State Consumer Disputes Redressal Commission
Sunil Kumar Bhandari vs Ambika Realcon Developers Pvt. Ltd on 4 April, 2024
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. : 64 of 2023
Date of Institution : 26.07.2023
Date of Decision : 04.04.2024
1. Sunil Kumar Bhandari, senior citizen aged about 60 years 7 months son of
Sh. Ram Sahai Bhandari;
2. Deepika Bhandari aged about 56 years 10 months wife of Sh. Sunil Kumar
Bhandari;
Presently, both residents of Flat No.903. Tower Triomph-D, La Parisian,
Sector 66B, IT City, Mohali-140306
Previously: House No.71, Bharat Nagar Bathinda, Tehsil and District
Bathinda.
E-mail: [email protected]/[email protected].
...Complainants
Versus
1. Ambika Realcon Developers Private Limited, Registered Office at Building
No.251, Glatt Building, 2nd Floor, Behind Modi Flour Mill, Okhla, Phase-3,
New Delhi-110020 and Regional Office at 18-19, FF, Sector 9-D, Madhya
Marg, Chandigarh-160009 through its Directors.
2. Shri Ritesh Sehgal, Director, Ambika Realcon Developers Private Limited,
Registered Office at Building No.251, Glatt Building, 2nd Floor, Behnd Modi
Flour Mill, Okhla, Phase-3, New Delhi-110020 and Regional Office at 18-19,
FF, Sector 9-D, Madhya Marg, Chandigarh- 160009. E-mail:
[email protected]
3. Sh. Diwakar Bansal, Director, Ambika Realcon Developers Private Limited,
Registered Office at Building No.251, Glatt Building, 2nd Floor, Behind Modi
Flour Mill, Okhla, Phase-3, New Delhi-110020 and Regional Office at 18-19,
FF, Sector 9-D, Madhya Marg, Chandigarh-
[email protected]
4. Ashish Garg, Authorized Signatory for executing Agreement for Sale on
behalf of Opposite Party No, 1, Ambika Realcon Developers Private Limited,
Registered Office at Building No.251, Glatt Building, 2nd Floor, Behind Modi
Flour Mill, Okhla, Phase-3, New Delhi-110020 and Regional Office at 18-19,
FF, Sector 9-D, Madhya Marg, Chandigarh- 160009. Email:
[email protected]
2
5. Rahesh Kumar, Authorized Signatory for execution of Conveyance/Sale
Deed on behalf of Opposite PartyNo, 1, Ambika Realcon Developers Private
Limited, Registered Office at Building No.251, Glatt Building, 2 nd Floor,
Behind Modi Flour Mill, Okhla, Phase-3, New Delhi- 110020 and Regional
Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-160009. Email:
[email protected]
.....Opposite Parties
Present:-
Sh.Inderjit Sharma, Advocate for the complainants and complainant no.1 in
persons.
Sh.Manpreet Singh Longia, Advocate for opposite party no.1.
Opposite parties no.2 to 5 exparte vide order dated 01.09.2023.
=============================================================
Complaint case No. : 67 of 2023
Date of Institution : 01.08.2023
Date of Decision : 04.04.2024
Promila Pathela W/o Sh.R.P. Pathela, resident of House No.304, Tower-Orchid
B, Ambika Florence Park, New Chandigarh-140901
...Complainant
Versus
Ambika Realcon Developers Private Limited, SCO 18-19, 1st Floor, Sector 9,
through its Director/Partner.
...Opposite party
Present:-
Sh.Rohit Goswami, Advocate for the complainant.
Sh.Manpreet Singh Longia, Advocate for opposite party
=============================================================
Complaint case No. : 70 of 2023
Date of Institution : 03.08.2023
Date of Decision : 04.04.2024
1. Jagjiwan Kumar Gupta is a senior citizen aged about 60 years 11 months
son of Sh. Tek Chand Gupta;
2. Kalpana Gupta aged about 59 years 9 months wife of Sh. Jagjiwan Kumar
Gupta;
Presently, both residents of Flat No.1404, Triomph-D, La Parisian, Sector
66-B, S.A.S Nagar (Mohali) -140306
Previously: House No.255, Sector 22, Chandigarh -160022
Email: [email protected].
...Complainants
Versus
3
1. Ambika Realcon Developers Private Limited, Regional Office at 18-19, First
Floor, Sector 9-D, Madhya Marg, Chandigarh-160009 through its Directors.
2. Shri Ritesh Sehgal, Director, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. E-mail: [email protected]
3. Sh. Diwakar Bansal, Director, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. [email protected]
4. Ashish Garg, Authorized Signatory for executing Agreement for Sale on
behalf of Opposite Party No,1, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. Email: [email protected]
5. Rakesh Kumar, Authorized Signatory for execution of Conveyance/Sale
Deed on behalf of Opposite Party No.1, Ambika Realcon Developers Private
Limited, Regional Office at 18-19, FF, Sector 9-D, Madhya Marg,
Chandigarh-160009. Email: [email protected]
.....Opposite Parties
Present:-
Sh.Inderjit Sharma, Advocate for the complainant.
Sh.Manpreet Singh Longia, Advocate for opposite party no.1.
Opposite parties no.2 and 3 exparte vide order dated 31.10.2023
Opposite parties no.4 and 5 exparte vide order dated 01.09.2023.
=============================================================
Complaint case No. : 102 of 2023
Date of Institution : 18.09.2023
Date of Decision : 04.04.2024
1. Iqbal Rai aged 40 years 1 month son of Sh. Anil Kumar Bhandari;
2. Rohita aged about 40 years wife of Sh. Iqbal Rai;
Presently, both residents of Flat No.1403, Triomph-D, La Parisian, Sector
66-B, S.A.S Nagar (Mohali) -140306
Previously: Vaid Shyam Singh Street, Water Works Road, Mansa 151505
E-mail: [email protected]
[email protected].
