State Consumer Disputes Redressal Commission
Mr. Shubham Setia & Anr. vs M/S Mb Infrabuild Pvt. Ltd. & Others on 23 February, 2024
Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.60 of 2021
Date of institution : 21.12.2021
Reserved on : 02.02.2024
Date of Decision : 23.02.2024
1. Mr.Shubham Setia S/o Sh.Satish Setia, Resident of House
No.303, Marry Gold, Soul Place Society, Sector -70, SAS Nagar,
Mohali, Punjab.
2. Mrs. Raj Setia W/o Sh.Satish Setia, Resident of House No.303,
Marry Gold, Soul Place Society, Sector 70, SAS Nagar, Mohali,
Punjab.
.....Complainants
Versus
1. M/s MB Infrabuild Pvt. Ltd., Registered Office at 354, Tarun
Enclave, Pritampura, Delhi through its Director's. Email ID-
[email protected]
2. Mr.Sushil Kumar Verma (Director) Resident of Flat No.373,
Pocket B-5, Sector -8, Rohini, North West Delhi. Email:
[email protected]
3. Mr.Sachin Bahmba (Director) Resident of DB-42E, LIG Flats,
Hari Nagar, West Delhi. Email [email protected]
4. Harvinder Arora (Director) Resident of 125, Bharat Nagar, Ashok
Vihar, North Delhi. Email [email protected]
5. M/s MB Infrabuild Pvt. Ltd. Corporate Office at Golf Range,
Sector 65, SAS Nagar, Mohali, Punjab. Through its Managing
Director/authorized representative. Email ID :
[email protected]
.....Opposite parties
6. Dewan Housing Finance Limited, SCO 811-812, Sector 22-A,
Chandigarh through its authorized signatory. Email :
[email protected].
.....Proforma party
Consumer Complaint No.60 of 2021 2
Consumer Complaint under Section 47 of
the Consumer Protection Act, 2019.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Present:
For the complainants : Sh.D.S.Soundh, Advocate For opposite parties No.1to5 : Sh.Yash Yadav, Advocate For opposite party No.6 : Ms.Shruti Sharma, Advocate for Sh.Nitin Thatai, Advocate HARINDERPAL SINGH MAHAL, PRESIDING JUDICIAL MEMBER The complainant - Mr.Shubham Setia and Anr. has filed their complaint under Section 47 of the Consumer Protection Act, 2019, (in short "C.P. Act") for the indulgence of this Commission for seeking following directions to the opposite parties:-
(i) to give effective possession immediately of the fully furnished, fully developed and habitable unit as per promised specifications and to produce the completion / occupation certificate;
(ii) to clear the outstanding dues till date with the bank and honor the conditions of the Subvention Scheme.
(iii) to issue an actual/ effective possession letter after procuring the requisite permissions/ certification as mandate by the law;
(iv) to withdraw the demand letter dated 27.06.2021 and to issue a revised demand letter at the time of actual / effective possession after adjusting the penal delayed Consumer Complaint No.60 of 2021 3 charges further to calculate the GST @5% as assured on the demand money;
(v) to withdraw the demand of maintenance charges of GMADA Golf range membership till the actual possession of the unit.
(vi) to pay Rs.20 lakhs as compensation for physical and mental harassment and damages for adopting various unfair trade practices;
(vii) to pay Rs.55,000/- as legal costs; and
(viii) any other relief which this Commission may deem fit be also passed.
