National Consumer Disputes Redressal
Amit Sabharwal vs Managing Director Or Head Incharge, ... on 26 October, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3251-3252 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 815/2015 & 845/2015 of the State Commission Punjab) 1. KARAN SINGH S/O BHANA RAM, R/O FLAT NO-263, BLOCK-II, SOLITAIRE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKHPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO- 323, AGGARWAL PLAZA, PLOT NO-03, DDA COMMUNITY CENTER, SECTOR-14,ROHINI NEW DELHI - 110085 2. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES F-32, SECTOR-18 NOIDA- 201301 U.P 3. THE HEAD INCHARGE/PROJECT MANAGER, M/S DIVINI ASSOCIATES, SOLITAIRE DIVINE, VILLAGE HIMMATGARH, DHAKOLI ZIRAKHPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3756-3757 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 828/2015 & 816/2015 of the State Commission Punjab) 1. BALBIR SINGH & ANR. R/O. FLAT NO. 136, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB 2. MRS. KRISHNA DEVI R/O. FLAT NO. 136, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3758-3759 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 830/2015 & 812/2015 of the State Commission Punjab) 1. NEELAM MONGA R/O. FLAT NO. 242, BLOCK II, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3760-3761 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 831/2015 & 825/2015 of the State Commission Punjab) 1. AMIT SABHARWAL R/O. FLAT NO. 252, BLOCK II DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3762-3763 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 832/2015 & 824/2015 of the State Commission Punjab) 1. PURNENDU BALA R/O. FLAT NO. 125, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3764-3765 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 833/2015 & 821/2015 of the State Commission Punjab) 1. UMESH PRASAD R/O. FLAT NO. 214, DIVINE ASSOCIATE, SOLITAIRE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3766-3767 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 834 & 817/2015 of the State Commission Punjab) 1. PARDEEP SHARMA & ANR. R/O. FLAT NO. 224, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB 2. ASHU SHARMA R/O. FLAT NO. 224, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3768-3769 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 835/2015 & 813/2015 of the State Commission Punjab) 1. VEENA RANI R/O. FLAT NO. 232, BLOCK II, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3770-3771 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 839/2015 & 822/2015 of the State Commission Punjab) 1. CHITRANJAN KUMAR R/O. FLAT NO. 146, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3772-3773 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 841/2015 & 811/2015 of the State Commission Punjab) 1. AMIT LATH & ANR. R/O. FLAT NO. 123, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB 2. MONIKA LATH, R/O. FLAT NO. 123, DIVINE ASSOCIATE, SOLITAIRE DIVINE, HIMMATGARH DHAKOLI, DISTRICT-ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH 3. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Respondent(s) REVISION PETITION NO. 3774-3775 OF 2017 (Against the Order dated 21/03/2017 in Appeal No. 842/2015 & 820/2015 of the State Commission Punjab) 1. KARAMVEER SINGH R/O. FLAT NO. 116, DIVINE ASSOCIATE, SOLITARE DIVINE, HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB ...........Petitioner(s) Versus 1. MANAGING DIRECTOR OR HEAD INCHARGE, M/S. DIVINE ASSOCIATES & 2 ORS. COMMERCIAL UNIT NO. 323, AGGARWAL PLAZA, PLOT NO. 03, DDA COMMUNITY CENTRE, SECTOR 14, ROHINI, NEW DELHI-110085 2. THE HEAD INCHARGE/PROJECT MANAGER, DIVINE ASSOCIATES SOLITAIRE DININE VILLAGE HIMMATGARH, DHAKOLI, ZIRAKPUR PUNJAB 3. THE MANAGING DIRECTOR OR HEAD INCHAGRE DIVIN ASSOCIATES, F-32, SECTOR 18, NOIDA-201301 GAUTAM BUDH NAGAR, UTTAR PRADESH ...........Respondent(s)
BEFORE: HON'BLE DR. INDER JIT SINGH,PRESIDING MEMBER
FOR THE PETITIONER : FOR THE PETITIONER(S)
(A) IN RP NO. 3251-3252 OF 2017 MR. MANISH GUPTA, ADVOCATE
MS. SANGITA GUPTA, ADVOCATE
(B) IN REMAINING RPS MR. HIMANSHU SHARMA, ADV.