...Complainants
Versus
1. Ambika Realcon Developers Private Limited, Registered Office at Building
No.251, Glatt Building, 2nd Floor, Behind Modi Flour Mill, Okhla, Phase-3,
New Delhi-110020.
4
2. Shri Ritesh Sehgal, Director, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. E-mail: [email protected]
3. Sh. Diwakar Bansal, Director, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. [email protected]
4. Ashish Garg, Authorized Signatory for executing Agreement for Sale on
behalf of Opposite Party No. 1, Ambika Realcon Developers Private Limited,
Regional Office at 18-19, FF, Sector 9-D, Madhya Marg, Chandigarh-
160009. Email: [email protected]
5. Rakesh Kumar, Authorized Signatory for execution of Conveyance/Sale
Deed on behalf of Opposite Party No.1, Ambika Realcon Developers Private
Limited, Regional Office at 18-19, FF, Sector 9-D, Madhya Marg,
Chandigarh-160009. Email: [email protected]
.....Opposite Parties
Present:-
Sh.Inderjit Sharma, Advocate for the complainant.
Sh.Manpreet Singh Longia, Advocate for opposite party no.1.
Opposite parties no.2,4 and 5 exparte vide order dated 15.11.2023.
Opposite parties no.3 exparte vide order dated 22.12.2023.
=============================================================
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. RAJESH K. ARYA, MEMBER
JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT By this order, we propose to dispose of the above captioned four consumer complaints. Since, the facts involved in the above complaints, except minor variations, here and there, of law and facts are the same, therefore, we are of the opinion that these complaints can be disposed of, by passing a consolidated order.
2. These consumer complaints have been filed by the respective complainants, seeking directions to opposite parties to pay compensation for the period of delay in delivery of possession of their respective units; execute sale deed in respect of their units; provide all basic amenities; remove all defects in the respective units; to provide the entire record pertaining to financial transactions of escrow account opened for the project and also GST collection; calculation of carpet area/built-up area/super area of the units; compensation for mental agony and harassment etc.
3. The facts have been culled out from consumer complaint no.64 of 2023, titled as Sunil Kumar Bhandari and another Versus Ambika Realcon Developers Pvt. Ltd. and others, wherein, it has been stated by the complainants as under:-
5a. Despite the fact that it was assured by the opposite parties that the project in question is approved by the State Bank of India, yet, when the complainants approached for seeking housing loan, the said Bank rejected the loan application on the ground of non approval of the said project;
b. Area of the units in question was illegally increased by the opposite parties;
c. Charging of interest on the payments, despite the fact that delay occurred only on account of the reasons that the bank concerned did not sanction the housing loan and the complainants had to arrange the same from other sources;
d. Maintenance agreement was got signed by the complainants with the shell company named M/s Sri Vishnu Facilities Management LLP, which collected advance maintenance charges to the tune of Rs.62,800/-
e. Letter dated 18.11.2022 qua demand of maintenance charges was illegal because partial completion certificate was issued by the competent authorities only on 27.12.2022 (Annexure C-6) and that too in the absence of basic amenities like club house construction of which has just started, lack of parking space etc.; f. Even partial completion certificate had been got without getting inspection of the project in question and on the basis of that certificate, possession stood offered vide letter dated 04.01.2023 (Annexure C-7);
g. Maintenance agreement containing one sided terms and conditions was thrust upon the complainants;
h. Despite depositing amount towards conveyance deed with the opposite parties, they failed to get the conveyance deed executed, as a result of which, the complainants were deprived of getting special rebate qua registration of unit, given by the Govt. of Punjab and even the format of conveyance deed (Annexure C-10) was sent by opposite party no.4 without incorporating car parking etc. and various conditions mentioned therein are illegal and one sided favouring the opposite parties;
i. Even the name of the project has been unilaterally changed from La Parisian to Ambika La Parisian;
j. Car parking has also been provided of lesser area against the committed area and that too against the commitment of pro-rata share in common areas and one covered parking;6
k. Number of shortcomings/defects were found in the tower in question, in which the units are located and construction work was of inferior quality; service lift has also not been provided in the tower and the grievances raised by the complainants and other similar located allottees were not redressed despite making written requests in the matter. Other facilities like intercom, additional security, DTH etc. have also not been provided at the project site. Water sprinklers, water supply pipes etc. stood installed in such a position near the units, which is creating obstruction of sunlight etc. Exhaust pipes of the genset have been erected on Tower Versile without getting environmental clearance. However, matter was taken up with the opposite parties, number of times, but to no avail; l. Additional tower has been illegally constructed in violation of environmental clearance dated 24.05.2018 and NBC Code.