2. Brief facts culminating to the institution of the present complaint are that the opposite parties floated a scheme for allotment of residential apartment under the name and style of "Beverly Golf Avenue". The complainants being allured with the promotions of the opposite parties project and on the assurances that the project would be completed by July 2020 and refund of GST paid by the complainant @7-8% out of 12% booked a unit, vide application dated 22.02.2018 and paid the booking amount of Rs.5,00,000/-, vide cheque No.83498 dated 22.02.2018. The complainants were allotted Apartment No.830, 8th Floor in Tower No.10, having carpet area of 1556.89 sq.ft. type Maxima along with parking No.P830 admeasuring 121 sq.ft. in the basement of "Beverly Golf Avenue". The complainants were offered the Subvention Scheme, as per which, the complainants have to pay the 15% of the total consideration at the time of book and rest will be disbursed by the Bank as loan to the builder and under this plan, the Consumer Complaint No.60 of 2021 4 complainants were exempted from paying any EMI's or interest to the scheduled Bank till the date of actual physical possession of the apartment and the interest amount shall be paid by the opposite parties. Sale agreement was executed on 05.05.2018. The total sale consideration was fixed as rs.1,50,91,673/-. As per the agreement to sell, the possession of the flat was to be delivered upto 31.07.2020. As per the scheme and to make the timely payment, the complainants availed the housing loan of Rs.94,45,596/- i.e. 75% of the sale consideration and a Tripartite Agreement dated 20.06.2016 was executed between the complainants, opposite parties and Bank. The complainants upto 31.03.2021 paid Rs.1,02,75,015/-. In the year 2019, complainant No.2 visited the site and came to know that the progress of work is very slow but the opposite parties assured to hand over the apartment at its committed date. The opposite parties failed to adhere to their commitment for handing over the possession on the committed date. As the opposite parties-builder failed to achieve the construction milestone as per the agreement therefore, opposite party No.6 stopped disbursing the loan amount as per the scheduled payment of disbursement and opposite parties without disclosing these facts to the complainants stopped paying interest to opposite party No.6-DHFL. After that, a demand letter dated 09.02.2021 was issued by opposite party No.6 demanding Rs.1,31,582/- as arrears upto January, 2021. While the complainants discussed it with the opposite parties, they instead of resolving, they raised a demand of Rs.53,08,432/- vide letter dated 24.02.2021. The complainant No.2 repeatedly approached the opposite parties through email dated 29.04.2021 for handing over the Consumer Complaint No.60 of 2021 5 possession as well as to clear the bank dues as per the agreement but no satisfactory reply was given by the opposite parties. The complainant again received the illegal demand notice dated 22.04.2021 demanding Rs.36,48,261/- along with interest of Rs.16-17 lakhs imposing the interest for the year 2019 to 2021. Clarification was sought by the complainants through email dated 24.04.2021, whereon they sent a vague reply on 28.04.2021. No justifiable reason for the inordinate delay in construction has been conveyed by the opposite parties to the complainants. The opposite parties have even failed to offer the possession at the assured time. It is further averred that apart from other deficiencies and unfair trade practice opposite parties demanding Rs.4,248/- for the maintenance fee of complimentary GMADA golf range membership, which is again not sustainable in the eyes of law. The complainants had booked this apartment for the use and occupation by their own family. The opposite parties are not in a position to deliver the actual effective possession of any unit as they have not yet received the Occupancy and Completion Certificate from the competent authorities. This act and conduct of the opposite parties No.1 to 5 amounts to deficiency in service and unfair trade practice and prayed for allowing the complaint by granting all the reliefs as prayed.
