State Consumer Disputes Redressal Commission
Rakesh Kumar Agrwal And Oth. vs M/S Panchsheel Biuildtech on 13 July, 2022
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/283/2016 ( Date of Filing : 08 Sep 2016 ) 1. Rakesh Kumar Agrwal and Oth. S/O Late Sri Shyam Krishna Das R/O Indian Institute Of Management Kashipur Bajpur Road Kashipur Distt. Udham Singh Nagar ...........Complainant(s) Versus 1. M/S Panchsheel Biuildtech Office H-169 Sector 63 Noida ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 13 Jul 2022 Final Order / Judgement REERVED State Consumer Disputes Redressal Commission U.P. Lucknow. Complaint no. 283 of 2016 1- Rakesh Kumar Agarwal, aged about 46 years, S/o Late Shyam Krishna Das, R/o Indian Institute of Management Kashipur, Bajpur Road, Kashipur, Distt. Udham Singh Nagar, Uttarakhand PIN 244713 2- Smt. Pragati Swaroop, aged about 40 years, W/o Sri Rakesh Kumar Agarwal, R/o Indian Institute of Management Kashipur, Bajpur Road, Kashipur, Distt. Udham Singh Nagar, Uttarakhand PIN 244713 ....Complainants. Versus M/s PanchsheelBuildtech Pvt. Ltd., Administrative & Corporate Office at H-169, Sector 63, Noida through its Managing Director. .... Opposite party. Present:- 1- Hon'ble Mr. Rajendra Singh, Presiding Member. 2- Hon'ble Mr. Vikas Saxena, Member. Sri Vikas Agarwal, Advocate for the Complainants. None appeared for the opposite party. Date 28.7.2022 JUDGMENT
Per Mr. Rajendra Singh, Member: This complaint has been filed by the complainants against M/s Panchsheel Buildtech Pvt. Ltd. for the following reliefs.
To direct the opposite party to provide the actual physical possession of fully finished flat as earliest as per allotment letter cum allotment agreement dated 7.9.2011.
To direct the opposite party not to raise any further demand which is not mentioned in allotment letter cum allotment agreement dated 7.9.2011.
To direct the opposite party not to pressurizing the complainants to sign any agreement which is against the allotment letter cum allotment agreement dated .9.2011 as well as inadequate also.
To direct the opposite party to pay interest @ 24% on the amount deposited by the complainants with effect from the respective dates of deposit till the date of possession, along with the damages stipulated in the agreement which comes to about Rs.5,00,000.00 per year.
To the direct the opposite party to pay a sum of Rs.5,00,000.00 as damages for committing deficiency in service.
To direct the opposite party to pay a sum of Rs.5,00,000.00 as compensation for the loss of rent occasioned by the complainants till date.
To the direct the opposite party to pay the interest over the loan amount taken from the HDFC Ltd. up to actual handing over physical possession of the flat in question which quantified as Rs.5,00,000.00 per year.
To allow the complaint and direct the opposite party to pay a sum of Rs.30,000.00 towards cost of the case.
To allow the compensation @ 5/- per sq. ft. per month that comes to Rs.7,810.000 per month as per allotment letter cum allotment agreement dated 7.9.2011.
To pass any other order which this Hon'ble State Commission may deem fit and proper in the circumstances of the case may also be passed.
The brief facts of the complaint case are that, by means of the aforesaid complaint, the complainants are praying for a direction to the opposite party to provide the actual physical possession of fully finished flat no.1001, 10th Floor, Block 7 having super area 1562 sq. ft., basic price of Rs.26,89,764.00 together with interest @ 24% on the amount from the respective dates of deposits till the date of actual possession together with compensation, damages and cost of the case.
The opposite party is the promoters, builders and contractors and also a limited company which is engaged in the construction activities and has launched a project named as "Panchsheel Primrose" situated at main Hapur Road, Village, Harsaon, Tehsil & District Ghaziabad. The opposite party in the year 2011 advertised to the effect that they have purchased the land from various farmers and the maps and lay out plan of their project was duly approved by the Ghaziabad Development Authority, Ghaziabad and had started the construction of the apartments and invited the applications for allotment of the apartments on which the complainants met with the officials of the opposite party on 18.8.2011 for purchase of flat in their scheme.
As per the said advertisement, it was assured by the opposite parties that the possession of the flats would be handed over within a period of 24 months from the date of booking. Being influenced and motivated by the high profile publicity of the opposite party the complainants met with the opposite party on 18.8.2011 and applied for the apartment/flat in the said scheme of the opposite party and paid booking amount of Rs.2,68,976.40 on 18.8.2011 i.e. the 10% amount of the basic cost of the flat.
The opposite parties at the time of deposit of the aforementioned booking amount reassured the buyers/ complainants for delivery of the possession of the apartment/flat within 24 months and reaffirmed their commitment stating that the requisite permission from the authorities to construct the apartment has already be obtained by them after taking the possession of the land from the Ghaziabad Development Authority.