MR. RAHUL JASURIA, ADV. FOR THE RESPONDENT : MR.ASHOK MAHIPAL, ADVOCATE
A.R.AMIT MAHARSHI,
Dated : 26 October 2023 ORDER
1. The Revision Petitions (RPs) No. 3251-3252 of 2017 and 3756-3757 of 2017 to 3774-3775 of 2017 have been filed by the Petitioner (s) against Respondents as detailed above, under section 21 (b) of Consumer Protection Act 1986, against the common order dated 21.03.2017 of the State Consumer Disputes Redressal Commission Punjab (hereinafter referred to as the 'State Commission').
2. All the above RPs involve common question of law, hence taken up together. However, RP No. 3251-3252 of 2017 is taken up as a lead case and facts stated in subsequent paras have been taken from RP No. 3251-3252 of 2017.
3. Brief facts of the case are that Respondents / Opposite Parties ( OPs) launched the project namely 'Solitaire Divine' ( Project) situated at Zirakpur, Punjab. The complainants booked one flat in the said project of OPs. Buyer's agreement was executed between the parties and according to agreement, the date of possession was 31.03.2013. However, OPs failed to deliver the actual possession by the stipulated date i.e. 31.03.2013. The possession was given after a long period i.e. 01.09.2013. After taking the physical possession of the flat, complainants noticed that OPs had used inferior quality of material for construction of the flat and did not provide those facilities which were mentioned, agreed and promised in the agreement letter. Even the Completion Certificate ( CC) from the competent authority was not obtained and without the CC, OPs were not competent to deliver the actual possession. The complainants noted various problems / short comings in the flat like dry distemper instead of oil bound distemper on POP Plaster / putty, individual RO was provided instead of RO treated water supply to all flats etc etc.. Even the parking slot of the complainants remained partially under occupation of company office upto March 2014. The complainants visited the site office frequently for removal of defect but in vain. Being aggrieved of the said act of the OPs, the complainants filed Consumer Complaint ( CC) before the District Forum and the District Forum vide order dated 28.05.2015 allowed the complaints.
4. Being aggrieved of the said order of the District Forum, Complainants and OPs went in Appeal before the State Commission and the State Commission vide common order dated 21.03.2017 partly allowed the Appeals filed by Complainants and OPs.
5. Dis-satisfied with the said order of State Commission, the Petitioners are before this Commission by way of present Revision Petitions.
6. Petitioner has challenged the said Order dated 21.03.2017 of the State Commission mainly/inter alia on following grounds:
The State Commission has erroneously taken the committed date of delivery of possession to the Petitioner to be 31.03.2013 while as per clause 13 ( 5) and ( 6) of the allotment letter dated 28.12.2011, the respondents have agreed to deliver the possession till 31.03.2012 and while calculating the amount of compensation to be awarded to each complainant, the State Commission has taken 31.03.2013 as common committed date of possession but this is not the committed date of delivery of possession.
State Commission ought to have awarded compensation from 31.03.2012 to 06.10.2013 i.e. the date of taking of actual physical possession of the flat by the Petitioner and instead of awarding compensation for the delay of 18 months, only 4 months delay has been counted while awarding compensation.
The State Commission ought not to have relied on the mere submission of the respondent that all the terms and conditions of allotment letter have been fulfilled by them and there is no defects and shortcomings in construction of flats.
Respondents have taken monthly instalments charges of Rs.24,000/- in advance from the Petitioner alongwith interest free maintenance security of Rs.30,000/- and as per clause 17 (1) of the allotment letter, the respondents were required to execute a separate agreement with allottees of the flats but till date no such agreement has been executed by the respondents and without providing the maintenance facility, the respondents have charged maintenance charges from the petitioner from May 2013 to September 2013 without handing over physical possession of the flat and breached the terms and conditions of the allotment letter. The CC was obtained from Municipal Council on 10.07.2015 which clearly shows that basic services and facilities were not ready in flats of the respondents.
7. Heard counsel for both sides. Counsel for the Petitioners repeated the points which are stated in para 6 above, grounds for challenging the order of the State Commission, hence the same are not being repeated here. Counsel for the respondents argued that project was launched several years ago with printed allotment letter whereby committed date of possession was mentioned as 31.03.2012 but due to practical difficulties, the construction could not get its proper speed. Counsel further argued that when prospective buyer approached the respondent to purchase the flat, the committed date of possession was modified to 31.03.2013 in place of 31.03.2012 with signature of the parties. But in RP No. 3251-3252 of 2017, necessary modification to the committed date of possession could not be made due to careless attitude of the concerned staff. However, the said fact has been admitted by both the parties during final hearing before District Forum.