3. Opposite parties No.1 to 5 filed their joint written statement taking preliminary objections that the complainants have not approached this Commission with clean hands. It is submitted that the proposed building plan was approved in the meeting dated 30.04.2016 of Punjab Regional and Town Planning Board and a set of sanctioned Consumer Complaint No.60 of 2021 6 building plans were issued to opposite parties, vide letter dated 15.03.2017. The opposite parties applied for its registration with RERA on 28.07.2017 which was approved on 22.09.2017, wherein the time granted for completion of the project was 31.07.2021, which was further extended upto 31.01.2023. The complaint is pre-mature and has been filed without any cause of action and thus, liable to be dismissed on this ground. It is admitted that the complainants booked residential unit No.890, 3BHK (Maxima) Tower 10, 8th Floor, having carpet area of 1556.89 sq. ft. along with parking No.P-830 measuring 121 sq.ft. in the basement of 'Beverley Golf Avenue' @ Rs.9060/- sq. ft. on 22.02.2018 by making the payment of Rs.5 lacs as booking amount. The total consideration as per the agreement to sell dated 05.05.2018 was Rs.1,50,91,673/- and they opted for Subvention scheme. Rs.94,45,596/- i.e. 75% of the sale consideration was taken by the complainants as loan from opposite party No.6 and a Tripartite agreement was executed between the parties. It is submitted that as per Clause L of the Tripartite Agreement the builder shall pay pre-EMI for a fixed period of 36 months and accordingly, an amount of Rs.20,24,629/- has been paid by the answering opposite parties, which also include an amount of Rs.2,42,145/- for interest towards the months of May, June, July and August, 2020 being moratorium period. On asking of disbursing the sanctioned housing loan amount, the answering opposite parties were asked by opposite party No.6 to ask the complainants to visit the nearest branch of opposite party No.6, which was accordingly conveyed to them. It is denied that opposite party No.6 stopped disbursing the loan amount due to non achieving Consumer Complaint No.60 of 2021 7 the construction milestone, whereas Corporate Insolvency Resolution Process was initiated against opposite party No.6 by National Company Law Tribunal, vide order dated 03.12.2019 and that was the reason for not disbursing the remaining loan amount. Therefore, having left with no option, the answering opposite parties approached the complainants for remaining sale consideration. They were informed that there is default in respect of payment due of Rs.36,48,261/- as on 24.02.2021 and have been penalized as per clause 13 of agreement to sell. As per Clause 17 of the agreement the flat is proposed to be handed over within 36 months from the date of commencement of construction or date of execution of builder buyer agreement. It is submitted that World Health Organization declared COVID 19 as a pandemic on 11.03.2020, therefore, nationwide lockdown was imposed in the country w.e.f. 25.03.2020. On 13.05.2020, the Ministry of Housing and Urban Affairs announced that the time for completion should be extended for a period of six months and according RERA, Punjab extended the period for six months for registration and completion of projects. The answering opposite parties were granted time till 31.01.2023 to complete the project and for reverse migration of the laborers to their native places, the construction industry was badly affected. On merits, it is admitted tht the complainant was allotted a unit No.830, 8th Floor, Tower 10 for an amount of Rs.1,50,91,653/- on 22.02.2018. It is also submitted that the complainant is entitled for GST benefit as per Notification No.03/2019-Central Tax (Rate) dated 29.03.2019 issued by Ministry of Finance, Govt. of India. The other averments as averred by the Consumer Complaint No.60 of 2021 8 complainants in their complaint were denied and prayed for dismissal of the complaint with costs.
4. On the other hand, the opposite party No.6 did not file its written version despite providing the opportunity, therefore, the defence of opposite party No.6 was struck off, vide order dated 24.03.2022.
5. Rejoinder to the written statement was filed by the complainants, wherein the complainants denied all the submissions as taken by opposite parties No.1 to 5 in their written statement and reiterated the averments made in the complaint and prayed to allow the complaint.