4. Similar pleas have been taken by the complainants in the connected consumer complaints. Details with regard to the project in dispute; units purchased by the complainants; payments made by them etc. of these complaints are given below:-
S. CC Project Unit no. and Total cost Allotment Possession Possession Sale deed N No. super area as as per date and date Offered and per agreement agreement Agreement delivered on (Rs.) date
1. 64 "LA 903, 9th Floor, 7464684/- 23.11.2018 31.03.2022 Offered on Not of PARISIAN", Super Area (Ann C-1) (Clause 7.1 04.01.2023 executed 2023 located at 1740 and of (Ann. C-7) Sector 66, Beta, sq.ft/Carpet 10.09.2019 agreement) TRIOMPHE-D Area 1082 sq.ft. (Ann. C-2) NOC issued IT City, Mohali Tower-6 on 18.01.2023 (Ann. C-8)
2. 67 "FLORENCE ORCHID/B/304 7861455/- 24.12.2020 31.07.2021 Offered on Executed of PARK" located 3rd Floor, Super (After (Ann C-2) (Clause 7.1 06.08.2022 on 2023 at New Area 2080 sq. discount) and of (Ann. R-1/5) 17.2.2023 Chandigarh, ft/Carpet Area 28.12.2020 agreement) SAS Nagar, 1400 sq. ft, (Ann. C-3) Delivered on Mohali, Punjab Tower No.5 05.09.2022 (Ann. C-5)
3. 70 "LA 1404, 14th 8788338/- 28.02.2020 30.09.2022 Offered on Not of PARISIAN", Floor, Super (Ann C-1) (Clause 7.1 28.12.2022 executed 2023 located at Area 1725 and of (Ann. R-1/3) Sector 66, Beta, sq.ft/Carpet 21.07.2020 agreement) TRIOMPHE-D Area 1080 sq.ft. (Ann. C-2) NOC issued IT City, Mohali Tower-6 on 27.01.2023 (Ann. C-20)
4. 102 "LA 1403, 14th 8082454/- 22.07.2020 30.09.2022 Offered on Not of PARISIAN", Floor, Super (Ann C-1) (Clause 7.1 28.12.2022 executed 2023 located at Area 1740 and of (Ann. C-16) Sector 66, Beta, sq.ft/Carpet 29.07.2020 agreement) TRIOMPHE-D Area 1082 sq.ft. (Ann. C-2) NOC issued IT City, Mohali Tower-6 on 17.01.2023 (Ann. C-18) 7 Written reply of OP No.1:-
5. Their claim has been contested by opposite party no.1 on numerous grounds, inter alia, as under:-
a. that the complainants have concealed material facts from this Commission and have approached this Commission with unclean hands;
b. that as per terms and conditions of the agreements, the complainants have agreed to raise any dispute under the jurisdiction of RERA, therefore, this Commission has no power to adjudicate these complaints;
c. that the complaints are bad for non joinder of other institution(s) as necessary party(s) i.e. the maintenance agency named M/s Vishnu Facilities, LLP;
d. that since the complainants themselves defaulted in making payment towards their unit(s), as such, the time period of possession automatically stood extended;
e. that all the permissions and sanctions stood obtained by opposite party no.1 in accordance with the provisions of RERA and GMADA;
f. that possession of the units were offered in view of anticipation of receipt of partial completion and occupation certificates from the competent authorities;
g. that possession of the units in question was delayed because of onset of COVID-19;
h. that the competent Authorities extended the period of completion of the project for six months, vide circular dated 28.10.2020 because of COVID-19;
i. that maintenance charges are being charged for up-keeping the common areas and facilities like lifts, guards, fire equipments, garden, cleaning of common areas, lighting, plumbers, electricians etc. j. that the complainants did not raise any protest while obtaining NOCs from the opposite party no.1 and on the other hand, have submitted their satisfaction regarding facilities at the project site; k. that after obtaining NOCs, the complainants have waived of their rights for delayed compensation;
l. that as far as non execution of sale deed is concerned, the Revenue Department did not finalize the collector rates in respect of Sector 66, SAS Nagar, Mohali, which resulted into delay in execution of sale deed;8
m. that as per the provisions of Punjab Apartment Owners Act, 1995, space meant for car parking has not been included in the common areas and facilities;
n. that in the face of existence of arbitration clause in the agreements, this Commission is having no jurisdiction to decide these complaints and only an arbitrator can adjudicate the same;
6. None put in appearance on behalf of opposite parties no.2 to 5, as a result whereof, they were proceeded against exparte.
7. In the separate rejoinders filed, the complainants reiterated all the averments contained in the respective complaints and controverted those contained in written statement filed by the opposite party no.1.
8. This Commission has afforded adequate opportunities to the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, the contesting parties have adduced evidence by way of affidavits and also produced numerous documents.
9. We have heard the contesting parties and have gone through the entire material available on record, including written arguments.
Preliminary objections and findings of this Commission:-
Arbitration:-
10. First coming to the objection taken by opposite party no.1-Ambika Realcon Developers Pvt. Ltd. with regard to Arbitration, it may be stated here that this issue has already been set at rest by the larger Bench of the Hon'ble National Commission in Aftab Singh Vs. Emaar MGF Land Limited & Anr., Consumer Case No. 701 of 2015, wherein, vide order dated 13.07.2017, it has been held that an Arbitration Clause in the Agreements/ contracts between the buyer and the Builder cannot circumscribe the jurisdiction of a Consumer Fora notwithstanding the amendments made to Section 8 of the Arbitration Act. Civil appeal bearing No.23512-23513 of 2017 and Review Petition (C) Nos.2629-2630 of 2018 filed by the builder, before the Hon'ble Supreme Court of India, also stood dismissed vide orders dated 13.02.2018 and 10.12.2018 respectively. As such, objection taken in this regard stands rejected.
Choice of complainants to file complaint before RERA or under Consumer Protection Act:-
11. As far as objection taken by opposite party no.1 that these complaints are not maintainable under the provisions of CPA and on the other hand, should have been filed under the provisions of RERA, it may be stated here that this issue has also been set at rest by the Hon'ble Supreme Court in Imperia Structures Ltd. v. Anil Patni & Another, (2020) 10 SCC 783 9 wherein, it was clearly held that redressal mechanism/provisions under the Real Estate (Regulation and Development) Act 2016 (RERA) do not act as a bar to complaints under the Consumer Protection Act. In this view of the matter, objection taken in this regard also stands rejected.
