State Consumer Disputes Redressal Commission
Dr. Parveen Marken vs M/S Motia Developers Private Ltd. on 8 August, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
Consumer Complaint No.318 of 2015
Date of institution : 09.12.2015
Reserved on : 24.07.2017
Date of decision : 08.08.2017
1.Dr. Parveen Marken s/o Shri Balram Dutt,
2. Dr. Bindu Kaushal w/o Dr. Parveen Marken, both residents of Well Baby Clinic, Main Bazar, Bhawanigarh.
.......Complainants Versus
1. M/s Motia Developers Private Limited, Chandigarh-Ambala Highway, Zirakpur (Punjab) through its Managing Director.
2. AXIS Bank Limited, Chhoti Barandari, Patiala.
........Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the complainants : Shri Munish Goel, Advocate. For opposite party No.1 : Shri Munish Gupta, Advocate. For opposite party No.2 : Shri Deepak Jain, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT:
The complainants, Dr. Parveen Marken and Dr. Bindu Kaushal have filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986 (in short, "the C.P. Act") for the issuance of following directions to opposite party No.1:-
i) to give the possession of the flat in question; Consumer Complaint No.318 of 2015 2
ii) to withdraw the demand of ₹2,61,844/- raised, vide letter dated 10.8.2015;
iii) to withdraw the illegal penalty under the garb of late payment of instalments. If there is any delayed payment, then opposite party No.2 is liable to pay the same.
iv) to pay the penalty @ ₹5/- per square foot per month from 24.10.2014 along with interest @ 18% per annum till date of possession; and
v) to pay compensation of ₹5 lakhs on account of mental agony, harassment and unfair trade practice.
Facts of the Complaint:
2. The complainants alleged, in their complaint, that in the month of July 2011 the representative of opposite party No.1 approached complainant No.1 requesting him to purchase apartment in the project known as "MOTIA'Z ROYAL CITI" situated at Chandigarh-
Ambala Highway, Zirakpur, having world class modern amenities. He also issued brochure regarding the features of the project in which it has been mentioned that the said project is spread over 30 Acres and is also having following features:-
a) Every flat faces the central garden.
b) Biggest garden in the vicinity.
c) Each flat has a terrace garden/planter garden.
The said Representative also told complainant No.1 that the said project is approved by opposite party No.2 i.e. AXIS Bank Home Limited and, as such, assured for easily finance from it at cheaper rate. It was also disclosed by him that the said apartments are Consumer Complaint No.318 of 2015 3 escalation free. Believing the assertions and dreams shown by the said representative, the complainants booked a residential flat/apartment having super area of 1851 square feet in the project for ₹51.90 lakhs. They opted for instalment plan and paid 10% booking amount of ₹5 lakh and also paid 15% first instalment along with tax of ₹7,85,000/- on 1.8.2011. Thereafter opposite party No.1 issued allotment letter of Apartment No.1002, Tower-1 in favour of the complainants and also entered into Apartment Buyer Agreement with them on 24.10.2011. The said apartment was got financed by opposite party No.1 from opposite party No.2, who was to directly pay the instalments on the due date to opposite party No.1 and there is no role of complainants in making the payment. It is further averred that as per the Agreement, opposite party No.1 was required to hand over the possession of the apartment within 36 months from the date of allotment of apartment i.e. till 24.10.2014. The complainants are to pay 5% of the basic sale price at the time of delivery of possession. Opposite party No.2 paid all the instalments to opposite party No.1 in time as per the instalments plan agreed between opposite party No.1 and the complainants. In the month of October 2014 complainant No.1 approached opposite party No.1 for getting the possession but was shocked to see that the work of the project was going on and opposite party No.1 asked the complainant that the possession shall be delivered after one year. Thereafter the complainants were shocked to receive a letter dated 10.8.2015 in which opposite party No.1 illegally and arbitrarily raised the demand of ₹2,61,844/- on account of increase in the super area, whereas Consumer Complaint No.318 of 2015 4 neither any notice was given nor any consent was taken from the complainants regarding increasing the super area. The complainants are not liable/bound to pay the said illegal demand of ₹2,61,844/-. On 14.9.2015 complainant No.1 visited the office of opposite party No.1 and protested regarding the raising of the said demand. He requested them to give possession of the flat/apartment after completing the same in all respects. Complainant No.1 also visited the site and was shocked to see that the flat/apartment was still not completed and lot of work was pending in the flats/apartments. The floor tiles of the apartments as well as of the bathrooms were found broken/damaged at various points. There was a lot of difference in the accessories fitted by opposite party No.1 as shown in sample flats/apartments. The apartment was yet to complete in all respects like final touch, painting and kitchen accessories were totally missing. Opposite party No.1 sent the letter dated 10.8.2015 only to avoid late penalty charges on account of delayed possession. Complainant No.1 was also shocked to know that opposite party No.1 is raising demand on account of delayed payment in making instalments, whereas they have no role in making the payment as opposite party No.2 was to directly make the payment to it. Opposite party No.1 got financed the amount from opposite party No.2 but opposite party No.1 did not listen to them. The complainants deposited the balance 5% amount of ₹2,68,583/- on 14.9.2015 under protest. It