8. Counsel for the respondent further argued that State Commission in its order dated 21.03.2017 repeatedly mentioned committed date of possession as 31.03.2013. Counsel further argued that since Petitioners were allotted flat on 28.12.2011 and payment was to be made stage wise as per schedule of payment, it was not practical for the respondent to hand over possession within 3 months from the date of date of allotment, therefore, committed date of possession was 31.03.2013. It is further contended by the respondents that they issued offer of possession letter on 25.07.2013 and sale deed was executed on 08.09.2013, the Petitioners signed Indemnity Cum Undertaking, therefore, once the petitioner had taken possession on the terms and conditions incorporated in Sale Deed, the Petitioners are estopped by their own act and conduct to raise those questions by filing frivolous complaint. Counsel relied upon the following judgments of Hon'ble Supreme Court / NCDRC.
a. Lakshmi Vatika limited and Ors. Vs. Ravi Rai Khurana and Ors.- Revision Petition No. 1046 to 1050 of 2014.
b. HUDA Vs. Raje Ram- Civil Appeal No. 2381 of 2003
c. B.S.Walia Vs. M/s DLF Universal Ltd., FA No. 472 of 2007
d. Sethi Housing India (Pvt) Ltd. & Ors. Vs. JML Motors Pvt. Ltd, RP No. 215 of 2015
9. We have carefully gone through the orders of the State Commission, District Forum and other relevant records and considered the rival contentions of the parties. The District Forum vide its order dated 28.05.2015 has allowed the complaint partially and gave following directions to the OPs :
"(a) to remove/rectify the defects in the flats of the complainants as specified and highlighted by the in their respective complaints particularly oil bound distemper and POP, provision of RO water supply throughout the flat and not only in kitchen as is being done, provide modular kitchen, anti skid tiles in the bathrooms and master bed room, wood work as per agreement and intercom facility within the flats. This exercise be conducted within a period of three months from the date of receipt of a certified copy of this order.
(b) To complete all the basic facilities and amenities as per terms of allotment letter within a period of six months from the date of receipt of a certified copy of this order and not to charge the maintenance of common areas and facilities from the complainants till the existence of complete, proper and effective basic amenities and facilities.
(c) to refund the amount received from the respective flat owners on account of maintenance charges received till date alongwith interest @ 9% per annum till realization within a period of thirty days from the date of receipt of a certified copy of this order.
(d) to pay a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) to each complainant for causing mental agony, harassment and costs of litigation within a period of thirty days from the date of receipt of a certified copy of this order.
(e) to get the completion certificate from the competent authority and provide a copy of the same to all the flat owners including the present complainants within a period of thirty days from the date of receipt of a certified copy of this order.
(f) to refund Rs.7,000/- (Rs. Seven thousand only) to complainant Balbir Singh & another in complaint No.526 of 2014 within a period of thirty days from the date of receipt of a certified copy of this order charged for parking lot alongwith rate of interest @ 9% per annum and remove the dead stock stored by the complainant from the parking slot allotted to the said complainant with immediate effect."
10. Both sides went in appeal to the State Commission and State Commission vide its order dated 21.03.2017, modified the order of the District Forum by allowing compensation to the complainants for delay in delivery of possession in accordance with the provisions of the allotment letter and held as under:
"It was argued by the counsel for the OPs that according to sub clause 7, the right to take timely possession shall cease to exist for those, who have delayed payment of one or more installments. However, in the written reply, the OPs have not stated that there was delayed payment of more than two installments by any of the complainant, therefore, OPs cannot take the benefit of this clause. The District Forum has observed that the late delivery of possession was due to act of omission and commission on the part of the complainants but no period has been given by the District Forum on which date offer of possession was given to the complainants, how it was sent dispatched to the complainants and in what manner, there was delay on the part of the complainants to get the possession. We have already taken the date of delivery of possession as mentioned in the sale deed and not the actual taking of possession in view of the reasons stated above, therefore, total denied of penal charges on account of delay in delivery of possession to the complainants is not in order when OPs are taking penal interest on account of late installments, therefore, the complainants will be entitled to late delivery of possession charges from the OPs as referred above. "
11. The observations / findings of the State Commission on other reliefs granted by the District Forum are summarized below:
a. As regards, treated water supply ( RO) is concerned, State Commission observed that in normal course, RO water is used for drinking purposes only and not for bathing purposes, therefore, in case OPs have provided RO drinking water in the kitchen, that is sufficient compliance of the Clause 10 of the allotment letter.
