State Consumer Disputes Redressal Commission
Vikas Kawatra vs Universal Infrastructure Pvt. Ltd. on 14 June, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.924 of 2017
Date of institution : 24.10.2017
Reserved On : 05.04.2024
Date of decision : 14.06.2024
Vikas Kawatra S/o Sh. Sudershan Lal, R/o 48, Jefferson Road,
Edmonton Alberta T6L6R9, Canada, through lawful attorney Sh. Rajiv
Ahuja S/o Narinder Ahuja R/o House No.9, Sat Nagar, Jalandhar.
....Complainant
Versus
1. M/s Universal Infrastructures, S.C.O. 44, Sector 104, Mohali,
India, through its Director.
2. The Director, Universal Infrastructures, S.C.O. 44, Sector 104,
Mohali, India.
....Opposite Parties
Consumer Complaint under Section 17 of the
Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:
For the Complainant : Ms. Rashmi Singh, Advocate for Sh. Saurabh Sharma, Advocate For the OPs : Sh. Manoj Vashishtha, Advocate.Consumer Complaint No.924 of 2017 2
JUSTICE DAYA CHAUDHARY, PRESIDENT The Complainant Mr. Vikas Kwatra had earlier filed Consumer Complaint No.924 of 2017 under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be referred as 'the Act') through his Special Power of Attorney Sh. Rajiv Ahuja before this Commission against the OPs with the following prayer:
i) to refund the part sale consideration paid by the Complainant to the tune of ₹14,50,000/- at the enhanced rate along with interest at the rate of 18% per annum till its realization;
ii) to pay compensation/punitive damages of ₹20,00,000/- under Section 14 (1) (c) (d) and (e) of the Act for causing mental agony and harassment to the Complainant; and
iii) to pay ₹50,000/- towards litigation expenses.
2. Notice in the Complaint was issued to the OPs but they did not appear before this Commission despite service and they were proceeded ex parte vide order dated 14.12.2017. Subsequently, Mr. Manoj Vashishtha, Advocate had appeared and moved an Application along with Power of Attorney to join the proceedings. The OPs had filed First Appeal No.211 of 2018 before the Hon'ble National against the said order dated 14.12.2017, which was allowed vide order dated 18.09.2019 and as such the order dated 14.12.2017 passed by this Commission was set aside subject to cost of ₹25,000/- by granting an opportunity to the OPs to file written statement within a period of two Consumer Complaint No.924 of 2017 3 weeks from the date of the order. The amount was paid by the OPs and written statement was also filed by them on 01.10.2019.
3. By considering the contents of the Complaint and the written filed by the OPs and on hearing the oral arguments raised from both the sides, initially the Complaint was dismissed by this Commission being barred by limitation, vide order dated 02.12.2019. The relevant portion of said order as mentioned in Paras-16 & 17 is reproduced as under:
"16. In view of my above discussion, the Complaint is dismissed, being barred by limitation. However, it is made clear that if the Complainant still wants to make payment of balance sale consideration of the Flat, in question, as per terms and conditions of the allotment/agreement, then he may pursue the matter with the OPs. He will also be at liberty to avail any other remedy available to him, in accordance with law.
17. The Complaint could not be decided within the stipulated timeframe, due to the fact that proceedings of this case remained stayed in the aforesaid appeal filed by the OPs before the Hon'ble National Commission as well as due to heavy pendency of Court cases."
4. Said order dated 02.12.2019 was challenged by the Complainant by way of filing First Appeal No.72 of 2019 before the Hon'ble National Commission, which was allowed vide order dated 03.04.2023. The relevant portion of said order as mentioned in Paras-8 & 9 is reproduced as under:
"8. Sequel to the above, we have no hesitation in setting aside the impugned Order dated 02.12.2019 of the State Commission with the remark that the Complaint was unarguably within limitation and with the request that the State Commission may decide the substance of the Complaint on its merits as per the law.
The parties are directed to appear before the State Commission on 19.05.2023.
We note that earlier on the builder co. failing to appear before it the State Commission had proceeded ex parte against it vide Order dated 14.12.2017. In appeal the State Commission's said Order had been set aside by this Commission vide Order dated 18.09.2019. As such, even though the dispute has still to be decided on its merits before the Consumer Complaint No.924 of 2017 4 forum of first instance the matter has come up twice before this Commission in appeal. We may therefore request the State Commission to kindly decide the case as expeditiously as possible and preferably within a period of six months from 19.05.2023.