6. The complainants in support of their averments has filed joint affidavit dated 15.12.2021 along with photocopies of the documents i.e. Brochure as Ex.C-1, payment receipt dated 04.06.2018 as Ex.C-2, allotment letter dated 05.05.2018, subvention scheme schedule as Ex.C-4, agreement to sell dated 05.05.2018 as Ex.C-5, tripartite agreement dated 20.06.2018 as Ex.C-6, GST Input Credit dated 14.11.2018 as Ex.C-7, receipts dated 20.03.2018 and 29.06.2018 as Ex.C-8, photographs as Ex.C-9, letter dated 09.02.2021 as Ex.C-10, letter dated 24.02.2021 as Ex.C-11, email dated 29.04.2021 as Ex.C- 12, letter dated 22.04.2021 as Ex.C-13, email dated 24.04.2021 as Ex.C-14, email dated 29.08.2021 as Ex.C-15, CIBIL score as Ex.C-16, emails dated 29.08.2021 and 19.10.2021 as Ex.C-17, demand letter dated 27.06.2021 as Ex.C-18, photographs as Ex.C-19, letter dated 29.08.2019 as Ex.C-20 and aadhaar card as Ex.C-21. Consumer Complaint No.60 of 2021 9
7. On the other hand, the opposite parties No.1 to 5 filed the affidavit of Sh.Harvinder Arora, Director, M/s M.B. Infrabuild Private Limited along with photocopies of documents i.e. resolution dated 22.09.2020 as Annexure RA, letter dated 20.10.2015 as Annexure R- 1, letter dated 15.03.2017 as Annexure R-2, letter of registration dated 22.09.2017 as Annexure R-3, booking form as Annexure R-4, emails as Annexure R-5(colly), letter dated 24.02.2021 as Annexure R-6 and order dated 13.05.2020 is Annexure R-7.
8. We have heard the contentions of the parties and have also gone through the complaint, written statement, evidence as well as written arguments filed by the complainants. We have also given our thoughtful consideration to the same.
9. Learned counsel for the complainants submitted the written arguments as well as orally contended that they booked the unit with the opposite parties No.1 to 5 for their personal. The unit was booked under the subvention scheme. The total sale consideration of the unit was fixed as Rs.1,50,91,673/-, out of which the complainants paid a sum of Rs.1,02,75,015/-. It is alleged that as per the subvention scheme plan, the opposite parties No.1 to 5 were to pay the pre-EMI till the handing over of the possession but they paid the pre-EMIs for a limited period and after that they refused to pay the same further due to which the complainants had to face the difficulties with the Bank authorities. Also, the opposite parties No.1 to 5 have also failed to hand over the possession of the unit within the stipulated period as agreed between the parties. Due to that, the Bank did not release the balance installment. Moreover, the opposite parties despite Consumer Complaint No.60 of 2021 10 completing the project in time started illegal demands of the remaining payment from the complainants along with interest. This act and conduct of the opposite parties amount to deficiency in service and unfair trade practice. Resultantly, the complainants filed this complaint seeking all the reliefs as mentioned above.
10. On the other hand, learned counsel for the opposite parties contended that there is no deficiency in service on the part of the opposite parties. It is argued that the complainants opted for subvention scheme and as per the agreement executed between the parties, the opposite parties were to pay the pre-EMI only for three years. The project of the opposite parties was approved by RERA on 22.09.2017 which was further extended upto 31.01.2023 due to the outbreak of COVID pandemic. During that period, the construction industry was badly affected and due to that the project was not completed within the stipulated period. It is prayed for dismissal of the complaint.
11. Admittedly, the complainants booked the apartment with opposite parties No.1 to 5 by paying Rs.5,00,000/- as booking amount, vide receipt dated 04.06.2018, Ex.C-2. Thereafter, the allotment letter dated 05.05.2018 was issued to the complainants, wherein they were allotted Unit No.830, Tower No.10, Unit Type 19G, 8th Floor at the rate of Rs.9,060/- per sq. ft. including GST @12%. The complainants opted for subvention plan, vide Ex.C-4. An agreement to sell was executed between the parties on 05.05.2018, Ex.C-5 . The total sale consideration of the unit was fixed as Rs.1,50,91,673/-, out of which the complainants paid Rs.1,02,75,015/- to opposite parties No.1 to 5. Consumer Complaint No.60 of 2021 11
12. There are two main issues, which the complainants are alleging i.e. the possession was not handed over to the complainants within the stipulated period and not paying the pre-EMIs as assured.
