State Consumer Disputes Redressal Commission
Mrs. Nilanjana And Anr. vs Hero Homes & Others on 10 April, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Consumer Complaint No.13 of 2023
Date of institution: 20.03.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
1. Mrs. Nilanjana Mukhopadhyay w/o Mr. Abhishek Azad, R/o
Tower-7, Flat No.301, Hero Homes, Sector-88, S.A.S. Nagar
(Mohali).
2. Mr. Abhishek Azad S/o Sh. Sunder Lal Azad, R/o Tower-7, Flat
No.301, Hero Homes, Sector-88, S.A.S. Nagar (Mohali).
....Complainants
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
4. Shefali Munjal (Director), 264, Okhla Industrial Estate, Phase-III,
New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
2) Consumer Complaint No.14 of 2023
Date of institution: 20.03.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
1. Sandeep Khandelwal S/o Sh. Suresh Chand Khandelwal, R/o
Tower-7, Flat No.601, Hero Homes, Sector-88, S.A.S. Nagar
(Mohali).
2. Mrs. Shilpa Khandelwal W/o Sandeep Khandelwal, R/o
Tower-7, Flat No.601, Hero Homes, Sector-88, S.A.S. Nagar
(Mohali).
....Complainants
Consumer Complaint No.13 of 2023 2
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
4. Shefali Munjal (Director), 264, Okhla Industrial Estate, Phase-III,
New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
3) Consumer Complaint No.15 of 2023
Date of institution: 20.03.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
1. Mrs. Renu Roy W/o Sh. Ashwani Roy, R/o Tower-7, Flat No.102,
Hero Homes, Sector-88, S.A.S. Nagar (Mohali).
2. Mr. Abhinav Kansal S/o Sh. Ashwani Roy, R/o Tower-7, Flat
No.102, Hero Homes, Sector-88, S.A.S. Nagar (Mohali).
....Complainants
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
4. Shefali Munjal (Director), 264, Okhla Industrial Estate, Phase-III,
New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
Consumer Complaint No.13 of 2023 3
4) Consumer Complaint No.18 of 2023
Date of institution: 24.03.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
Mr. Lalit Mohan S/o Madan Lal, R/o Tower-7, Flat No.804, Hero
Homes, Sector-88, S.A.S. Nagar (Mohali).
....Complainant
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
4. Shefali Munjal (Director), 264, Okhla Industrial Estate, Phase-III,
New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
5) Consumer Complaint No.23 of 2023
Date of institution: 26.04.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
Mrs. Meenakshi Trehan, R/o Tower-7, Flat No.106, Hero Homes,
Sector-88, S.A.S. Nagar (Mohali).
....Complainant
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
Consumer Complaint No.13 of 2023 4
6) Consumer Complaint No.27 of 2023
Date of institution: 19.05.2023
Reserved On : 07.03.2024
Date of decision : 10.04.2024
1. Mr. Nirmal Singh S/o Sh. Amar Singh, R/o Tower No.7, Flat
No.303, Hero Homes, Sector-88, S.A.S. Nagar (Mohali).
2. Mrs. Prem Kaur W/o Mr. Nirmal Singh, R/o Tower No.7, Flat
No.303, Hero Homes, Sector-88, S.A.S. Nagar (Mohali).
....Complainants
Versus
1. Hero Homes, Plot No.1, Sector-88, Sahibzada Ajit Singh Nagar,
Mohali (Site Office) (Through its Authorized Signatory).
2. Hero Realty Private Ltd., E-2, Qutab Hotel Complex, Shaheed
Jeet Singh Marg, New Delhi (110016) (Regd. Office) (Through its
Authorised Signatory).
3. Sunil Kant Munjal (Director), 264, Okhla Industrial Estate, Phase-
III, New Delhi (Corporate Office).
Email ID:[email protected]
....OPs
Consumer Complaints under Section 47 of
the Consumer Protection Act, 2019.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1. Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether judgment should be reported in the Digest? Yes/No Present:
For the Complainants : Mr. Abhinav Kansal, Advocate For the OPs : Mr. Sanjeev Sharma, Advocate.Consumer Complaint No.13 of 2023 5
JUSTICE DAYA CHAUDHARY, PRESIDENT This order of ours shall dispose off the total 6 (six) Consumer Complaints i.e. Consumer Complaint No.13 of 2023, Consumer Complaint No.14 of 2023, Consumer Complaint No.15 of 2023, Consumer Complaint No.18 of 2023, Consumer Complaint No.23 of 2023 and Consumer Complaint No.27 of 2023, as the common questions of law and facts are involved therein. However, the facts are being extracted from Consumer Complaint No.13 of 2023.
Consumer Complaint No.13 of 2023
2. The Complainants Mrs. Nilanjana Mukhopadhyaya and another have approached this Commission by way of filing the present Complaint under Section 47 of the Consumer Protection Act, 2019 (hereinafter to be referred as 'the Act') stating therein the Complainants i.e. husband and wife were residing in the rented premises and they were searching for the available options for purchasing their own house around Chandigarh. They had come across the advertisements got published by the OPs and had also visited the Site/Sales Office for selecting a residential apartment in their upcoming project namely 'Hero Homes', situated at Plot No.1, Sector-88, Mohali.
