State Consumer Disputes Redressal Commission
Onkar Singh vs Credo Assets Pvt. Ltd. on 21 November, 2024
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint No. : 70 of 2024
Date of Institution : 08.07.2024
Date of Decision : 21.11.2024
1] Sh. Onkar Singh S/o Late Sh. Rajinder Singh,
2] Sh. Amandeep Singh S/o Sh. Onkar Singh,
Both Residents of House No.2612/2, Sector 38-C, Chandigarh.
....Complainants.
Versus
1] CREDO Assets Pvt. Ltd., through its Managing Director/Director,
Earlier Address: Registered and Corporate Office at SCO No.146, 147
& 148, 1st Floor, Sector 43-B, Chandigarh - 160043.
2] M/s Singla Builders and Promoters Pvt. Ltd. Through its Directors,
Plot No.1265C, Near Tata Motors, Sector 82, Industrial Area,
Sahibzada Ajit Singh Nagar, Punjab - 140308.
.....Opposite Parties.
BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT
MR. RAJESH K. ARYA, MEMBER
Argued by :-
Sh. Rajesh Verma, Advocate for the complainants. Opposite parties exparte vide order dated 05.08.2024) PER RAJESH K. ARYA, MEMBER Brief facts:-
This complaint has been filed by the complainants, seeking directions to the opposite parties to provide Occupancy Certificate of building to the complainants; get executed the registered sale deed in favour of the complainants within time bound manner; pay penal interest on the deposited amount till occupancy certificate is not obtained by the opposite parties; refund society maintenance charges, SMC, IFMC and Gas Pipe Line charges etc. in the absence of such Occupancy Certificate and not to charge in future also; provide open surface parking besides claiming compensation etc. for mental agony and harassment and ₹50,000/- as cost of litigation.
2. The complainants were allotted an apartment No.0099, Ground Floor, Tower No.COD2 02 (Elina Floors), admeasuring 918 Sq. Ft. (super built-up area) in the project of the opposite parties i.e. City of Dreams situated in Sector 116, Landran-Kharar Road, Sante Majra, Tehsil Kharar, Distt. Mohali for a total consideration price of ₹27,90,000/- vide allotment 2 letter dated 14.11.2016. Apartment Buyers Agreement was executed on 11.02.2017, as per Article 4(a)(i) whereof, possession of the said apartment (hereinafter to be referred as the 'unit') unit was to be delivered on or before February 2019 but till date, the opposite parties have not executed the sale deed in favour of the complainants and in the absence of registered sale deed, no right or title has been conferred on the residential unit. It has further been stated that the opposite parties have not yet allotted or provided open on surface parking in view of agreed Clause G, Clause 1.2
(iv), Clause 1.9 and Schedule 'A' Sub-rule (1) of Rule 8 of the RERA, which clearly provides that the opposite parties have allotted one open on surface parking to the complainants and agreed to give/decide parking number/location at the time of possession of the unit. It has further been stated that the complainants have already paid an amount of ₹29,69,570/- to the opposite parties after taking loan from HDFC Bank and also paid ₹55,409/- as maintenance charges to the opposite parties and to the agency appointed by the opposite parties. It has further been stated that the opposite parties are bound to deliver the possession of the unit after obtaining all necessary approvals from the competent authorities, especially, the Completion Certificate and Occupation Certificate from the competent authorities as defined Under Cluse 7.2 of Annexure 'A' above. It has further been stated that all the charges levied by the opposite parties are illegal and invalid charges e.g. Maintenance Charges etc. cannot be claimed in the absence of Completion Certificate and Occupancy Certificate. It has further been stated that the clauses & terms and conditions of the Maintenance Agreement dated 09.09.2019, Annexure C-6, are self contradictory, illegal, entirely one-sided and unfair contract. Reply of the opposite parties:
3. The opposite parties contested the complaint by filing their joint reply by taking following preliminary objections and on merits also:-
i. that the complaint is liable to be dismissed on the sole ground of non-joinder/mis-joinder of necessary party. ii. that this Commission does not has the territorial jurisdiction to try the complaint;
iii. that the complaint is not maintainable as there ceases to be relationship of a consumer and service provider between the complainants and the opposite party as the complainants, without any precondition, have taken over the possession and also got the sale deed registered in their favor. iv. that the complaint is hit by the provisions of Section 69 of Consumer Protection Act, 2019 as the project has been 3 occupied by many of the residents living therein to their entire satisfaction;
v. that the complaint is not maintainable before this Commission for lack of jurisdiction because as per the terms and conditions of Agreement for Sale dated 22.02.2017, all or any dispute arising or touching upon or in relation to the terms and conditions of the agreement, including the interpretation and validity of the term thereof and respective rights and obligations of the parties, is required to be settled amicably by mutual discussion failing which, the same shall be settled through Adjudicating officer appointed under the Act.