is further averred that the complainants were shocked to see that in the brochure there is a provision of only 1200 apartments and commercial complex, but Consumer Complaint No.318 of 2015 5 opposite party No.1 with mala fide intention sold the vacant land by converting the same into residential plots and thereby opposite party No.1 has altered the basic layout plan of the project offered to them as well as other persons at the time of booking of flats/apartments. The complainants also came to know that neither the plan nor the project was approved by the competent authority. The changes in the basic layout plan amounts to unfair trade practice. It is further alleged that the complainants paid the entire amount and nothing is due against them. The complainants requested opposite party No.1 to give possession of the flat/apartment but opposite party No.1 put off the matter on one pretext or the other. Thereafter the complainants sent a legal notice dated 4.10.2015 through their counsel for quashing the demand raised, vide letter dated 10.8.2015; to pay the penalty @ ₹5/- per square foot from 24.10.2014 along with interest and also to give possession of the flat/apartment but to no avail. Opposite party No.2 is the agent of opposite party No.1 for financing the project and if there is any delayed payment, then opposite party No.2 is liable to pay the same. The complainants are MBBS Doctors by profession and spent their hard earned money to purchase the flat/apartment. Due to non-action on the part of opposite party No.1 in delivering the possession of flat/apartment, complete in all respects, they have suffered mental agony and harassment at the hands of opposite party No.1 and the same not only amounts to deficiency in service but also adoption of unfair trade practice.
Consumer Complaint No.318 of 2015 6Defence of Opposite Party No.1:
3. Opposite party No.1 in its reply took preliminary objections that this Commission does not have pecuniary jurisdiction to entertain the present complaint as the relief of possession, as raised by the complainants has become infructuous as the possession already stands offered prior to filing of complaint. Therefore, the same has been included only to bring the instant case within pecuniary jurisdiction of this Commission. Since the remaining reliefs being under ₹20 lakhs, therefore, this Commission does not have pecuniary jurisdiction to try and decide the complaint. The complainants are not 'consumers' under the provisions of the C.P. Act as they have purchased the property for the purpose of investment. There is no cause of action to file the instant complaint. On merits, it is averred that no assurance was given by opposite party No.1 regarding the project being approved by any financial institution and complainant No.1 himself approached opposite party No.1 for purchasing the said flat/apartment and sought finance from opposite party No.2 for which no objection was issued by it. Upon the expression of interest shown by the complainants, opposite party No.1 allotted flat/apartment having super area of 1851 square feet approximately for an amount of ₹51,90,000/- and as per the payment plan chosen by them at the time of booking, allotment letter/Apartment Buyer Agreement was executed between the parties. It is further averred that the instalments of the unit/apartment were not paid in time and, therefore, the complainants are not entitled to raise the plea of handing over of possession as Consumer Complaint No.318 of 2015 7 stipulated in the Apartment Buyer's Agreement. Since instalments were not paid in time, therefore, the complainants never approached opposite party No.1 for handing over of possession, although the development of project was always ahead of the required pace. The demand of ₹2,61,844/- raised, vide letter dated 10.8.2015 is just and legal as at the time of final development, the final area of the unit/apartment was calculated and it came out that there is an increased area of 59 square feet and accordingly, proportionate amount was demanded from the complainants. The final area has come out to be 1910 square feet. Since the tentative area at the time of allotment has now increased, therefore, the complainants are liable/bound to pay the aforesaid amount demanded, vide letter dated 10.8.2015. It is clear from the reading of letter dated 10.8.2015 that possession is also ready and the same is awaiting the complainants. However, the complainants in order to avoid their liability are not coming forward to take possession of the unit/apartment. The unit/apartment of the complainants is complete in all respects and the allegations of floor tiles being broken/damaged, is without any basis. Final touches, painting etc. are already complete. Only possession is to be handed over after making of the payment of final instalment by the complainants. The complainants' liability to make payment on account of delayed payments cannot be escaped and, therefore, the complainants cannot shift burden upon the financial institution. The project is being developed after getting approval from the competent authorities and therefore, the complainants cannot question the Consumer Complaint No.318 of 2015 8 development being made by opposite party No.1 at the site. Neither any basic layout plan has been changed nor the same is being developed without approval by the competent authority. The allegations of faulty design, specifications etc. are uncalled for and unwarranted. Penalty @ ₹5/- per square foot is not payable to the complainants, as payment of instalments by the complainants was not made in time. So far as delivery of possession is concerned, the same is ready and awaiting complainants; however, subject to payment of balance amount due towards them. Denying all other allegations a prayer for dismissal of the complaint with costs has been made.
