State Consumer Disputes Redressal Commission
Gaurav Uppal vs M/S N.H.Matcon on 9 February, 2018
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Misc. Application No.2028 of 2017
In/and
Consumer Complaint No.839 of 2017
Date of institution : 25.09.2017
Date of decision : 09.02.2018
Gaurav Uppal Son of Sh. M.L. Uppal, resident of A-506, 5th Floor, Aero
Homes, Gazipur Road, Zirakpur, Mohali, Punjab-140603, e-mail
id:[email protected].
....Complainant
Versus
1. M/s N.H. Matcon, through its Partner, Regd. Office at SCO-3,
Level One, Royale Estate, Chandigarh-Ambala Highway, near
IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal S/o Sh. M.L. Bansal, Partner M/s N.H. Matcon, R/o
House No.1704, Sector 21, Panchkula, Haryana.
....Opposite Parties
2) Misc. Applications No.2029 & 2930 of 2017
In/and
Consumer Complaint No.840 of 2017
Date of institution : 25.09.2017
Date of decision : 09.02.2018
1. Kamal Khetarpal son of Sh. Roshan Lal Khetarpal, resident of E-
305, 3rd Floor, Aero Homes, Gazipur Road, Zirakpur, Mohali,
Punjab-140603, e-mail id: [email protected].
2. Preeti Khetarpal wife of Sh. Kamal Khetarpal, resident of E-
305, 3rd Floor, Aero Homes, Gazipur Road, Zirakpur, Mohali,
Punjab-140603.
....Complainants
Versus
1. M/s N.H. Matcon, through its Partner, Regd. Office at SCO-3,
Level One, Royale Estate, Chandigarh-Ambala Highway, near
IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal S/o Sh. M.L. Bansal, Partner M/s N.H. Matcon, R/o
House No.1704, Sector 21, Panchkula, Haryana.
Consumer Complaint No.839 of 2017 2
3. India Bulls Housing Finance Ltd., having its Office at Space
No.106-A, First Floor, Block-B, Elante Offices Suites, Plot
No.178-178A, Phase-1, Industrial Area, Chandigarh, through its
Director or Authorized Representative.
....Opposite Parties
3) Misc. Application No.1792 of 2017
In/and
Consumer Complaint No.696 of 2017
Date of institution : 17.08.2017
Date of decision : 09.02.2018
1. Varun Bhasin S/o Sh. V.K. Bhasin, R/o # D-102, First Floor, Aero
Homes, Gazipur Road, Zirakpur, Mohali, Punjab-140603. Email
id:[email protected].
2. Manjul W/o Sh. Varun Bhasin, R/o # D-102, First Floor, Aero
Homes, Gazipur Road, Zirakpur, Mohali, Punjab-140603.
....Complainants
Versus
1. M/s N.H. Matcon, through its Partner, Regd. Office at SCO-3,
Level One, Royale Estate, Chandigarh-Ambala Highway, near
IDBI Bank, Zirakpur, Mohali, Punjab.
2. Nitin Bansal S/o Sh. M.L. Bansal, Partner M/s N.H. Matcon, R/o
House No.1704, Sector 21, Panchkula, Haryana.
3. PNB Housing Finance Ltd., SCO 323-324, FF, Sector 35-B,
Chandigarh, through its Branch Manager or Authorized
Representative.
....Opposite Parties
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mrs. Kiran Sibal, Member.
Present (C. C. No.839 of 2017):
For the complainants : Sh. T.S. Khaira, Advocate For the opposite parties: Sh. Ashutosh Gupta, Advocate Consumer Complaint No.839 of 2017 3 JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
This order will dispose of the above mentioned three (3) Consumer Complaints filed by the complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act"), as the facts and the question of law involved in these complaints are the same. All the complaints have been filed against the same opposite parties and only the financers/Banks are different in two cases. The facts are taken from Consumer Complaint No.839 of 2017.
Consumer Complaint No.839 of 2017 Misc. Application No.2028 of 2017 This application has been filed by the complainant with a prayer to appoint an expert or a Civil Engineer or Local Commissioner to report about the shortcomings and irregularities in the project of the opposite parties.
Detailed evidence has already been led by the parties, which is sufficient to decide the controversy between the parties. Moreover, the complainant could have produced the report of some expert while leading his evidence, after getting inspected the alleged shortcomings and irregularities in the project of the opposite parties. As such, the application is dismissed.
Main Case The complainant has filed this complaint, seeking following directions to the opposite parties:Consumer Complaint No.839 of 2017 4
a) to obtain all the sanctions, approvals and permissions from the competent authorities, especially Occupation and Completion Certificate, in accordance with Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") & Rules:
b) to execute the Sale Deed in favour of the complainant;
c) to complete the flat and the project in all respects, as per the promised specifications and standards, as per the Brochure/ Agreement and also the facilities in common areas promised under the Agreement and Brochure shown to the complainants at the time of booking;
d) to provide the details of common area and facilities and the breakup of the super area and carpet area of the flat and project, in question, and further to assign a parking space for the complainant and issue a parking allotment letter;
e) to refund the amount of ₹1,01,124/- illegally charged for Club & Service Tax thereon, as there is no Club in existence at the spot;
f) to refund/pay the amount of ₹1,89,000/- towards assured return from the month of May, 2014 to November, 2014 and to refund/pay the amount of ₹1,37,088/- towards penalty on account of delay in delivery of possession from 30.06.2013 till 30.11.2014;
g) to pay monthly assured earning amounting to ₹30,000/- from December, 2014 till Occupation Certificate is obtained by them; the total of which comes to ₹9,90,000/- till the filing of the complaint;
Consumer Complaint No.839 of 2017 5
h) to pay compensation on account of delayed possession charges, as per terms of the agreement, at the rate of ₹8,800/- per month from 30.06.2013 till Completion Certificate is obtained by them; though incomplete and ineffective possession was delivered on 03.05.2015. The said amount after calculation till August, 2017 comes to ₹2,90,400/-;
i) to refund the excess amounts under the heads Service Tax and External Electrification Charges/EDC until opposite parties No.1 & 2 show, whether they had actually paid the same to the competent authority; and to refund the maintenance charges, as they failed to provide any kind of maintenance at the spot, the amount of which can be quantified as ₹1,98,203/-;
j) not to sell roof tops or grant roof rights, as it is illegal as per MC, Zirakpur and the same be declared/directed to be used commonly by all residents of particular Tower, to avoid any litigation in future;
k) It was also prayed that an expert or a Civil Engineer may be appointed to seek his independent expert opinion & report depicting the shortcomings and irregularities in the entire project, especially in common facilities;
l) to pay compensation of ₹5,00,000/- on account of deficiency in service and unfair trade practice on the part of the opposite parties as well as for the mental agony and harassment suffered by the complainant; and
m) to pay litigation expenses of ₹50,000/- to the complainant. Consumer Complaint No.839 of 2017 6