On 7.9.2011 allotment letter cum allotment agreement was issued by the opposite party in favour of the complainants which was duly signed by all the parties in respect of the flat no.1001, 10th Floor, Block-7, super area 1562 sq. ft. basic cost of the flat in question (with PCL) was mentioned Rs.26,89,764.00. The allotment letter is also consist of allotment agreement and as per the terms and conditions of the said allotment letter cum allotment agreement dated 7.9.2011 it is provided that the possession of the unit will be given within 24 months from the date of booking and the date of booking was 24.8.2011 as such the possession the unit after completion in all respect is to be handed over by 23.8.2013 and in the said allotment letter the specification in which the flat is to be given is also given as such the parties of the allotment letter are bound to abide the terms and conditions of the allotment letter dated 7.9.2011.
The complainants paid the amount as and when the opposite parties demanded it. The details of payment made by the complainants are as under:
SL.
RECEIPT DATED RECEIPT NO.
AMOUNT
1. 24.08.2011 19858 2,76,518/-
2. 28.09.2011 20109 2,00287/-
3. 28.09.2011 20110 2,50,000/-
4. 3.10.2011 20127 19,00,000/-
5. 26.04.2014 49645 4,61,000/-
6. 26.04.2014 49646 16,400/-
Rs. 31,04,425/-
As such the complainants as per the down payment plan-Plan given the entire money rather the opposite party wanted to extract extra money in different heads which are not mentioned in the allotment letter. The possession of the unit after completion of the entire project is to be handed over up to 23.8.2013 but the opposite party failed to perform their obligation and unable to complete their project for which the opposite party is liable to pay compensation and damages to the complainants.
On 27.3.2014, the opposite party without completing the work and without obtaining the completion certificate from competent authority issued offer of possession attaching a demand letter dated 27.3.2014 totalling a sum of Rs.4,77,419.00. In the offer of possession at serial no.9, it is mentioned that fit out period of 45 days while such condition was not given in allotment letter and the demand are also against the allotment letter although the complainants paid the demanded amount in the hope of early possession of their unit.
After receiving the offer of possession the complainants went to see their flat in question and surprised to see that the flat was in semi finished condition and not in habitable condition as such vide letter dated 4.4.2014 the complainant lodged their protest on various issues and when they got no reply from the end the opposite party then sent a reminder dated 16.4.2014. Despite of incomplete works the opposite party further gave offer of execution of the sale deed of the flat in question and the complainants again in the hope of early completion of flat and early hand over the flat in question fulfilled all the required conditions as demanded by the opposite party and got it done the sale deed of the property in question. The sale deed was executed on 21.5.2014 before the Sub Registrar, 5th Ghaziabad and entered into the records of the office of the Sub Registrar, 5th Ghaziabad at Bahi no.1, Zild no.4332 at page nos. 107-150 at sl. No.3328.
After execution of the sale deed the complainants visited their flat in question on 17.6.2014 and found that the flat in question was still incomplete and the workmanship was very poor for which they clicked the several snaps on 17.6.2014 and vide letter dated 20.6.2014 complained to the opposite party for poor workmanship. Despite repeated requests the opposite party did not take interest in completion of the incomplete work as such on 19.11.2014 the complainants again visited to their flat and forum that there was still incomplete work and again sent a letter dated 23.11.2014 in respect of incomplete work and delay in delivering the flat in question.
Despite the best efforts when the opposite party not completed the flat in question the complainant no.1 knocked the doors of the learned District Forum, Ghaziabad by filing the complaint case no.12 of 2015 for redressal of their grievances and after satisfying the point of limitation and jurisdiction the ld. District Forum, Ghaziabad admitted the complaint case and issued notice to the opposite party and the opposite party appeared and filed their written statement and the ld. District Forum vide their orders dated 26.4.2016 returned the complaint case on the point of pecuniary jurisdiction.
Since the ld. District Forum passed the orders dated 26.4.2016 without entering the merits of the case on the sole ground of pecuniary jurisdiction as such the complainants are filing the present complaint case for redressal of their grievances before this Hon'ble Commission. The opposite parties committed gross deficiency in service and the cause of action is recurring in nature as such the present complaint case is well within time period as prescribed in the Consumer Protection Act.
The opposite party so far never showed or sent the copy of the completion certificate or ever intimated about it to the complainant, the production of certificate of completion from Ghaziabad Development Authority, which is mandatory as per provisions of U.P. Apartment Promotion of Construction, Ownership and Maintenance Act, 2011, herein after referred to as Apartment Act and at all cost before registration and prior taking possession. Section 5 of the Apartment Act clearly mandates that after completion of works the promoters/builders will obtain the certificate of completion from the prescribed authority before giving possession to allottees. While in the present case the opposite party issued letter dated 27.3.2014 for offer of possession.
At the time of issuing the Offer of Possession the Opposite Party further raised an amount of Rs.47,7419/- from the complainants which is also in violation of the provisions of the Apartment Act. The Complainants for Purchase of the Flat in question availed a sum of Rs. 26,00,000/- from HDFC Ltd. and regularly paying the EMI of Rs. 26,814/- every month against their housing Loan from HDFC Ltd.
The Opposite Party has committed serious deficiency in services by not delivering the physical possession of the allotted apartment to the Complainants after completion and obtain NOC. The Opposite Parties are also accountable for Unfair Trade Practice since they have enjoyed and utilize the hard earned money of the Complainants without providing the possession of the apartments/Flats.