4. No reply has been filed by opposite party No.2.
5. To prove the allegations made in the complaint, the complainants proved on record affidavit of complainant No.2 as Ex.CA and documents Ex.C-1 to Ex.12. On the other hand, opposite party No.1 proved affidavit of its Authorised Representative as Ex.OP1/A and documents Ex.OP1/1 to Ex.OP1/3, whereas opposite party No.2 proved affidavit of its Authorised Signatory, Ms. Mega Ahluwalia and documents Ex.OP2/1 to Ex.OP2/19.
6. I have carefully gone through the averments of the parties and the evidence produced by them in support of those averments. I have also heard learned counsel on their behalf. Contentions of the Parties:
7. It was vehemently argued by the learned counsel for the complainants that the complainants have paid all the instalments and there was virtually no delay in making payments thereof. Since the Consumer Complaint No.318 of 2015 9 complainants obtained the loan from opposite party No.2 for making payment of instalments to opposite party No.1 and opposite party No.2 is to make the payment of instalments directly to opposite party No.1, therefore, the complainant are not liable for any delayed payment, if any. However, at the spot no progress in the Project has been made. The Apartment Buyer's Agreement was executed on 24.10.2011 (Ex.C-4) and the possession of the flat/apartment, complete in all respects, was to be delivered upto 24.10.2014. As per clause 15 of the said Agreement, the builder will pay to its buyers @ ₹5/- per square foot per month if the builder fails to handover the possession of the apartment beyond the committed period of 36 months from the date of final allotment. The remaining amount of 5% is to be paid at the time of handing over the possession. In fact at the spot there is no progress and neither there is increase in the area. However, just to avoid payment of penalty as per clause 15 of the Buyer's Agreement, opposite party No.1 issued demand notice dated 10.8.2015 demanding ₹2,61,844/- on account of increase in the area of the flat/apartment by 59 square feet. However, if actually there is increase in the area of the flat/apartment, then the same will be adjusted at the time of delivery of actual physical possession of the flat/apartment and the instalment of remaining 5% to the tune of ₹2,68,583/-, which was to be paid at the time of handing over of possession, had already been paid by the complainants on 14.9.2015 under protest. In these circumstances the complainants are also entitled to penalty for delayed delivery from 24.10.2014 till the actual date of delivery of physical possession of the Consumer Complaint No.318 of 2015 10 flat/apartment, complete in all respects, as per the terms and conditions of the Buyer's Agreement Ex.C-4. By not delivering the possession of the flat/apartment by the agreed date opposite party No.1 committed deficiency in service, as a result of which the complainants suffered harassment and mental agony; as for all this time they were hoping to have their own house. On that account they are entitled to compensation, as claimed in the complaint.