n) It was also prayed that any other relief, as deemed fit in the interest of justice, especially in view of Section 14 of the Act (punitive/exemplary damages) may also be awarded. Brief facts, as set out in the complaint, are that the complainant wanted to purchase a residential apartment with a purpose to reside in the vicinity of City Beautiful, Chandigarh. Being attracted by the advertisements/brochure made by the opposite parties regarding their project "AERO HOMES", Village Gazipur, Zirakpur, Mohali, Punjab, in which they enlisted the facilities, specifications, amenities etc., the complainant intended to buy the flat, in question, from them. The opposite parties claimed that they have obtained the licences/approvals from the Punjab Govt. and other competent authorities for setting up their project. The perusal of brochure revealed that the opposite parties would provide luxury apartments with elegant style, serene surroundings, fine architecture and other comforts as well as master bedroom and modular kitchen, 24 hours backup, biometric entry system, platform, granite stone, system, biometric entry system, video door phone with main gate, flat connectivity, boom barrier access on main entry, CCTV camera in campus, two high-speed lifts in each block, centralized communication system, gymnasium, conference room, fire fighting arrangements and club etc. Accordingly, the complainant submitted an application for allotment of flat and the opposite parties issued allotment letter dated 24.04.2012, allotting him Flat No.506, 5th Floor in Tower-A, having super area of 1760 sq.ft. for a Consumer Complaint No.839 of 2017 7 total price of ₹28,00,000/- and ₹90,000/- as Club Charges; totaling ₹28,90,000/-. The allotment letter further stated that the opposite parties had received a sum of ₹6,00,000/- towards the price of the flat, in question. The date of delivery of physical possession was stated as 30.06.2013 in Clause-8 of the said letter and compensation for delayed possession, i.e. ₹8,800/- per month for the period of delay, was provided in Clause 16 thereof. On 24.04.2012, the complainant received Welcome Letter for booking the flat, in question, with the opposite parties and he was offered Assured Return of ₹30,000/-, if he pays upfront payment equivalent to 95% of BSP. Accordingly, the complainant paid 95% of the price of the apartment to the opposite parties out of his life savings. However, the opposite parties paid said assured returns to him for some time and stopped paying the same thereafter, without furnishing any explanation. The complainant entered into Buyer's Agreement dated 24.04.2012 with the opposite parties regarding the flat, in question. Reference to other Clauses i.e. 2
(k) & (i); 4 (a), (b), & (e); and Clause 8 (d) of the agreement was also made in the complaint. As per Clause 4 (a) of the agreement, in case of delayed possession, compensation of ₹8,800/- per month for the period of delay was payable by the opposite parties to the complainant. The opposite parties issued letter dated 02.10.2012 to him, stating that owing to amendment in Finance Act, 2010, service tax became applicable on the said project at the rate of 3.09%. The complainant paid total amount of ₹29,44,029/- to the opposite parties up till 30.12.2014 towards the price of the flat, in question, as per Table given Consumer Complaint No.839 of 2017 8 in Para No.9 of the complaint. However, the opposite parties failed to deliver possession of the flat, in question, by the agreed date i.e. 30.06.2013. In order to stop payment of compensation for delayed possession and payment of assured return of ₹30,000/-, they offered incomplete and ineffective possession of the flat, in question, to the complainant, vide offer of possession letter dated 30.11.2014 (received on 22.12.2014). In that letter, though total price of the flat was mentioned as ₹28,00,000/- plus Service Tax ₹86,520/-; totaling ₹28,86,520/-, yet the opposite parties charged ₹90,000/- plus ₹11,124/- towards Club Charges and Service Tax; ₹2,25,000/- plus ₹27,810/- for External Electrification Charges and service tax over it and ₹26,400/- plus ₹3,263/- for Annual Maintenance Charges and service tax over it. The opposite parties could not charge those charges amounting to ₹3,83,597/- from him, as the club is not approved and is not in physical existence at the site. The External Electrification charges were exorbitant, in view of RTI and the maintenance charges could also not be charged, before delivery of physical possession of the flat and even thereafter, no maintenance activity was undertaken by the opposite parties. As per Statement of Account, as on 30.11.2014, the complainant had to pay a sum of ₹1,40,000/- plus service tax of ₹4,326/- as outstanding amount. He also paid ₹2,01,835/-, vide cheque No.042639 dated 30.12.2014, vide receipt dated 30.12.2014, which was acknowledged by the opposite parties towards full and final payment towards the flat and nothing remained to be paid to the opposite parties. As per Account Ledger Consumer Complaint No.839 of 2017 9 issued by the opposite parties for the period 01.04.2014 to 27.12.2014, instead of paying the assured return and delay penalty, they smartly adjusted the assured return at the rate of ₹27,000/- (₹30,000/- minus TDS) from 07.06.2012 and penalty for delayed delivery of possession at the rate of ₹8,800/- per month from 30.06.2013 in the sale consideration of the flat, which had already stood paid by the complainant. As such, they are liable to refund/pay the amount of ₹1,89,000/-, which was due towards assured return for the months from May, 2014 to November, 2014. Besides this, they are also liable to refund/pay the amount of ₹1,37,088/-, as penalty for delay in delivery of possession from 30.06.2013 till 30.11.2014 and thereafter the due amount on this account till effective and complete delivery of possession of the flat, in question, to the complainant. The possession was taken over by the complainant on 03.05.2015; though it was incomplete and ineffective. Against that, the complainant sent letter dated 08.06.2015 to the opposite parties, pointing out loop-sided terms of possession letter and maintenance agreement. The complainant was forced to sign the maintenance agreement dated 03.05.2015. As per information obtained by various residents of the project, under RTI Act, opposite parties No.1 & 2 have not obtained the Completion Certificate or other sanctions to deliver the effective possession of the flat, in question. No revised plan was submitted by them for the said project. There are various shortcomings in the project, as enumerated in Para No.17 of the complaint. No promised facilities were provided. There is no club house, no power back-up, no CCTV camera, no fire Consumer Complaint No.839 of 2017 10 fighting arrangement, no provision for 24 hours purified water supply etc. The construction in the project is also not as per the brochure. It was further averred that the complainant and other residents of the project, in question, were flabbergasted to find out a notice dated 02.08.2016 pasted on the wall of entry gate of the project, stating that Punjab National Bank has moved an application under Section 14 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI Act) before the office of District Magistrate for taking over the possession of the concerned properties. Thus, the opposite parties have also indulged in unfair trade practice and have been deficient in rendering services to the complainants. Hence, the present complaint.