9. The Registry is requested to send a copy each of this Order to the parties in the appeal and to their learned counsel as well as to the State Commission immediately. The stenographer is also requested to upload this Order on the website of this Commission immediately."
5. In view of the remand order, the case is being decided by considering the averments of the Complaint, written statement as well as the evidence produced by both the parties.
6. For the convenience of this Commission, the facts of the case, which are necessary for disposal of the present Complaint, are that the OPs had planned and were in process of constructing a residential colony known as 'The Taj Towers', consisting of Flats, penthouses, gardens etc. Being impressed by the promised made by the OPs, the Complainant had booked a residential apartment comprising of 3 BHK bearing No.1201, measuring 2100 sq.ft. in the building known as 'Lyara', for sale consideration of ₹57,79,000/-; which included basic sale price, floor price difference, preferential location charges, charges for basement/open parking, external and infrastructure development charges, IFMS, club Membership charges and power back-up charges. The Complainant had paid an amount of ₹14,50,000/- to the OPs through demand draft on 29.10.2012 being 25% of the total price of the Flat along with the Application Form. The receipt in lieu of said amount was also issued by the OPs. However, the Complainant came to know on visiting the site that there was no development at all. The Complainant being away to Canada could not Consumer Complaint No.924 of 2017 5 verify the same earlier. However, he was in touch with the OPs asking them through various modes about the development and other things. However, the OPs asked him to sign some documents for conversion of 3 BHK Flat to 4 BHK Flat, the price of which was also enhanced to ₹65,60,000/- from ₹57,79,000/-. The objection was raised by the Complainant and he did not sign any document, as he was interested in 3 BHK Flat only. The OPs were informed telephonically regarding his option of 3 BHK Flat. There was exchange of letters between the parties. Further, it has been mentioned that inspite of paying the part sale consideration of ₹14,50,000/- to the OPs, still the possession of the Flat was not delivered to him and rather the pressure was put upon him to have 4 BHK Flat. Further, it has been mentioned that the Complainant had asked the OPs to refund the amount along with interest through email but there was no effect. A Legal Notice was also sent to them on 09.05.2017 but still nothing was done. The aforesaid act and conduct of the OPs was stated to be 'deficiency in service'.
7. In the written statement, the OPs had raised certain preliminary objections that the Complaint was not maintainable, as it was filed through attorney, who was not having any personal knowledge of facts and incidents of the case. Further, it was mentioned that the Complainant was not falling under the definition of 'consumer', as defined in the Act, as he was a citizen to Canada and the Flat was purchased only for the purpose of investment. Further, it was mentioned that certain material facts were concealed and the balance amount was not paid in time by the Complainant. All other averments as made in the Consumer Complaint No.924 of 2017 6 Complaint were denied and it was prayed that the Complaint be dismissed.
8. Rejoinder to the reply was filed, wherein the averments of the Complaint were reiterated and pleadings of the reply filed by the OPs were controverted.
9. To prove his claim, the Complainant had filed affidavit of his Special Power of Attorney Sh. Rajiv Ahuja Ex.CA as well as the copies of documents i.e. Special Power of Attorney Ex.C-1, passport of Complainant Ex.C-2, Aadhar Card of attorney holder Ex.C-3, Payment Schedule Ex.C-4, Application form Ex.C-5, bank draft dated 29.10.2012 Ex.C-6, receipt dated 05.12.2012 Ex.C-7, confirmation through e-mail dated 04.12.2012 Ex.C-8, e-mail Ex.C-9, Application form dated 15.09.2013 Ex.C-10, letter dated 15.09.2013 Ex.C-11, payment reminders Ex.C-12 to Ex.C-14, e-mails dated 17.09.2013 Ex.C-15 & Ex.C-16, Whatsapp conversation Ex.C-17, legal notice Ex.C-18, postal receipt Ex.C-19, reply to legal notice Ex.C-20, envelop Ex.C-21, reply dated 15.07.2017 Ex.C-22 and postal receipt Ex.C-23.
10. The OPs along with their written statement filed affidavit of Sh. Mandeep Singla, Authorized Signatory as well as the copies of documents i.e. allotment letter dated 03.01.2013, Ex.OP-1, Application dated 25.01.2016 for grant of Partial Completion Certificate Ex.OP-2, inspection reports Ex.OP-3 & Ex.OP-6, offer of possession letter dated 30.01.2016 issued to other allottees Ex.OP-4, Application dated 12.10.2017 for grant of Completion Certificate Ex.OP-5 and payment reminder/demand letters Ex.OP-7 to Ex.OP-10.