Merits of the case:-
12. Now coming to the merits of this case, it may be stated that there is no dispute with regard to the fact that the complainants have purchased the respective units aforesaid, in the said project of opposite parties, as per details given in the chart above. It is also coming out from "No Dues Certificates"
issued by the opposite parties to each of the complainants, which are placed on record by the complainants in their respective cases, wherein it has been specifically mentioned that the company has received full and final payment and that there are no dues against the company and the company has no objection if the respective units are registered in favour of the buyer/complainant(s). It is also an admitted fact that as on today, all the complainants are in possession of their respective units, yet, these complaints have been filed by them, as they are aggrieved of non payment of compensation for the period of delay in delivery of possession of their units; incomplete development and basic amenities; defects in construction work of the unit as well as other defects, indicated above etc.
13. Coming to the question, as to whether, the complainants have been able to prove on record that there were any defects in the construction work carried out by the opposite parties in the project in question or not. It may be stated here that in order to prove their case, the complainants have placed on record a detailed Assessment Report dated 05.10.2023, Annexure C- 18, having been got prepared by Er.Harjinder Singh Bhatia, Government Approved Valuer, Loss Assessor and Chartered Engineer, SCO No.292, First Floor, Sector 35-D, Chandigarh, in respect of the project in question. A bare perusal of this Assessment Report dated 05.10.2023, Annexure C-18 reveals that the same is supported by relevant provisions of Rules and Regulations of the Government concerned; actual photographs of the project site/unit etc. In this report, Annexure C-18 it has been clearly opined by the said Engineer as under:-:-
"......Feature as present actually delivered at site:
Except the location advantage nothing is much appreciable as Property is the Project does not adhere to the prescribed standards and guidelines related with the design, construction, workmanship and material used in the project and lacks in providing desired light and ventilation as well as privacy as claimed by the builder. The 10 project does not meet with premium segment of Indian Standards what to talk of International Standard and delivered the final product with ordinary and affordable comfort and facilities. The intension of the builder has clearly been observed to extract the maximum of profit by indulging any means rather to provide safety, comfort and luxury as per terms and condition settled in the agreement. Property under consideration is delivered with compromised interior/exterior finishing, poor workmanship & unattended Civil/allied work as on date of site visit as explained below...."
".....OBSERVATION DETAILS:
During multiple site visits on date 10/9/2023 & 18/09/2023 it was observed that there are miscalculation of carpet area, Client's entitled Enclosed Parking Space, Undivided Share of Land, multiple abnormalities in construction and finishing work, left behind by project developer here. The builder has constructed ducts by deviating from the approved drawings; violated norms and guidelines specified for providing setbacks between the adjacent towers; constructing extra tower without environmental, pollution and forest clearance; did not provide service lift of required size that can accommodate stretcher of appropriate dimensions despite having lift shaft of 2970 mm X 1975 mm size thereby putting the human life of inhabitants at grave danger in case of health emergency; used inferior quality/lower grade material and provided poor workmanship during construction, creating structural defects of permanent nature; skipped provision of so many items (especially for finished work) at the cost of comforts of the habitants; changed the design of elevation of the block including design of the dome of the blocks at the cost of aesthetic value intentionally to extract undue profits and still managed to get occupancy certificate/partial occupancy certificate from GMADA officials (reasons best known to the builder/GMADA officials), It reflects intentional service deficiency and unfair trade practice in the construction process itself resulting from poor design, materials & workmanship.
These abnormalities commonly known as "Patent defects" are readily obvious upon inspection. They're the ones that a contractor, technical person or habitant can easily find during normal inspections and are visible through naked eye.
Accordingly these Patent defects as noted during site visit are listed and elaborated as below along with facts & figures and photographs....."
".....REMARKS Whereas in agreement builder assured for PREMIUM QUALITY WORK but it's an incomplete & unfinished project much away from 11 expectations and building standards with extensively pending interior & exterior job as noticed. Lot of internal/external work is lying pending and complete project has lot of deficiencies that need extensive amount, extra time and specific labour. It's a clear case of poor and unsafe workmanship & construction practice; much out of tolerance/permissible limit of workmanship and material quality.
Now calculating it on the basis of Extent of Deviation in Workmanship (Whether within Maximum Permissible Tolerance in building practice), it's noticed that work done is much deviates from IS 2402 (Technical provisions relating to external rendered-finishes) & far away from IS Codes used Building Construction Practices in India.
Secondly, owners are skeptical/fearful & under stress of living with flaws as delivered by the builder after spending substantial amount on construction.
Also time/money already consumed for construction and similarly time/money to be consumed for repair, construction and completion of pending jobs will be a big wastage of additional time/expense to owners.