4. However, on merits of the case, it has been stated that the complainants booked the flat with their free will after understanding the nature of the project. The booking of the flat and sale consideration is not disputed. It has further been stated that the project was duly approved by RERA. It has further been stated that the terms and conditions of the agreement are required to be read in totality and not in isolation, which are binding upon the parties to the complaint. It has further been stated that the complainants are trying to avoid their obligation in making due payments towards the building maintenance charges and it does not lie in their mouth at this juncture i.e. after a period of more than 4 years after signing the agreement(s) that the contents thereof are contrary to the law.
It has further been stated in Para 8, sub-para II of the reply that the possession of the flat has been delivered/handed over to the complainants by the opposite parties as per terms and conditions of the agreement. It has further been stated in Para 11 of the reply that the opposite parties are ready to execute the sale deed in favour of the complainants with the condition that they have to pay the due amount.
5. It has further been stated that the project has been completed by the opposite parties after getting the due approvals from the concerned departments as per the sanctioned plan and the building is suitable for occupancy. It has further been stated that the complainants are bound to pay the due maintenance charges to the opposite parties, who are providing all necessary facilities including but not limited to lift, electricity backup, security etc. It has further been stated that the complainants have never resisted upon the quality of construction of the flat at any point of time. Pleading no deficiency in rendering service or unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.
4Rejoinder:-
6. In the rejoinder filed, the complainants reiterated all the averments contained in the complaint and controverted those contained in reply of the opposite parties.
7. The parties led evidence in support of their case and also filed written arguments.
8. We have heard the Counsel for the parties and have gone through the evidence and record of this case, including the written arguments, very carefully.
Findings/Observations of this Commission:-
Objection - non-joinder/mis-joinder of necessary party:-
9. First coming to the objection raised by opposite parties that that the complaint is liable to be dismissed on the sole ground of non- joinder/mis-joinder of necessary party, this objection being devoid of merit stands rejected.
Objection - Territorial jurisdiction:-
10. Now we will like to deal with the objection taken by the opposite parties with regard to territorial jurisdiction. It may be stated here that Section 47 (4) of Consumer Protection Act, 2019 which is pari materia to Section 20 of the Code of Civil Procedure (CPC) provides as under:-
".....47. (4) A complaint shall be instituted in 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, ordinarily 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 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...."
Bare perusal of the above said provisions of sub-sections (a) and (b) of Section 47 (4) of the CPA 2019 abundantly make it very clear that a complaint may be filed at a place, where the opposite party(s) actually and voluntarily resides or carries on business or has a branch office or personally works for gain. Subsection (c) and (d) of Section 47 (4) of the said Act, further clarifies that the State Commission within whose 5 jurisdiction a part of cause of action, wholly or in part arises or the complainant resides or personally works for gain, shall have the territorial jurisdiction to entertain and decide the consumer complaint.