Consumer Complaint No.924 of 2017 7
11. Ms. Rashmi Singh, proxy for Mr. Saurabh Sharma, learned counsel for the Complainant has submitted that the allotment of 3 BHK Flat was accepted as per the offer made by the OPs. However, after accepting the amount towards 3 BHK flt, the OPs had forced the Complainant to convert his booking from 3 BHK to 4 BHK Flat with the additional cost. The Complainant was harassed by the OPs by sending a number of letters for paying the amount towards 4 BHK, which was totally unjustified and unlawful, as said offer of the OPs was not acceptable to the Complainant. Learned counsel has further submitted that there was no external or internal development in the project despite receiving the amount/charges for the same. The OPs had failed to fulfil all their promises made at the time of booking and even the basic/agreed amenities were not provided. Earlier the Flat was situated in the Tower 'Lyara', whereas the 4 BHK Flat was situated in Tower 'Pictor' but even there was no development in Tower 'Pictor'. The Complainant was asked to sign certain documents sent through courier with regard to change of Flat from 3 BHK to 4 BHK at the enhanced price but he had objected to it and he never signed those documents, as he was interested in the Flat, which was initially applied by him. Learned counsel has further submitted that the Attorney of the Complainant was competent to file the Complaint. Learned counsel has further submitted that the OPs kept on utilizing the hard earned amount of the Complainant as well as other allottees for their own cause, without bothering to complete the project and to deliver the possession of the Flat to the Complainant. The Complainant had been harassed Consumer Complaint No.924 of 2017 8 mentally as well as physically due to the 'deficiency in service' on the part of the OPs and as such, he is entitled to all the reliefs as claimed in the Complaint. Learned counsel has also relied upon the following judgments in support of his contentions:
i) Lilavati Kirtilal Mehtammedical Trust v. Unique Shanti Developers & Ors. (2020) 2 SCC 265 (SC);
ii) Wg. Cdr. Arifur Rahman Khan & Ors. v. DLF Southern Home Pvt. Ltd. & Ors. 2020 (3) RCR (Civil) 544 (SC);
iii) Pioneer Urban Land and Infrastructure v. Govindan Raghavan (2019) 5 SCC 725 (SC);
iv) IREO Grace Realtech Pvt. Ltd. v. Abhishek Khanna Civil Appeal No.5785 of 2019 decided on 11.01.2021 (SC);
v) Meerut Development Authority v. M.K. Gupta IV (2012) CPJ 12;
vi) Narne Construction P. Ltd. etc. v. Union of India & Ors. AIR 2012 SC 2369;
vii) Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243;
viii) Mehnga Singh Khera & Ors. v. Unitech Ltd. (2020) CPJ 93 (NC);
ix) M/s A.R.G. Housing Pvt. Ltd. v. Amit Kumar & Anr. FA No.2082 of 2018 decided on 02.05.2019 (NC);
x) Geetu Gidwani Verma v. Pioneer Urban Land and Infrastructure Ltd. 2018 SCC Online NCDRC 1164;
xi) M/s IREO Fiveriver Pvt. Ltd. v. Surinder Kumar Singla & Ors.
FA No.1358 of 2016 decided along with bunch of other cases on 29.11.2016 (NC);
xii) Satish Kumar Pandey & Anr. v. M/s Unitech Ltd. 2015 (#) CPJ 440 (NC);
xiii) Kavita Ahuja v. Shipra Estate Ltd. & Jai Krishna Estate Developers Pvt. Ltd. CC No.137 of 2010 decided on 12.02.2015 (NC);
xiv) Amit Gupta & Anr. v. M/s Vatika Limited CC No.425 of 2018 decided on 30.10.2019 (NC);
xv) M/s Lodha Dwellers Pvt. Ltd. v. Ashita Agrawal FA No.2273 of 2018 decided on 28.01.2020 (NC);
Consumer Complaint No.924 of 2017 9xvi) Navin Khanna (Dr.) & Ors. v. Unitech Reliable Projects (Pvt.
Ltd. & Anr. III (2016) CPJ 203 (NC);
xvii) Mrs. Veena Khanna v. M/s Ansal Properties & Industries Ltd.
First Appeal No.155 of 2006 decided on 09.07.2007 (NC).
