State Consumer Disputes Redressal Commission
Mrs. Renu Bhardwaj vs M/S Manohar Infrastructure And ... on 26 November, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 21 of 2019 Date of Institution : 01.02.2019 Date of Decision : 26.11.2019 Mrs.Renu Bhardwaj w/o Ashok Kumar Sharma, H.No.1465, Sector 20-B, Chandigarh, currently residing at H.No.1197 (First Floor), Sector 18-C, Chandigarh. Mr.Ashok Kumar Bhardwaj s/o Late Sh.Mukund Lal Sharma, H.No.1465, Sector 20-B, Chandigarh, currently residing at H.No.1197 (First Floor), Sector 18-C, Chandigarh. ......Complainants V e r s u s M/s Manohar Infrastructure & Construction Private Limited, SCO 139-141, Sector-17, Chandigarh. Sh.Tarninder Singh, Director of M/s Manohar Infrastructure & Construction Private Limited, SCO 139-141, Sector-17, Chandigarh. Sh.Narinderbir Singh, Director of M/s Manohar Infrastructure & Construction Private Limited, SCO 139-141, Sector-17, Chandigarh. .....Opposite parties Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR.RAJESH K. ARYA, MEMBER.
Argued by: Sh.Abhinav Kansal, Advocate for the complainants. Sh.I.P. Singh, Advocate for the opposite parties. JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
The complainants before us are seeking directions to the opposite parties, either to deliver possession of a plot, measuring 200 square yards booked by them in December 2013 @Rs.18,000/- per square yard i.e. totaling Rs.36 lacs, in their project named 'Palm Garden', Mullanpur, Punjab, for which they have paid substantial amount of Rs.23,60,000/-; or in the alternative to refund the said amount alongwith interest, compensation etc. However, during pendency of this complaint, counsel for the complainants pressed the relief with regard to delivery of possession of the plot. It is the definite case of the complainants that despite making payment of substantial amount referred to above, the opposite parties failed to execute buyer's agreement and deliver possession of plot, for want of development activities and necessary approvals/sanctions. Except allotting plot no.749G vide letter dated 23.02.2017 (Annexure C-8) and that too after much persuasion, no further steps have been taken by the opposite parties in the matter. It has been stated that there is a gross violation of the Punjab Apartment and Property Regulation Act, 1995 (PAPR Act) on the part of the opposite parties. By stating that the aforesaid act and conduct of the opposite parties amount to deficiency in providing service and adoption of unfair trade practice, the complainants have filed the present case.
Their claim has been contested by the opposite parties, on numerous grounds, inter alia, that they did not fall within the definition of "consumer" as defined under Section 2(1)(d) of the Act; that this Commission did not vest with territorial jurisdiction: that time was not the essence of the contract; that the complaint filed is beyond limitation; that the complainants were requested number of times to make remaining payment and sign buyer's agreement but they failed to do so; that complicated questions of facts and law are involved in this complaint, as such, the same cannot be entertained by this Commission, proceedings before which are summary in nature; that only Civil Court has jurisdiction to entertain and decide this complaint; that the project of the opposite parties has been registered under the Real Estate (Regulation and Development) Act, 2016 (in short, the RERA) on 15.09.2017; that as per Section 35 of the PAPR Act, jurisdiction of Civil Court is barred to entertain and decide any question relating to matters arising under it (PAPR Act); that copy of the agreement had been handed over to the complainants for signature but they failed to return the same; and that opposite parties no.2 and 3 have been wrongly impleaded in their personal capacity.
On merits, it has been admitted by the opposite parties that they have received the amounts as asserted by the complainants for the sale of plot in question. It has been stated that the project was approved on 22.03.2013 and the formal agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given upto 13.06.2018, vide supplementary agreement dated 16.06.2016 with the Government; that later on exemption from the applicability of provisions of the PAPR Act stood granted by the Government, on 25.01.2017 and as such all the irregularities committed by them stood compounded, as exemption granted will have retrospective effect; that once the State Government has not held that the opposite parties had violated the provisions of PAPR Act, as such, this Commission cannot go into the said question; that on request made by the opposite parties, the Competent Authority extended completion period of the project upto 31.07.2019; and that as on date the opposite parties have obtained all permissions in respect of the project in question. However, it is alleged in the reply that the above named complainants failed to make the remaining sale consideration therefore they are not entitled for any relief; and that there has been lot of development in the project. It has been asserted that the opposite parties are ready to deliver possession of the plot in question on making remaining payment by the complainants. By placing reliance upon the judgment of the Hon'ble Supreme Court of India, in DLF Homes Panchkula (P) Ltd. vs Sushila Devi, 2019 (Civil Appeal Nos. 2285-2330 of 2019 (@ SLP(C) NOS.928-930, 932-938, 940-967 and 969-976 of 2019), decided on 26 February 2019, it has been stated that claim of the complainants seeking interest @12% p.a. is totally unjustified. Rather, it should be @9% p.a. However, ironically, it has been claimed in the reply that the opposite parties are trying to complete the project, as early as possible, as the development work is going on, in full swing and work with regard to provision of basic amenities such as water, electricity etc. is near completion.
