State Consumer Disputes Redressal Commission
Satyanarayan Panda, vs M/S. Vipul Limited, on 24 April, 2023
REDRESSALCoM M ISSIoN,oDISHA,CUTTACK
STATE coNSU M ER DISPUTES
CONSUMER COMPLAINT NO.
37 OF 2018
SatYanarayan Panda,
S/o Late damesh Chandra Panda'
5'
Rlo f trt No. 702, 7th Floor' Tower
Vipul Gardens, Ghatikia, ^ .
Bhubaneswar - 7 51003, Orissa
ComPlainant
Vrs.
Managing
1. M/s Vipul Limited, Represented through
at : Regus
Director having its registered office
Rectangle, Level - 4, Rectangle -
1' D4' Commercial
110017 and also at M/s
Complex, Saket, New Delhi -
Represented through
Vipul Limited, Regional Office :
Mart' Fire Station
Manager ,Znd'Floor, PGL City
Odisha
Square, Baramunda, Bhubaneswar -751003'
through its
2. M/s D.N.Homes Pvt'Ltd' represented
ManagingDirector,havingitsRegisteredofficeat:Plot
Orissa
No. 3/6, IRC Village, Bhubaneswar'
OPP.Parties
'JMls G"\nukherji & Associates.
For thecomPlainant & Assoctates
For OPP.PartY No'1 . M/s S.MohaPatra& Associates
For OPP.PartY No'1 Ml" R.K.Chand
'
PRESENT
PRESIDENT'
HON'BLE DR. JUSTICE D.P.CHOUDHURY'
DR.P.K.PRUSTY, MEMBER
AND
MISS S.L.PATTNAIK, MEMBER
,\ranr-\
DATED THE 24th APRIL,2023
ORDER
MISS S.L.PATTNAIK. MEMBER The complainant filed this complaint u/s L7 of the Consumer Protection Act 1986' had
2. The brief facts of the case is that , the complainant built area of booked a flat no.7olat TthFloor measuring Super L738sqft(16L.46Sqmtrs)alongwithanopencarparking space in a project in M/s vipul Limited named as 'vipul Gardens,, Bhubaneswar. ln this regard a tripartite flat Buyer with o'P no'1 Agreement was executed by the complainant and 2 on 03.09 .2OLO.As per Terms and conditions of the said agreement clause 8.1 (a) construction of the said flat was to be completed within 48 months i.e on or before 03'09'201-4'The of Rs' 48'74'500 l-
complainant had paid total consideration ll of the agreement ' towards cost of the flat as per scheduled - Theo.Pno.1furtherdemandedRs.5,01,330/-forelectricity changes,clubcharges,stampdutychargesetc'ButtheO'P of the building as per no.1 has not completed the construction said flat' ln the Fp,u,*'q the agreement and not handed over the meantime the complainant approached the o.ps several times. on 09.11.2015 ,the o.Pno.L through a letter informed the complainant that,the size of the flat has been increased by a2 sqft. for which the revised area of the flat was LTB} sq ft. instead of 1738 sqft .,ds such the complainant will pay an additional sum of Rs. 1,15,500 /- to him. After received this letter the complainant visited the flat and found some defects and requested the O.P no.L to rectify the defects. Several corresponds was made between the complainant and O.Pno.1 on different dates. Due to urgent need to take possession, the complainant paid Rs. 3,81,,805/- vide cheque no. 804378 dt.08.05.2017 towards vtpul GARDEN sALES ACCouNr and Rs.1,06,801/- vide cheque no. 804379 dt. 08.05.20L7 towards vrpr.JL GARDEN MATNTENANCE Accourvr. After payment the complainant also sent "no objection certificate " from sar Rajgangpur to the O.P no.1 and flat was registered in favour of the complainant on 25.07.2017 .The complainant alleged that,the O.P no.1 has not provided him occupancy certificate . Being aggrieved, the ,.$ {-ortv. k \r\ complainant has filed this complaint with a prayer to direct the O.P no.l- to pay Rs. 20,92,691-,.52 /- towards compensation , interest for delayed delivery of the flat, and Rs. l_,00,000 /- as compensation for mental agony and harassment etc.
3. ln written reply,the O.P no.1 admitted booking,allotment of Flat no.702,7th floor measuring Super built area 1738 sqft. to the complainant .the O.Pno.1 further contended that, under clause 8.L of the agreement ,the date of possession was mentioned as 48 months with grace period of 90 days . The area was revised as per agreement from L73B sqft. to L780 sqft. and intimated to the complainant. The O.P no.L further contended that, the complainant has paid the entire cost of the flat phase wise but not at a time . The O.P no. 1 denied the allegations of the complainant about the defects pointed out by the complainant on l-7th November 2OL5.The flat was delayed from December 20L4 to November 2015 due to some unavoidable circumstances for which complainant was compensated . After November 20L5, the delay of flat was t -n,q.,.'\ caused due to time to time requirement /demand by the complainant .The o.P no.1 further submitted that letter of possession was issued by this o.P to the complainant on 09.1-L.2015 but the complainant deliberately delayed to tal<e possession .The complainant registered the said flat after executing the sale deed on dt. 25.07.20L7 .After that he has filed complaint case in the learned District Forum .The penalty of the complainant was waived from 09.1.L.2015 to 25.07.20L7 . The O.P no. l- further submitted that the complainant filed case after l and lryears of possession of flat. Hence prayed to dismiss the complaint.