12. Mr. Manoj Vashishtha, learned counsel for the OPs has submitted that the Complaint is not maintainable as it was filed through the Authorized Representative, who was not having any personal knowledge about the facts of the matter. Learned counsel has further submitted that the Complainant had not deposited the balance sale consideration and even the payments were not made regularly. He himself being a defaulter was not entitled to invoke the jurisdiction of this Commission. Learned counsel has further submitted that the Complainant was a resident of Canada and he had purchased the Flat for investment purposes and he was not falling under the definition of 'Consumer' as defined in the Act. Learned counsel has further submitted that no Agreement to Sell was ever executed with the Complainant. The project of the OPs was ready for possession in the year 2016 and the OPs had also applied for grant of Partial Completion Certificate with the Competent Authority vide Application dated 25.01.2016. However, the Complainant himself was not interested to take the possession of the Flat and rather he was interested in sale of allotment rights to earn profits from the open market. Learned counsel has also submitted that as per the terms and conditions of the agreement, the possession of the unit was to be delivered within a period of 3 years with extended period of 6 months, failing which the builder was liable to pay simple rate of interest i.e. prevailing rate of Consumer Complaint No.924 of 2017 10 fixed deposit as payable by State Bank of India on the amount so deposited by the Complainant. However, the Complainant had himself approached and requested the OPs in the month of September 2013 to allot the Flat of bigger size in the same project i.e. Flat No.1201 measuring 2150 sq.ft., situated on 12th floor in Tower 'Pictor'. The total sale price of said Flat was ₹65,60,000/- apart from other taxes and charges. He had also submitted an Application in this regard whereby the original amount so paid by him was to be adjusted against the new booking. The documents were prepared for allotment of 4 BHK, which were sent to the Complainant through courier but he did not sign those documents. Learned counsel has further submitted that after inspection of the project site, the competent authority had recommended for issuance of Partial Completion Certificate to the project of the OPs. Thereafter, by complying with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA"), the OPs had offered possession of Flats to the allottees, who after getting themselves satisfied had taken over the possession of their respective Flats, as all the amenities/facilities were available in the project. The possession of the Flat was handed over only on the request of the allottees of the project as they were burdened with both the rent amount as well as EMIs. The possession formalities were completed by the months of May, June & July, 2016 and similarly situated allottees had also approached the OPs and they had shifted to their Flats only after verifying the completion of the project as well as availability of amenities in the project. The OPs had applied for grant of the Completion Consumer Complaint No.924 of 2017 11 Certificate vide letter dated 12.10.2017. The committee, formed by the competent authority for issuance of Completion Certificate, duly inspected the project and recommended to issue the Completion Certificate vide report dated 17.01.2018. Out of 184 Flats, about 170 allottees had already taken the possession and 120 Sale Deeds had already been registered. More than 100 families are already residing in the project after taking possession of the Flats. At the end, learned counsel has submitted that the both parties are bound by the terms and conditions of the agreement and the Complainant now cannot seek the refund of the amount so paid by him. There is no 'deficiency in service' on the part of the OPs and the Complaint is liable to be dismissed. Learned counsel has also relied upon the following judgments in support of his contentions:
i) Secretary, Bhuvneshwar Development Authority v. Susanta Kumar Mishra 2009 (4) SCC 684;
ii) V.N. Shrikhande (Dr.) v. Anita Sena Fernandes 2011 CTJ 1 (Supreme Court) (CP);
iii) United Bank of India v. Janata Paradise Hotel & Restaurant IV(2014) CPJ 383 (NC); and
iv) Vandan Pareshkumar Manghita v. The Divisional Manager, National Insurance Co. Ltd. 2014 (4) CLT 254 (NC).
13. We have heard the oral arguments raised by learned Counsel for both the parties. We have also gone through the averments of the Complaint and the written statement filed by the OPs as well as the written arguments submitted on behalf of both the parties and other documents available on the file.
Consumer Complaint No.924 of 2017 12
14. The OPs have raised an objection that the Complainant was the resident of Canada and he had purchased the Flat for investment purposes and as such, he was not falling under the definition of 'Consumer' as defined in the Act.
15. It is relevant to mention that the definition of 'Consumer' is given under Section 2 (1) (d) of the Act, which reads as under:
"Consumer" means any person who, --
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who 'hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purposes.
Explanation.-- For the purposes of this clause, "commercial purpose" does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment."