It is significant to mention here that in the present case, the documents placed on record i.e. allotment - Annexure C-1, Apartment Buyers Agreement - Annexure C-, letter dated 09.09.2019, Annexure C-5, Maintenance Agreement - Annexure C-6, payment demand letters, Annexure OP-3 (pages 125 to 146), alleged possession letter dated 09.09.2019, Annexure OP-4 clearly establish that same have been issued by the opposite parties from their Registered and Corporate Office at SCO No.146-148, 1st Floor, Sector 43-B, Chandigarh-160042, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on business from their registered office and corporate office branch office and personally works for gain at Chandigarh. In view of above and in view of the fact that the complainants are also resident of Chandigarh, therefore, this Commission at Chandigarh has territorial jurisdiction to entertain these complaints in view of Section 47 (4) of CPA, 2019. As such, objection of territorial jurisdiction taken by the opposite parties being devoid of merit, stands rejected.
Objection - Complaint is not maintainable as there ceases to be relationship of a consumer and service provider between the complainants and the opposite party as the complainants, without any precondition, have taken over the possession and also got the sale deed registered in their favor:-
11. Now coming to this objection, it may be stated here that this objection seems to be copy paste of similar objection already taken and decided by this Commission in various cases of this Builder earlier. In the instant case, neither the possession has been delivered nor sale deed has been executed, prayer for which has been made by the complainants in their complaint. Thus, the objection stands rejected being meritless.
Objection - Complaint is hit by the provisions of Section 69 of Consumer Protection Act, 2019 as the project has been occupied by many of the residents living therein to their entire satisfaction:-
12. As regards this objection, it may be stated here that may be hundreds or thousands of occupants residing in the project of the opposite parties to their entire satisfaction but we are dealing with this complaint, wherein the complainants have raised serious allegations like the alleged offer of possession letter to be not valid and legal besides other allegations qua maintenance charges, open space parking etc. As such, this is no ground to say that the instant complaint is hit by the provisions of Section 6 69 of Consumer Protection Act, 2019 and is barred by limitation. The objection being meritless stands rejected. Merits of the case:-
13. It is significant to mention here that admittedly, in this case, Apartment Buyers Agreement was executed between the parties in the year 2017. It is the specific case of the complainants that as per Article 4(a)(i) of the Apartment Buyers Agreement executed on 11.02.2017, the possession of the unit in question was to be delivered on or before February 2019, which has not been delivered till date nor sale deed has been executed. On the other hand, the opposite parties have claimed that the project has been completed by them after getting the due approvals from the concerned departments as per the sanctioned plan and the building is suitable for occupancy. The opposite parties further claimed that the complainants have already taken over the possession on 09.09.2019 and they have placed on record Possession Letter dated 09.09.2019 as Annexure OP-4.
While rebutting this possession letter, the complainants, in their rejoinder, have specifically stated that till date, the opposite parties have not given possession and the document, Annexure OP-4 is a self-made document with no signature of the complainants on it. It has been argued that the opposite parties cannot offer possession of the unit without obtaining the requisite completion certificate and occupation certificate and such an offer is void in the eyes of law. It is apposite to mention here that Partial Completion Certificate was granted to opposite party No.1 - M/s Credo Private Limited the Municipal Council, Kharar vide letter bearing No.786 dated 01.06.2018 subject to various conditions including fulfilment of provision of rainwater harvesting and S.T.P, which would be the sole responsibility of the opposite party. Further Permission qua Change of Land Use was granted to opposite party No.1 vide order No.23988 dated 05.12.2018 subject to fulfillment of numerous conditions including obtaining of required permissions as per building rules before commencement of building operations in the areas; making of provisions of rainwater harvesting; disposal of sewerage & solid waste management etc. Further, the Certificate of registration as a Promoter was issued in favour of opposite party No.1 vide Letter No.22639 dated 02.09.2019 subject to fulfilment of various conditions, which was valid till 01.09.2024. Further order No.22 dated 02.09.2019 was also issued to this extent subject to fulfilment of numerous conditions like statutory compliances, air & water quality monitoring and preservation and waste management etc., by the opposite