After accessing extent of defects in the work done it seems possibility of repair due to negligence is bleak It is concluded at the end that to extract the maximum lemon juice, the builder crushed skin of lemon also and spoiled the taste of the entire juice. He painted the rosy picture and lured the buyers by advertising that his project "La Parisian" will be developed on an identical lifestyle that reflects the ethos of Paris. The designs of La Parisian is based on the importance of keeping spaces, European style architecture (including Gothic Artwork) clean surroundings, plantations, flowers and greenery everywhere. La Parisian follows the G+15 structure with independent towers having 100% light and ventilation as well as privacy. The project is a rare blend of nature and all modern amenities by following international standards in all regards to provide premium and luxury apartments with hundred percent ventilation, sunlight as well as privacy. But the factual position is that he has made the promise with the mindset to break it. His sole aim was to extract maximum profit. Usually, one tower per acre can be constructed as a thumb rule by following all the stipulated norms/guidelines/rules. In the present case, he should have constructed maximum 8 towers in 6.93 acres of total land as he got environmental and forest clearance for 8 towers only. However, he has manipulated and managed to construct the ninth tower and in the process disturbed all the equations of requirement of minimum distances regarding provision of service lift, width of lift lobby, minimum distance to be left between adjacent building and ramp slope etc. by not following the various norms and guidelines stipulated by NBC 2016/IBC. He also managed to get the occupancy certificate for Tower 6, 7 and 8 though he has deviated from approved drawings, done violation of various norms and NBC 12 guidelines in spite of poor workmanship and inferior quality finishing work. He has incurred only 46.67% of the realized amount on the project and cornered the rest by adopting unfair trade practice and creating deficiency in service. After subsequent site visits & as per observations and calculations made above we do hereby access that said project need lot of extra amount, time to correct, replace, repair and complete the tasks by the builder otherwise, besides other required refunds due to my clients on account of late possession/ overcharging of interest upon delayed payment etc; he needs to compensate my client on account of various construction related abnormalities......"
14. In the Assessment Report dated 05.10.2023, Annexure C-18, it has been clearly opined that there has been deviation from approved drawings/commitments as per brochure; violation of rules/conditions qua clearance of height/distance between each tower; service lift has not been provided of appropriate size; lesser area has been designated for parking in basement; structural defects in the towers; inferior finishing work; inferior work of doors/windows/wood, plumbing/sanitary/flooring, electrical fittings/accessories, white washing/glazing; some provisions like electrical socket, two way switches, sockets in balconies for emergency service, power supply points on kitchen top, provision of fan points in dressing areas/bathrooms/balconies etc. have been intentionally skipped; lack of common facilities like club house, swimming pool, kids pool, banquet hall etc. have not been provided at the project site etc. However, on the other hand, the opposite parties have failed to rebut the contents of the Assessment Report dated 05.10.2023, Annexure C-18 aforesaid, by placing on record any evidence contrary to it.
15. Apart from above, it is significant to mention here that during pendency of these complaints, the complainants by way of moving application, have placed on record documents, Annexures C-19 to C-26 i.e. copies of site plan promised/approved and delivered; Letter dated 27.10.2022 issued by the GMADA in respect of the said project, whereby GMADA raised objection regarding illegal construction of service shaft on the left and right side of the units; Photographs of the ducts; copies of pre-drafted letters from other allottees; RTI Applications. It is significant to mention here that we have gone through the said photographs and also the site plans etc. and found that in the project located at Sector 66, La Parisian, there have been various deviations in approval drawings, made in the tower in question, which has made the life of the complainants miserable. Out of those, major deviations are construction of ducts in front of all the washrooms and changing of direction of window of the bathrooms, thereby restricting the sunlight and ventilation and also the 13 distance between the two towers, thereby causing suffocation, deprivation of direct sunlight, privacy etc. To the utter surprise of this Commission, opposite party no.1 in its reply to the said application, tried to wriggle out of the same by stating therein that in order to augment the overall style and architecture of building, opposite party no.1 has covered the pipes by way of shaft. As far as deviations made in the structure is concerned, it has been stated by opposite party no.1 that the objection raised by GMADA vide letter dated 27.10.2022, being not inherent change, was compoundable in nature, for which, the company has already paid compounding fee amounting to Rs.15,90,276/-. Relevant part of the said reply is reproduced hereunder:-
:......4. That be that as it may, it is humbly submitted that complainant has alleged that duct has been constructed in front of the window of his bathroom. It is humbly submitted that in the original plans, approved by the Competent Authority, the plumbing pipes were already existing on the spot. The looks of pipes, were not commensurating with the elevation and architectural style of the building/tower. In order to agument the overall style and architecture of the building the OP no. 1 has just covered the pipes by way of shaft.
5. That the objection in respect of the same was also raised by the GMADA vide letter dated 27.10.2022 copy of which has placed on record as Annexure C-21. The said objection, being not inherent change, was compoundable in nature and as per the instructions of the GMADA issued vide letter dated 13.12.2022, the compounding fees mounting to Rs. 15,90,276/- already stands deposited with the GMADA.
6. That the OP no. 1 has already paid the compounding fee in respect of the same and the order of the compounding has already been passed............."
16. Under above circumstances, the candid admission of the opposite party no.1, referred to above, and also the Assessment Report dated 05.10.2023, Annexure C-18, itself proves the case of the complainants that there was a gross violation of building code on the part of the opposite parties and also that the construction work of the unit in question was defective and of inferior quality. Under these circumstances, we are of the considered view that for inconvenience caused to the complainants for deviation of approved drawings and also for various patent structural defects and also for defective and inferior quality of construction, the complainants need to be adequately compensated by the opposite parties.
14Maintenance Charges:-
17. It is also coming out from the record that the opposite parties have raised demand qua maintenance charges from the complainants, before offering possession of their respective units and also before obtaining partial completion certificates. The opposite parties have failed to justify their stand, as to how they can raise demand of maintenance charges, when the complainants are not in possession of their respective units and especially, when they themselves, vide clause 11.1 of the agreement have committed that the promoter shall be responsible to provide and maintain essential services in the project till the taking over of the maintenance of the project by the association of the allottees and that cost of such maintenance has been included in the total sale price of the unit. Under these circumstances, by raising demand qua maintenance charges before offering possession of their respective units and also before obtaining completion certificates the opposite parties have adopted unfair trade practice and are liable to refund the maintenance charges, if any, received by them from the complainants in view of the principle of law laid down by the Hon'ble National Commission in Gurumurthy Thisgarajan and Anita Rao and Ors.