3. It was further mentioned in the Complaint that the Complainants had booked a 3 BHK Flat bearing No.T-7-301 in Tower-
7, having super built-up area of 1565 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹64,82,040/- inclusive of PLC, Consumer Complaint No.13 of 2023 6 IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. Allotment Letter dated 19.09.2018 (Ex.C-1) was issued to the Complainants. They had chosen 'Construction Linked Payment Plan' i.e. 20% payment to be made within a period of 90 days from the date of booking, 10% each on completion of 3rd, 7th, 11th, top floor & completion of services, 5% each on completion of plaster, Application for Occupation Certificate (OC) and offer of possession, as per the Cost Sheet (Ex.C-2). An amount of ₹2,50,000/- was paid by the Complainants at the time of booking of the Flat.
4. It was further mentioned in the Complaint that as per Clause 7.1 of the 'Agreement for Sale' (Ex.C-3) executed between the parties, the OPs had promised to hand over the possession of the Flat on 30.09.2020. The Complainants had availed Home Loan from State Bank of India to make payment of the sale price to the OPs. A 'Tripartite Agreement' (Ex.C-4) was also executed on 07.06.2019. The Complainants had paid all the instalments to the OPs as per the payment plan without any delay.
5. It was further mentioned in the Complaint that due to spread of pandemic of COVID-19, the concerned authorities had given 6 months' extension to the builders and as such the date of possession was also extended up to 30.03.2021. However, the OPs had failed to deliver the possession of the Flat even after the extended period despite repeated visits and requests made by the Complainants Consumer Complaint No.13 of 2023 7 to their offices. However, as per Email dated 02.05.2022 (Ex.C-5), the OPs had paid the compensation of ₹3,80,858/- for delay in delivery of possession but without giving any explanation. The Complainants had paid the total amount of ₹65,07,664/- to the OPs. In case simple interest at the rate of 12% is calculated on the said amount, the OPs were liable to pay the delay compensation of ₹11,71,379/- whereas they had paid only an amount of ₹3,80,858/-.
6. It was further mentioned in the Complaint that ultimately the offer of possession was given to the Complainants vide letter dated 12.09.2022 (Ex.C-6) i.e. after a delay of more than 18 months from the extended date of March, 2021. Due to delay in delivery of possession, the Complainants had to live on rent for further period by paying the monthly rent at the rate of ₹10,000/- and had also suffered other consequential losses.
7. It was further mentioned in the Complaint that the OPs had installed the Sewerage Treatment Plant (STP) at an unauthorized location. It was installed in front of Tower-7 and the current location of the STP was not as per the layout plan as approved by the concerned authorities. On account of this reason, the residents of the society are facing a number of problems such as unbearable noise in the range of 80+ decibels, constant growth and habitation of mosquitoes etc. The OPs are adamant to relocate the STP at its designated location despite a number of requests of the allottees.
Consumer Complaint No.13 of 2023 8
8. Stating to be a case of 'deficiency in service' and 'unfair trade practice', the Complaint had been filed with the following prayer for issuance of directions to the OPs:
i) to pay compensation for delay in delivery of possession at the rate of 12% per annum on the deposited amount;
ii) to shift the Sewerage Treatment Plant to its designated place;
iii) to pay compensation of ₹1,80,000/- for causing mental agony, harassments etc. to the Complainants;
iv) to pay an amount of ₹25,000/- towards litigation expenses.
v) To award any other relief which may be deemed fit in view of the facts and circumstances of the case.
9. Upon issuance of notices, the OPs have appeared through counsel and have also filed joint written reply, wherein certain preliminary objections have been raised stating that the Complaint is not maintainable as the Complainants do not fall under the definition of 'consumer' as defined under the Act. There is no 'deficiency in service' and 'unfair trade practice' on the part of the OPs and the Complainants have no cause of action to file the Complaint. This Commission has no pecuniary and territorial jurisdiction to entertain and decide the Complaint, as the amount claimed is less than ₹50 lac and the Regd. Office of the OPs is situated in Delhi. The compensation for delay in delivery of possession has been paid to the Complainants as per the provisions of the Real Estate Regulatory Authority (RERA). It has further been mentioned that the possession of Flat has already been delivered to the Complainants and the Conveyance Deed has also been executed. All the agreed amenities have been provided in the project. The delay in delivery of the possession was due to 'force Consumer Complaint No.13 of 2023 9 majeure' circumstances i.e. the restraints of COVID-19 etc. It has further been mentioned that the STP was installed at the temporary place but it is not illegal and was installed just for facilitation of all the allottees. The GMADA had not fulfilled its promise to provide the STP and as such the OPs have constructed the temporary STP for the convenience of the allottees of the project. The OPs have also planned to install the STP in Phase-2 and thereafter, the temporary STP would be dismantled. Other averments as made in the Complaint have been denied and it has been prayed that the Complaint be dismissed with costs.
10. The Complainants have also filed the Rejoinder, wherein the averments as made in the Complaint have been reiterated and the stand of the OPs taken in their reply has been controverted/denied.