16. The Complainant had applied for allotment of a 3 BHK Flat No.1201, 12th Floor in Tower 'Lyara' in the said project of the OPs vide Application Form dated 29.10.2012 (Annexure-E) by paying an amount of ₹14,50,000/- through Demand Draft No.538013 dated 29.10.2012. The total price of the said Flat was ₹57.90 lac including other charges as mentioned above. In the case of Narne Construction P. Ltd. etc. v. Union of India & Ors. AIR 2012 SC 2369, the Hon'ble Supreme Court has held that housing construction and building activities come under Consumer Complaint No.924 of 2017 13 the definition of 'service', as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 (now Section 2(42) of the Act of 2019).
17. Further, the Hon'ble National Commission has also held in Meghna Singh Khera and Ors. v. Unitech Ltd., 1 (2020) CPJ 93 (NC) as under:-
"....
15. Another contention of the Opposite Party was that the purchase of the residential unit was for commercial purpose and the Complainants were not consumers within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. The expression commercial purpose used in Section 2(1)(d) of the Act came up for consideration of this Commission in Kavita Ahuja Vs. Shipra Estates Ltd., CC 137 of 2010 decided on 12-02-2015 and the following view was taken:
"The expression 'commercial purpose' has not been defined in the Act and therefore, as held herein below by the Hon'ble Supreme Court in Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583, we have to go by the dictionary meanings, "In the absence of a definition, we have to go by its ordinary meaning 'Commercial' denotes "pertaining to commerce"
(Chamber's Twentieth Century Dictionary); it means "connected with, or engaged in commerce; mercantile, having profit as the main aim" (Collins English Dictionary) whereas the word 'commerce' means "financial transactions especially buying and selling of merchandise on a large scale" (Concise Oxford Dictionary)".
6. Going by the Dictionary meaning of the expression 'Commerce' as far as hiring or availing services are concerned, a person can be said to have hired or availed services only if they are connected or related to the business or commerce in which he is engaged. In other words, the services in order to exclude the hirer from the ambit of Section 2(1)(d) of the Act should be availed for the purpose of promoting, advancing or augmenting an activity, the primary aim of which is to earn profit with use of the said services. It would ordinarily include activities such as manufacturing, trading or rendering services. In the case of the purchase of houses which the service provider undertakes to construct for the purchaser, the purchase can be said to be for a commercial purpose only where it is shown that the purchaser is engaged in the business of purchasing and selling houses and / or plots on a regular basis, solely with a view to make profit by sale of such houses. If however, a house to be constructed by the service provider is purchased by him purely as an investment and he is not undertaking the trading of houses on a regular basis and in the normal course of the business profession or services in which Consumer Complaint No.924 of 2017 14 he is engaged, it would be difficult to say that he had purchased houses for a commercial purpose. A person having surplus funds available with him would not like to keep such funds idle and would seek to invest them in such a manner that he gets maximum returns on his investment. He may invest such funds in a Bank Deposits, Shares, Mutual Funds and Bonds or Debentures etc. Likewise, he may also invest his surplus funds in purchase of one or more houses, which is/are proposed to be constructed by the service provider, in the hope that he would get better return on his investment by selling the said house(s) on a future date when the market value of such house
(s) is higher than the price paid or agreed to be paid by him. That by itself would not mean that he was engaged in the commerce or business of purchasing and selling the house (s).
7. Generating profit by way of trading, in my view is altogether different from earning capital gains on account of appreciation in the market value of the property unless it is shown that the person acquiring the property was engaged in such acquisition on a regular basis and it was by way of a business activity."
16. The Complainants are senior citizens. Complainant No.1 is a retired Professor and Complainant No.2 is a homemaker. No evidence, whatsoever has been adduced to show that they are involved in any commercial activity. There is no merit in the contention of the Opposite Party that they are not consumers as per the Consumer Protection Act, 1986. It is just another routine, technical objection raised in the reply."
18. As far as the plea of the OPs that the Complainant is a NRI and he has purchased the Flat only for investment purpose is concerned, it is relevant to mention that there is no restriction on an NRI to come back and live in his house in India. In the case of RESHMA BHAGAT v. SUPERTECH LTD. 2016 (I) CPR 428 (NC), the Hon'ble National Commission has held that it cannot be a 'rule of thumb' that NRI cannot own a property in India. NRIs do come to India, off and on. Most of the NRIs have to return to their native land. The OPs have not produced any evidence to prove that the Complainant is indulging in any commercial activity. Therefore, the Complainant falls under the definition of "Consumer", as defined under the Act.
19. The other objection raised by the OPs is that the Complaint Consumer Complaint No.924 of 2017 15 is not maintainable as it was filed through the Power of Attorney of the Complainant, who was not having any personal knowledge about the facts of the matter.