The Complainants taken the loan amount of Rs. 26,00,000/- from the HDFC Ltd. on the basis of variable rate of interest now they are paying their E.M.I @ Rs. 26,814/- every month as such the liability of huge interest is bear by the Complainants for which the Complainants are liable to be compensated. The total amount of interest paid till 31.03.2016 is Rs. 10,31,181/- and in future approximately Rs. 11,38,730/- is to be paid.
It is important to mention here that the earlier the Complainant filed a Complaint Case No. 12/2015 before the learned DCF, Ghaziabad in which vide orders date 26.04.2016 the learned DCF, Ghaziabad returned the complaint case on the ground of pecuniary jurisdiction as such now the complainant is filing this complaint befoe this Hon'ble Commission.Despite the full payment as per allotment letter com allotment agreement dated 7.9.2011the opposite party demanding huge amount in different heads like energization of electric connection and also some other heads also. The opposite party also pressurizing the complainant to sign some agreement which is against the allotment letter cum allotment agreement dated 7.9.2011 as well as inadequate also.
The aforesaid complaint is maintainable before this Hon'ble Commission under the provision of the Consumer Protection Act, 1986 and this Hon'ble Commission has both pecuniary as well as territorial jurisdiction to entertain and adjudicate the complaint, named above. The complainants again and again demanded the ownership documents of the land on which the project was launched along with the sanctioned map of the Ghaziabad Development Authority and the clearance certificates of the various Government Authorities like water, fire etc. but no such documents were provided by the opposite parties while as per the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010 these information are mandatory to provide by the builder/contractors/promoters to their customers as such the opposite parties violated the provisions of the Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act, 2010 which amounts to deficiency in service.
The complainants are the consumers of the opposite party within the term, meaning and expression as is provided for the consumer under the provisions of the Consumer Protection Act, 1986 and the valuation of the present complaint case is more than 50 lacs but less than 1 crore as such the court fee of Rs.4,000.00 is paid through the demand draft no.064366 dated 6.7.2016 of Punjab National Bank.
The complainant no.2 is the wife of the complainant no.1 and co allottee of the flat in question as such they are entitled to fie the present complaint jointly before this Hon'ble Commission.
The opposite party filed its written statement wherein it is stated that the present complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed as such. The complainant has not approached with clean hands but trying to blackmail the opposite party in guise of the provisions of the Act. The Hon'ble Court has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is commercial transaction because the complainant as admitted in the complaint ,avoiding possession and just to save maintenance & watch and ward charges, on one pretext or other continuously avoiding possession while the offer for possession was made on time 27.3.2014.
The complainant booked an apartment with the answering respondent on 18.8.2011 under cash down payment plan bearing no.1001, Block-7 admeasuring 1562 sq. ft. in Panchsheel Primrose, Harsaon, Ghaziabad. The respondent is a reputed builder and developer ,doing the business of developing residential/commercial projects from many years, having delivered many projects till now. That because of reputation of the respondent and the quality of the delivered projects, usually their projects sell hand to hand and because of their location advantages projects give premium to the people who book them.
The complainant is avoiding possession just to save maintenance and watch and ward charges . Complainant is on one pretext or other continuously avoiding possession while the offer for possession was made on time 27.3.2014. The complainant just to mislead every time is raising issue for 'fully furnish flat' while complainant had never given the meaning of fully furnished flat. Panchsheel never offers 'fully furnish flat' and this term is creation of complainant at his own. It is an ambiguous word which has no meaning and in such circumstances a flat can never be completed.
Panchsheel never offer 'fully furnish flat' this term is creation of complainant at own. It is an ambiguous word which has no meaning and in such circumstances a flat can never be completed. The possession date is always carries 6 months grace period and also subject to the force majeure. As admitted by the complainant they booked flat on 18.8.2011 and complainant also admitted that the opposite party offered the possession on 27.3.2014, it means offer for possession was given within promised period.
As admitted by the complainant the opposite party offered the possession on 27.3.2014 the demanded amount was the 5% of the flat value which was to be charged on the offer of possession as per payment plant. It means offer for possession was given within promised period. The opposite party had fully followed the terms of allotment letter. It is submitted that 45 days was for fit out means the fixtures etc. which is to be fitted only in front of the owner as this fixture is generally sophisticated in nature with last time paint hands where owner can so give his own views.
It is to be submitted that the contents this para is concocted stories of the complainant just to mislead the Hon'ble Commission. The complainant is actually resident of Ghaziabad only and they are well aware of the Ghaziabad Development Authority which is custodian for UP Apartment Act right forum to file the complaint if anything is happening against the UP Apartment Act and not the Hon'ble Consumer Forum or State Commission while the 1000 families are already staying there in the project.
It is to be submitted that the contents this para are just to mislead the Hon'ble Commission as the complainant is trying to be a smart player. They are mixing up the electricity and power backup meter and fittings with the flat cost. It is to be submitted that the complainant is avoiding possession himself while the opposite party is pressurizing for possession it means the flat is not meant for residence purpose.
Therefore, it is prayed that the complaint is liable to be dismissed.