11. In order to prove their case, the Complainants have filed their affidavits along with copies of documents Ex.C-1 to Ex.C-9. The OPs have filed the affidavit of Mr. Ravi Prakash, Authorized Representative along with the copies of documents Annexures R-1 to R-17 (colly.).
12. Mr. Abhinav Kansal, learned counsel for the Complainants has submitted that the OPs have failed to deliver the possession of the Flat in question within the stipulated period despite receipt of entire sale consideration from the Complainants. They had utilized the amount so deposited by the Complainants for their own purpose and without bothering about the completion of the project Consumer Complaint No.13 of 2023 10 within the agreed period. Learned counsel has further submitted that the offer of possession was made after a considerable delay without explaining any reason. The OPs had paid the compensation of ₹3,80,858/- for delay in delivery of possession, whereas the actual compensation on that account was much more. The OPs have not included the period w.e.f. 25.11.2021 to 11.09.2022 (292 days) for calculation of delay penalty. The Partial Completion Certificate (Annexure R-5) produced by the OPs pertains to Tower-8, whereas the Flat of the Complainants is situated in Tower-7. As per Clause 9.1 of the agreement, the OPs were required to deliver the ready-to-move possession of the Flat in a habitable condition, which had started from the date of Occupation Certificate i.e. 12.09.2022 and not from the date of submitting the Application for obtaining the Partial Completion Certificate. Learned counsel has also submitted that on inquiry from the officials of GMADA, it was informed that the OPs had submitted the Application for completion of an incomplete building in Tower-7. The GMADA has issued the Partial Completion Certificate dated 07.04.2022 and asked the OPs to submit Application for Occupation Certificate after installation of 3rd lift in said Tower. The Complainants had taken the possession of the Flat under protest and no settlement was ever made with the OPs. The STP was installed at some other place other than the designated place. The 'deficiency in service' on the part of the OPs has been proved on record and the Complainants are entitled to all the reliefs as claimed in the Complaint. Learned Consumer Complaint No.13 of 2023 11 counsel has relied upon the following judgments in support of his contentions:
i) Wg. Cdr. Arifur Rahman Khan & Aleya Sultana & Ors. v. DLF Southern Homes Pvt. Ltd. Civil Appeal No.6239 of 2019 decided on 24.08.2020 (SC);
ii) Madan Lal Kansal v. DLF Homes Panchkula Pvt. Ltd. decided on 14.03.2019 (UT State Commission, Chandigarh);
iii) Arun Premdhar Dubey & Anr. v. M/s Hero Realty Pvt. Ltd.
GC NO.18352020 of 2021 decided on 18.08.2021 (RERA);
iv) Bhawna & Anr. v. Hero Realty Pvt. Ltd. Complaint No.GS0368 of 2021 decided on 05.05.2022 (RERA); and
v) Rohit Goyal & Anr. v. M/s Hero Realty Pvt. Ltd. & Ors.
Complaint No.GC0375/2021 decided on 29.11.2023 (RERA);
13. Mr. Sanjeev Sharma, learned counsel for the OPs has submitted that the possession of the Flat in question had already been given to the Complainants on 12.09.2022 on completion of all amenities as well as on receipt of Occupation Certificate and Conveyance Deed. The possession of the Flat could not be delivered to the Complainants within the agreed period due to force majeure circumstances such as outbreak of the pandemic of COVID-19 and also due to orders passed by various Courts. Learned counsel has further submitted that the Ministry of Housing and Urban Affairs had also issued the advisory for extension of registration of Real Estate projects due to force majeure circumstances. The OPs had applied for grant of Occupation Certificate vide letter dated 13.12.2021 and had also paid/adjusted an amount of ₹3,80,858/- due to delay in delivery of possession before the execution of the Conveyance Deed. The delay compensation had been paid/adjusted to the Complainants up to Consumer Complaint No.13 of 2023 12 25.11.2021. As per Clause-5 of the Conveyance Deed, the Complainants had acknowledged/admitted that the possession of the Flat in question was handed over to them on 12.09.2022 and thereafter, no claim regarding any deficiency or delay etc. can be raised. Further, as per Clause 7.1 of the agreement, the date of submission of the Application with the competent authority for obtaining the Completion/Occupancy Certificate for the specific Tower will be reckoned as the date of completion of the project. Learned counsel has further submitted that GMADA had not fulfilled its promise to provide the STP and as such the OPs have constructed the temporary STP for the convenience of the allottees of the project. The OPs have also planned to install the STP in Phase-2 and thereafter, the temporary STP would be dismantled. Learned counsel has further submitted that as per the settled law, the interest is payable till the date of offer of the possession only. In a number of judgments, the interest at the rate of 6% only has been awarded for delay in handing over the possession. At the end, learned counsel has submitted that there is no 'deficiency in service' on the part of the OPs and the Complaint be dismissed. Learned counsel has also relied upon the following judgments in support of his contentions:
i) IREO Grace Realtech Pvt. Ltd. v. Abhishek Khanna Civil Appeal No.5785 of 2019 decided on 11.01.2021 (SC);
ii) DLF Home Developers Ltd. (Earlier known as DLF Universal Ltd.) & Anr. v. Capital Greens Flat Buyers Association Etc. Civil Appeal No.3864-3889 of 2020 decided on 14.12.2020 (SC);
iii) SGS India Ltd. v. Dolphin International Ltd. Civil Appeal No.5759 of 2009 (SC); and Consumer Complaint No.13 of 2023 13
iv) Sushma Buildtech Ltd. v. Jagsukhbir Kaur & Ors. FA No.468 of 2020 decided on 06.10.2020 (NC).