b. Once the complainants have agreed that they have taken the physical possession of the flat to their complete satisfaction after due inspection and verification of all aspects of the flat in respect of its condition, documents, title, status, size, built up area, measurement, dimensions, location, quality of construction and material used, specifications, services provided etc., then they are estopped by their own act and conduct to raise those questions.
c. State Commission further observed that if there was some deficiency in the construction material or other services, the complainants are required to lead their independent evidence and there is no report from any engineer / architect to show the defects in the construction.
d. It is further observed by the State Commission in relation to refund of amount received from the flat owners on account of maintenance charges received till date alongwith interest @ 9% p.a. that in case the complainants are alleging the deficiency in maintaining of the complex, they should lead independent evidence and independent technical report from Engineer / Architect is required but complainants have not led any independent evidence of any engineer / architect that the maintenance services provided by the OPs are not in order.
e. In so far as Completion Certificate is concerned, State Commission gave a finding that as per clause 14 (1), in case of apartments, after the occupation, the allottee himself could apply for occupation certificate, therefore, it could not be considered as a deficiency specially when on 10.07.2015, the said certificate was issued by the Municipal Council, Zirakpur.
f. Regarding refund of Rs.7000/- to complainant Balbir Singh and Anr. in complaint No.526 of 2014 for parking lot, State Commission gave a finding that in case parking is to be given to the allottee, then specific place has to be nominated and otherwise it would a mess in the entire complex.
12. During the hearing, the parties have argued on following main issues:
12.1. Compensation for delay in delivery of possession.
a. District Forum allowed the lumpsum compensation of Rs.50,000/- to each complainant. Complainants went in appeal to the State Commission for enhancement of compensation but State Commission after considering various aspects, awarded delay compensation only as per the rates prescribed in the allotment letter ( clause 13 ( 6), counting the period of delay from the committed date of possession till the date of sale deed which was treated as date of taking possession).
b. A perusal of allotment letter (s) shows that committed date of possession was 31.03.2013 in all cases except in RP No. 3251-3252 of 2017, where it was 31.03.2012. The possession was offered on various dates during 2013 and sale deed was also signed during 2013 except in some cases which was signed in 2012 and 2014. It is admitted by both sides that neither at the time of offer of possession or at the time of signing the sale deed or actual date of possession, the opposite parties did not have the requisite occupation certificate from the competent authority and same was obtained only on 10.07.2015. In our considered view, offering of possession or handing over of the possession by a builder without a valid OC is not a valid offer of possession.
c. It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. vs DLF Southern Homes Pvt. Ltd. & Ors. (2020) 16 SCC 512, "failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within the contractually stipulated period, amount to deficiency". In Ireo Grace Realtech Pvt Ltd Vs. Abhisek Khanna and Ors (2021) 3 SCC 241 Hon'ble Supreme Court held "Developer is obligated to pay delay compensation for period of delay which has occurred from due date of handing over possession till date of offer of possession was made to the allottees".In Supertech Limited Vs. Rajni Goyal (2019) 17 SCC 681, where OC was obtained after the date of offer of possession, Hon'ble Supreme Court held that liability of builder to pay delay compensation will stop on the date of obtaining OC. Keeping in view these judgments of Hon'ble Supreme Court, in our considered view, in cases where possession is offered without a valid OC, builder is liable to pay the delay compensation and allottees are entitled to such compensation till the date of OC. In Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghvan(2019) 5 SCC 725, Hon'ble Supreme Court also observed that "a term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder ......... the incorporation of one sided clause in an agreement constitute an unfair trade practice as per Section 2 (r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling flats by the builder ........., the appellant-builder cannot seek to bind the respondent with such one sided contractual terms." In Abhishek Khanna (supra), Hon'ble Supreme Court held "Developer cannot compel apartment buyers to be bound by one-sided contractual terms contained in apartment buyers agreement". It was held by Hon'ble Supreme Court in Wg. Cdr. Arifur Rahman Khan ( supra ) "To uphold