Defence of the Opposite Parties
2. Upon notice, the opposite parties appeared and filed joint reply, raising certain preliminary objections that the complainant has concealed material fact of having his own house i.e. # B 102, Double Storey Quarters Motia Khan, Paharganj, New Delhi. Thus, he does not fall within the definition of 'consumer', as he purchased the flat, in question, for investment purposes. The matter in dispute can be settled through arbitration, in terms of Clause 41 of the agreement. The complaint is time barred, as the same has been filed after two years of taking the possession. The complete possession was offered, vide letter dated 30.11.2014, which was taken over by the complainant on 03.05.2015 without raising any kind of objection. The complainant has not made Maintenance Agency/Society party to the complaint. The Consumer Complaint No.839 of 2017 11 complainant has received the assured return of ₹10,00,000/- approximately from the opposite parties, whereas he has not paid full and final payment towards the price of the flat, in question. As per the agreement, the possession was to be delivered upto 30.06.2013, subject to force majeure circumstances. As per Clause 2 (d) of the agreement, timely payment of each instalment and other charges payable was the essence of the agreement. Due to non-payment of the instalments within time, the opposite parties have the right to forfeit the entire amount of earnest/registration deposited by the complainant. The outstanding amount due towards the complainant is more than ₹6,00,000/-, inclusive of EEC, Service Tax, interest and late payment charges. As such, the claim of the complainant of non-execution of sale deed is false and baseless. The opposite parties are ready to get the sale deed registered, on payment of full and final amount by the complainant. Complete possession of the said flat, with all the basic amenities, was delivered to the complainant. As per Clause 6(c) of the agreement, the opposite parties/developer can raise fund from any Bank/financial institution and create equitable mortgage, which was to be vacated before completion of project/complex. The opposite parties have already taken required permissions from the concerned authorities and Completion Certificate has already been applied by them. There is no deficiency in service on the part of the opposite parties. As per Clause 5 (d) of the agreement, the complainant is liable to pay charges like External Electrification Charges etc. He is liable to pay Service Tax, as per Service Tax Calculation. The Consumer Complaint No.839 of 2017 12 complainant is twisting the matter and making false averment regarding super area i.e. 1760 sq.ft. and covered area of the said flat as 1450 sq.ft. The covered area is always less than the super area. Super area is duly defined in the agreement. On merits, similar pleas, as raised in the preliminary objections, were reiterated and denying all other allegations of the complainant, dismissal of the complaint was prayed.
Evidence of the Parties
3. To prove his claim, the complainant tendered in evidence his own affidavit as Ex.CW-1, along with documents Ex.C-1 to Ex.C- 35, including Ex.C-1/1 to Ex.C-1/4, Ex.C-18A, Ex.C-20A to Ex.C-20N, Ex.C-24A, Ex.C-29A, Ex.C-30A and Ex.C-32A to Ex.C-32C.
4. Opposite parties No.1 & 2 tendered affidavit of Sh. Nitin Bansal, Partner, as Ex.OP/A, along with documents Ex.OP-1 and Ex.OP-2(Colly.) as well as Mark A. Contentions of the Parties
5. We have heard learned counsel for the parties and have gone through the record carefully. We have also perused the written arguments submitted by the complainant.
6. In addition to the written arguments, learned counsel for the complainant vehemently contended that the physical possession of the flat, in question, was to be delivered by 30.06.2013, but the same was delivered to the complainant on 03.05.2015, after a delay of about 23 months. Hence, the complainant is entitled to assured return of ₹30,000/- per month as per welcome letter and thereafter penalty at Consumer Complaint No.839 of 2017 13 the rate of ₹8,800/- per month for delay in delivery of possession till obtaining of Completion Certificate by the opposite parties. Against the total price of the flat i.e. ₹28,00,000/-, the complainant has already paid a sum of ₹29,44,029/-, as per receipts Ex.C-9 to Ex.C-15. The full and final payment was acknowledged by the opposite parties, as per receipt given on document Ex.C-15. The opposite parties could not have charged ₹90,000/- plus ₹11,124/- towards club charges, as the club has not been built so far by them. The opposite parties are also not entitled to charge ₹2,25,000/- plus ₹27,810/- towards External Electrification Charges and Service Tax over it, because there is no amount mentioned in the agreement to this effect. They are also not entitled to charge the annual maintenance charges and service tax over it, as no maintenance activity has been undertaken by the opposite parties. Otherwise also, they cannot charge the maintenance charges before obtaining the Completion and Occupation Certificates. No detail of the alleged fictitious amount of ₹6,00,000/- has been given in the reply, whereas the possession was delivered only after receipt of full amount, as mentioned above. The opposite parties also could not have charged Misc. Charges, without specifying their details. It was further contended that the complainants have already paid the entire amount towards the price of the flat, in question, to opposite parties No.1 & 2. The complainant found various irregularities and defects in flat and project and duly pointed out the same to them, but they failed to rectify those defects. The possession was delivered to the complainant by opposite parties No.1 & 2, without obtaining the Consumer Complaint No.839 of 2017 14 Occupation Certificate & Completion Certificate from the competent authority. The electricity charges have been excessively charged by opposite parties No.1 & 2. As per letter Ex.C-30A, opposite parties No.1 & 2 have deposited ₹30,15,236/- with PSPCL. That amount was to be divided proportionately between all the purchasers and was to be equally shared by all the allottees, but no detail in that regard was furnished by opposite parties No.1 & 2. The Service Tax was also illegally received from the complainant in excess. There is no master bedroom and modular kitchen, 24 hours backup, biometric entry system, platform, granite stone, system, biometric entry system, video door phone with main gate, flat connectivity, boom barrier excess on main entry, CCTV camera in campus, two high-speed lifts in each block, centralized communication system, gymnasium, conference room, fire fighting arrangements and club etc. in the project and the opposite parties falsely promised those amenities. The deficient and careless act of opposite parties No.1 & 2 has caused great mental agony and harassment to the complainant and he is entitled to all the reliefs, as prayed for in the complaint.