8. On the other hand, it was argued by the learned counsel for opposite party No.1 that it had already obtained the Partial Occupation Certificate from the Municipal Council and the Project is complete. Opposite party No.1 is in a position to hand over the possession of the flat/apartment but the complainants made delayed payments. There is increase of super area of the flat/apartment by 59 square feet and the complainants are bound to make the payment of that increased area. Penalty @ ₹5/- per square foot per month of the super area is not payable to the complainants as they have not made the payment of instalments in time. The complainants have no cause of action to file the present complaint. Since the complainants purchased the property for the purpose of investment, therefore, they do not fall in the definition of 'consumer' as enshrined under Section 2(1)(d) of the C.P. Act. This Commission has no pecuniary jurisdiction as the offer of possession has already been made to them and the remaining reliefs being under ₹20 lakhs. There is no deficiency in service or adoption of unfair trade practice on the part of opposite party No.1. A prayer for dismissal of the complaint has been made.
Consumer Complaint No.318 of 2015 11
9. It was argued by the learned counsel for opposite party No.2 that opposite party No.2 cannot be blamed for any late payment as opposite party No.2 only disburses the amount after receipt of instructions from the complainants and demand letter. Opposite party No.2 does not have any tie-up with opposite party No.1. Complainant No.1 himself approached opposite party No.2 for sanction of the loan, which was sanctioned after fully satisfying about the paying capacity of the complainants. There is no deficiency in service or adoption of unfair trade practice on the part of opposite party No.2. A prayer for dismissal of the complaint qua opposite party No.2 has been made.
Consideration of Contentions:
10. I have given my thoughtful consideration to the arguments raised before me by the learned counsel for the parties.
11. So far as the pecuniary jurisdiction of this Commission is concerned, admittedly the payments have been made by the complainants, but the possession of the flat/apartment has not been delivered to them so far. The value of the flat/apartment in question is ₹51,90,000/-. Therefore, this Commission has pecuniary jurisdiction to entertain and decide this complaint.
12. So far as the contention of the learned counsel for the opposite party No.1 that the complainants do not fall under the definition of 'consumer' as they have purchased the property for the purpose of investment, is concerned, there is nothing on record that the complainants are property dealers and deal in the sale and purchase Consumer Complaint No.318 of 2015 12 of property, on regular basis, and as such, the flat/apartment in question was purchased by them by way of investment, with a view to resell the same as and when there was escalation in the prices thereof. Thus, in the absence of any cogent evidence in support of the objections raised by the learned counsel for opposite party No.1, mere bald assertion i.e. simply saying that the complainants being investors, did not fall within the definition of consumers, cannot be taken into consideration. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, it was held by the Hon'ble National Consumer Disputes Redressal Commission, New Delhi that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the Hon'ble National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ
316. Not only this, recently in a case titled as Aashish Oberai Vs. Emaar MGF Land Limited, Consumer Case No. 70 of 2015, decided on 14 Sep 2016, under similar circumstances, the Hon'ble National Commission negated the plea taken by the builder, while holding as under:-
"In the case of the purchase of the houses which a builder undertakes to construct for the buyer, the purchase can be said to be for a commercial purpose where it is shown, by producing evidence, that the buyer is engaged in the business of a buying and selling of houses and or plots as a trading activity, with a view to Consumer Complaint No.318 of 2015 13 make profits by sale of such houses or plots. A person cannot be said to have purchased a house for a commercial purpose only by proving that he owns or had purchased more than one houses or plots. In a given case, separate houses may be purchased by a person for the individual use of his family members. A person owning a house in a city A may also purchase a house in city B for the purpose of staying in that house during short visits to that city. A person may buy two or three houses if the requirement of his family cannot be met in one house.
The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of 'consumer', as defined under Section 2(1)(d) of the C.P. Act. Such an objection, taken by opposite party No.1, in its written reply, therefore, being devoid of merit, is rejected.