It has also been alleged in the reply that the project was delayed on account of red-tapism in the offices of different departments of the Govt. and also due to the business competition and political rivalries and this is why, the competent authorities have delayed in granting approvals/sanctions. While applying the theory of force majeure circumstances; it was pleaded that delay in delivery of possession of plots occurred also on account of shortage of building material and ban on mining by the government. Remaining averments of the complaint have been denied.
This Commission has afforded adequate opportunities to both the parties to adduce evidence in support of their respective contentions, by way of filing affidavit. In pursuance thereof, they have adduced evidence by way of affidavit and also produced numerous documents.
We have heard both the parties and have carefully gone through record of the case, very carefully.
In this case, following points have emerged for consideration: -
Whether this Commission is competent to entertain this complaint?
Whether the complainants fall under the definition of consumer?
Whether this Commission has territorial jurisdiction to entertain this complaint?
Whether time was essence of the contract?
Whether the complaint filed is time barred?
Whether there is any violation on the part of the opposite parties in the matter?
Whether there was any deficiency in rendering service, negligence and unfair trade practice on the part of the opposite parties?
Whether the complainants are entitled to any relief for delay in possession and if yes, at what rate of interest?
First coming to the objection regarding territorial jurisdiction, it may be stated here that Sub-section 2 of Section 17 of the Act envisages that person aggrieved have remedy to file a complaint before a State Commission within the limits of whose jurisdiction:-
"(a) the opposite party or each of the opposite parties, 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; or
(b) any of the opposite parties, 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 that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally works for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises".
In the present case, perusal of almost all the documents placed on record, pertaining to transaction carried out between the parties, reveal that the same have been issued and received from/by Chandigarh Office of the opposite parties i.e. Manohar Infrastructure and Constructions Pvt. Ltd., SCO No.139-141, 1st Floor, Sector 17-C, Chandigarh, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on their business, at the said Chandigarh Office for gain. Since, as per the documents, referred to above, a part of cause of action arose to the complainants at Chandigarh this Commission is vested with territorial jurisdiction to entertain and decide this complaint. Objection taken in this regard, stands rejected.
Now coming to the objection raised that the complainants did not fall within the definition of consumer'', it may be stated here that in para no.4 of their complaint supported by their affidavit, it has been stated by them that the plot in question has been purchased for their personal use. Since the opposite parties have levelled allegations against the complainants, the onus lay upon them to place on record documentary evidence in that regard, which they failed to do so. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, decided by the Hon'ble National Commission, it was held that the buyer(s) of the residential units, would be termed as consumers, unless it is proved that he or she had booked the same for commercial purpose. There is nothing on record to prove that the complainants are speculators and therefore, they fall within the definition of 'consumer'.
It is not in dispute that the complainants booked a plot in December 2013, in the aforesaid project of the opposite parties, total price of which was fixed at Rs.36 lacs, against which, substantial amount of Rs.23,60,000/- stood received by the opposite parties. It is also not in dispute that even by the date, when this complaint was filed and arguments were heard therein, neither possession of the plot in question had been offered to the complainants nor agreement was got executed between the parties. Both the parties are leveling allegations against each other. Counsel for the complainants contended that the opposite parties failed to provide agreement for signatures of the complainants, whereas on the other hand, Counsel for the opposite parties while placing reliance of letters dated 15.05.2014 (Annexure O-1) and 27.06.2014 (Annexure O-2) contended with vehemence that the complainants were requested number of times to come to Company for execution of the agreement but they failed to do so. However, this Commission has gone through the contents of the said letters and found that it was nowhere mentioned that the complainants are required to come forward for execution of agreement, whereas, on the other hand, a demand of Rs.5,40,000/- was made through the letter Annexure O-1 with reminder Annexure O-2. It is significant to mention here that before making demand of amount of Rs.5,40,000/- aforesaid, the opposite parties had already received substantial amount of Rs.10,80,000/- out of total cost of Rs.36 lacs, which comes to 30% of the total sale consideration. As such, once the opposite parties had already received substantial amount from the complainants i.e. equal to 30% of the sale consideration, it was required of them to allot plot; execute agreement under law; complete the development work; obtain completion certificate from the competent authorities; and then deliver possession of the plot in question. As such, the demand raised is not only unfair but illegal, which contravenes Section 6 (1) of the PAPR Act, which lays a duty on the opposite parties to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -
"6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;
Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.