7. Per contra, learned counsel for opposite parties No.1 & 2 vehemently contended that the complaint is time barred, as the complainant was offered possession on 30.11.2014, with a request to settle his account, whereas the complaint has been filed in the year 2017. It was further contended that the matter is triable through arbitration proceedings, as per provisions of the agreement. The complainant took the possession on 03.05.2015, with his free will and Consumer Complaint No.839 of 2017 15 consent, without raising any kind of objection. The complainant was duly paid the assured return of ₹10,00,000/- approximately from them. Further a sum of ₹6,00,000/-, inclusive of EEC, Service Tax, interest and late payment charges, is due towards the complainant. The complainant did not make timely payments, which was the essence of the contract. All the necessary permissions and approvals were duly obtained by opposite parties No.1 & 2 for setting up their project. The application has also been moved to the competent authority for issuance of Completion Certificate of the project, in question. There is no shortcoming in the project or flat, in question, and the allegations of the complainant in this regard are baseless. There is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed.
Consideration of Contentions
8. We have given our thoughtful consideration to the rival contentions raised by the learned counsel for the parties.
9. First of all, we would like to dispose the preliminary objection raised by opposite parties No.1 & 2 that as per Clause 14 of the agreement, Ex.C-7, the dispute between the parties is liable to be referred to the Arbitrator.
10. It is relevant to mention that the Hon'ble Supreme Court has held in so many judgments that the remedy, provided under Section 3 of Act is an independent and additional remedy and existence of an arbitration clause in the agreement to settle disputes through arbitration will not debar the Consumer Fora, to entertain the Consumer Complaint No.839 of 2017 16 complaint, filed by the consumer. Accordingly, the aforesaid objection raised by opposite parties No.1 & 2 is rejected.
11. The opposite parties took another objection that the complaint is time barred, on the ground that the complainants were offered possession on 30.11.2014 and the complaint has been filed in the year 2017.
12. In this regard, it is relevant to mention that the flat, in question, was allotted, vide allotment letter dated 24.04.2012 and the possession was to be delivered on 30.06.2013, as per Clause 4 (a) (ii) of the agreement Ex.C-7. No doubt, the possession was offered on 30.11.2014 and was taken by the complainant on 03.05.2015, but the fact remains that it was an incomplete and ineffective delivery of possession, as opposite parties No.1 & 2 had not obtained the Occupation Certificate and Completion Certificate from the competent authorities, enable them to deliver the complete and effective possession to the allottees. Until and unless, they obtain such certificates, it cannot be held that complete possession has been delivered and there is continuous cause of action favour of the complainants till the obtaining of such certificates by opposite parties No.1 & 2. Hon'ble National Commission in "Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr." 2016(2) CLT 457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In Para 8 of the said judgment, it has been observed by the Hon'ble National Commission as under:-
Consumer Complaint No.839 of 2017 17
"8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from this authority reported in "Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
We are of the opinion that till the complete and effective possession of the flat has not been delivered, the complainant has the continuous cause of action. As such, In view of the ratio of the law laid down in the above noted authority, the complaint filed by the complainant is within limitation.
13. Now coming to the merits of the case, the allotment of the flat, in question, in favour of the complainant and delivery of possession thereof, though incomplete and ineffective, are not disputed.
14. The flat, in question, was allotted in favour of the complainants, vide Allotment Letter dated 24.04.2012, Ex.C-5, as per which the total price of the flat was ₹28,90,000/-, which included ₹90,000/- towards Club Fee. It is also mentioned therein that a sum of ₹6,00,000/- has been adjusted in the total price of the flat. Agreement, Ex.C-7, was duly executed between the parties on 24.12.2012. As per Clause 4 (a) (i) of this agreement, the possession of the said flat was to be delivered by the opposite parties by 30.06.2013, failing which the Consumer Complaint No.839 of 2017 18 opposite parties were liable to pay compensation at the rate of ₹5/- per sq.ft. per month which comes to ₹8,800/- for the period of delay, as per Clause 4 (a) (ii) of the said agreement.
15. The averments of the complainant are that the incomplete and ineffective possession of the flat was handed over to him, as opposite parties No.1 & 2 were not having the Occupation and Completion Certificates at that point of time. He also averred that opposite parties No.1 & 2 charged club fee and maintenance charges illegally. Opposite parties No.1 & 2 raised objection that the Maintenance Agency was necessary party, but it was not impleaded as party.
16. In our view, the Maintenance Agency of the project, in question, is not necessary party, because it is for opposite parties No.1 & 2 to arrange the same and they can only charge maintenance after the delivery of complete and effective possession. Once the complete and effective possession has not been delivered, opposite parties No.1 & 2 cannot claim the amount from the complainant towards maintenance charges and those charges would be payable only with effect from the date of obtaining Completion Certificate and Occupation Certificate by opposite parties No.1 & 2 as well as after providing all the required and promised facilities and amenities to the allottees and before that, they are not entitled to charge any kind of maintenance charges from the complainant. As per Account Ledger, Ex.C-17, the opposite parties charged ₹29,663/- from the complainant towards the Consumer Complaint No.839 of 2017 19 maintenance, which is liable to be refunded to him, along with interest, in view of our above observations.
17. It is also the case of the complainant that 'External Electrification Charges' and Service Tax have been excessively charged by opposite parties No.1 & 2. There is no doubt that those charges are payable by the complainant/allottees, as per Clause 5 (d) and 5 (k), respectively, of the agreement, but opposite parties No.1 & 2 cannot charge those charges over and above the permissible limit, as per the specified norms. In fact, as per information obtained under RTI, vide letter Ex.C-30A, opposite parties No.1 & 2 have deposited ₹30,15,236/- with PSPCL. In our view, the said amount is to be divided proportionately between all the allottees of the flats in the said project and the same is to be equally shared by all the allottees. However, no detail in that regard has been furnished by opposite parties No.1 & 2. They are bound to provide the calculation of the amount paid by them to PSPCL and of the amount to be charged from the various allottees, including the complainant. The said charges can either be calculated as per the super area or the covered area of the flat, in question, in accordance with law. It is made clear that if any excess amount has been charged by opposite parties No.1 & 2 from the complainant towards Service Tax or EEC or EDC, the same is liable to be refunded to the allottees by them to him.