the contention of the Developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay, would result in miscarriage of justice. Undoubtedly, as held in D.S. Dhanda (2020) 16 SCC 318, courts would ordinarily hold parties down to a contractual bargain. Equally, the courts cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of Developer....jurisdiction of the consumer forums to award just and fair compensation as an incident of its power to direct the removal of deficiency in service is not constrained by terms of a rate which is prescribed in an unfair bargain. "The word "Compensation" is of a very vide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of CPA enable a consumer to claim and empower the commission to redress any injustice done". compensation in excess of that stipulated in the agreement- grantable, where the stipulated compensation is unreasonable, one-sided and unfair". "held, the court and the consumer forums must take a robust and common sense based approach by taking judicial notice of the fact that flat purchasers obtain loans and are required to pay EMIs to financial institutions for servicing their debt- thus the award of compensation has to be based on a finding or loss of injury and must corelate to it" further, clarifying the ruling in D.S. Dhanda (2020) 16 SCC 318, held "there is no absolute embargo on the award of compensation beyond the rate stipulated in the flat buyers agreement where handing over of the possession of a flat has been delayed". In Abhisek Khanna ( supra), Hon'ble Supreme Court held "Given one-sided nature of ABAs, Consumer Fora had jurisdiction to award just and reasonable compensation as an incident of power to direct removal of deficiency in service".
d. After considering all the facts and circumstances of the case, we are of the view that in these cases, complainants are entitled to delay compensation w.e.f. committed date of possession as per the allotment letter / agreement till the date of OC obtained by the OP i.e. 10.07.2015. However, we allow such compensation to be paid @ 6% p.a. Simple Interest on the total amount paid by the complainants towards cost of the flat. Orders of the District Forum and State Commission stand modified to this extent on the issue of eligibility of compensation / quantum of compensation / period of compensation.
e. In RP No. 3251-3252 of 2017, it was argued by the OPs that committed date of possession mentioned in the allotment letter as 31.03.2012 is a mistake as it was a standard typed allotment letter for all cases where initially the committed date mentioned was 31.03.2012 but while issuing such letter to various allottees, the dates were corrected as 31.03.2013 under the signatures of authorized official of the OP. However, by way of omission on the part of staff of OP, in RP No. 3251-3252 of 2017, such correction could not be carried out. We have carefully perused the allotment letter of the allottee in RP No. 3251-3252 of 2017 as well as in few other cases like RP No. 3756-3757 of 2017 and are of the view that even if the contentions of the OP-builder of mistake if any, on the part of their official is correct, allottee / complainant cannot be made suffer for such mistakes on the part of the OP-builder. As there is no cutting or over writing or corrections in the allotment letter, in his case, he is entitled to compensation by treating committed date of possession as 31.03.2012. In all other cases, where committed date of possession is mentioned as 31.03.2013, allottees / complainants shall be entitled to delay compensation we.f. 31.03.2013.
12.2. Deficiencies / Defects in the Flats a. With respect to the direction of the District Forum to remove various deficiencies / defects in the flats, State Commission disagreeing with orders of the District Forum has modified / taken away the relief granted by the District Forum, as stated in the preceding para.
b. We have carefully gone through the complaint filed by the complainants before the District Forum in which they have, at length, listed various deficiencies / defects in their flats. It is seen that they have referred to certain documents like agreement, allotment letter, information brochure etc., under which certain facilities / amenities were promised but those were not provided or if provided, were at inferior level. However, during the hearing, the complainants could not show us the relevant clauses of the agreement / allotment letter under which such facilities were promised ( copy of information brochure was not placed on record). To cite an example under para 5 (1), of the complaint, the complainants have alleged that as per the agreement, oil-bound distemper on POP Plaster / putty was to be used, but only an inferior quality of dry distemper was used. However, they could not show the relevant clauses of the agreement. Similar was the situation with other points on defects / deficiencies in flats mentioned under para 5 of the complaint. Hence, on the aspect of deficiency / defects, we do not wish to interfere with the findings of the State Commission.