("Complainants") v. VDB. Whitefield Development Pvt. Ltd ("VDB Whitefield"), Consumer Complaint no.763 of 2020, decided on 25.01.2022, wherein it was held that the builders should refrain from coercing flat owners to pay maintenance charges without obtaining OC from the civic authority.
Increase in area of the units:-
18. The next question that falls for consideration is, as to whether, opposite parties can increase the area of the unit(s) at the time of offering possession thereof or not? It may be stated here that we have gone through the contents of condition no.1.6 of the agreement, Annexure C-2 and found that it has been agreed to between the parties that opposite party no.1 can make addition and alteration to the extent of 5% in the sanctioned plans, layout plans and specifications etc. without the previous written consent of the allottees. Relevant part of the said condition is reproduced hereunder:-
"...1.6 It is agreed that the Promoter shall not make any additions and alterations beyond the extent of 5 percent in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, without the previous written consent of the Allottee. Provided that the Promoter may make such minor additions or alterations as may be required by the Allottee, or such minor changes or alterations as per the provisions of the Act. Provided further that if the authority competent to issue approvals is 15 of the view that certain changes in the project are necessary, he may on application of the Promoter do so for the reasons to be recorded in writing and in that case consent of allottee shall not be required...."
It is significant to mention here that we have gone through each case very minutely and found that the increase in area of the respective units, is ranging between 2% to 5% only, which is averagely permissible under clause 1.6 referred to above. Under these circumstances, plea taken by the complainants that they are entitled to get refund of the differential amount paid towards increase in area of the respective units stands rejected.
Delayed compensation:-
19. The next questions that falls for consideration is, as to whether, the complainants are entitled to get compensation for the period of delay in delivering possession of their respective units and if yes, to what extent? It is clearly depicting from the afore-extracted table that there was delay on the part of opposite parties in delivering possession of the respective units to the complainants. At the time of arguments also, when a specific query was put to counsel for opposite party no.1, as to why delay has been caused in completing the project, he stated that it was on account of force majeure circumstances i.e. due to COVID-19 the construction and development was put at halt for some period and that the competent Authorities extended the period of completion of the project, vide circular dated 28.10.2020, aforesaid because of COVID-19. It may be stated here that this Commission is also not oblivious of the fact that lockdown in the country was announced in March 2020.
Resultantly, the competent Authorities extended the period of completion of the project, for a period of 6 months because of COVID-19. Thus, in our considered opinion, the opposite parties are entitled to get immunity of these 6 months from the actual date of possession of the units in question to the complainants, only in the cases, where they have made allotments prior to COVID-19 and possession dates were falling during the existence of COVID-19 in the country. However, in case, where the allotment of the units have been made and agreement have been executed during or after COVID-19, the opposite parties cannot seek any immunity because they themselves have committed to deliver possession of the respective units after obtaining substantial amounts from the respective complainants, during that period. In DLF Homes Panchkula Pvt. Ltd. Versus Himanshu Arora, Civil Appeal No.11097 of 2018, decided on 19 November, 2018 under similar circumstances, the Hon'ble Supreme Court of India has upheld the order of the Hon'ble National Commission awarding interest @9% p.a. for the period of delay in delivery of possession of the units. Relevant part of the said order is reproduced hereunder:-
16"......8. Having regard to the above submission, we indicated to the learned Counsel appearing on behalf of the flat purchasers that it would be appropriate if the interest as ordered by NCDRC at 9% per annum is made payable over the period which was determined by the Order of the SCDRC. There is no objection by the flat purchasers to the aforesaid modification being made. Even otherwise, we are of the view that such a modification would be required in the interests of justice since it was the appellants who had questioned the Order of the SCDRC before the NCDRC.
9. In the above facts and circumstances, we confirm the direction of the NCDRC that the appellants shall pay interest @ 9 per cent per annum. However, the period over which interest shall be payable will be in conformity with the Order passed by the SCDRC...."
Thereafter also, irrespective of what was mentioned in the agreements, similar rate of interest i.e. 9% p.a. was granted by the Hon'ble Supreme Court in DLF Homes Panchkula (P) Ltd. Versus Sushila Devi, Civil Appeal Nos.2285-2330 of 2019, decided on 26 February, 2019, by making reference to the earlier order passed by it in Himanshu Arora's case (supra).
In Nagesh Maruti Utekar Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-
"......Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today. The Opposite Party Developer shall also pay cost of ₹25,000/- to the Complainants in each case. Since we have awarded delay compensation till the date of offer of possession instead of actual physical possession of the Flat, the Opposite Party Developer shall not be entitled for any delay interest from the date of offer of possession till the date of payment made by the Complainant for taking physical possession of the Flat......"
In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In Basanta Kumar Nandy & 14 Ors. Versus Dreamz Infra India Ltd. (Formerly Known As Dreamz Infra India Pvt. Ltd.), Consumer Case No. 2749 OF 2017, decided on 27.06.2022 also, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. As such, in our 17 considered opinion, in the present cases, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due dates of possession onwards, keeping in mind the immunity of 6 months on account of the circular referred to above, till delivery of actual possession thereof, that will meet the ends of justice.