We have heard the learned counsel for the complainant Mr.Vikas Agarwal. Counsel of the opposite party did not turn up. We have perused the pleadings, evidence and documents on record.
The Consumer Protection Act is a special statute to protect the interest of the consumers. The Consumer Protection Act, came into existence and implemented in 1986, provides Consumer Rights to prevent consumers from fraud or specified unfair practices. It safeguards and encourages and gives an opportunity to consumers to speak against insufficiency and flaws in goods and services. If traders, manufacturers and distributors follow any foul trade, this act protects their rights as a consumer.
This Consumer Protection Act covers entire goods and services of all sectors that are public, private, or cooperative sectors, except those exempted by the central government. The act provides a floor for a consumer where one can file their complaint against the product and the forum takes an action against the concerned supplier and compensation is granted to the consumer for the inconvenience he/she has encountered. The main objects of the consumer protection act are ;
To Provide better and all round protection to consumer.
To Provide machinery for the speedy redressal of the grievances.
To Create framework for consumers to seek redressal.
To Provide rights to consumers.
To Safeguarde rights of Consumers.
Let us know more about the rights and responsiblities of consumer . Listed below are the Rights of the Consumer Right to Safety- Before buying, a consumer can examine on the quality and guarantee of the goods and opt for ISI or AGMARK products.
Right to Choose- Consumer must have the right to choose from a variety and number of goods and in a competitive price Right to be informed- The buyers must be provided with complete information with all the necessary and adequate details of the product, make her/him act wise, and change the buying decision.
Right to Consumer Education- The consumer must be aware of his/her rights and avoid exploitation.
Right to be heard- The consumer will get due attention to express their grievances at a suitable platform.
Right to seek compensation- The consumer has the right to seek or ask for redressal against unfair and inhumane practices or exploitation of the consumer.
Listed below the responsibilities of the consumers Responsibility to be aware - A consumer has to be careful of the safety and quality of products and services before purchasing.
Responsibility to think independently- Consumer should be well bothered about what they want and need and hence make independent choices.
Responsibility to speak out- The buyer should be fearless to speak out their problems and tell to traders what they exactly want Responsibility to complain- It becomes the consumer's responsibility to express and file a complaint about their dissatisfaction with goods or services in a sincere and fair manner.
Responsibility to be an Ethical Consumer- Consumer must be fair and not engage themselves with any deceptive practice.
The Consumer Protection Act 1986 was enacted to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of Consumers Councils and other authorities for the settlement of consumers' disputes and for matters connected therewith (Preamble).
The Act Inter alia, seeks to promote and protect the rights of consumers such as --
right to be protected against marketing of goods which are hazardous to life and property;
(2) right to be informed about the quality, quantity, potency, purity, standard and price of goods to protect the consumer against unfair trade practices;
(3) right to be assured, wherever possible, access to variety of goods at competitive prices;
(4) right to be heard and to assured that customers' interests will receive due consideration at appropriate forums.
(5) Right to seek redressal against unfair practices or unscrupulous exploitation of consumers; and (6) Right to consumer education The objects are sought to be promoted and protected by the Consumer Protection Councils to be established at the Central and State levels.
The Act applies to all goods and services, except if otherwise provided by the Central Government by Notification. To provide speedy and simple redressal of consumer disputes, a quasi judicial machinery is set up at the District, State and Central levels. The three tier system of quasi judicial bodies will observe the principle of natural justice and are empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi judicial bodies have also been provided.
Thus the Consumer Protection Act is to serve the interests of the consumers. Consumer education and redressal of consumers' grievances are the two aspects of the Act. It makes good the loss a consumer suffers and increases the feeling of responsibility of the manufacturer, trader, supplier or businessman.
The provisions of the Act have to be construed in favor of the consumer to achieve the purpose of enactment as it is social benefit oriented legislation. The primary duty of the Court while construing the provisions of such an Act is to adopt a constructive approach subject to that it should not do violence to the language of the provisions and not contrary to attempted objective of the enactment.
Extent of Consumer Protection:
While other legislations may be either punitive or preventive, the Consumer Protection Act compensates the consumer. The provisions of the Act are in addition to and not in derogation of the provisions of any law at the time being in force (Sec 3). In Maine Container Services South Pvt Ltd v Go Garments 1998 (3) SCC 247 it has been held that the Contract Act applies to all litigants before the Commissioner under the Consumers Protection Act. Passengers traveling in train suffering injuries and loss of Jewelry as a result of assault by unruly crowd are eligible for filing of complaint before State Commission is maintainable notwithstanding the provisions of sections 100 and 103 of Railways Act, 1889. The Consumer Protection Act therefore gives the consumer an additional remedy besides those which may be available under other existing laws. Existence of an arbitration clause in the agreement is no bar to the entertainment of complaint by the Redressal Agency as the remedy under the Act is in addition to the provisions of any other law. However, the Consumer Forums under the Act have not taken over the jurisdiction of civil Courts. If the dispute between the parties is pending in Civil Court no Consumer Forum will adjudicate the dispute. Similarly if evidence be laid by the parties to the dispute is voluminous or complicated the parties will be referred to the appropriate Civil Court.