12.3. Refund of maintenance charges a. District Forum has ordered refund of the amount received from the respective flat owners on account of maintenance charges received till date alongwith interest @ 9% p.a. till realization. However, State Commission in appeal has modified the order of the District Forum and taken away this relief. In this regard, State Commission has observed as follows:
"As per Clause No. (xii) in para No. 5 of the complaint, it has been stated vide letter dated 2.3.2013, the Ops asked the complainants to make payments of last installment alongwith MMS & IFMS charges, which the complainants paid within the time but the possession was not delivered as promised. Therefore, that payment is required to be refunded. The District Forum in its order, observed that Ops had fixed maintenance charges @ Rs. 2800/- per month for 4 BHK flat, Rs. 2500/- per month for 3 BHK flat and Rs. 2,000/- per month for 2 BHK flat. However, despite getting that payment, Ops have failed to maintain common facilities like road, which required major repair, problem in power back up, street light, club, gym and CCTV cameras. Whereas the stand of Ops is that after payment of 1 year, the complainants stopped to make the maintenance payments. Therefore, problem, if any, in the maintenance is due to the non-payment of charges by the complainants. As provided in Clause 17 referred above, it is the joint responsibility of the allottees as well as Ops to maintain the complex. Certainly, the complainants are liable to pay maintenance charges as referred in the order passed by the District Forum, charges for 4 BHK flat has been Rs. 2800/- per month, for 3 BHK Rs. 2500/- per month and for 2 BHK Rs. 2000/- per month and after payment of maintenance charges after 1 year, they have not paid the maintenance charges. The District Forum has relied upon the joint inspection. In case the Ops on the fixed date could not join the inspection, it does not mean that there is deficiency in maintenance of the complex. In case the complainants are alleging the deficiency in maintaining of the complex, they should lead independent evidence. Joint inspection as referred above is nothing because it is not signed by any of the party. Therefore, that cannot be taken as a report. Independent technical report from Engineer/Architect is required in view of the judgment 2015 (2) CPR 99 "M/s Sethi Housing (India) Pvt. Ltd. and 3 Ors. Versus "M/s Jml Motors Pvt. Ltd." (supra). But the complainants have not led any independent evidence of any Engineer/Architect that the maintenance services provided by the Ops are not in order. Mere averments of the complainants are not sufficient because those averments has been rebutted by way of affidavit by the representative of the Ops absence of any specific evidence on the record, the order passed by the District Forum with regard to refund of the maintenance amount alongwith interest @ 9% is not justified, therefore order of the District Forum to that extent is ordered to be set-aside.
(b) In view of our observation / findings that offer of possession without a valid OC is not a valid offer of possession, we are of the view that a valid OC on the face of it will show that units have been completed in accordance with the approved plans and requisite facilities / amenities have been provided unless such facts are proved otherwise, the onus of which will be on the complainants. As we have stated in the above findings, complainants have not been able to show us whether and which of the facilities / amenities were lacking, it is to be presumed that as on the date of OC i.e. 10.07.2015, units were complete in all respects as per approved plans and requisite facilities / amenities were in place. Hence, the OPs / agency engaged by it are entitled to charge maintenance charges from this date onwards only. Hence, if any maintenance charges have been charged / received by OP / agency engaged prior to this date, complainants are entitled to refund of the same and we order accordingly.
13. All the above Revision Petitions are allowed, accordingly with litigation cost of Rs.5000/- in each case ( as two RPs have been filed by each complainant, litigation cost of Rs.5000/- is payable to each complainant once only for group of two RPs filed by him / her). The reliefs granted to the complainants are summarized as below :
a. The Complainants are entitled to delay compensation w.e.f. committed date of possession as per the allotment letter till the date of OC by OP(s) / Respondent(s) i.e. 10.07.2015. Delay compensation shall be payable by the Respondent(s) to the Petitioners @ 6% p.a. Simple Interest on the total amount paid by the complainants towards cost of the flat.
b. If any maintenance charges have been charged / received by the OP / agency engaged prior to 10.07.2015, complainants are entitled for refund of the same. OP / agency shall be entitled to charge maintenance charges w.e.f.10.07.2015.
c. Each Petitioner in all the cases will be paid a litigation cost of Rs.5000/- each.
d. All payments to be made by respondents herein within 45 days of date of this order. Liability of all respondents shall be joint and several.
14. The pending IAs in the cases, if any, also stand disposed off.
................................................ DR. INDER JIT SINGH PRESIDING MEMBER