20. It is the settled proposition of law that the Power of Attorney can file the Consumer Complaint. The proceedings under the Act are summary in nature, wherein the decision is basically/normally based on the affidavits/documents produced by the parties in support of their respective pleas. The Special Power of Attorney (Annexure-A) executed by the Complainant in favour of Sh. Raji Ahuja has been produced on record. The affidavit and certain other documents have also been produced on record, which were issued by the OPs or were exchanged between the parties. The OPs have also not denied/objected to the said documents as produced by the Complainant. Since the proceedings under the Consumer Protection Act are summary in nature, so filing of Complaint through Power of Attorney does not make much difference. The Hon'ble National Commission in the case of Jagannath Mutreja v. Uttar Pradesh Awas Evam Vikas Parishad & Anr. RP No.4516 of 2014 decided on 16.07.2015 has held that the Power of Attorney holder can file the Complaint on behalf of the Complainant. The relevant portion of said judgment is reproduced as under:
"6. Section 12 of C.P. Act provides that Complaint can be filed by a consumer or by any recognized consumer association. Thus, it becomes clear that Complaint can be filed by any consumer or recognized consumer association. It has nowhere been mentioned that Complaint cannot be filed through power of attorney. When a Complaint can be filed by consumer association on behalf of consumer whether he is member of that association or not, why power of attorney cannot file Complaint on behalf of consumer, when he has been authorized to file Complaint. Learned Counsel for respondent has drawn my attention towards Rule 2(b) of the C.P. Consumer Complaint No.924 of 2017 16 Rules which defines agent according to which agent means a person duly authorized by a party to present any Complaint. Rule 14 (1) of aforesaid Rule also provides that Complaint shall be presented by Complainant in person or by his agent. Thus, it becomes clear that Complaint can be presented by the Complainant himself or through his agent and general power of attorney holder falls within purview of agent. In such circumstances, Complaint filed by general power of attorney on behalf of Complainant is maintainable. This Commission in R.P. No. 2721 of 2007 - Consumer Education & Research Society & Anr. Vs. New India Assurance Co. Ltd. & Ors. while allowing revision, order of District forum and State Commission dismissing Complaint being filed by power of attorney and not by Complainant was set aside and Complaint was allowed. He also placed reliance on judgment of Hon'ble Apex Court in (2011) 9 SCC 707 - C. Venkatachalam Vs. Ajitkumar C. Shah & Ors. in which it was observed that parties have been given an option to either appear personally or be represented by duly authorized agent and also observed that authorized agents who are not Advocates may file Complaints and represent persons before Consumer Fora.
7. In the light of aforesaid judgments it becomes clear that power of attorney holder can file Complaint on behalf of Complainant and learned District Forum committed error in dismissing Complaint as not maintainable on the ground that Complaint was filed by power of attorney and learned State Commission further committed error in dismissing appeal on the same ground and revision petition is to be allowed."
21. The Hon'ble Supreme Court in the case of Mita India Pvt. Ltd. v. Mahendra Jain Criminal Appeal Arising out of SLP (Crl.) No.6220 of 2019 decided on 20.02.2023 has also held that Complaint filed through the Power of Attorney is maintainable. The relevant portion of said judgment is reproduced as under:
"A bare perusal of the Complaint filed by the appellant company reveals that it has been filed in the name of the company through its authorised representative, Ripanjit Singh Kohli. Therefore, the Complaint is by the appellant company in its own name. It has not been filed in the name of the power of attorney holder. The Complainant, that is the appellant company, is entitled to file the Complaint in its own name through its power of attorney holder."
22. In view of the law as laid down in the aforesaid judgments, the Complaint filed by the Complainant through his Special Power of Attorney is maintainable.
23. Now coming to the merits of the case, admittedly the Consumer Complaint No.924 of 2017 17 Complainant had applied for allotment of a 3 BHK Flat No.1201 in Tower 'Lyara' in the said project of the OPs vide Application Form dated 29.10.2012 by paying an amount of ₹14,50,000/- through Demand Draft No.538013 dated 29.10.2012. The receipt dated 05.01.2012 (Ex.C-7) was also issued by the OPs. The total price of the said Flat was ₹57.90 lac including other charges.