14. We have heard the arguments raised by learned Counsel for the parties. We have also gone through the averments of the Complaint, replies thereof, written arguments submitted on behalf of both the parties and other documents available on the file.
15. The Complainants have also filed MA No.398 of 2023 for seeking permission to file the Complaint jointly on the ground that the Flat in dispute was allotted in their joint names.
16. Heard.
17. On perusal of the Allotment Letter dated 19.09.2018 and the Agreement for Sale dated 22.10.2018, it is apparent that the Flat in dispute was allotted in the joint names of the Complainants. Therefore, said Application is allowed the Complainants are permitted to file the Complaint in their joint names.
18. The OPs have raised a preliminary objection in their written reply that the Complainants do not fall under the definition of 'Consumer', as defined under the Act. The word 'Consumer' has been defined under Section 2(8) of the Act, which is reproduced as under:
"(7) "consumer" means any person who--
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or Consumer Complaint No.13 of 2023 14
(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.
Explanation.--For the purposes of this clause,--
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing."
19. On perusal of the definition of 'Consumer' as reproduced above, it is apparent that the 'Consumer' means any person, who buys any goods or hires/avails any service for consideration paid or promised. In the present case, the Complainants had availed/hired the services of the OPs by booking/purchasing the Flat in dispute and had paid the entire sale consideration to the OPs. It is settled proposition of law that the housing construction and building activities by the builders, where the Consumers seek allotment/possession etc., fall under the definition of 'service'. In the case of Narne Construction P. Ltd. etc. v. Union of India & Ors. AIR 2012 SC 2369, the Hon'ble Supreme Court has held that housing construction and building activities come under the definition of "service", as defined under Section 2(1)(o) of the Consumer Protection Act, 1986 (now Section 2(42) of the Act of 2019). Accordingly, the Complainants fall under the definition of 'Consumer', as defined under section 2(7) of the Act as they have hired the 'service' of the OPs under section 2(42) of the Act for consideration.
Consumer Complaint No.13 of 2023 15
20. Further, an objection has also been raised by the OPs that this Commission has no pecuniary and territorial jurisdiction to try and adjudicate the present Complaint. Section 47 (4) of the Act is relevant in the present context, which is reproduced as under:
""47. Jurisdiction of the State Commission.-
(1) Subject to the other provisions of this Act, the State Commission shall have jurisdiction--
(a) to entertain--
(i) Complaints where the value of the goods or services paid as consideration, exceeds rupees one crore, but does not exceed rupees ten crore:
Provided that where the Central Government deems it necessary so to do, it may prescribe such other value, as it deems fit;
(ii) Complaints against unfair contracts, where the value of goods or services paid as consideration does not exceed ten crore rupees;
(iii) appeals against the orders of any District Commission within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Commission within the State, where it appears to the State Commission that such District Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of its jurisdiction illegally or with material irregularity. (2) The jurisdiction, powers and authority of the State Commission may be exercised by Benches thereof, and a Bench may be constituted by the President with one or more members as the President may deem fit:
Provided that the senior-most member shall preside over the Bench. (3) Where the members of a Bench differ in opinion on any point, the points shall be decided according to the opinion of the majority, if there is a majority, but if the members are equally divided, they shall state the point or points on which they differ, and make a reference to the President who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other members and such point or points shall be decided according to the opinion of the majority of the members who have heard the case, including those who first heard it:
Provided that the President or the other members, as the case may be, shall give opinion on the point or points so referred within a period of one month from the date of such reference.
(4) A Complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the OPs, where there are more than one, at the time of the institution of the Complaint, ordinarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the OPs, where there are more than one, at the time of the institution of the Complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided in such case, the permission of the State Commission is given; or
(c) the cause of action, wholly or in part, arises; or
(d) the Complainant resides or personally works for gain."Consumer Complaint No.13 of 2023 16
21. The project of the OPs is situated in Sector-88, S.A.S. Nagar (Mohali), Punjab, wherein the Complainants had been allotted the Flat in dispute and as such the cause of action had arisen to file the Complaint before this Commission in view of provisions of Section 47(4) (c) of the Act.