Consumers Protection Act, thus enshrines the rights of a consumer to be informed about the quality, quantity, potency, price etc., of the goods to be protected against unfair trade practices, to seek inexpensive and expeditious redressal of grievances before the Consumer Forums. Consumer Protection Act is a benevolent piece of legislation to protect a large body of consumers from exploitation.
With the passage of time, the populace of the country is on hike and so are their opinions. Their opinion forms the basis for their interpretation, it may be a good or a bad interpretation. What would happen in the situation where people starting interpreting the laws? We might be flooded with several interpretations. The interpretations will be in such huge number that the laws will become unclear. This is the reason why lawmakers, while making the law, formulate it in accordance with the aim, set out by them, before penning down the legislations. The aim of any legislation defines the basis of the act. It becomes the ground norm of the act, based upon which the judiciary interprets the disputed texts.
The aim of any act forms the indispensable element, because it acts as the cord that delivers the real intention of the legislators behind the act. Whenever there is clash between two legislations, it is the aim of the legislation which makes the judges to derive at the endpoint in deciding which law has the superseding effect. It is through the doctrine of pith and substance that judges are able to derive at the major inclination towards one act over another act. This inclination is decided on the basis of the aim/goal of the act and the facts of that particular case.
Now we see the complaint. Para 12 of the complaint says that the opposite party issued offer of possession on 27 March 2014 without obtaining the completion certificate from the competent authority. The opposite party in reply of this para 12 of the complainant has said in para-12 of the written statement "that the contents of para-12 are partially denied and partially is a matter of record. Further the opposite party has stated that as admitted by the complainant the opposite party offered the possession on 27 March 2014, the demanded amount was the 5% of the flat value which was to be charged on the offer of possession as per payment plan. It means offer for possession was given within promised. Period. The opposite party had fully followed the terms of allotment letter." In this reply there is no mention of completion certificate. Nothing has been said about the occupancy certificate. First we had to summarise the difference between completion certificate and occupancy certificate.
When buying a home, it is vital to obtain documents, such as the Occupancy Certificate (OC) and Completion Certificate (CC). These are essential documents that allow you to mortgage or sell your home. Hence, homebuyers are advised to take possession of their flat or property only after these documents have been issued.
According to Vikas Bhasin, CMD, Saya Group, "Completion Certificate and Occupancy Certificate are some of the most important documents for a home buyer. Civic authorities can evict the occupants in case of non-availability of the necessary approvals. Before investing in a property, people must be doubly assured that all the certificates and approvals are in place."
Let us dive a little deeper into the details of these documents and their importance before you make a move to buy your dream home.
Owning a home is the culmination of years of savings, research, and paperwork. After patiently waiting for the construction to be complete, you finally register the property and take possession of your flat. But what if your dream home is declared unauthorised, and you are evicted by the authorities? This is not as far-fetched as it sounds. This nightmare could turn into reality without a crucial link in the property sale process - the Occupancy Certificate (OC).
The majority of apartments in different Indian cities have been occupied by owners without any occupancy certificate. This oversight can turn into a costly mistake, jeopardising the legal status of your dream home. The importance of the occupancy certificate cannot be overstated as it seals the legal status of your property and protects your ownership rights.
Decoding legal documents To understand the importance of an occupancy certificate and other legal documents, let's decode the legal jargon and understand their meaning in simple terms. Here's a ready reckoner of the most important legal documents related to your property:
Occupancy Certificate An OC certifies that the construction of the building has complied with the approved plans. It is issued by local municipal authorities or the building proposal department once the building has been completed and is ready to be occupied. Simply put, without an OC, your building has not been awarded a 'pass certificate'.
Completion Certificate A Completion Certificate (CC) is issued only after the construction meets other building standards like distance from the road, the height of the building, and rainwater harvesting system. A CC alone cannot legalise occupation; the OC is a must.
Commencement Certificate If you are buying an under construction property, make sure you check the Commencement Certificate before signing the agreement. Many builders do not wait for a Commencement Certificate. This is illegal and can create serious problems in obtaining an OC at a subsequent stage.
Why is it unsafe to buy a flat without OC?
In the absence of a valid OC, the local municipal body can initiate serious action against flat owners. In 2014, residents of a well-known building complex in Mumbai's upscale Worli area were hit with a bolt from the blue after their complex was declared unauthorised. At the time of possession, buyers overlooked the issuance of an OC from the builder. It was only after that they were forced to evacuate their flats that the writing on the wall became clear to them.
This is just one instance, and if buyers are not careful about getting the OC, they may face the following repercussions:
• In the absence of a valid OC, your building can be demolished as it can be classified as an unauthorised structure.
• The OC is crucial while applying for a home loan or loan to purchase a resale flat. If you wish to sell or hypothecate the property after a lapse of time, you will not be able to do so without a valid OC.
• The water connection, sanitary connection or electricity supply can be disconnected in the absence of an OC.
How to obtain an OC The OC is obtained from local municipal bodies by submitting an OC application form along with the following documents:
• Commencement Certificate • Completion Certificate • Built and Section plan • NOC for fire and pollution • Area calculation sheet of floor signed by an authorised architect • Photographs of the completed building • Tax assessment with tax paid receipt • Photographs of rain harvesting and solar panels • Copy of the sanctioned plan After submitting the form, authorities inspect the complex and confirm if it has conformed to the approved plan before issuing an OC. Legally and ideally, a builder should submit an application with the municipal commissioner for the OC within 30 days of completion of the property.