(2) xxxxxxxxxxxxxxxx..................
3. xxxxxxxxxxxxxxxxx..................."
Thus, the opposite parties were duty bound under law to execute the agreement and to get it registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. The opposite parties also cannot take shelter under the exemption certificate from the provisions of PAPR Act, which was issued in their favour only on 25.01.2017 i.e. much after booking of the plot. It has no where been proved that the said exemption will have retrospective effect but in our considered opinion, it will have prospective effect only. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.
However, Counsel for the opposite parties also argued with vehemence that the Company can deny delivering possession to the allottee, solely on the ground that the agreement has not been executed by him/her. We do not agree with the contention raised, as far as the present case is concerned. In this case, as stated above, the complainants booked the plot of 200 square yards for total amount of Rs.36 lacs, out of which they had paid an amount of Rs.23,60,000/-. Neither an agreement has been executed nor the possession of the plot has been delivered to the complainants and now when the possession is being sought, the same is refused on the pretext that buyer's agreement has not been executed.
The opposite parties have neither given any offer of the draft of agreement nor have they provided the same for execution thereof to the complainants and are now taking a plea that they have been exempted from the applicability of the PAPR Act, from the Govt. of Punjab and that the complainants cannot seek relief in the absence of execution of agreement. The opposite parties failed to place on record any document on record, to prove that they have been awarded exemption from the Govt. of Punjab before or at the time of booking the plot in question and under the garb of alleged exemption, the opposite parties can adopt unfair trade practice by not getting the agreement executed for an indefinite period and also can make the complainants/allottees wait for an indefinite period without providing them anything. When the builder itself is at fault, he cannot defeat the rights/claim of the proposed vendee, on the ground that agreement has not been executed between the parties.
Not only as above, the opposite parties in their written statement have very candidly admitted that at the time of booking of the plot and collecting money from the complainants, they were not having requisite licences, approvals and permissions from the competent authorities, yet, all the irregularities stood compounded when notification exempting the provisions of PAPR Act was issued in their favour on 25.01.2017. We do not agree with the plea taken. Infact, the money has been collected with animus of cheating and fraud which cannot be cured by obtaining the exemption from the provisions of PAPR Act, at the subsequent stage. Furthermore, it is settled law that a builder cannot take advantage of the situation by simply saying that the statutory approvals had not been obtained from the Government Authorities or that the same had been delayed. The builder is duty bound to ensure that before accepting the amount of booking, necessary permission/sanctions have been granted for launching the project and selling the units therein. It was so said by the Hon'ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017.
Surprisingly, the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) i.e. the competent authority was well aware of the fact that the project has been started without permissions and huge money has been collected and usurped by the opposite parties from innocent buyers yet the competent authorities did not hear the aggrieved consumers before granting exemption to the project from the provisions of PAPR Act. As such, the said act of the competent authority is against the principles of natural justice; fair play and not binding on the complainants and other prospective buyers.
Now coming to delay in offering possession of the plot to the complainants, it may be stated here that the opposite parties in their written reply have very candidly admitted that development work at the project site is going on in full swing; basic amenities such as roads, sewerage, electricity etc. are near completion and that possession of the plot will be delivered soon. However, except some photographs perusal of which too reveal that still a lot of work is pending to be done at the project site, no other cogent and convincing evidence has been placed on record, to prove that the development is at the advance stage as alleged in the reply and that basic amenities such as roads, electricity, sewerage, water supply etc. are near the completion. Still, no exact period/date has been given, by which possession of the plot could be delivered. Burden to prove that the project has been completed and the area/site, in question, is fully developed or is about to complete, is on the builder/opposite parties. It was so said by the Hon'ble National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014. At the same time, perusal of contents of the written reply reveal that self-contradictory pleas have been taken with regard to non execution of agreement and offer of possession of the plot in question to the complainants. In para no.8 of the preliminary objection of the reply, it has been stated that it is for the complainants to come forward to execute the plot buyers agreement, whereas, in para no.2 of the reply on merits, it has been stated that there was a meeting with the complainants and copy of the plot buyers agreement was handed over to them but they have not returned the same. Similarly, in some paragraphs it has been stated that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/ permissions; due to shortage of construction material etc. etc. whereas, at the same time, it has been stated that since more land was added to the project, as such, permission was sought from the competent Authorities for extension of time for completing the project in question.