18. It has been proved on record that the Completion Certificate and Occupation Certificate have not been issued to opposite parties No.1 & 2 in respect of the project, in question. Perusal Consumer Complaint No.839 of 2017 20 of letter 18.12.2013,Ex.OP-2, shows that opposite parties No.1 & 2 only applied for Partial Completion Certificate to the Municipal Council, Zirakpur. As per letter dated 15.01.2016, Ex.C-20/L, issued by the Municipal Council, Zirakpur, the Completion Certificate has not been issued to opposite parties No.1 & 2. As per letter dated 23.12.2015, Ex.C-20/I, the approved site plan of the opposite parties was later on dis-approved. Moreover, the Partial Completion Certificate, if issued, cannot be treated as a valid document, which can permit the developer to hand over the effective possession of the flats/plots. Thus, the complainant is entitled to valid possession, which can only be termed complete when the same is given to him after obtaining Completion & Occupation Certificates by opposite parties No.1 & 2, on completion of the project in all respects i.e. by providing effective sewerage system, proper water supply, electricity supply, roads, along with other promised facilities, as per the agreement and brochure.
19. It is also relevant to mention that Punjab National Bank, LCB, PNB House, Sector 17-B, Chandigarh has also initiated recovery proceedings against opposite party No.1-M/s N.H. Matcon and notice dated 02.08.2016, Ex.C-31, was issued to opposite party No.1 by the office of the District Magistrate, S.A.S. Nagar, under Section 14 of SARFAESI Act, for taking over the possession of the concerned properties of opposite party No.1, as mentioned therein. This fact further proves that opposite parties No.1 & 2 have committed default towards their liabilities towards the above said branch of Punjab Consumer Complaint No.839 of 2017 21 National Bank, as a result of which the above said proceedings were initiated against them.
20. The complainants have also prayed for execution of the sale deed. The total cost of the flat, in question, was ₹28,90,000/-, including club fee of ₹90,000/-. Perusal of receipts Ex.C-9 to Ex.C-15 shows that the complainant deposited a total sum of ₹29,44,029/- with the opposite parties towards the price of the flat, in question. Thus, opposite parties No.1 & 2 are liable to execute sale deed of the flat, in question, in favour of the complainant.
21. As per Welcome Letter dated 24.04.2012, on payment of 95% of payment, opposite parties offered to pay ₹30,000/- per month to the complainant as assured return till possession. The complainant deposited a sum of ₹27,42,194/- to the opposite parties, vide Ex.C-9 to Ex.C-14 till 30.12.2014, which is more than 95% of the sale consideration of the flat. Thus, he became eligible for the benefit of above said scheme of the opposite parties. He further paid a sum of ₹2,01,835/- to the opposite parties, vide cheque Ex.C-15. On this document, the opposite parties also acknowledged the receipt of full and final payment. Thus, the total amount of ₹29,44,029/- was deposited with the opposite parties towards the cost of the flat. The possession of the flat, in question, was delivered/taken over by the complainant on 03.05.2015, as per Possession Letter Ex.C-18. Perusal of Account Ledger, Ex.C-17, shows that the assured return of ₹27,000/- (₹30,000/- minus TDS) was adjusted by the opposite parties upto September, 2014. The opposite parties pleaded in their reply that Consumer Complaint No.839 of 2017 22 the complainant has received assured return amounting to ₹10,00,000/-, but no detail thereof has been proved by them on the record by way of cogent and convincing evidence. They the opposite parties are liable to pay assured return to the complainant from September, 2014 till obtaining of Completion and Occupation Certificates by them from the competent authorities for their project. The complainant is also liable to be furnished with the details mentioning the split amounts and proper calculation of the amount due, before making the calculations.
22. As per Clause 4 (a) (ii) of the agreement Ex.C-7, the possession was to be delivered by 30.06.2013, but the same has been delivered on 03.05.2015 i.e. after the delay of 23 months, that too incomplete and ineffective. We are of the view that for the delay in delivering the possession, opposite parties No.1 & 2 are bound to pay compensation at the rate of ₹5/- per sq.ft. (i.e. ₹8,800/-) per month for such delay. Therefore, complainants are entitled to compensation at the rate of ₹5/- per sq.ft. (8,800/- per month) from 30.06.2013 till the issuance of Occupation and Completion Certificates to opposite parties No.1 & 2 by the competent authorities.
23. So far as the averment of the complainant regarding sale of roof tops by opposite parties No.1 & 2 is concerned, it is relevant to mention that Clause 9 of letter Ex.C-27 issued by Municipal Council, Zirakpur, shows that the roof tops/terrace cannot be sold, as they are meant for common use. As per letter dated 29.02.2016, Ex.C-24, issued by Municipal Council, Zirakpur, there is no provision in the law Consumer Complaint No.839 of 2017 23 by which the sale of roof tops/terrace can be carried out. It was further mentioned therein that any construction against the sanctioned plan is violative of the rules and is not permissible. Shortcomings were still not removed and notice to that effect was issued to the Developer, vide No.4540 dated 26.02.2016. Thus, from the above letter, it is clear that the roof rights cannot be sold. Rather, it should be used for the common interest of the residents of the particular Tower. Thus, opposite parties No.1 & 2 are not entitled to sell the roof tops/roof rights of the particular Tower to anybody else.
24. So far as the club charges of ₹1,01,124/- received by the opposite parties, as is evident from Account Ledger, Ex.C-17, is concerned, it is relevant to mention that neither any club has been constructed, nor the same has been got approved in the layout plan of the said project. Perusal of letter dated 09.08.2016, Ex.C-27 issued by Municipal Council, Zirakpur shows that only basement has been constructed for the club and on the roof of basement, heap of garbage is lying. This proves that no proper club is in existence at the site, nor there is any kind of maintenance of the site on the part of the opposite parties. Without proper sanction, the club cannot be run in the premises and, thus, opposite parties No.1 & 2 are not entitled to charge any club charges from the complainant at this stage. So, the amount of ₹1,01,124/- received by them towards club fee plus service tax on it is liable to be refunded to the complainant, along with interest.
25. So far as the Service Tax charged on other counts and EDC charges is concerned, it is relevant to mention that the Consumer Complaint No.839 of 2017 24 complainant is liable to pay the same, as per the terms and of agreement as well as Notifications issued by the Govt. from time to time. Regarding excess charging of Service Tax and EDC, if any, the complainant can bring the same to the notice of the competent authority and if excess charging would be found against rules, then the complainant would be entitled to the refund of the same. Otherwise, they can also seek information in that regard under RTI Act from the concerned authorities.