13. Firstly, we discuss about the grievance of the complainants regarding delayed possession. As per allotment letter dated 05.05.2018, Ex.C-3, the complainants were allotted Unit No.830, Tower-10, 8th Floor at the rate of Rs.9,060/- per sq. ft. (inclusive 12% GST), at the Group Housing Project "Beverly Golf Avenue" by the opposite parties. The complainants to make the payment opted for subvention scheme. The total sale consideration of the unit was fixed as Rs.1,50,91,673/-. Out of which the complainants have paid Rs. Rs.1,02,75,015/- to the opposite parties. As per the Clause 7.1 of 'Agreement to Sell' specific date of possession has been given i.e. upto 31.07.2020. The relevant clause 7.1 is reproduced as under:
"7.1) Schedule for possession of the said Apartment - The promoter agrees and understands that timely delivery of possession of the Apartment is the essence of the Agreement. The Promoter, based on the approved plans and specifications, assures to hand over possession of the Apartment upto 31.07.2020, unless there is delay or failure due to war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature or any unforeseen reasons affecting the regular development of the real estate project ("Force Majeure"). If, however, the completion of the Project is delayed due to the Force Majeure conditions then the Allottee agrees that the Promoter shall be entitled to the extension of time for delivery of possession of the Apartment, provided that such Force Majeure conditions are not of a nature which make it impossible for the contract to be implemented. The Allottee agrees and confirms that, in the event it becomes impossible for the Promoter to Consumer Complaint No.60 of 2021 12 implement the project due to Force Majeure conditions, then this allotment shall stand terminated and the Promoter shall refund to the Allottee the entire amount received by the promoter from the allottee on termination of allotment. After refund of the money paid by the Allottee, the Allottee agrees that he/she shall not have any rights, claims etc. against the Promoter and that the Promoter shall be released and discharged from all its obligations and liabilities under this Agreement."
14. As per the above clause, it has been clearly mentioned that the possession was to be handed over to the complainants upto 31.07.2020. However, in March, 2020 there was an outbreak of pandemic COVID-19 and a nationwide lockdown was imposed by the Central Government. Due to this every business and industry was badly impacted and in such a fear many migrant workers left the construction site and moved to their hometowns. The markets partially reopened in July 2020 i.e. within 4 months and construction work resumed gradually. No doubt that keeping in view the situation RERA authority further extended the project of the opposite parties upto 31.07.2021, vide Ex.R-3. In the second wave of COVID pandemic partial lock down was imposed for some time and the project was again extended by RERA authorities by 31.07.2023. No doubt, the situation was beyond the control of the opposite parties which thrown back the project by 4 to 5 months but still the opposite parties have failed to handover the complete physical possession to the complainants till the filing of the complaint i.e. 21.12.2021 and now it is going 2024, so the plea of the opposite parties-builder that their project could not completed just because of COVID pandemic is not accepted. Even during the pendency of the complaint, the opposite parties have Consumer Complaint No.60 of 2021 13 failed to prove on record that the project has been completed and they have obtained the Occupancy and Completion Certificate. Meaning thereby, the project is still incomplete and they are not in a position to handover the possession to the complainants.
15. The other grievance of the complainants is that they opted the subvention scheme plan, as per which the opposite parties-Builder was to pay the pre-EMIs till the handing over of the possession. Before proceeding further, it is utmost necessary to have a look into the meaning of Subvention Scheme, which has been floated by the builders and financial institutions jointly to allure the gullible customers. Subvention means grant of money. A subvention scheme is a legal agreement made between the buyer, the seller, and the finance company providing home loans and under this scheme, the buyer does have to pay any amount in the form of interest until an agreed period of time, this time period is mentioned under the contract terms. This mere definition of subvention scheme itself shows that time is essence of agreement because as per this scheme, the builder has invited the buyer through Bank with the undertaking that he will pay the EMI till the possession deliver and the time period fixed for delivery of possession was about 26 months i.e. 05.05.2018 to 31.07.2020, as per the agreement to sell, showing thereby that the time is essence, which has to be considered under the scheme and if any lapse has been committed by the builder then the Bank cannot force the allottee/buyer to pay the EMI till the possession. This shows that the responsibility of the builder is to follow the scheme in toto and in case there is any lapse on the part of the builder then he has to face the Consumer Complaint No.60 of 2021 14 music for the lapse committed by him in contravention to the terms and conditions of this scheme.