As such, perusal of contents of reply filed by the opposite parties clearly go to show that they were not serious in completing the project and are now taking bald excuses for causing delay, just with a view to defeat the genuine claim of the complainants. Under these circumstances, it is held that the opposite parties by not executing agreement within the stipulated period referred to above; nor completing the development work even by the date when this complaint was filed and by not delivering possession of the plot in question- despite the fact that the same was booked as far as back in 2013- indulged into unfair trade practice and were also negligent and deficient in providing service, for which the complainants deserve to be suitably compensated.
At the same time, it is also held that plea taken by the opposite parties to the effect that delay took place in offering possession because there was delay on the part of the Govt. Departments to sanction approvals/permissions; and shortage of construction material etc. does not carry out any weight, in the absence of any documentary evidence in that regard. Not even a single letter has been placed on record by the opposite parties showing that they ever reported the Govt. Authorities concerned that there is a delay on their part in granting sanctions/approvals in respect of the project in question or that any such letter, by which they have given notice to the said Authorities that in case the needful is not done in a prescribed time, they shall move to the appropriate platform of law, in the matter.
Now coming to the plea regarding shortage of construction material, it may be stated here that nothing has been placed on record, by the opposite parties, to prove that they were unable to procure the said construction material, in adequate quantity. There is no evidence of the opposite parties having invited tenders for supply of construction material and there being no response to such tenders.
A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the units was taken by a builder before the Hon`ble National Consumer in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015, which was rejected and the complaint was allowed in favour of the complainant. The principle of law, laid down, in the aforesaid case is fully applicable to the present case. In the present case also, the opposite parties failed to convince this Commission, that they actually encountered force majeure (which means irresistible circumstances beyond ones control such like act of God etc.) circumstances, as a result whereof, delay in handing over possession of the plots occurred. As such, the stand taken by the opposite parties, in this regard, is rejected.
Now coming to the objection taken by the opposite parties with regard to jurisdiction of this Commission and maintainability of this complaint. It may be stated here that it is a simple case of non-execution of agreement under the provisions of Section 6 of the PAPR Act within the reasonable time; and non-delivery of possession of plot to the complainants by the opposite parties thereby causing financial loss, mental agony and harassment to the complainants. The acts, omissions and commissions on the part of the opposite parties amount to deficiency in providing service as well as the negligence and adoption of unfair trade practice. In Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., II (2012) CPJ 4 (SC), it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development Authority and enters into an agreement with the Developer, or the Contractor, the nature of transaction is covered by the expression 'service' of any description. Housing construction or building activity carried on by a private or statutory body constitutes 'service' within the ambit of Section 2(1)(o) of the Act. Similar principle of law was laid down, in Haryana Agricultural Marketing Board Vs. Bishambar Dayal Goyal & Ors. (AIR 2014 S.C. 1766). Under these circumstances, this complaint involves the consumer dispute and the same is maintainable before this Commission. Furthermore, in view of Section 3 of the Act 1986, it is open to the consumers to approach the Consumer Foras for redressal of their grievance notwithstanding that he/she can get relief under any other Act/Court. In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. As such, Objection taken in this regard stands rejected.
At the time of arguments, it was vehemently contended by Counsel for the opposite parties that since the project in question has been got registered under the RERA in the year 2017 and also because some cases are pending before the Hon'ble Punjab and Haryana High Court on this issue, as such, jurisdiction of this Commission is barred to entertain this complaint arising out of the plot in question located in the said project and the complaint be relegated to RERA. It may be stated here that it is an admitted fact that under the RERA, the opposite parties got themselves registered their project, only on 15.09.2017. At the time of said registration, no notice was issued to the complainants and other proposed buyers under the opposite parties and at the time of transaction between the parties in December 2013, there was no registration under RERA and now after a period of more than three and a half years, the claim of complainants cannot be ignored on this score.