parties. It is coming out of documents placed on record by the opposite parties themselves that they were issued NOC for Construction of 7 Building by HQ Western Air Command, Indian Air Force, New Delhi on 26.07.2023. It is apparent from this NOC that it was in reference to application dated 04.05.2023 of the opposite parties for grant of such NOC. Further it is apparent from letter bearing No.4232-34 dated 26.04.2024 issued by Drainage-cum-Mining & Geology Circle, Department of Water Resources, Punjab in favour of opposite party No.1 that in reference to application for grant of NOC from Drainage Department, Punjab, it was informed that no such NOC was required, however, certain conditions were required to be fulfilled to set up residential project. Not only this, the Undertaking Certificate dated 01.03.2024, appended by the complainants alongwith the rejoinder as Annexure C-7, clearly transpires that this undertaking certificate was given by opposite party No.1 to complete the all pending fire fighting works relating to the project such as installation of pumps, diesel engine, pipeline or any other accessories, will be completed by 31st August 2024. Thus, it is very much clear that the opposite parties have offered possession of the unit to the complainants vide the alleged Possession Letter dated 09.09.2019 in the absence of working fire-fighting system. Neither this possession letter bears the signature or stamp of any of the authorized representative of the opposite parties nor the same has been signed by the complainants. It is also not brought on record by the opposite parties, by what mode, the said possession letter was sent or delivered to the complainants. It also does not bear any number. Thus, it raises doubt with regard to the authenticity and credibility of this document (Possession Letter), which seems to be a fabricated document. Therefore, it can very well be said that the possession of the unit in question has never been offered by the opposite parties to the complainant at any stage. There is also nothing on record that occupation and completion certificates have been obtained by the opposite parties qua the unit and also the project in question.
14. It may be stated here that it is an undisputed legal principle that the Occupation Certificate (OC) and Completion Certificate (CC) are mandatory documents that a builder must secure from the local municipal or planning authority before offering possession of a flat or property to the purchaser (consumer). These certificates ensure compliance with building norms, safety standards, and habitability conditions, and serve as a conclusive proof that the construction of the property adheres to the approved plans and relevant statutory provisions. Section 11(4) of the Real Estate (Regulation and Development) Act, 2016 (RERA) clearly provides that the builder shall not transfer possession of the property to the buyer unless the Completion Certificate and Occupation Certificate are duly obtained. This 8 provision mandates that possession cannot be offered without these documents, protecting the consumer from unlawful occupation and ensuring compliance with urban planning and building regulations. Failure on the part of the builder to obtain and provide the Completion Certificate and Occupation Certificate prior to handing over possession constitutes a violation of both the contract between the builder and the consumer and of consumer protection laws. The builder's obligation to provide these certificates is part of the fundamental right of the consumer to receive a habitable and lawfully constructed property. In Newtech Promoters & Developers Pvt. Ltd. v. State of UP (2017), the Hon'ble Supreme Court held that a builder's failure to provide the Occupation Certificate prior to offering possession of the property constitutes a breach of contract and a violation of consumer rights. The Hon'ble Court further emphasized that possession granted without an OC is illegal and consumers are entitled to seek relief including compensation for such unlawful possession. Further, in Gandhi & Associates v. S. J. Builders (2019), the Hon'ble National Consumer Disputes Redressal Commission, New Delhi observed that the issuance of the Occupation Certificate and Completion Certificate is a critical aspect of ensuring that the property is fit for occupancy and failure to furnish these documents entitles the buyer to claim compensation for any loss, inconvenience or unsafe conditions resulting from the unlawful possession. Thus, in the absence of these certificates, it cannot be presumed that the project has been completed or near completion. Thus, in our considered opinion, by not offering and delivering possession of the unit in question by the promised date i.e. on or before February 2019 + 6 months extended period as per Article 4 a. ii. i.e. up-to July 2019 or even thereafter, without giving any plausible reasons for the said delay, the opposite parties are deficient in providing service and guilty of adoption of unfair trade practice, which has definitely caused mental agony and harassment to the complainants.