How you can apply for an OC As a flat owner, you can also apply for an OC by approaching the local corporation or municipality, and if all approvals are in place, an OC is issued within 30 days of application. You will have to submit the same documents as the builder to procure an OC.
Know your rights If the builder refuses to provide an OC, you should consider exercising your legal rights. You can issue a notice against the builder asking him to apply and hand over the copy of the OC within a month. You can also approach consumer forums and file a writ petition demanding the OC.
Some canny builders simply present the receipt of the OC and dupe gullible customers. But you shouldn't accept anything less than the actual OC as the receipt may be dated.
Landmark legislations like the Real Estate Regulatory Act (RERA) have been passed to regulate the sector, promote transparency and protect consumer rights. However, consumers must be vigilant and understand their rights and responsibilities towards owning a property. Documents like OC are essential and ensure the security of your investment.
Going forward, real estate experts believe that the OC should be made mandatory for the registration of flats and essential services. Until then, buyers must ensure builders get all the necessary approvals before handing over a property.
A Completion Certificate (CC) is an important legal document that certifies that a building is constructed according to the laid down norms and master plan of the city. This document has all the information related to the project, such as the building materials used, building height, and building plan, among other things like provision for green belt.
In a nutshell, this document certifies that the building adheres to all the prevailing rules and has not violated any norms. In fact, this document is to be shown compulsorily to the authorities to obtain electricity and water connection.
Builders are allowed to obtain a provisional Completion Certificate when there are minor works left in the project. Authorities then provide a provisional certificate valid for six months. After the expiry of the six months, the developer is bound to get a final CC.
Who issues a Completion Certificate?
Local authorities issue the Completion Certificate after a thorough inspection of the premises. If the developer violates no rules, authority issues a Completion Certificate.
Why is Completion Certificate important?
Buyers must be aware of the fact that if they are buying or moving into a property that does not have a Completion Certificate, they might be making a risky investment choice. The civic authorities hold the power to slap heavy penalties on the developer, leading to stalling or cancellation of the registered layout of the project. In case the building is already occupied, residents may also have to face eviction in extreme cases.
Difference between Occupancy Certificate and Completion Certificate Occupancy Certificate examines and certifies a property for adherence to bye-laws, civic amenities, electricity, sanitation and other clearances. On the other hand, a Completion Certificate is a document that certifies that a property is fit for possession by the buyers.
Clarifying the difference, Deepak Kapoor, Director, Gulshan Homz, says, "Completion Certificate is just a reaffirmation that the building has been constructed as per the building byelaws and the layout plan has been approved by various concerned authorities. Occupation Certificate signals that there is no violation of building construction norms, and thus, the structure is safe for occupants.
Generally, these documents are not required at the time of registry, and hence, buyers tend to overlook or ignore these. But for their own benefit and peace of mind, it is warranted that buyers of both ready-to-move-in as well as under-construction properties check these documents before taking possession. This would help avoid any unnecessary dispute or confrontation in the future."
So it is clear that at the time of offering possession, occupancy certificate is very much needed. Completion certificate is also did before giving of possession.
The opposite party has stated that the period of two years for completion of the project shall also include a grace period of six months. The opposite party has admitted that the complainant has booked an apartment with the answering opposite party on 18th August 2011. The offer of possession was made on 27 March 2014. As far as time is concerned, when there is a specific time has been granted then the builder shall follow the time limit. Time limit does not include only the construction of the skeleton of the building but it should be completed in all respect having all the requisite certificates from the concerned department. We have to discuss some important case laws regarding time and occupancy certificate.
However the Hon'ble Supreme Court in CIVIL APPEAL NO(S). 3533-3534 OF 2017 M/S. FORTUNE INFRASTRUCTURE (NOW KNOWN AS M/S. HICON INFRASTRUCTURE) &ANR. VS TREVOR D'LIMA & ORS. (Judgment March 12, 2018) has held:
"15. Moreover, a person cannot be made to wait indefinitely for the possession of the flats allotted to them and they are entitled to seek the refund of the amount paid by them, along with compensation. Although we are aware of the fact that when there was no delivery period stipulated in the agreement, a reasonable time has to be taken into consideration. In the facts and circumstances of this case, a time period of 3 years would have been reasonable for completion of the contract i.e., the possession was required to be given by last quarter of 2014. Further there is no dispute as to the fact that until now there is no redevelopment of the property. Hence, in view of the above discussion, which draw us to an irresistible conclusion that there is deficiency of service on the part of the appellants and accordingly the issue is answered. When once this Court comes to the conclusion that, there is deficiency of services, then the question is what compensation the respondents/complainants is entitled to ?"