22. As far as the issue of pecuniary jurisdiction is concerned, it is relevant to mention that earlier under section 47(1)(i) of the Act as reproduced above, the State Commission was having the pecuniary jurisdiction to entertain Complaint with the value of goods or services paid as consideration exceeding Rupees One Crore but did not exceed Rupees Ten Crore. Later on, vide Notification dated 30.12.2021, the pecuniary jurisdiction of the District Commission, State Commission and National Commission was revised. As per Section-4 of said Notification, Section 47(1) (a) (i) of the Consumer Protection Act, 2019 has been amended, which reads as under:
"4. Jurisdiction of the State Commission:-Subject to the other provisions of the Act and in pursuance of proviso to sub- clause (i) of clause (a) of sub-section (1) of Section 47, the State Commission shall be jurisdiction to entertain Complaints where the value of the goods or services paid as consideration exceeds fifty lakh but does not exceed two crore rupees."
23. In the present case, the amount so paid by the Complainants is more than ₹50 lac and below ₹2 Crore and as such the Complaint is also within the pecuniary jurisdiction of this Commission.
Consumer Complaint No.13 of 2023 17
24. Now, coming to the merits of the case, admittedly 3 BHK Flat bearing No.T-7-301 in Tower-7, having super built-up area of 1565 sq.ft. in the said project of the OPs. was allotted to the Complainants vide Allotment Letter dated 19.09.2018 (Ex.C-1). The total price of the said Flat was ₹64,82,040/- inclusive of other charges as mentioned in the facts above. An Agreement for Sale (in short, the 'agreement') was executed between the parties on 12.10.2018. The Complainants had availed Home Loan from State Bank of India to pay the sale price to the OPs, for which a 'Tripartite Agreement' (Ex.C-4) was also executed on 07.06.2019. The Complainants had paid all the instalments to the OPs as per the payment plan without any delay and this fact has also not been denied/disputed by the OPs also.
25. As per Clause 7.1 of the Agreement for Sale, the OPs had promised to hand over the possession of the Flat on 30.09.2020. Admittedly, due to spread of pandemic of COVID-19, the concerned authorities had given 6 months' extension to the builders and as such the date of possession was also extended up to 30.03.2021. However, the OPs had failed to deliver the possession of the Flat even after the extended period. The OPs had paid the compensation of ₹3,80,858/- for delay in delivery of possession as per Email dated 02.05.2022 (Ex.C-5). The Complainants had lodged the protest in paying the lesser compensation for causing delay, vide email dated 02.05.2022. The offer of possession was given to the Complainants vide letter dated 12.09.2022 (Ex.C-6) i.e. after a delay of more than 18 months from the extended date of March, 2021.
Consumer Complaint No.13 of 2023 18
26. The Complainants are claiming compensation for delay in delivery of possession in the shape of interest at the rate of 12% per annum on the amount so paid by them w.e.f. the extended date i.e. 30.03.2021 till the delivery of possession i.e. 12.09.2022, whereas the stand of the OPs is that they had moved the application for grant of Completion/Occupancy Certificate of the concerned Tower with the competent authority on 13.12.2021. As per Clause 7.1 of the agreement, the date of submission of the Application with the competent authority for obtaining the Completion/Occupancy Certificate for the specific Tower was to be reckoned as the date of completion of the project and the delay compensation was to be paid up to that date only. The relevant portion of Clause 7.1 of the agreement (Ex.C-3) is reproduced as under:
"......................................................................
For the purposes of this Clause/Agreement, the date of submission of the Application with the competent authority for obtaining completion/occupancy/part-occupancy certificate in respect of the Building, in which the Apartment is comprised, shall be reckoned as the date of completion of the development/possession of the Tower/Apartment and the Promoter shall be deemed to have fulfilled its responsibility qua the completion of development and possession as mentioned in this Agreement. No claim by way of damages/compensation shall lie against the Promoter in case of delay in handing over possession on account of any of the said reasons and the Promoter shall be entitled to extension of time for the period the authorities take for providing the occupancy/part-occupancy/completion certificate."
27. The OPs had applied for grant of Partial Completion Certificate with the competent authority vide letter dated 13.12.2021 (Annexure R-5). However, it is relevant to mention here that said letter was pertaining to Tower-8, whereas the Flat of the Complainant was Consumer Complaint No.13 of 2023 19 situated in Tower-7. Therefore, the reliance of the OPs on said letter dated 13.12.2021 amounts to misleading. Further, there is no word like 'Partial Completion' in the Clause 7.1 of the agreement, as reproduced above but only the words are 'completion/occupancy/part-occupancy certificate' in respect of the building. On this ground also, the OP are not correct/right while relying upon the said letter. The Permission for Occupancy for Towers-7 & 8 was given to the OPs only on 12.09.2022 vide letter (Annexure R-7) and the possession of the Flat was also offered/delivered on the same day. Therefore, the OPs are liable to pay compensation for delay in delivery of possession from the extended date i.e. 30.03.2021 till the offer/delivery of possession i.e. 12.09.2022 and not till the submission of the application for grant of Partial Completion Certificate, which otherwise was relating to some other Tower.