26. So far as the prayer of the complainant for providing them the car parking space is concerned, it is relevant to mention that Clause 2 (n) "Parking Space", of the agreement, Ex.C-7, provides as under:
"That the purchaser (s) shall be provided with 01 (one) number of car parking space (covered/open) for exclusive use in the said complex, but the purchaser(s) shall not have any ownership rights over the parking space allotted to him/her/them. It shall be a right to use only, which shall stand automatically transferred with further sale of the Apartment."
27. Thus, in view of above Clause of the agreement, opposite parties No.1 & 2 are bound to provide covered/open car parking space for the exclusive use of the complainant in the said project.
28. In view of above discussion, the complaint is allowed and following directions are issued to the opposite parties: Consumer Complaint No.839 of 2017 25
i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per the provisions of PAPRA & Rules;
ii) to execute the Sale Deed regarding the flat, in question, in favour of the complainant, after furnishing the complete details of the proportionate amount due, if any. In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned. The complainant will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;
iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and to provide all the promised facilities/amenities in the project;
iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainant and to provide covered/open car parking space for the exclusive use of the complainant in the said project, as per Clause 2 (n) of agreement, Ex.C-7;
v) to refund the amount of ₹1,10,124/- received by them towards club fee plus service tax thereon, along with interest at the rate of 12% per annum from the date of receipt till payment;
vi) to pay compensation at the rate of ₹5/- per sq.ft. (i.e.₹8,800/-) per month for the period of delay in delivery of possession from 30.06.2013 till the issuance of Occupation Certificate Consumer Complaint No.839 of 2017 26 and Completion Certificate to opposite parties No.1 & 2 by the competent authority, as per Clause 4 (a) (ii) of the agreement. If any amount has been paid by the opposite parties towards above compensation, the same shall be adjusted;
vii) to pay assured return to the complainant at the rate of ₹30,000/-
per month with effect from September, 2014 till obtaining of Completion and Occupation Certificates by them from the competent authorities for their project. If any amount has been paid by the opposite parties towards above assured return thereafter, the same shall be adjusted
viii) to refund the maintenance charges of ₹29,663/-, along with interest at the rate of 12% per annum from the date of deposit till realization;
ix) not to sell the roof tops or grant roof rights to anybody, which is in violation of norms of Municipal Council, Zirakpur;
x) to pay ₹55,000/-, as composite compensation and litigation expenses to the complainant.
Consumer Complaint No.840 of 2017 Misc. Application No.2029 of 2017
29. The complainants are joint purchasers of the flat, in question, and, therefore, the application is allowed. Misc. Application No.2030 of 2017
30. The application is dismissed, in view of the observations made while discussing Misc. Application No.2028 of 2017 in Consumer Complaint No.839 of 2017.
Consumer Complaint No.839 of 2017 27Main Case
31. Similarly, in this case, the complainants purchased Flat No.305, 3rd Floor in Tower-E, measuring 1760 sq.ft. (super area) from opposite parties No.1 & 2 in their project 'Aero Homes' for a total price of ₹35,00,000/-, inclusive of club charges, as per allotment letter dated 12.09.2012, Ex.C-5. The allotment letter also stated that a sum of ₹7,00,000/- was already received by them towards the price of the flat. The physical possession of the flat, in question, was to be handed over on 30.06.2013, as per Clause 4 (a) (i) of the agreement dated 12.09.2012, Ex.C-6. As per Clause 4 (a) (ii) of the agreement, in the event of delay in delivery of possession, opposite parties No.1 & 2 were liable to pay compensation to the complainants at the rate of ₹5/- per sq.ft. (₹8,800/-) per month for the period of such delay. The complainants obtained loan of ₹25,58,250/- from opposite party No.3 and Tripartite Agreement dated 05.09.2012, Ex.C-8, was executed between the parties. The complainants made a total payment of ₹35,81,930/- to opposite parties No.1 & 2 towards the said flat, as per Account Ledger, Ex.C-9. These opposite parties charged excess amount of ₹1,98,203/- towards External Electrification Charges and Maintenance charges. The possession of the flat, in question, was not delivered by these opposite parties to them upto 30.06.2013 and, as such, opposite parties No.1 & 2 are liable to pay compensation at the rate of ₹5/- per sq.ft. (₹8,800/-) per month for the period of such delay. In order to stop the payment of compensation for delayed possession, the possession of the flat, in question, was offered to the complainants Consumer Complaint No.839 of 2017 28 on 28.06.2013, vide letter Ex.C-10, which was received by them on 17.07.2013, but it was incomplete and ineffective possession and the complainants immediately wrote letter dated 24.07.2013, Ex.C-11, to opposite parties No.1 & 2 pointing out numerous discrepancies in the flat, but to no effect. Opposite parties No.1 & 2 further committed deficiency in service, by offering physical possession of the flat to them, which was taken over by the complainants on 02.08.2014, but it was an incomplete and ineffective possession, as opposite parties No.1 & 2 had not obtained Completion Certificate and Occupation Certificate, besides necessary sanctions to offer the possession at that time. There were also so many shortcomings in the flat, in question. Opposite parties No.1 & 2 failed to remove those shortcomings, despite bringing the same to their notice. Hence, the complainants sought the following directions to opposite parties No.1 & 2:
a) to obtain all the sanctions, approvals and permission from the competent authorities, especially Occupation and Completion Certificate, in accordance with PAPRA & Rules:
b) to execute the Sale Deed in favour of the complainants;
c) to complete the flat and the project in all respects, as per the promised specifications and standards, as per the Brochure/ Agreement and also the facilities in common areas promised under the Agreement and Brochure shown to the complainants at the time of booking;
d) to provide the details of common area and facilities and the breakup of the super area and carpet area of the flat and project, in question; and to assign a parking space for the complainants and issue a parking allotment letter;
e) to pay the amount on account of delayed possession as stipulated in the agreement at the rate of ₹8,800/- per month from 30.06.2013 till obtaining of Occupation Certificate by Consumer Complaint No.839 of 2017 29 opposite parties No.1 & 2, which on calculation upto June, 2017 comes to ₹4,22,400/-;
f) to refund the excess amounts under the heads "Service Tax" and "External Electrification Charges/EDC" until opposite parties No.1 & 2 show, whether they had actually paid the same to the competent authority and also to refund the Maintenance Charges, as they failed to provide any maintenance. The same amount can be quantified as ₹1,98,203;
g) not to sell roof tops or grant roof rights and the same be declared common for all the residents of that Tower to avoid litigation in future;
They also sought following direction to opposite party No.3:
h) opposite party No.3 be directed to refund the processing fee, legal fee or other charges under any head charged from the complainants for conducting their due diligence on the project and flat and also till the time registration of Sale Deed in favour of the complainants is not done, it should be directed to provide a Moratorium on payment of interest on loan amount;
They have also sought following joint directions to opposite parties No.1 to 3:
i) due to deficiency in service and unfair trade practice on the part of the opposite parties, compensation of ₹5,00,000/- be awarded for the mental agony and harassment suffered by the complainants;
j) to pay litigation expenses of ₹50,000/- be awarded in favour of the complainants;
They have also prayed that:
k) an expert or a Civil Engineer may be appointed to seek his independent expert opinion & report depicting the shortcomings and irregularities in the entire project, especially in the common facilities; and
l) any other relief, as deemed fit in the interest of justice, especially in view of Section 14 of the Act (punitive/exemplary damages) may also be awarded.