In the above-mentioned case Hon'ble Supreme Court also held regarding payment of compensation or quantum of compensation as follows:
"18. This Court in Ghaziabad Development Authority v. Balbir Singh, (2004) 5 SCC 65, has observed that there is no fixed formula for fixing damages in the following manner
8. However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on finding of loss or injury and has to correlate with the amount of loss or injury. Thus, the Forum or the Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him.Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause. That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of that flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore, the compensation in such cases would necessarily have to be higher. ... We clarify that the above are mere examples. They are not exhaustive. The above shows that compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer." (emphasis supplied) It is clear that the Consumer Protection Act has been passed to safeguard the interest of the consumers. Now we come to the facts of the present case. If the consumer is depositing lakhs of rupees in hope of getting possession of the flat/plot, he cannot be deprived of his right to get a flat or plot within a reasonable time. If the builder takes money from the allottees beforehand and executes allotment letter later on, the date for calculating the period for giving the compensation may either be counted from the date of the deposition of booking amount or from the date of allotment agreement come allotment letter. In this case the booking amount has been deposited on 18.08.2011 and the allotment letter come allotment agreement has been executed on 07.09.2011. In this case the complainant has deposited Rs.276,518/- on 24.08.2011, Rs.200,287/- on 28.09.201, Rs.250,000/- on 28.09.2011, Rs.19 lakhs on 03.10.2011, Rs.4, 61,000/- on 26.04.2014 and Rs.16,400/- on 26.04.2014, the said total sum of Rs.31,04,425/- has been deposited.
No interest has been paid on the deposited amount to the complainant. So as far as cause of action is concerned, it is continuing cause of action from the date of tentative date for delivery of possession that is 18.02.2013 and still the possession has not been delivered.
There is not a single word regarding completion certificate, occupancy certificate, NOC from pollution department, NOC from civil aviation Department and NOC from fire department. Without these, offer of giving possession is no offer in the eye of law.
In the case of Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. &Anr., Civil appeal no.3302 of 2005, judgment dated 10.06.2008, Hon'ble Supreme Court has held that a prayer for completion certificate and C&D Forms cannot be brushed aside by stating that the builder has already applied for the completion certificate or C&D Forms. If it is not issued, the builder owes a duty to make necessary application and obtain it. If it is wrongly withheld, he may have to approach the appropriate court or other forum to secure it. If it is justifiably withheld or refused, necessarily the builder will have to do whatever is required to be done to bring the building in consonance with the sanctioned plan so that the municipal authorities can inspect and issue the completion certificate and also assess the property to tax. If the builder fails to do so, he will be liable to compensate the complainant for all loss/damage.
Hon'ble Supreme Court in the case of Ireo Grace Realtech Private Limited Vs. Abhishek Khanna & Ors., civil appeal no.5785 of 2019, with other civil appeals, judgment 11.01.2021, has held where the development makes an alternate offer of allotment of apartment, the allottees are however not bound to accept the same because of inordinate delay in completing the construction of the towers or units were allotted to them and if the Occupation Certificate is not available even as on date, clearly amounts to deficiency of service.
Thus it is clear that if occupation certificate is not available on the date of giving of possession, it is clearly deficiency of service. In this case the builders has not said anywhere that he has got the completion certificate, occupancy certificate, NOCs from Pollution Control Department, fire department, environment department, Civil Official Department Et cetera. This shows the clear deficiency on the part of the builders. In the present case the booking date of the flat 18.08.2011 and it was promised to deliver the possession within 24 months. On 07.09.2011 allotment letter come allotment agreement was issued by the opposite party in favour of the complainants.So for the reckoning. Of 24 months we take this date as the commencing date. As promised the flat was to be delivered within 24 months, that is it was to be delivered on 07.09.2013. As per argument of the opposite party if six months grace period is added to this cut of date, the final date for delivery of possession comes to be 07.03.2014. So the final possession was to be delivered to the complainant with all the requisite certificates on March 7 , 2014. As nothing has been reiterated about the completion certificate, occupancy certificate and NOC's, this of opposition was no offer of possession in the eye of law. The complainant has also said that he visited the spot after issue of offering possession and found that the construction is not fully completed. The complainant has deposited Rs.3,104,425/- from 24.08.2011 to 26.04.2014. The price of the flat was Rs.26,89,764/-. So it is clear that whole amount of the purchase consideration has already been paid. Some miscellaneous charges and maybe there but without giving valid offer of possession it cannot be taken. Regarding delay payment, interest et cetera we have two consider the following case laws of Hon'ble Supreme Court, Hon'ble NCDRC.
In R. V. Prasannakumaar v. Mantri Castles Pvt. Ltd., 2019 SCC on Line SC 224, under the terms of the ABA, possession of the flats was to be handed over to the buyers on 31 January 2014. However, the developer received an occupation certificate only on 10 February 2016 and it was thereafter from May 2016 that the developer started issuing letters offering possession. Based on this, the NCDRC awarded compensation in the form of interest at the rate of 6 per cent per annum. The developer had pleaded that since the agreement provided compensation at the rate of Rs.3 per square foot per month for delayed possession, the purchasers were not entitled to anything in addition. Dealing with the submission, this Court observed:
"9. We are in agreement with the view of the NCDRC that the rate which has been stipulated by the developer, of compensation at the rate of Rs.3 per sq. ft. per month does not provide just or reasonable recompense to a flat buyer who has invested money and has not been handed over possession as on the stipulated date of 31 January 2014. To take a simple illustration, a flat buyer with an agreement of a flat measuring a 1000 sq. ft. would receive, under the agreement, not more than Rs. 3000/- per month. This in a city such as Bangalore does not provide just or adequate compensation. The jurisdiction of the NCDRC to award just compensation under the provisions of the Consumer Protection Act, 1986 cannot in the circumstances be constrained by the terms of the agreement. The agreement in its view is one sided and does not provide sufficient recompense to the flat purchasers."