28. As per the version of the OPs, out of the total sale consideration of the Flat, some amount was paid by the Complainants towards GST and as such the Complainants are not entitled to interest on the said amount paid as GST. However, the fact remains that the possession of the Flat was not delivered even after extended period and it was delivered after a considerable delay of 18 months therefrom. The Complainants were deprived of the use and comforts of the Flat for the delayed period. The OPs have not given any cogent and convincing explanation as to why the possession was delayed even after the extended period. The OPs could have made efforts to deliver the possession of the Flat within the agreed/extended period Consumer Complaint No.13 of 2023 20 but no sincere efforts were made and as such they are liable to suffer for the same. The risks on the GST amount paid by the homebuyers are to be borne by the builders/developers and not by the homebuyers, who take loans for purchasing the dwelling units at heavy rates of interest. Therefore, OPs are liable to pay interest on the entire deposited amount by the Complainants with them till the date of offer/delivery of possession.
29. Now, it is to be determined as to what rate of interest is to be awarded. The OPs have relied upon the judgment/order passed by the Hon'ble National Commission of case Sushma Buildtech Ltd. v. Jagsukhbir Kaur & Ors. FA No.468 of 2020 decided on 06.10.2020 (NC), wherein 6% interest was awarded for delay in delivery of possession. However, in the later judgment passed by the Hon'ble National Commission in case titled as Basanta Kumar Nandy & Ors. V. Dreamz Infra India Ltd. CC No.2749 of 2017 decided on 27.06.2022 has awarded interest @ 9% per annum on the amount so deposited for delay in delivery of possession.
30. The Hon'ble Supreme Court in the case of Abhishek Khanna (supra) while keeping in view the situation of COVID-19 had awarded 9% interest on the refundable amount. The relevant portion of said judgment is reproduced as under:
"We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.
In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Consumer Complaint No.13 of 2023 21 Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount."
31. In view of the law as laid down in the above judgments, we deem it appropriate to award interest @ 9% on the entire deposited amount by the Complainant on account of delay in delivery of possession of the Flat in dispute w.e.f. extended date i.e. 30.03.2021 till the date of offer/delivery of possession i.e. 12.09.2022.
32. Another plea of the OPs is that as per Clause-5 of the Conveyance Deed, the Complainants had acknowledged/admitted that the possession of the Flat in question was handed over to them on 12.09.2022 and thereafter, no claim regarding any deficiency or delay etc. can be raised. It is relevant to mention here that vide email dated 02.05.2022, the Complainants had already lodged their protest in calculating the delay penalty on the lower side only up to 25.11.2021. Even otherwise also, the Complaint was filed within the period of limitation and the delay in delivery of possession has been admitted by the OPs themselves. Therefore, said plea of the OPs cannot be accepted.
33. Another issue raised by the Complainants is regarding the installation of the Sewerage Treatment Plant (STP) at an unauthorized location. The stand of the OPs is that GMADA had not fulfilled its promise to provide the STP and as such the OPs had to construct the temporary STP for the convenience of the allottees of the project. The OPs had also planned to install the STP in Phase-2 and thereafter, the temporary STP would be/was to be dismantled. Learned counsel for Consumer Complaint No.13 of 2023 22 OPs has also drawn our attention to the Letter of Allotment dated 03.08.2015 (Annexure R-15) issued by GMADA, S.A.S. Nagar to the OPs, vide which the land under the project in dispute site was allotted to the OPs with certain terms and conditions. Clause 5 (xi) of said letter is relevant in the present context, which is reproduced as under:
"xi) GMADA shall provide domestic water connection and the tertiary treated effluent to the allottee for use in flushing & gardening purposes. The allottee shall ensure the installation of Dual Piping System in the apartments for this purpose subject to inspection by JE before issuance of Occupation Certificate."
34. The OPs have also produced on record the copies of letters/reminders Annexure R-17 (colly.) written by them to GMADA for expediting the construction work of STP in the project. Therefore, it is apparent that the issue of installation of STP at some place other than the designated place is the inter-se dispute between GMADA and the OPs. The OPs have been making correspondence with GMADA but GMADA has not been arrayed as party in the Complaint, so no direction can be issued to GMADA.
35. Under these circumstances, it would be appropriate to direct the OPs to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per the terms and conditions of the Letter of Allotment (Annexure R-15), so that the allottees who are residing in the project may not suffer from any type of uneasiness, discomfort and health related problems etc.
36. In view of the above discussion as well as the facts and circumstances as mentioned above, it is apparent that the possession of the Flat in dispute was not delivered even within the extended Consumer Complaint No.13 of 2023 23 period without any sufficient reason. The 'deficiency in service' on the part of the OP has clearly been proved on record. Accordingly, the OP is liable to pay interest at the rate of 9% per annum on the entire amount paid by the Complainants w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022. However, the amount of compensation already paid shall be adjusted. The OP is also held liable to pay compensation for causing mental agony and harassment to the Complainant including litigation expenses. The judgments as relied upon by learned counsel for the OPs are distinguishable and are not applicable to the facts and circumstances of the present case.
37. Accordingly, the present Complaint is partly allowed with the following directions:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainants, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) To take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment (Annexure R-15), so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) To pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.Consumer Complaint No.13 of 2023 24
Consumer Complaint No.14 of 2023 MA No.399 of 2023
38. The Complainants have also filed MA No.399 of 2023 for seeking permission to file the Complaint jointly on the ground that the Flat in dispute was allotted in their joint names.