32. Opposite parties No.1 & 2 filed reply, on the similar lines of their reply, as given in Consumer Complaint No.839 of 2017. Consumer Complaint No.839 of 2017 30
33. Opposite party No.3 also filed reply, raising similar preliminary objections that the complaint is barred against it, as the possession was already taken by the complainants on 02.08.2014 and thereafter, no representation/claim/grouse was ever raised by them with opposite party No.3. Answering opposite party is only a financer and it has no role to play with the dealings between the complainants and opposite parties No.1 & 2. As per the Tripartite Agreement, the complainants are duty bound to make payment of monthly instalments, without any default. Irrespective of the stage of construction, the complainants are under paramount obligation to pay the EMIs regularly to it. On demand, the payments were released in favour of opposite parties No.1 & 2. There is no deficiency in service on the part of opposite party No.3. It was prayed that the complaint be dismissed against opposite party No.3.
34. To prove their case, the complainants tendered in evidence affidavit of complainant No.1 as Ex.CW-1, along with documents Ex.C- 1 to Ex.C-31, including Ex.C-1/1 to Ex.C-1/4, Ex.C-7A, Ex.C-9A, Ex.C- 15A to Ex.C-15N, Ex.C-19A, Ex.C-24A, Ex.C-25A and Ex.C-27A to Ex.C-27C.
35. Opposite parties No.1 & 2 tendered affidavit of Sh. Nitin Bansal, Partner, as Ex.OP/A, along with documents Ex.OP-1/A (colly.) to Ex.OP-3(colly.) and Mark-A.
36. No evidence has been led by opposite party No.3. Consumer Complaint No.839 of 2017 31
37. Similar arguments have been raised by the learned counsel for the parties, as raised by them in Consumer Complaint No.839 of 2017.
38. So far as the legal fee and processing charges taken by opposite party No.3 are concerned, the same are part and parcel of the Tripartite Agreement and the same cannot be refunded to the complainants. The complainants also prayed that till the time registration of Sale Deed in favour of the complainants is not done, opposite party No.3 should be directed to provide a Moratorium on payment of interest on loan amount. This prayer of the complainants is also not tenable, as opposite party No.3 performed its part of the contract by advancing and disbursing the loan amount for making payment towards the price of the flat, in question, to opposite parties No.1 and 2 for delivery of ineffective and incomplete possession, opposite party No.3 cannot be directed to provide moratorium on payment of interest till the execution of the Sale Deed. Thus, there is no deficiency in service on the part of opposite party No.3, who has just advanced the loan amount to the complainants for making instalments towards the price of the flat, in question. Charging of process fee by the Financial Institution cannot be said to be an act of deficiency in service. The complaint against opposite party No.3 is liable to be dismissed.
39. In view of above discussion as well as the reasons and discussion held in Consumer Complaint No.839 of 2017, this complaint is allowed against opposite parties No.1 & 2 and the same is dismissed Consumer Complaint No.839 of 2017 32 against opposite party No.3. The following directions are issued to opposite parties No.1 & 2:
i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per provisions of PAPRA & Rules;
ii) to execute the Sale Deed regarding the flat, in question, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any. In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned. The complainants will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;
iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and all the promised facilities/amenities in the project;
iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainants and to provide covered/open car parking space for the exclusive use of the complainants in the said project, as per Clause 2 (n) of agreement, Ex.C-6;
v) to pay compensation at the rate of ₹5/- per sq.ft. per month (₹8,800/- per month) for the period of delay in delivery of possession from 30.06.2013 till the issuance of Occupation Certificate and Completion Certificate to opposite parties No.1 & Consumer Complaint No.839 of 2017 33 2 by the competent authority. If any amount towards above said compensation has been paid by opposite parties No.1 & 2 to the complainant, the same shall be adjusted;
vi) to refund the maintenance charges of ₹29,663/-, charged vide Account Ledger, Ex.C-9, along with interest at the rate of 12% per annum from the date of deposit till realization;
vii) to pay ₹55,000/-, as composite compensation and litigation expenses to the complainants.
40. Regarding prayers of the complainants at No. (f), (g) & (k), the observations have already been made, while discussing the merits of Consumer Complaint No.839 of 2017 and the same will be applicable/complied with in this case also.
