to 11.03.2022, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire 35 accumulated amount for the said period shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 22 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, 36 it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iii) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
iv) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.50,000/- for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 23 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 23.02.2021 to 23.05.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.37
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 24 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of 38 the unit in question, starting from 30.12.2020 to 26.05.2021, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.
Consumer complaint No. 25 of 2023:-
i) Opposite party no.1 shall provide all the basic amenities and facilities as promised in the brochure and the agreements, as discussed above and also to rectify the defects of leakage of water in the parking area/surroundings, within a period of three months (03 months) from the date of receipt of a certified copy of this 39 order, failing which, it shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite party no.1 shall pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, starting from 30.12.2020 to 11.03.2022, 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 shall carry penal interest @12% p.a. from the date of default till this payment is made.
iii) Opposite party no.2 shall refund 30% of the maintenance charges already received by it from the complainant(s) against the unit in question, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded. However, it is also made clear that opposite party no.2 shall give regular power supply/back up and also water supply to the complainant(s) qua the unit in question, over and above maintenance of the facilities already provided and to be provided by opposite party no.1. It shall continue to charge maintenance charges to the extent of 70% only till all the basic amenities and facilities, referred to above, are provided by opposite party no.1 at the project site.
iv) Opposite party no.2 shall refund the entire amount, if any, received by it towards maintenance charges before issuance of occupation certificate(s) by the competent authorities, 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 shall carry interest @9% p.a. from the date of default till this amount is refunded.
v) Opposite party no.1 shall pay to the complainant(s) lumpsum compensation to the tune of Rs.1 lac for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of Rs.35,000/- to the complainant(s), 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.40
31. Consumer complaints stand dismissed against opposite party no.3-RERA.
32. Certified Copies of this order be sent to the parties, and also to the Chief Administrator, GMADA, PUDA BHAWAN Sector- 62, S.A.S Nagar, Punjab and Chairman, Chandigarh Housing Board, 8, Jan Marg, Sector 9-D, Chandigarh, 160022 free of charge. One copy of this order be placed in the connected case files.
33. All the miscellaneous applications filed in these consumer complaints stands disposed of, accordingly.
34. The files be consigned to Record Room, after completion. Pronounced 21.09.2023 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Sd/-
(PREETINDER SINGH) MEMBER Rg.