16. Now reverting back to the facts of the present case the complainants in support of their contentions has also referred to Schedule -'C' of Subvention Plan, which is part of allotment letter dated 05.05.2018, exhibited as Ex.C-3, whereby in point No.5 it has been written that 'The subvention scheme is valid till offer of possession.'. On the same date, the agreement to sell was executed. Thereafter on 20.06.2018, a Tripartite Agreement was executed between the complainants, financial institution and opposite parties No.1 to 5. To further clarify, it is necessary to reproduce the relevant conditions of 'Tripartite Agreement' Ex.C-6, which are as under:
"D. The Builder has offered various Schemes/payment plans, i.e. Construction Linked Plan/Scheme, Down Payment Plan/Scheme, Subvention Scheme/Pre-EMI sharing scheme, Special Scheme etc. to the members of general public on the terms and conditions mentioned in the respective scheme, with a view to enable the people at large to buy flats/units in under any of such schemes.
E. The Builder has approached DHFL with one of such schemes, wherein the builder agrees to pay the entire amount of Pre-EMIs for a specified period for and on behalf of the Flat purchasers/borrowers of DHFL, who are desirous of purchasing/ acquiring Flats/units in the said project by availing Home Loans from DHFL, interest on which will be linked to the Retail Prime Lending Rate of DHFL (hereinafter referred to as "the Special Scheme").
F. The Builder has also represented to DHFL that subsequent to the disbursement of Home Loans under the Special Scheme as agreed hereinafter and in according with the Construction Linked Payment Plan described in Schedule II hereunder, the Consumer Complaint No.60 of 2021 15 Builder's obligation to pay the agreed Pre-EMIs to DHFL shall be a distinct and independent obligation more particularly independent of any issue/concern/dispute of whatsoever nature between the Flat purchaser/Borrower of DHFL and the Builder during the loan period and shall be governed as per the terms of this agreement.
XX XX XX XX XX XX
XX XX XX XX XX XX
J. DHFL on the basis of representations made by the Builder
and the Borrowers, has agreed to grant a Home Loan of Rs.94,45,596/- ("the said Home Loan") to the Borrowers under the Special Scheme of the Builder under the Construction Linked Payment Plan, subject to the Borrower's income and/ or repayment capacity as assessed by DHFL and also subject to fulfillment by the Borrower, of all the terms and conditions that may be stipulated by DHFL and execution of Loan Agreement and other necessary security documents/agreements as may be stipulated by DHFL in this regard.
XX XX XX XX XX XX
XX XX XX XX XX XX
L. Under the Special Scheme, as agreed between the Builder and the Borrower, the Builder is desirous of paying the Pre-EMI interest on the entire amount of home loan disbursed by the DHFL, as payable by the Borrowers to the DHFL, for a fixed period of 36 months starting _______ and expiring on _______ ("the Pre-EMI period"). After the expiry of the Pre-EMI interest/ EMIs as per the terms and conditions contained in the Loan Agreement."
17. The careful perusal of the above mentioned clauses of Tripartite Agreement are itself contradictory to the allotment letter issued to the complainants. The opposite parties No.1 to 5 on the basis of these clauses are claiming that they are only liable to pay the Pre-EMI for a specified period, which is 36 months, which they Consumer Complaint No.60 of 2021 16 themselves stated that they have paid. However, these clauses do not represent to any 'Subvention Scheme' but as per Clause 'F' the Special Scheme is represented to Construction Linked Plan, which the complainants never opted. Moreover, the opposite parties No.1 to 5 in para 6 of their written version themselves accepted that the complainants opted Subvention Scheme and got sanctioned 75% of the loan amount i.e. Rs.94,45,596/- from opposite party No.6 i.e. DHFL. Accordingly, the contention of opposite parties No.1 to 5 that they have only to pay the pre-EMI for 36 months is hereby rejected and the opposite parties are required to pay the pre-EMI interest to the financial institution till the handing over the physical possession as per the agreement entered into between the parties.