39. Heard.
40. On perusal of the Allotment Letter dated 27.11.2017 and the Agreement for Sale dated 09.02.2018, it is apparent that the Flat in question was allotted in the joint names of the Complainants. Therefore, said application is allowed the Complainants are permitted to file the Complaint in their joint names.
Main Case:
41. Similarly in CC No.14 of 2023, the Complainants had booked a 3 BHK Flat bearing No.T-7-601 in Tower-7, having super built-up area of 1565 sq.ft. with carpet area of 1032 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹65 lac inclusive of PLC, IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. Allotment Letter dated 27.11.2018 (Ex.C-1) was issued to the Complainants. The Complainants had paid all the instalments to the OPs as per the payment plan without any delay. However, the OPs had failed to deliver the possession of the Flat even after the extended period. However, as per Email dated 28.04.2022 (Ex.C-5), the OPs had paid the compensation of ₹2,68,753/- only for Consumer Complaint No.13 of 2023 25 delay in delivery of possession. Ultimately the offer of possession was given to the Complainants vide letter dated 12.09.2022 (Ex.C-6) i.e. after a delay of more than 18 months from the extended date i.e. 30.03.2021. Other averments of the Complaint were similar to that of CC No.13 of 2023 and similar prayer was made. The OPs had filed the written reply on the similar lines of their reply as mentioned in CC No.13 of 2023. Similar type of evidence was led by both the parties.
42. In view of the discussion and the reasons as mentioned in CC No.13 of 2023, the CC No.14 of 2023 is partly allowed and the following directions are issued:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainants, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment issued to them, so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) to pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.
Consumer Complaint No.15 of 2023 MA No.400 of 2023
43. The Complainants have also filed MA No.400 of 2023 for Consumer Complaint No.13 of 2023 26 seeking permission to file the Complaint jointly on the ground that the Flat in dispute was allotted in their joint names.
44. Heard.
45. On perusal of the Allotment Letter dated 15.04.2017 and the Apartment Buyer Agreement dated 25.05.2017, it is apparent that the Flat in question was allotted in the joint names of the Complainants. Therefore, said application is allowed the Complainants are permitted to file the Complaint in their joint names. Main Case:
46. Similarly in CC No.15 of 2023, the Complainants had booked a 3 BHK Flat bearing No.T7-102 in Tower-7, having super built-up area of 1565 sq.ft. with carpet area of 1032 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹68,41,048/- inclusive of PLC, IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. The 'Apartment Buyer Agreement' was executed between the parties on 25.05.2017. As per Clause 4.1 of said agreement, the possession of the Flat in dispute was to be delivered within a period of 42 months. However, said period was further extended by 6 months i.e. up to 30.03.2021 due to spread of COVID-19. The OPs had failed to deliver the possession of the Flat even after the extended period and the Complainants had to live in a rented accommodation by paying monthly rent of ₹20,000/-. Ultimately, the offer of possession was given to the Complainants vide letter dated Consumer Complaint No.13 of 2023 27 12.09.2022 i.e. after a delay of more than 18 months. As per Email dated 15.09.2022 (Ex.C-7), the OPs had paid the compensation of ₹2,05,178/- only for delay in delivery of possession. The Complainants had lodged their protest qua to the payment of less compensation for causing delay vide email dated 16.09.2022. Other averments of the Complaint were similar to that of CC No.13 of 2023 and similar prayer was made. The OPs had filed the written reply on the similar lines of their reply as mentioned in CC No.13 of 2023. Similar type of evidence was led by both the parties.
47. In view of the discussion and the reasons as mentioned in CC No.13 of 2023, the CC No.15 of 2023 is partly allowed and the following directions are issued:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainants, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment issued to them, so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) to pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.Consumer Complaint No.13 of 2023 28
Consumer Complaint No.18 of 2023
48. Similarly in CC No.18 of 2023, the Complainant had booked a 3 BHK Flat bearing No.T7-804 in Tower-7, having super built-up area of 1290 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹52,28,815/- inclusive of PLC, IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. The Apartment Buyer Agreement was executed between the parties on 02.03.2017 (Ex.C-3). As per Clause 4.1 of said agreement, the possession of the Flat in dispute was to be delivered within a period of 42 months. However, said period was further extended by 6 months i.e. up to 30.03.2021 due to spread of COVID-19. The Complainant had paid all the instalments to the OPs as per the payment plan without any delay. The OPs had failed to deliver the possession of the Flat even after the extended period. However, as per Email dated 30.04.2022 (Ex.C-5), the OPs had paid the compensation of ₹3,37,266/- only for delay in delivery of possession. Ultimately the offer of possession was issued to the Complainant vide letter dated 12.09.2022 (Ex.C-6) i.e. after a delay of more than 18 months from the extended date i.e. 30.03.2021. Other averments of the Complaint were similar to that of CC No.13 of 2023 and similar prayer was made. The OPs had filed the written reply on the similar lines of their reply as mentioned in CC No.13 of 2023. Similar type of evidence was led by both the parties.
Consumer Complaint No.13 of 2023 29
49. In view of the discussion and the reasons as mentioned in CC No.13 of 2023, the CC No.18 of 2023 is partly allowed and the following directions are issued:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainant, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment issued to them, so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) to pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.