In all, in the present case, the grievance has been raised by the complainants qua wrongful act/mistake done leading to deficiency in providing service, negligence and adoption of unfair trade practice, in selling the project by the opposite parties without sanctions/approvals, before coming into existence of RERA. Reading of the provisions of Section 88 of RERA makes it very clear that the same are in addition and not in derogation of the provisions of any other law for the time being in force. Section 79 of the RERA further makes it very clear that jurisdiction of only the Civil Court to entertain a suit or proceedings qua action taken as per the provisions of the said Act, is barred. The Consumer Foras under the Act, 1986 despite having some trappings of a Civil Court are not the Civil Courts. As such, the jurisdiction of the Consumer Foras is not debarred to entertain the complaints filed by consumers, alleging deficiency in providing service, negligence and adoption of unfair trade practice against the builder like the opposite parties. The contention raised by the opposite parties is also devoid of merit, in view of principle of law laid down by the Hon'ble National Commission in Mohit Sharma & Anr. Vs. M/S. Ramprastha Promoters and Developers Pvt. Ltd. & Anr., Consumer Case No. 2384 of 2017, Decided on 01 May 2019, wherein it was held that RERA does not bar the jurisdiction of Consumer Fora. Similar view was reiterated by the Hon'ble National Commission in Sandeep Mittal Vs. Ireo Grace Realtech Pvt. Ltd., Consumer Case No. 1916 of 2016 decided on 30 Jul 2019. Relevant part of the said order reads as under:-
"The learned counsel for the opposite party submits that in view of the order dated July 30, 2018 passed by the Hon'ble High Court of Punjab & Haryana at Chandigarh in Civil Writ Petition No.18650 of 2018 decided on 30.07.2018 the only remedy available to the complainant is to approach RERA Authority and the complainant before this Commission cannot be continued. The above referred Order inter-alia reads as under :
The grievance of the petitioner appears to be that respondent No.6 has illegally transferred the project to respondent No.7 to 10 without any authority in law and also in violation of the provisions of Haryana Development and Regulation of Urban Areas Act, 1975.
The writ petition has raised multifarious issues. However, what it appears is that the project has not been completed within the prescribed time and the petitioner is running from pillar to post to get possession of flat. It is averred that the Director, Town and Country Planning, Haryana has issued several show cause notices to respondent Nos.7 to 10 including dated 04.05.2018 (P-10 Colly.) on the complaints made by the petitioner and other aggrieved allottees but no final decision or action is being taken by the Prescribed Authority in furtherance thereto.CWPNo.18650 of 2018
Most of the issues raised in the writ petition can be effectively redressed by the Real Estate Regulatory Authority, Gurugram. Nevertheless, taking notice of the fact that show-cause notices have already been issued to the private respondents, the writ petition is disposed of with a direction to the Director, Town and Country Planning, Haryana, to take a final decision pursuant to those show cause notices including dated 04.05.2018 within a period of three months from the date of receiving a certified copy of this order.
It would thus be seen that though the Hon'ble High Court felt that most of the issues which has been raised in the writ petition could be redressed by RERA. It did not direct the petitioner to approach RERA nor did the Hon'ble High Court in any manner exclude the jurisdiction of this Commission in the matter. The writ petition was disposed of with a direction to the Director, Town and Country Planning, Haryana, to take a final decision pursuant to the directions issued to the Respondent Nos.7 to 10 in the writ petition. Therefore, the aforesaid order in my opinion does not come in the way of complainant prosecuting this complaint which had been instituted much before the writ petition was filed. Though a review is stated to be pending before the Hon'ble High Court of Punjab & Haryana at Chandigarh to the order passed in D.T.C.P. in Sandeep Mittal -vs- State of Haryana and others passed in Civil Writ Petition No.18650 of 2018 that would be hardly of any reason for this purpose.
Now the question which arises for consideration, is, as to for which period, the complainants are entitled for compensation for delay in delivering possession of the plot in question, especially, when no agreement has been executed between the parties. It may be stated here that it is settled law that in the cases, where no agreement has been executed, a reasonable period has to be taken into consideration for delivering possession of the plot/unit to the allottee. What should be the reasonable period, in the cases where no time period is given in the agreement or otherwise, fell for determination before the Hon'ble Supreme Court of India in the case titled as M/s. Fortune Infrastructure Appellant(s) (Now Known as M/s. Hicon Infrastructure) & anr. Versus Trevor Dlima & Ors. Civil Appellate Jurisdiction Civil Appeal No(S). 3533-3534 of 2017, decided on 12.03.2018, wherein it was held that when there is no delivery period stipulated, a time period of 3 years would be reasonable for completion of the contract. Similar view had been taken by the Hon'ble National Commission in M/s. Ansal Housing & Construction Ltd. & 2 Ors. Vs. Jotinder Singh, First Appeal No. 870 of 2015 decided on 10 Nov 2016. Since in the present case also, there is no period mentioned in any of the documents issued in respect of the plot in question, as such a reasonable period of three years from the date of booking if taken into consideration, for completing the development of the project and handing over possession of the plot to the complainants, will meet the ends of justice. In the present case, since booking of the plot was made on 02.12.2013, as such, the complainants are held entitled for compensation for the period of delay starting from 02.12.2016 till possession is actually handed over to them, complete in all respects.