13. Now coming to the merits of the case. There is no dispute with regard to the allotment of Residential Apartment No.1002 measuring 1851 square feet in Tower No.1 in Royal Citi, Chandigarh Ambala Highway, Zirakpur, District Mohali, for ₹51,90,000/-, vide Allotment Letter dated 24.10.2011, Ex.C-3, and execution of Apartment Buyer's Agreement dated 24.10.2011, Ex.C-4, entered between the complainants and opposite party No.1 in respect of the said flat/apartment. A perusal of clause 15 of the said Buyer's Agreement reveals that opposite party No.1 committed to deliver the possession of the flat/apartment within 36 months from the date of final allotment Consumer Complaint No.318 of 2015 14 of the apartment/flat. The final allotment of the flat/apartment was made on 24.10.2011 when allotment letter was issued and Buyer's Agreement was executed. Therefore, the possession of the flat/apartment, complete in all respects, was to be delivered by opposite party No.1 to the complainants upto 24.10.2014. Admittedly the complainants have made the entire payment of the flat/apartment in question and the balance amount of 5%, which was to be paid at the time of handing over of possession, was also paid on 14.9.2015 though under protest. The stand of opposite party No.1 is that the payments were not made by the complainants in time and as such, they are not entitled to payment of any amount on account of delay in delivering the possession as per clause 15 of the Buyer's Agreement and still the complainants are liable to make payment of ₹2,61,844/- on account of increase in the super area by 59 square feet. The further stand of opposite party No.1 is that since the complainants have not made the entire payment of the flat/apartment in question, therefore, there is no question of handing over of physical possession of the flat/apartment or to make payment of penalty as per clause 15 of the Buyer's Agreement. However, the stand of the complainants is that actually there was no increase in the area of the flat/apartment and opposite party No.1 raised the demand of ₹2,61,844/-, vide letter dated 10.8.2015 in order to avoid its liability from payment of penalty as per the terms and conditions of the Buyer's Agreement.
14. A perusal of Ledger Account of the complainants, Ex.C-9, reveals that the complainants had deposited the total amount of Consumer Complaint No.318 of 2015 15 ₹61,88,982/- till 7.8.2015. Opposite party No.2 placed on record letter of request for disbursement of loan amount and the Disbursement Request Form submitted by the complainants to it Ex.OP2/3 to Ex.OP2/10. A perusal of the same reveals that opposite party No.2 disbursed amount of loan only after a request was made by the complainants for the same. Therefore, it is held that opposite party No.2 is not liable for any late payment made to opposite party No.1. It is further held that once the amounts have been received along with penal interest etc., by opposite party No.1, it cannot be said that there was delay in depositing the amounts. As per the Apartment Buyer's Agreement, Ex.C-4, the possession of the flat/apartment, complete in all respects, was to be delivered within 36 months of the allotment of the same i.e. upto 24.10.2014. Nothing has been produced on record by opposite party No.1 that the flat/apartment was complete in all respects by that date and it had written any letter to the complainants to come and take the same after depositing the balance 5% amount. The Partial Completion Certificate issued by the Municipal Council, Zirakpur, has been produced by opposite party No.1 as Ex.OP1/3. A perusal of the same reveals that the same is dated 17.2.2016 and with a rider to provide the amenities, including lift, tubewell, S.T.P., and fire fighting system in running condition. Since this Certificate Ex.OP1/3 itself is partial, it cannot be said that the Project stands completed. No other evidence has been produced by opposite party No.1 to prove that the project has been completed and all the amenities mentioned in this letter have been provided. Therefore, the complainants cannot Consumer Complaint No.318 of 2015 16 be unnecessarily harassed by sending them demand notice dated 10.8.2015, Ex.C-7, raising a demand of ₹2,61,844/- on account of increase in the super area of the flat/apartment by 59 square feet. Even 5% of the remaining amount, which was to be paid by the complainants at the time of delivery of flat/apartment, was got deposited from them on 14.9.2015 without delivering the possession. In these circumstances, it is clearly proved that there is delay in completion of the project by opposite party No.1, more so, when the Completion Certificate dated 17.2.2016 Ex.OP1/3 is a Partial Completion Certificate. Otherwise also it is not justified to rely upon this Partial Completion Certificate. A person can reside in the premises only when it is fully completed and all the amenities are provided in the same.
15. As stated above, the possession of the flat/apartment, complete in all respects, was to be delivered to the complainants by opposite party No.1 upto 24.10.2014. However, the same was not delivered by opposite party No.1 upto the date of filing of the complaint i.e. 9.12.2015 nor any offer was made thereafter. Moreover, demand letter dated 10.8.2015 Ex.C-7 was issued raising a demand of ₹2,61,844/- on account of increase in the super area of the flat/apartment. This amount can only be asked from the complainants at the time of handing over the physical possession of the flat/apartment after making them satisfied by way of measurement at the spot etc. that the super area has been increased by 59 square feet and that too at the price at which the flat/apartment was originally booked by them.Consumer Complaint No.318 of 2015 17
16. The consumers are not to suffer at the hands of such like developers and the Foras under the C.P. Act are to come to their rescue. The bona fides of the parties are also to be seen. The payment of entire basic price of the flat/apartment shows that the complainants bona fidely required the same for their use and were interested in getting the possession thereof.