15. It may be stated here, it is settled law that onus to prove the stage and status of construction and development work at the project site and that all the permissions/approvals have been obtained in respect thereof, is on the builder/developer. 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. In the present case, not an iota of evidence has been placed on record, as to at what stage, the development and construction stage has reached. In case, the development/construction had completed, as claimed by the opposite parties, in their reply, then it was for the Opposite Parties, 9 which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, are being undertaken but they failed to do so. As already established on record, that some of the permissions were received by the opposite parties post the alleged possession letter, which has been proved to be fabricated documents. Under these circumstances, the Opposite Parties have attracted an adverse inference in the matter to hold that the Opposite Parties are not serious in completing the project and on the other hand are utilizing the amount paid by the complainants and other similar located allottees, without providing them anything. Thus, in our considered view, the complainants are entitled to get possession of their unit, alongwith delayed compensation for the period of delay in delivery of possession.
16. It is necessary to add here that the Opposite Parties also cannot wriggle out of their liability, by saying that the complainants defaulted in making payment. In our view, even if at some point of time, the complainants withheld some amount of sale consideration after seeing that the Opposite Parties are not in a position to deliver possession of the said unit and there will be an inordinate delay, then also they were legally right to do so, in view of principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004, wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date, it cannot expect the allottee(s) to go on paying installments to it. Similar view had also been taken by the Hon'ble National Commission, in Prasad Homes Private Limited Vs. E. Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Objection taken in this regard by the opposite party also stands rejected.
17. Now we will decide as to what amount of compensation should be granted to the complainants, for the period of delay in offering of possession of their unit. On account of delay in actual delivery of possession of the unit to the complainants, they have suffered mental agony, hardships and financial loss. In the case titled as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer Fora to award just and reasonable compensation for the harassment and agony suffered by a consumer. In Nagesh Maruti Utekar 10 Vs. Sunstone Developers Joint Venture, Consumer Case No. 12 of 2017, decided on 04 May 2022, the Hon'ble National Commission awarded interest @9% p.a. from the committed date of delivery till possession is delivered. Relevant part of the said order is reproduced hereunder:-
"......Consequently, the Opposite Party Developer is directed to pay interest @9% w.e.f. 31.03.2014, i.e., the expected date of delivery of the possession, on the amount deposited by the respective Complainant till 02.09.2017, i.e., the date on which the possession of the Flat was offered by the Opposite Party Developer, within two months from today......"
In Shreya Kumar & 11 Ors. Vs. M/s. Ansal Housing & Construction Ltd. & 3 Ors., Consumer Case No. 1021 of 2017, decided on 05 May 2022, the Larger Bench of the Hon'ble National Commission has awarded interest @9% p.a. from the committed date of delivery till possession is delivered. In the present case, the complainants are still empty handed and have to approach this Commission for redressal of their grievance by way of filing this complaint. Under above circumstances, in our considered opinion, if we grant interest @9% p.a. to the complainants on the entire amount deposited by them, from the due date of possession of their unit i.e. 01.08.2019 i.e. (July 2019 onwards), as held above, till actual delivery of possession thereof, that will meet the ends of justice. One open on surface parking
18. Now coming to the relief claimed qua providing one open on surface parking in view of Clause G, Clause 1.2 (iv), Clause 1.9 and Schedule 'A' of Annexure 'A' Sub-rule (1) of Rule 8 of RERA, it may be stated here that it is coming out of Article 2 (k) of the Apartment Buyers Agreement that the opposite parties were to provide 1 (One) Open Car Parking space in the complex for exclusive use for parking of the vehicle to the complainant. Nowhere in the whole agreement, it is contemplated that additionally, one open on surface parking was also to be provided. Therefore, such a provision of any additional parking aforesaid was not part of the agreement. Thus, the complainants are not entitled for the same. Rather, the complainants are entitled to 1 (One) Open Car Parking space in the complex with parking number/location at the time of delivery of possession of the unit by the opposite parties. As such, this relief qua additional one open on surface parking stands rejected. Maintenance charges:-
19. Now coming to the issue qua maintenance charges, it may be stated here that as already held above, the complainants have not been 11 offered/delivered possession of the unit, complete in all respects, after obtaining completion and occupation certificate. Since, completion and occupation certificates have still not been received by the opposite parties, therefore, we are of the considered opinion that in case, any such charges have been received by the opposite parties, they are liable to refund the same to the complainants and not to charge it till actual deliver of possession complete in all respects.