24. As per the version of the OPs, the possession of the Flat was to be delivered to the allottee within a period of 3 years from the date of execution of agreement with an extended period of 6 months. However, no Buyer Agreement was executed between the parties. The stand of the OPs is that the Complainant did not come forward to execute the agreement but there is no evidence to prove that OPs had issued any notice/letter or called the Complainant to execute the agreement. In the absence of the Buyer Agreement, no specific terms and conditions of allotment have come on record. Therefore, the period of 42 (36+6) months is required to be counted from the date of Application Form i.e. 29.10.2012. Said period of 42 months had expired on 28.04.2016. The OPs have not produced any evidence on record to prove that the 3 BHK Flat allotted to the Complainant was complete in all respects up to said date.
25. The OPs have also taken a stand that the Complainant had himself approached and requested the OPs in the month of September 2013 to allot the Flat of bigger size in the same project i.e. Flat No.1201 measuring 2150 sq.ft., situated on 12th floor in Tower 'Pictor'. The total Consumer Complaint No.924 of 2017 18 sale price of said Flat was ₹65,60,000/- apart from other taxes and charges. The OPs had also sent the required documents to the Complainant through email dated 06.03.2017 but the same were not signed by the Complainant. However, the OPs had started sending the demand letters by mentioning the 4 BHK Flat even when the Complainant had not signed the required documents sent by the OPs for change of allotment from 3 BHK Flat to 4 BHK.
26. It is also relevant to mention that in the documents sent by the OPs for change of allotment from 3 BHK to 4 BHK, Flat No.1101 at the 11th floor in Tower 'Pictor' was mentioned, whereas the OPs in their written version have mentioned that the Complainant had opted for 4 BHK Flat bearing No.1201 at 12th Floor in Tower 'Pictor'. Therefore, the OPs have taken a contradictory stand in their written version as well as the documents sent to the Complainant for change of allotment from 3 BHK Flat to 4 BHK Flat. However, vide email dated 16.09.2023, the Complainant had informed the OPs that he was interested in having the Flat on the same location i.e. 12th Floor, which was situated in Tower 'Lyara'. Further, vide email dated 31.07.2017, the Complainant had requested the OPs to refund the amount so deposited by him along with interest, as the OPs had given false assurances at the time of allotment of the Flat in dispute. The Complainant has also produced on record the Whatsapp conservation (Ex.C-17), wherein the officials of the OPs had admitted that the Flat was changed due to some technical reasons. Therefore, the plea of the OPs that the Complainant had himself opted for 4 BHK Flat in place of 3 BHK Flat has been proved to be false. Consumer Complaint No.924 of 2017 19
27. The further stand of the OPs is that they had applied for issuance of the Partial Completion Certificate vide letter dated 25.01.2016. The Inspection Committee constituted by the competent authority had also inspected the project and had also recommended for issuance of the Partial Completion Certificate vide report dated 17.01.2018. It is also the stand of the OPs that out of 184 Flats, about 170 allottees had already taken the possession and 120 Sale Deeds had already been registered. More than 100 families are already residing in the project after taking possession of the Flats after being fully satisfied with the completion of the project. The OPs have further alleged that after inspection by the competent authority, no question was ever raised by the competent authority regarding the construction/development undertaken by the OPs as due to the formation of the Justice Lodha (Retd.) Committee, the status quo order was passed by the Hon'ble Supreme Court on transfer of the land by PACL and as such the OPs cannot be held guilty. However, no such status quo order has been produced on record by the OPs. The fact remains that the no 'Completion Certificate' was issued to them. Non obtaining of Completion Certificate by the OP amounts to violation of Section 14 of the Punjab Apartment and Property Regulation Act, 1995 (PAPRA), which deals with the responsibility of the builder/promoter to obtain Completion from the competent Authority. The same is reproduced as under:
14. It is the responsibility of the promoter-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the Consumer Complaint No.924 of 2017 20 building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
28. Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing) is also applicable to the properties falling within the Municipal Limits. The same is reproduced as under:
"No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
29. Further, Section 272 of The Punjab Municipal Corporation Act, 1976 is also relevant in this context, which reads as under:-
"272. Completion Certificate. -
(1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work. (2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act: Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission, shall be deemed to have been granted."Consumer Complaint No.924 of 2017 21
30. The Hon'ble National Commission in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra) decided on 13.06.2018 has categorically held that the legal possession cannot be delivered in the absence of Completion Certificate issued by the Competent Authority. Relevant portion of said order as mentioned in Para No.5 is reproduced as under:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the Complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The Complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the Flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date......."