18. We also rely upon the judgment of the Hon'ble Supreme Court in Civil Appeal No.7149 of 2019 titled "Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor", decided on 07.04.2022, wherein it has been held as under:
"22.1 We are of the opinion that for the interest payable on the amount deposited to the restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts. The Commission in the order impugned has granted interest from the date of last deposit. We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. V. DS Dhanda (2020) 16 SCC 318 and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits."Consumer Complaint No.60 of 2021 17
19. Now with regard to prayer of the complainants regarding withdrawal of demand of maintenance charges of GMADA Golf rang membership. In this regard, it is relevant to through the Clause 7.3 of the agreement, which is as under:
"7.3) Failure of Allottee to take possession of Apartment- Upon receiving a written intimation from the promoter as per clause 7.2, the allottee shall take possession of the Apartment from the Promoter by executing necessary indemnities, undertakings and such other documentation as prescribed in this Agreement, and the Promoter shall give possession of the Apartment to the allottee. In case the Allottee fails to take possession within the time provided in clause 7.2, such allottee shall continue to be liable to pay maintenance charges as applicable. On failure of allottee to pay the instalment as per schedule given in the allotment letter, apart from paying the interest on the delayed amount, the possession of the apartment shall be extended to the extent of period of delay in paying the defaulted amount."
20. The above clause clearly shows that the allottee would be paid maintenance, once he/she received the letter of possession, however, in this case, the complainants neither received offer of possession nor received the physical possession of the apartment, even during the pendency of the complaint. Therefore, the letter issued by opposite parties No.1 to 5 for paying the maintenance charges requires to be rejected.
21. From the above facts and circumstances, it is clearly proved that the opposite parties No.1 to 5 have failed to deliver the possession of the apartment, in question, to the complainants despite expiring more than two years. The complainants have already paid the substantial amount to the opposite parties No.1 to 5 towards the price Consumer Complaint No.60 of 2021 18 of the apartment, in question, from their hard earned money, with a purpose to have a residential apartment for their personal use, but due to non-delivery of possession during all this long period, they suffered great mental tension, hardship and harassment at its hands. Therefore, the complainants are entitled for the relief and compensation, as prayed. The complainants have deposited Rs.1,02,75,015/- which has been admitted by the opposite parties No.1 to 5 in their written version.
22. With regard to liability of opposite party No.6 is concerned, the complainants have not raised any claim against opposite party No.6. Also no deficiency in service or unfair trade practice has been pointed out against opposite party No.6. Therefore, the complaint against opposite party No.6 requires to be dismissed.
23. In view of our above discussion, the complaint is allowed against the opposite parties No.1 to 5 and dismissed qua opposite party No.6. The following directions are issued to opposite parties No.1 to 5:
i) to hand over the possession of the unit, in question, i.e. Apartment No.0830, 8th Floor, 10th Tower in Group Housing Project "Beverly Golf Avenue" carpet area measuring 1556.89 sq.ft. with Balcony area 310.97 sq.ft. as per Buyer's Agreement, after obtaining the Completion / Occupation Certificate within two months, subject to payment of balance sale consideration, if any, without interest or penalty;Consumer Complaint No.60 of 2021 19
ii) to pay the remaining as well as future pre-EMIs to the financial institution till the handing over of the possession as per relief (i).
iii) to withdraw the letter for releasing the maintenance charges till handing over the possession of the apartment, in question as per relief (i)
iv) to pay Rs.51,000/- as compensation for mental agony and harassment suffered by the complainants; and
v) to pay Rs.21,000/- as litigation charges.
24. The opposite parties No.1 to 5 shall comply with the above said directions within a period of two months from the receipt of the certified copy of the order.
25. This complaint could not be decided within the statutory period due to heavy pendency of court cases.
(HARINDERPAL SINGH MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER February 23rd,2024 parmod