4. The O.P no.2 in its written version submitted that, no where in the complaint petition ,the complainant alleged about the defects of the flat and delay in possession .The O.P no.2 further submitted that, the complainant has already taken over possession of the flat after executing the registered sale deed .The O.P no. 2 further submitted that, the complainant has fu*r,*-q unnecessarily harassed by impleading party to this o.P. Hence prayed to dismiss the complaint .
5. Both the parties have filed evidence affidavit with relevant documents in support of their case .
6. Basing on the pleadings of the parties ,the following issues have been framed :-
lssues :
i.Whether the complaint is maintainable ?
ii .Whether the complainant has proved deficiency in service on the part of Ops .?
iii .Whether the complainant is entitled to get compensation from O.Ps?.
lv.To what relief complainant is entitled?
7. lssue no. 1:
It is admitted fact that,the complainant had booked a 3 BHK Flat no.7O2 at 7th floor having a super built area of 1738sqft. along with an open Car parking space.it is also admitted fact that, the complainant entered into a tripartite agreement with O.Pno.1 and 2 on 03.09.2010 fic'utui'1 for purchase of Flat. The copy of scheduled of payment at scheduled ll shows that, the Price of the flat was Rs. 48,74,500 /-only . The flat byer agreement clause 1,.2 (e) shows that, the flat allotee has paid Rs. 4,69,2601-,2,69,260 ,2,00, 000/- dt .28.08.10 vide receipt no. 1761, . there is no dispute regarding payment of total cost of Rs. 48,74,500 /-by the complainant .so the complainant is a consumer as per section 2(l)d of the Consumer protection Act 1986 . The O.P no.1 pointed out that, the complainant has filed complaint after l- and lryears after taking over the physical possession of the flat and the claim relates to 201.4 but he filed complaint in 2018 . The copy of annexure ll shows that, the O.P no.1 vide e-mail dt. 15.04.17 offered delivery of possession of flat after rectifying defects The cause of Action arose only after getting possession of the flat by the complainant .The flat was registered and conveyed to the complainant on 25.07.2017 .The complaint was filed in 06.07.1,8. there is a continuous cause of action because the O.P no.1 has failed to provide occupancy certificate after registration of the Flat on 25.07.2017.So the complaint is filed within time. Hence the case is maintainable .The issue no. l- is answered accordingly . ,!{6+/,0".(
8. lssue no.2 :
The copy of annexure L is the Project Brochure of Vipul Garden which shows the Master Layout Plan . The copy of annexure 2 is the FIat Buyer's agreement .The agreement mentioned that, the total cost of the flat is Rs. 48,74,500 /-. It is also admitted fact that, as per agreement, the flat has to be handed over with in 48 months from the date of agreement under clause 8.1 . lt is also admitted fact that, further period of 9Odays was also available to the o.P no.1 as per the said contract under clause 8.1(a). Therefore the flat has to be handed over to the complainant in the month of December 201-4. The copy of letter dt.
09.11.2015 at Annexure 3 shows that ,the O.P no.1 intimated to the complainant regarding increase in super area of (42sqft) i.e 1780 sqft. as against the booked area of 1738 sqft.The documents shows that, O.P no.1 demanded Rs. 1,15,500/-as per terms of agreement clause 1.2(d).to the complainant .The O.P no. 1 also demanded for electricity charge, club charges, stamp duty charges etc. The O.P no.L also asked the complainant to pay Rs. 5,01,330 /- with in 30 days .The Annexure 4 dt. 09.11.15 shows that, car parking slot was allotted to the complainant and the O.P no.L requested the complainant to sign the Maintenance Agreement within 30 days.
l[o"\
9. The clause 1..2 (d) of the agreernent stipulates that :-
if there shall be on increose in super built ored, the flot Allotee(s) crgrees and undertokes to pay for the increase in super drect immediately on demond by the Developer ond if there sholl be q reduction in the super oreo ,then the refundable omount due to the Flat Allottee(s) shqll be adjusted by the Developer from the final instolment as set forth in the schedule of poyments appended in Annexure -l .