20. By not delivering possession of the respective units in question to the complainants by the promised dates and at the same time, forcing them to take over possession of unit, with various defects at the project site, as reflected in the Assessment Report dated 05.10.2023, Annexure C-18, referred to above, the complainants have definitely gone through tremendous mental agony, harassment besides financial loss. One can imagine the plight of the complainants in this situation. It can hardly be disputed that the deprivation of the user of a self- owned house amounts to a serious injury to the flat buyer who have booked it for the purpose of having a shelter over head and therefore, have either to live in a rented accommodation or an accommodation which is not suitable or convenient to them. Also, we need to appreciate the satisfaction and enjoyment one would have if he lives in a house of choice owned by him as against living in a rented accommodation or in an accommodation which is not owned by him or is not otherwise suitable or convenient to him. It is well settled that the word 'Compensation' is of very vide connotation and once the Consumer Commission is satisfied that the complainant has suffered harassment or mental agony and is entitled to compensation, it is obliged to adequately compensate the complainant for the actual loss or expected loss, which would extend to compensation for the physical, mental or emotional sufferings. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Ghaziabad Development Authority Vs. Balbir Singh - (2004) 5 SCC 65, the Hon'ble Supreme Court held that the provisions of the Act enable a consumer to claim and empower the Commission to redress any injustice done. A Consumer Fora is entitled to award not only value of goods or services but also to compensate a consumer to injustice suffered by him. However, sounding a note of caution to the effect that the compensation cannot be awarded in all cases on a uniform basis or at a uniform rate, the Court has observed that loss has to be determined by the Fora. Under these circumstances, the complainants are required to be suitably compensated for the tremendous mental agony and harassment, as well as financial loss, suffered by them.
18Misjoinder of parties:-
21. As far as plea taken by counsel for opposite party no.1 to the effect that these complaints should be dismissed on the sole ground of misjoinder of Revenue Authorities, which allegedly delayed the execution of sale deed on account of non-finalization of collector rates, it may be stated here that opposite party no.1 has failed to convince this Commission by placing on record any cogent and convincing evidence in this regard. They have failed to place on record any document to prove that they took any legal action against the said Revenue Authorities in the matter. Even otherwise, if this was so the case of the opposite parties, they have failed to justify their stand, as why they have obtained the amount towards stamp duty charges from the complainants, depriving them loss of interest etc. on the said amount. In this view of the matter, plea taken in this regard being devoid of merit, stands rejected.
Regarding construction of additional tower at the project site:-
22. As far as plea taken by the complainants that the opposite parties have constructed additional tower in violation to the environmental clearance and NBC code is concerned, it may be stated here that in order to justify the stand of construction additional tower, opposite party no.1 has placed on record Site Plan, Annexure 1/9 and Brochure of the project in question, Annexure R-1/10 to prove that the opposite parties have obtained approval in that regard from GMADA on 10.08.2018 i.e. before allotment of the said units. However, still we are leaving the complainants at liberty to take up this matter with the appropriate authority i.e. GMADA, if permissible.
Excess amount received by the company in consumer complaint no.67 of 2023:-
23. Now the question arises, as to whether, in consumer complaint no.67 of 2023, the company has received the extra amount of Rs.2,69,839/- from the complainant or not? It may be stated here that we have perused the payment schedule-D, attached with the agreement dated 28.12.2020, Annexure C-3 and found that the total sale consideration of the unit in question was fixed at Rs.78,61,455/-, which was inclusive of all charges like basis sale price; Interest Bearing Maintenance Security, External Development Charges, Road Cess and Social Infra, GST/Taxes. Even in clause 1.8 (iii) of the said agreement, it has been clearly committed by the company that the amount provided in Schedule-D includes internal and external development charges, taxes, cost of providing electricity wiring, fire detection and firefighting equipment in common areas etc. and cost of providing all facilities within the project. Relevant part of the said clause is reproduced hereunder:-
19"......1.8 (iii) That the computation of the price of the Apartment includes recovery of price of land, construction of the Common Areas, internal development charges, external development charges, taxes, cost of providing electric wiring, fire detection and firefighting equipment in the common areas etc., as specifically provided in Schedule D, and includes cost for providing all other facilities as provided within the Project. The Promoter shall provide fire safety measures as per existing fire safety code/regulations, and in case of any subsequent legislation, government order or directive or guidelines, any further fire safety means or other facilities are required to be provided, Allottee shall pay for the same on pro-rata basis............."
24. Under above circumstances, we are of the considered view that only an excess amount of Rs.25,000/- (as depicted in Annexure -A attached with offer of possession letter dated 06.08.2022, Annexure R-1/5), as detailed below, stood received by the company from the complainant in consumer complaint no.67 of 2023 and the complainant is entitled to refund of the same, alongwith interest, as these charges are not payable as per agreement:-
1. Refundable security 3000.00
2. Electric connection charges 12000.00
3. Electric Meter Security & file 10000.00 processing Total 25000.00
25. As far as directions sought by the complainants to the opposite parties to provide the details qua entire financial transaction/record of escrow account of the project; details of GST and input credit claim; calculations of area of the units/common areas etc. is concerned, it may be stated here that it is settled law that it is the duty of the party concerned to produce his evidence in support of the allegations and cannot ask the Court/Commission to assist him to collect evidence on his behalf. In this view of the matter prayer made by the complainants in this regard being not tenable is rejected.