Consumer Complaint No.23 of 2023 MA No.1033 of 2023
50. The Complainant has also filed MA No.1033 of 2023 for seeking permission to place on record the complete copy of the Agreement to Sell dated 21.01.2019 on the ground that there are some missing pages in the Agreement to Sell, which was annexed with the Complaint at the time of filing thereof.
51. Heard.
52. In view of the reasons as mentioned in the Application, the same is allowed and the complete copy of the Agreement to Sell is Consumer Complaint No.13 of 2023 30 taken on record.
Main Case:
53. Similarly in CC No.23 of 2023, the Complainant had booked a 3 BHK Flat bearing No.T7-106 in Tower-7, having super built-up area of 1565 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹67,93,604- inclusive of PLC, IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. The 'Agreement for Sale' was executed between the parties on 21.01.2019. As per Clause 7.1 of said agreement, the possession of the Flat in dispute was to be delivered on 30.09.2020. However, said period was further extended by 6 months i.e. up to 30.03.2021 due to spread of COVID-19. The OPs had failed to deliver the possession of the Flat even after the extended period and the Complainant had to live in a rented accommodation by paying monthly rent of ₹14,000/-. Ultimately, the offer of possession was given to the Complainant vide letter dated 12.09.2022 i.e. after a delay of more than 18 months. As per Email dated 12.09.2022, the OPs had paid the compensation of ₹3,49,514/- only for delay in delivery of possession. The Complainant had lodged the protest qua to the payment of less compensation for causing delay, vide email dated 22.09.2022. Other averments of the Complaint were similar to that of CC No.13 of 2023 and similar prayer was made. The OPs had filed the written reply on the similar lines of Consumer Complaint No.13 of 2023 31 their reply as mentioned in CC No.13 of 2023. Similar type of evidence was led by both the parties.
54. In view of the discussion and the reasons as mentioned in CC No.13 of 2023, the CC No.23 of 2023 is partly allowed and the following directions are issued:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainant, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment issued to them, so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) to pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.
Consumer Complaint No.27 of 2023 MA No.687 of 2023
55. The Complainants have also filed MA No.400 of 2023 for seeking permission to file the Complaint jointly on the ground that the Flat in dispute was allotted in their joint names.
56. Heard.
57. On perusal of the Allotment Letter dated 15.04.2017 and the Agreement for Sale dated 23.04.2018, it is apparent that the Flat in Consumer Complaint No.13 of 2023 32 question was allotted in the joint names of the Complainants. Therefore, said application is allowed the Complainants are permitted to file the Complaint in their joint names.
Main Case:
58. Similarly in CC No.27 of 2023, the Complainants had booked a 3 BHK Flat bearing No.T7-303 in Tower-7, having super built-up area of 1565 sq.ft. with carpet area of 1032 sq.ft. in the said project of the OPs. The total price of the said Flat was ₹67,99,575/- inclusive of PLC, IFMS, Club Membership Charges, 3 KVA Electricity Back-up, Car Parking and exclusive of GST and stamp as well as the Registration Charges. The 'Agreement for Sale' was executed between the parties on 23.04.2018. As per Clause 7.1 of said agreement, the possession of the Flat in dispute was to be delivered on 30.09.2020. However, said period was further extended by 6 months i.e. up to 30.03.2021 due to spread of COVID-19. The OPs had failed to deliver the possession of the Flat even after the extended period. Ultimately, the offer of possession was given to the Complainants vide letter dated 12.09.2022 i.e. after a delay of more than 18 months. As per Email dated 04.05.2022 (Ex.C-4), the OPs had paid the compensation of ₹3,85,452/- only for delay in delivery of possession. Other averments of the Complaint were similar to that of CC No.13 of 2023 and similar prayer was made. The OPs had filed the written reply on the similar lines of their reply as mentioned in CC No.13 of 2023. Similar type of evidence was led by both the parties. Consumer Complaint No.13 of 2023 33
59. In view of the discussion and the reasons as mentioned in CC No.13 of 2023, the CC No.27 of 2023 is partly allowed and the following directions are issued:
i) The OPs are directed to pay interest at the rate of 9% per annum on the entire amount paid by the Complainants, w.e.f. the extended date i.e. 31.03.2021 till the delivery of actual and physical possession of the Flat i.e. 12.09.2022, for causing delay in delivery of possession. The amount of compensation already paid shall be adjusted;
ii) to take up the matter with GMADA for installation of STP at its designated place on urgent basis as per terms and conditions of the Letter of Allotment issued to them, so that the allottees who are residing in the project may not suffer from any kind uneasiness, discomfort and health related problems etc.; and
iii) to pay an amount of ₹35,000/- towards composite compensation for causing mental agony and harassment including litigation expenses.
60. The compliance of the orders passed in all the Complaints shall be made by the OPs within a period of 45 days from the date of receipt of the certified copy of the orders.
61. Since the main cases have been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
Consumer Complaint No.13 of 2023 34
62. The Complaints could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER April 10, 2024.
(Gurmeet S)