10. ln the agreement the built up area was shown as L73B sqft, but in the possession notice the increased built up area shown as 1780 sqft i.e increase in area of 42sqft. Due to which the cost of the flat was enhanced to Rs. 1,,15,500/-. The complainant was also aware about clause 1,.2(d) of the agreement because he has signed the agreement . So there is no fault of O.P no. 1 for enhancement of price of the flat of the complainant.
1,1,. The copy of Annexure - 5 dt. 20.t1.15 shows that, the complainant has visited the flat on 17.1.1-.15 and saw that the flat was not completed and found some defects in flat. Therefore he intimated the matter to O.P no. 1 and requested to remove the defects before handing over the flat.The Complainant also intimated to O.P no.1 through e-mail from March 201,6 to April 2OtG to handover possession (' after removing defects. The copy of Annexure 8 dt. 28.06.201,6 is the , 1]urrt r^-( 10 reminder of possession issued by o.P no.1 to the complainant that, the o.P no.1 has demanded balance dues Rs.6,07,727 /- and complete all formalities for possession along with attached a revised statement dt. 28.06.16 and asked the complainant to pay Rs. 1,06,397 towards holding charge and interest . A series of e-mail copies filed by complainant from 04.07.20t6 to 09.01.2017 show that the complainant has lodged complaint before O.P no.1 for rectification of defects of his flat.
12. The copy of e-mail at annexure 11 dt. 15.04.L7 shows that, the O.P no.1 has intimated the complainant that defects rectified and requested him to take possession . The Revised statement of account dt. 05.05.2017 shows that, the O.P has adjusted Rs. 98,607f- towards compensation for delay of possession of flat to the complainant .
13. The copy of sale deed shows that the flat was registered in the name of the complainant on 25.07.2017 and handed over possession of same to the complainant.
14. As per flat buyer agreement it was decided that flat was to be lrarrded over to the complainant in December,20l,4.But thc O.P.no.1 lras offered possession on 09.11.2015. The O.P.no.L submitted that the possession of the flat was delayed from December 201"4 to November 201,5 due to some un avoidable circumstances .This O.Pno.1 has also !)uo,,o'q , 1.1.
compensated by paying Rs.98,607 @Rs 5/- per sqft per month with effect from 02.1'2.2014 to 09.1L.2015 and it was adjusted in the final claimed amount and the complainant accepted the same by executing sale deed on dt. 25.07.2017. The copy of annexure g i.epossession reminder dt. 28.06.2016 along with Revised statement of account mentioned the penalty amount as Rs.98,607 .The complainant in evidence affidavit submitted that, the o.Pno.1 has failed to obtain occupancy certificate in respect of the flat .The o.P no.1 has neither mentioned about occupancy certificate in his evidence affidavit nor filed copy of occupancy certificate.ln the instant case the O.P no.1 handed over flat without supplying occupancy certificate to the complainant.
15. We rely on the decision of wg.comdr.ArifurRahman khan vs. DLF Southern Themes Pvt. Ltd.,(2020)165CC 5L2, has held that failure to obtain occupancy certificate or abide by contractual obligations amounts to deficiency in service . So the complainant has proved deficiency in service on the part of the O.P no. t. The issue no.2 is answered accordingly .
lssueno.3&4:
1,6. The Hon'ble Apex court in SamruddhiCo-operative Housing Society ltd vrs. Mumbai Mahalaxmi Construction i $r**";\ L2 Pvt.ltd.(2o22lcPJ109sc in civil Appeal no. 4000 of zo1:g observed that,an obligation is cast on the builder to provide the occupancy certificate and to pay for other relevant charges till such occupancy certificate is provided.So the complainant is entitled for compensation from O.P no.1 .
17. since possession has been already taken by the complainant on 25.07.2017, the complainant is entitled to get compensation of delay in handing over of possession So issue no. 3 and 4 are answered accordingly .
Conclusion
18. ln view of the above discussion, we are of the view that the complainant is entitled to compensation for the deficiency in service on the part of O.P.no.1. With regard to computation of compensation, we have to remember that the financer must have demanded interest from complainant for delay in payment of loan amount and harassment to the complainant. So we are of the opinion thatthe complainant is entitled to compensation of Rs.5,00,000/- which is payble by O.P.no.1 in all respect. Therefore, complaint is allowed on contest against O.P.no.1 and dismissed on contest against O.P.no.2. O.P.no.1 is directed to pay Rs.5,00,000/- to complainant within 45 days from today failing which it i\c+rro."\ 13 would carry 9% interest payable from today till date of payment is made. Both parties are directed to bear their respective cost.
supply free copy of this order to the respective parties or the copy of this order be downloaded from confonet or website of this commission to treat same as copy supplied from this commission.
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(Dr.D.P.Choudhury J) President \tL.,l --: _kn
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-' ........;..........r,t\a (Dr.P.K.Prusty) Member
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(Miss S.L.Pattnaik) Member Date:9Ll .4.2023 Cuttack