Relief:-
26. For the reasons recorded above, all these four complaints are partly accepted with costs, as under:-
20In consumer complaint No. 64 of 2023, the opposite parties are directed as under:-
i) Opposite parties no.1 to 3= To rectify the defects of leakage of water etc. in the parking area/surroundings as depicted in the photographs; provide service lift, if not yet provided and also provide all the basic amenities as promised vide brochure & agreement, including club house, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite parties no.1 to 3= To pay lumpsum amount of Rs.5 lacs (Five lacs), to the complainant(s), so that they are able to get rectified the defects in their unit, as depicted in the Assessment Report dated 05.10.2023, Annexure C-18.
iii) Opposite parties no.1 to 5= To get execute conveyance/sale deed in respect of the unit in question, containing terms and conditions, strictly in consonance with the Relevant Rules and Regulations of the Government, under applicable law, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation @Rs.500/- per day, from the date of default, till realization.
iv) Opposite parties no.1 to 3= To pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, on the entire deposited amount, starting from 30.09.2022 (6 months from 31.03.2022) till the date when possession of the unit was actually delivered, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period shall carry penal interest @12% p.a. from the date of default till this payment is made.
v) Opposite parties no.1 to 3= To refund the amount, if any, received from the complainant(s) towards maintenance charges, before delivery of possession of the unit in question, alongwith interest @6% p.a., within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated payable amount for the said period shall carry 21 interest @9% p.a. from the date of default till this amount is refunded.
vi) Opposite parties no.1 to 3= To pay lumpsum compensation to the tune of Rs.75,000/- for causing mental agony & harassment to the complainant(s) and also deficiency in providing service and also cost of litigation to the tune of Rs.35,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In consumer complaint No.67 of 2023, the opposite party is directed as under:-
i) To pay to the complainant, compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, on the entire deposited amount, starting from 31.07.2021 to 04.09.2022, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period (31.07.2021 to 04.09.2022) shall carry penal interest @12% p.a. from the date of default till this payment is made.
ii) To refund the excess amount of Rs.25,000/-, received from the complainant, as discussed above, alongwith interest @6% p.a. from the date of its receipt onwards, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the said amount shall carry interest @9% p.a. from the date of default till realization.
iii) To pay lumpsum compensation to the tune of Rs.55,000/- for causing mental agony & harassment to the complainant and also deficiency in providing service and also cost of litigation to the tune of Rs.35,000/- to the complainant, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In consumer complaint No.70 of 2023, the opposite parties are directed as under:-
i) Opposite parties no.1 to 3= To rectify the defects of leakage of water etc. in the parking area/surroundings as depicted in the photographs; provide service lift, if not yet provided and also 22 provide all the basic amenities as promised vide brochure & agreement, including club house, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite parties no.1 to 3= To pay lumpsum amount of Rs.5 lacs (Five lacs), to the complainant(s), so that they are able to get rectified the defects in their unit, as depicted in the Assessment Report dated 05.10.2023, Annexure C-18.
iii) Opposite parties no.1 to 5= To get execute conveyance/sale deed in respect of the unit in question, containing terms and conditions, strictly in consonance with the Relevant Rules and Regulations of the Government, under applicable law, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation @Rs.500/- per day, from the date of default, till realization.
iv) Opposite parties no.1 to 3= To pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, on the entire deposited amount, starting from 30.09.2022 till the date when possession of the unit was actually delivered, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period shall carry penal interest @12% p.a. from the date of default till this payment is made.
v) Opposite parties no.1 to 3= To refund the amount, if any, received from the complainant(s) towards maintenance charges, before delivery of possession of the unit in question, alongwith interest @6% p.a., within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated payable amount for the said period shall carry interest @9% p.a. from the date of default till this amount is refunded.
vi) Opposite parties no.1 to 3= To pay lumpsum compensation to the tune of Rs.75,000/- for causing mental agony & harassment to the complainant(s) and also deficiency in providing service and also cost of litigation to the tune of Rs.35,000/- to the complainant(s), 23 within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
In consumer complaint No.102 of 2023, the opposite parties are directed as under:-
i) Opposite parties no.1 to 3= To rectify the defects of leakage of water etc. in the parking area/surroundings as depicted in the photographs; provide service lift, if not yet provided and also provide all the basic amenities as promised vide brochure & agreement, including club house, within a period of three months (03 months) from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation by way of interest @6% p.a. on the entire amount deposited by the complainant(s) against the unit in question, from the date of default, till realization.
ii) Opposite parties no.1 to 3= To pay lumpsum amount of Rs.5 lacs (Five lacs), to the complainant(s), so that they are able to get rectified the defects in their unit, as depicted in the Assessment Report dated 05.10.2023, Annexure C-18.
iii) Opposite parties no.1 to 5= To get execute conveyance/sale deed in respect of the unit in question, containing terms and conditions, strictly in consonance with the Relevant Rules and Regulations of the Government, under applicable law, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, they shall be liable to pay to the complainant(s), compensation @Rs.500/- per day, from the date of default, till realization.
iv) Opposite parties no.1 to 3= To pay to the complainant(s) compensation by way of interest @9% p.a. for delay in delivery of possession of the unit in question, on the entire deposited amount, starting from 30.09.2022 till the date when possession of the unit was actually delivered, within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated amount for the said period shall carry penal interest @12% p.a. from the date of default till this payment is made.
v) Opposite parties no.1 to 3= To refund the amount, if any, received from the complainant(s) towards maintenance charges, before delivery of possession of the unit in question, alongwith 24 interest @6% p.a., within a period of 30 days from the date of receipt of a certified copy of this order, failing which, thereafter the entire accumulated payable amount for the said period shall carry interest @9% p.a. from the date of default till this amount is refunded.
vi) Opposite parties no.1 to 3= To pay lumpsum compensation to the tune of Rs.75,000/- for causing mental agony & harassment to the complainant(s) and also deficiency in providing service and also cost of litigation to the tune of Rs.35,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
27. All the miscellaneous applications, if any, filed in these consumer complaints stand disposed of, accordingly.
28. Certified copies of this order be sent to the parties, free of cost, forthwith, and one copy thereof be placed in the connected case files.
29. The files be consigned to Record Room, after completion. Pronounced 04.04.2024 Sd/-
[JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(RAJESH K. ARYA) MEMBER Rg.