31. Further the Hon'ble National Commission in the case of "Suman Kumar Jha & another Vs. Mantri Technology Constellations Pvt. Ltd." CC No.54/2018, decided on 29.10.2021, has held that the offering of possession of incomplete construction/unit/plot/Flat without obtaining Completion Certificate amounts to 'unfair trade practice'. Therefore, in absence of the 'Completion Certificate', an adverse inference is to be drawn against the OPs that they had failed to complete the project/Flat in dispute within the stipulated period and had also failed to provide the basic/agreed amenities at the site.
32. The OPs have also raised a plea that the Complainant was defaulter as he had not paid the balance sale consideration. It is Consumer Complaint No.924 of 2017 22 relevant to mention that the OPs themselves had failed to fulfil their obligation of carrying out the complete development at the site. Rather, the OPs had offered 4 BHK Flat in place of 3 BHK Flat to the Complainant due to their own fault by not developing the concerned Tower. Therefore, it does not lie in the mouth of the OPs to allege that the Complainant was defaulter by not making payment of balance sale consideration.
33. Further a plea was raised by the OPs that the allotment of the Complainant has not been cancelled and they are ready to handover the possession of the Flat, in case the Complainant clears all the outstanding amount of the sale consideration. However, as already mentioned above, in the absence of 'Completion Certificate', it cannot be said that the project of the OPs is complete in all respects and as such the Complainant cannot be compelled to take the possession of the Flat at the belated stage.
34. Identical situation arose before the Hon'ble Supreme Court in the case of Pioneer Urban Land & Infrastructure Ltd. v. Govindan Raghavan (2019) 5 SCC 725, wherein it has been held that the inordinate delay in handing over possession of the Flat is a clear case of 'deficiency of service'. The relevant portion of said judgment is reproduced as under:
"6.1 .... The inordinate delay in handing over possession of the Flat clearly amounts to deficiency of service. In Fortune Infrastructure v. Trevor D'Lima [Fortune Infrastructure v. Trevor D'Lima, (2018) 5 SCC 442 : (2018) 3 SCC (Civ) 1] , this Court held that a person cannot be made to wait indefinitely for possession of the Flat allotted to him, and is entitled to seek refund of the amount paid by him, along with compensation.Consumer Complaint No.924 of 2017 23
6.2. The respondent Flat purchaser has made out a clear case of deficiency of service on the part of the appellant builder. The respondent Flat purchaser was justified in terminating the apartment buyer's agreement by filing the consumer Complaint, and cannot be compelled to accept the possession whenever it is offered by the builder. The respondent purchaser was legally entitled to seek refund of the money deposited by him along with appropriate compensation."
35. In view of reasons as mentioned above as well as the facts and circumstances of the case and also the law laid down in the aforesaid judgments, it is apparent that the OP had failed to complete the project in all respects and no 'Completion Certificate' was issued to them. They had offered 4 BHK Flat in Tower 'Pictor' in place of 3 BHK Flat due to non-development of the concerned Tower, wherein initially the allotment of 3 BHK Flat was made to the Complainant. The act and conduct of the OPs amounts to a case of 'deficiency in service' as well as 'unfair trade practice', as they themselves had failed to fulfil their part of the contract by not completing the project within the stipulated period and rather wrongly blamed the Complainant in order to conceal their own lapses. Therefore, the Complainant is entitled to the refund of the amount so deposited by him along with interest. The Complainant has also suffered mental agony and harassment at the hands of the OPs and as such, he is also entitled to suitable compensation including the litigation expenses. The judgments as relied upon by learned counsel for the OPs are distinguishable and are not applicable to the facts and circumstances of the present case.
36. Accordingly, finding force in the contentions raised by learned Counsel for the Complainant, the Complaint is partly Consumer Complaint No.924 of 2017 24 allowed by issuing following directions to the OPs:
i) To refund an amount of ₹14,50,000/- so deposited by the Complainant along with interest at the rate of 9% per annum from the date of deposit till its realization, due to financial loss suffered by the Complainant by depriving him of the utilization of the said amount during the period it remained with the OPs;
ii) to pay an amount of ₹1,00,000/- as compensation for causing mental agony and harassment to the Complainant including litigation expenses.
37. The compliance of the order shall be made by the OPs within a period of 45 days from the date of receipt of the certified copy of the order, failing which the amount shall attract interest at the rate of 12% per annum in the above manner.
38. Since the main case has been disposed off, so all the pending miscellaneous Applications, if any, are accordingly disposed off.
39. The Complaint could not be decided and pronounced within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER June 14, 2024.
(Gurmeet S)