What relief can be granted to a consumer, for delay in offering possession of the residential units/plots, fell for determination before the Hon'ble Supreme Court of India in DLF Homes Panchkula (P) Ltd. vs Sushila Devi, 2019 (Civil Appeal Nos. 2285-2330 of 2019 (@ SLP(C) NOS.928-930, 932-938, 940-967 and 969-976 of 2019), decided on 26 February, wherein, under similar circumstances, interest @9% p.a. on the deposited amount, for the period of delay in offering possession, was confirmed. It is therefore held that the complainants are entitled to get interest @9% p.a., on the deposited amount, towards price of the said plot, for the period of delay i.e. from 02.12.2016 till the possession is actually delivered complete in all respects, after obtaining completion certificate in respect of the project in question, from the competent Authorities.
As far as objection taken to the effect that the complaint filed is beyond limitation, it may be stated here that since it is an admitted fact that possession of the plot in question has not been delivered even by the date when this complaint had been filed before this Commission, as such, objection taken with regard to limitation is not sustainable in the eyes of law, especially in view of principle of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when possession of the residential units/plots is not offered, there is a continuing cause of action, in favour of the allottee/buyer. It is also held that once an objection with regard to limitation has been taken by the opposite parties, at the same time, taking contrary objection to the effect that time was not the essence of contract is not sustainable in the eyes of law.
An objection has also been taken by the opposite parties to the effect that opposite parties no.2 and 3 i.e. Directors of the Company have been wrongly impleaded as parties, in their personal capacity. We do not agree with the objection raised. It may be stated here that it is not the case of the opposite parties that the above-named persons are not their Directors. As such, these two persons are holding such important positions in the Company, where they are directly involved with the decision-making process in the Company. Similar view was taken by the Hon'ble National Commission, in a case titled as M/s. India Bulls Real Estate & Wholesale Services Ltd. & Ors, Vs. Vemparala Srikant & Anr., First Appeal No. 797 of 2017, decided on 16 Aug 2017. Objection taken in this regard is rejected.
No other point was urged by the contesting parties.
For the reasons recorded above, this complaint is partly accepted with costs. The opposite parties, jointly and severally, are directed: -
To hand over actual physical possession of the plot in question to the complainants, within a period of 30 days from the date of receipt of a certified copy of this order, complete in all respects, after obtaining completion certificate, on receipt of amount legally due, as per rate quoted in the booking form Annexure C-4 i.e. @ Rs.18,000/- per square yard plus other charges mentioned therein like PLC, EDC etc., if applicable to them.
To execute and get registered the sale deed in respect of the plot in question in favour of the complainants, within a period of two months, from the date of handing over possession thereof. However, the complainants are liable to make payment of stamp duty and registration charges to the Registering Authority.
To pay compensation, by way of interest @9% p.a., on the entire deposited amount to the complainants from 02.12.2016 (three years from the date of booking of plot) till 30.11.2019 within a period of one month, from the date of receipt of a certified copy of this order, failing which, thereafter, the entire amount accumulated for the said period shall carry penal interest @12% p.a. from the date of default, till payment is made.
To pay compensation by way of interest @9% p.a., on the entire deposited amount to the complainants w.e.f. 01.12.2019 onwards (per month), till actual delivery of actual physical possession of the unit, by the 10th of the following month, failing which, the same shall carry penal interest @12% p.a., from the date of default, till payment is made.
To pay compensation for causing mental agony and physical harassment; deficiency in providing service and adoption of unfair trade practice and also cost of litigation, in lumpsum, to the tune of Rs.50,000/-, to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which, the said amount of Rs.50,000/-, shall carry interest @9% p.a. from the date of passing of this order, till realization.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
26.11.2019 Sd/-
[RAJ SHEKHAR ATTRI] PRESIDENT Sd/-
(PADMA PANDEY) MEMBER Sd/-
(RAJESH K. ARYA) MEMBER Rg.