Grievance of the complainants not redressed by any Officer appointed by the opposite parties:-
20. Now coming to the objection taken by the opposite parties to the effect that since the complainants never approached them for appointment of an Adjudicating Officer for redressal of their grievance and as such, this complaint deserves to be dismissed on this ground alone, it may be stated here that this objection also deserves to be rejected out- rightly on the ground that the complainants are well within their right, to file this consumer complaint in view of settled principle of law laid down by Hon'ble Supreme Court of India in as Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, when there is delay in delivery of the units/plots, the consumer complaint is maintainable. As such, objection taken by the opposite parties, in this regard stands rejected. Relief granted:-
21. For the reasons recorded above, this complaint is partly accepted with costs, against the opposite parties and they, jointly as severally, are directed as under:-
(i) to deliver actual physical possession of the unit in question, to the complainants, complete in all respects, after obtaining occupation and completion certificates from the competent Authorities alongwith promised parking as per Article 2 (k) of the Apartment Buyers Agreement, within a period of 45 days from the date of receipt of a certified copy of this order, on receipt of the remaining amount due from them, if any, without charging any delayed penalty or interest thereon.
(ii) to pay to the complainants, compensation by way of interest @9% p.a. starting from 01.08.2019 till 30.11.2024, on the entire amount deposited by them (including the amount, if any, deposited during pendency of this complaint), within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry 12 interest @12% p.a. from the date of default till this entire accumulated amount is paid to the complainants.
(iii) to pay to the complainants, compensation by way of interest @9% p.a. on the amounts deposited, w.e.f. 01.12.2024, onwards (per month), by the 10th of the following month till actual delivery of physical possession of the unit, complete in all respects.
(iv) to refund the maintenance charges, if any, received by the opposite parties 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 shall carry interest @9% p.a. from the date of default till realization and not to charge the same in future till delivery of actual physical possession of the unit, complete in all respects, as ordered above in relief clause (i).
(v) to pay to the complainant(s) lumpsum compensation to the tune of ₹75,000/- for mental agony and harassment and unfair trade practice; and cost of litigation to the tune of ₹35,000/- to the complainant(s), within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amounts shall carry interest @9% p.a. from the date of default till realization.
22. Pending applications, if any, in this complaint also stand disposed of accordingly.
23. Certified copies of this order be sent to the parties free.
24. File be consigned to Record Room after completion. Pronounced.
21.11.2024 [JUSTICE RAJ SHEKHAR ATTRI] PRESIDENT (RAJESH K. ARYA) MEMBER Ad 13 STATE COMMISSION (Complaint Case No.70 of 2024) Argued by:-
Sh. Rajesh Verma, Advocate for the complainants. Opposite parties exparte vide order dated 05.08.2024) Dated: 21.11.2024 ORDER Vide our detailed order of even date, recorded separately, this complaint has been partly accepted with costs.
(RAJESH K. ARYA) [JUSTICE RAJ SHEKHAR ATTRI]
MEMBER PRESIDENT