17. This act on the part of the opposite party No.1 in collecting huge amounts from the prospective buyers under the guise of constructing flats/apartments and to give the possession of the fully constructed flats/apartments by the stipulated date and not constructing the same at all and to use the huge money, so collected by them, clearly amounts to unfair trade practice. On account of that unfair trade practice, the complainants have certainly faced harassment and agony, as their hope to have a house stood shattered. Had opposite party No.1 not adopted such an unfair trade practice, they might have invested this money with some other developer and might have got the house by now.
18. As per Section 9 of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the apartments/flats/plots, but no evidence has been led on the record by opposite party No.1 to prove that any account has been maintained by it in this respect. There is no evidence or pleading on record on behalf of opposite party No.1 in this respect. As such, opposite party No.1 violated Section 9 of the PAPRA. Consumer Complaint No.318 of 2015 18
19. Opposite party No.1 had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainants-buyers was required to be deposited in the schedule Bank, as per Section 9 of PAPRA and we wonder where that amount had been going. Opposite party No.1 is not to play the game at the cost of others. When it insists upon the performance of the promise by the consumers, it is to be bound by the reciprocal promises of performing its part of the agreement.
20. The Consumer Protection Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by opposite party No.1 to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainants have made payment of entire amount to opposite party No.1 with the hope to get the possession of the flat/apartment in a reasonable time. The circumstances clearly show that opposite party No.1 made false statement of facts about the goods and services i.e. allotment of land and construction of flats/apartments in a stipulated period and ultimate delivery of possession. The act and conduct of opposite party No.1 is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with opposite party No.1, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainants have Consumer Complaint No.318 of 2015 19 suffered loss, as discussed above. The builder is under obligation to deliver the possession of the flat/apartment, complete in all respects, within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the flat/apartment booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that opposite party No.1 i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the flat/apartment, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainants is a deposit held by opposite party No.1 in trust of complainants and it should be used for the purpose of constructing the flats/apartments, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to Consumer Complaint No.318 of 2015 20 the complainants, are also required to be taken into consideration for awarding compensation.
21. In view of my above discussion, it is held that there is deficiency in service and adoption of unfair trade practice on the part of opposite party No.1 in not delivering the possession of the flat/apartment, complete in all respects, to the complainants by 24.10.2014 and, as such, the complainants are entitled to penalty @ ₹5/- per square yard per month i.e. ₹9,255/- (₹5 x 1851) from 25.10.2014 till the date of delivery of possession of flat/apartment, complete in all respects, as per clause 15 of the Buyer's Agreement, Ex.C-4. However, Opposite party No.1 can charge for the increased super area of the flat/apartment only after measurement at the spot at the time of delivering physical possession of the flat/apartment and that too on the price at which the flat/apartment was booked originally by the complainants but this additional amount will not carry any interest.
22. Accordingly this complaint is partly allowed against opposite party No.1 and is dismissed against opposite party No.2; and the following directions are issued to opposite party No.1:-
i) to deliver the possession of the Flat/Apartment in question, complete in all respects along with all the agreed basic amenities to the complainants within two months from the date of receipt of copy of this order. In case there is any increase in the super area of the flat/apartment at the spot, opposite party No.1 can charge for the same at the rate at which the Consumer Complaint No.318 of 2015 21 flat/apartment was booked originally; however, without any interest;
ii) to pay penalty @ ₹5/- per square yard per month i.e. ₹9,255/-
(₹5 x 1851) from 25.10.2014 till the date of delivery of possession of flat/apartment; and
iii) to pay ₹50,000/-, as compensation on account of mental tension, agony and harassment; and
iv) to pay ₹11,000/- as litigation costs.
23. Opposite party No.1 shall comply with the order within two months of the receipt of certified copy thereof, failing which the amount of penalty till today and the compensation amount shall carry interest at the rate of 9% per annum from the date of this order till realization.
24. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT August 08, 2017 Bansal