Consumer Complaint No.696 of 2017 Misc. Application No.1792 of 2017
41. The complainants are joint purchasers of the flat, in question, and, therefore, the application is allowed.
Main Case
42. Similarly, in this case, the complainants purchased Flat No.102, 1st Floor in Tower-D, measuring 1760 sq.ft. (super area) from opposite parties No.1 & 2 in their project 'Aero Homes' for a total price of ₹35,00,000/-, inclusive of club charges, as per allotment letter dated 30.03.2015, Ex.C-6. The allotment letter also stated that a sum of ₹23,00,000/- was already received by them towards the price of the flat. The physical possession of the flat, in question, was to be handed over on 30.06.2015, as per Clause 4 (a) (i) of the agreement dated Consumer Complaint No.839 of 2017 34 04.02.2015, Ex.C-8. As per Clause 4 (a) (ii) of the agreement, in the event of delay in delivery of possession, opposite parties No.1 & 2 were liable to pay compensation to the complainants at the rate of ₹5/- per sq.ft. (₹8,800/-) per month for the period of such delay. The complainants obtained loan of ₹12,00,000/- from opposite party No.3 and Tripartite Agreement dated 23.04.2015, Ex.C-10, was executed between the parties. The Bank charged ₹3,371/- plus service tax as processing charges/legal fee/misc. charges while sanctioning the loan. The complainants made a total payment of ₹44,20,000/- to opposite parties No.1 & 2 towards the said flat, as per receipts/statements of accounts Ex.C-11 to Ex.C-18A. The possession of the flat, in question, was not delivered by these opposite parties to them upto 30.06.2015 and, as such, opposite parties No.1 & 2 are liable to pay compensation at the rate of ₹5/- per sq.ft. (₹8,800/-) per month for the period of such delay. However, the possession was physically taken by the complainants on 05.11.2015, but it was incomplete and ineffective possession, as opposite parties No.1 & 2 had not obtained Completion Certificate and Occupation Certificate, besides necessary sanctions to offer the possession at that time. The complainants were also coerced to sign a maintenance agreement and also to pay maintenance charges. There were also so many shortcomings in the flat, in question. Opposite parties No.1 & 2 failed to remove those shortcomings, despite bringing the same to their notice. Hence, the complainants sought the following directions to opposite parties No.1 & 2:
Consumer Complaint No.839 of 2017 35
a) to obtain all the sanctions, approvals and permission from the competent authorities, especially Occupation and Completion Certificate, in accordance with PAPRA & Rules:
b) to execute the Sale Deed in favour of the complainants;
c) to complete the flat and the project in all respects, as per the promised specifications and standards, as per the Brochure/ Agreement and also the facilities in common areas promised under the Agreement and Brochure shown to the complainants at the time of booking;
d) to provide the details of common area and facilities and the breakup of the super area and carpet area of the flat and project, in question; and to assign a parking space for the complainants and issue a parking allotment letter;
e) to pay the amount on account of delayed possession as stipulated in the agreement at the rate of ₹8,800/- per month from 30.06.2015 till obtaining of Occupation Certificate by opposite parties No.1 & 2;
f) to refund the excess amounts under the heads "Service Tax" and "External Electrification Charges/EDC" until opposite parties No.1 & 2 show, whether they had actually paid the same to the competent authority;
g) not to sell roof tops or grant roof rights and the same be declared common for all the residents of that Tower to avoid litigation in future;
They also sought following direction to opposite party No.3:
h) opposite party No.3 be directed to refund the processing fee, legal fee or other charges under any head charged from the complainants for conducting their due diligence on the project and flat and also till the time registration of Sale Deed in favour of the complainants is not done, it should be directed to provide a Moratorium on payment of interest on loan amount;
They have also sought following joint directions to opposite parties No.1 to 3:
i) due to deficiency in service and unfair trade practice on the part of the opposite parties, compensation of ₹5,00,000/- be awarded for the mental agony and harassment suffered by the complainants;Consumer Complaint No.839 of 2017 36
j) to pay litigation expenses of ₹50,000/- be awarded in favour of the complainants;
They have also prayed that:
k) an expert or a Civil Engineer may be appointed to seek his independent expert opinion & report depicting the shortcomings and irregularities in the entire project, especially in the common facilities; and
l) any other relief, as deemed fit in the interest of justice, especially in view of Section 14 of the Act (punitive/exemplary damages) may also be awarded.
43. Opposite parties No.1 & 2 filed reply, on the similar lines of their reply, as given in Consumer Complaint No.839 of 2017.
44. Opposite party No.3 also filed reply, pleading that a loan of ₹12,04,719/- was sanctioned in favour of the complainants and Tripartite Agreement, Ex.C-10, was executed between the parties on 23.04.2015. The loan amount was disbursed as per demands of the complainants. There is no deficiency in service on the part of opposite party No.3. It was prayed that the complaint be dismissed against opposite party No.3.
45. To prove their case, the complainants tendered in evidence affidavit of complainant No.1 as Ex.CW-1, along with documents Ex.C- 1 to Ex.C-40, including Ex.C-1/1 to Ex.C-1/4, Ex.C-18A, Ex.C-18B, Ex.C-21/A to Ex.C-21/N, Ex.C-25A, Ex.C-30A, Ex.C-31A and Ex.C- 33A to Ex.C-33C.
46. Opposite parties No.1 & 2 tendered affidavit of Sh. Nitin Bansal, Partner, as Ex.OP/A, along with documents Ex.OP-1 to Ex.OP-3(colly.) and Mark-A. Consumer Complaint No.839 of 2017 37
47. Opposite party No.3 tendered in evidence affidavit of Sh. Rajnish Gupta, Authorized Officer as Ex.OP-3A, along with documents Ex.OP-3/1 to Ex.OP-3/5.
48. Similar arguments have been raised by the learned counsel for the parties, as raised by them in Consumer Complaint No.839 of 2017.
49. In view of the reasons and discussion held in Consumer Complaint No.839 of 2017, this complaint is allowed against opposite parties No.1 & 2 and the same is dismissed against opposite party No.3. The following directions are issued to opposite parties No.1 & 2:
i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per provisions of PAPRA & Rules;
ii) to execute the Sale Deed regarding the flat, in question, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any. In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned. The complainants will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;
iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and all the promised facilities/amenities in the project; Consumer Complaint No.839 of 2017 38
iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainants and to provide covered/open car parking space for the exclusive use of the complainants in the said project, as per Clause 2 (n) of agreement, Ex.C-8;
v) to pay compensation at the rate of ₹5/- per sq.ft. per month (₹8,800/- per month) for the period of delay in delivery of possession from 30.06.2015 till the issuance of Occupation Certificate and Completion Certificate to opposite parties No.1 & 2 by the competent authority. If any amount towards above said compensation has been paid by opposite parties No.1 & 2 to the complainant, the same shall be adjusted;
vi) to pay ₹55,000/-, as composite compensation and litigation expenses to the complainants.
50. Regarding prayers of the complainants at No. (f), (g) (h) &
(i), the observations have already been made, while discussing the merits of Consumer Complaint No.839 of 2017 and Consumer Complaint No.840 of 2017 and the same will be applicable/complied with in this case also.
51. Opposite parties No.1 & 2 shall comply with the orders passed in all the complaints, within 60 days of the receipt of the copy of the order.
52. The complaints could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
Consumer Complaint No.839 of 2017 39
53. Since there is shortage of postal stamps in this Commission, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it would be the responsibility of the learned counsel for the parties to inform them accordingly.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER February 09, 2018.
(Gurmeet S)