The Court observed that there was a delay of two years and hence the award of interest at the rate of 6 per cent was reasonable and justified.
In Pioneer Urban Land and Infrastructure Limited v. Govindan Raghavan, (2019) 5 SCC 725, there was a delay of almost two years in obtaining an occupancy certificate after the date stipulated in the ABA. As a consequence, there was a failure to provide possession of the flat to the purchaser within a reasonable period. This Court dwelt on the terms of the ABA under which the builder was entitled to charge interest at 18 per cent per annum for the delay in payment of instalments by the purchaser. On the other hand, the failure to provide possession on the part of the developer was subject to a grace period of twelve months followed by a termination notice of ninety days and a further period of ninety days to the developer to effect a refund. Adverting to these clauses, the court noted:
"6.4. A perusal of the apartment buyer's agreement dated 8-5- 2012 reveals stark incongruities between the remedies available to both the parties. For instance, Clause 6.4(ii) of the agreement entitles the appellant builder to charge interest @18% p.a. on account of any delay in payment of instalments from the respondent flat purchaser. Clause 6.4(iii) of the agreement entitles the appellant builder to cancel the allotment and terminate the agreement, if any instalment remains in arrears for more than 30 days. On the other hand, as per Clause 11.5 of the agreement, if the appellant builder fails to deliver possession of the apartment within the stipulated period, the respondent flat purchaser has to wait for a period of 12 months after the end of the grace period, before serving a termination notice of 90 days on the appellant builder, and even thereafter, the appellant builder gets 90 days to refund only the actual instalment paid by the respondent flat purchaser, after adjusting the taxes paid, interest and penalty on delayed payments. In case of any delay thereafter, the appellant builder is liable to pay interest @9% p.a. only. Another instance is Clause 23.4 of the agreement which entitles the appellant builder to serve a termination notice upon the respondent flat purchaser for breach of any contractual obligation. If the respondent flat purchaser fails to rectify the default within 30 days of the termination notice, then the agreement automatically stands cancelled, and the appellant builder has the right to forfeit the entire amount of earnest money towards liquidated damages. On the other hand, as per Clause 11.5(v) of the agreement, if the respondent flat purchaser fails to exercise his right of termination within the time limit provided in Clause 11.5, then he shall not be entitled to terminate the agreement thereafter, and shall be bound by the provisions of the agreement."
Hon'ble Justice Indu Malhotra speaking for the Court noted:
"6.8. A term of a contract will not be final and binding if it is shown that the flat purchasers had no option but to sign on the dotted line, on a contract framed by the builder. The contractual terms of the agreement dated 8-5-2012 are ex facie one-sided, unfair and unreasonable. The incorporation of such one-sided clauses in an agreement constitutes an unfair trade practice as per Section 2(1)(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the builder." The Court observed that in these circumstances, the flat purchasers could not be compelled to obtain possession which was offered almost two years after the grace period under the agreement had expired. Hence, the NCDRC was held to have correctly awarded interest at the rate of 10 percent per annum.
The decision of this Court in Dhanda Case, 2019 SCC On Line SC 689 has been relied upon by learned Senior Counsel appearing on behalf of the developer as elucidating the principle that where a flat buyers agreement stipulates a consequence for delayed possession, exceptional and strong reasons must be established before the forum constituted under the Act of 1986 awards compensation in addition to what has been contractually agreed. In Dhanda's case, the SCDRC issued a direction for handing over physical possession of the residential unit to the complainant and for execution of a sale deed. In addition, compensation was awarded by way of interest at the rate of 12 per cent per annum with effect from twelve months after the stipulated date under the agreement. In an appeal by the developer, the NCDRC directed that the rate of interest for a house building loan for the corresponding period in a scheduled nationalised bank would be appropriate and if a floating rate of interest was prescribed, the higher rate of interest should be taken for the computation. A sum of Rs.1 lac per annum from the date for handing over possession to the actual date of possession was regarded as appropriate in the facts of the case. In that case under the terms of the buyer's agreements, possession was to be delivered within twenty-four months of the execution of the agreement i.e. 10 February 2013 - failing which the developer was liable to pay compensation at the rate of Rs.10 per square foot per month for the delay. The developer contended that construction activities were delayed as a result of an injunction granted by this Court over a period of eight months and consequently sought an extension of the period for handing over possession by one year. Alternatively, the developer offered to refund the money deposited with interest at 9 per cent per annum. Construction of 258 independent floors was completed while about 1,500 units were nearing completion. In two sets of Civil Appeals which came up before this Court earlier, agreed terms were arrived at providing for the award of interest at 9 per cent per annum from the date of deposit till refund. While considering the order of the NCDRC, this Court observed:
"16. The District Forum under the Consumer Protection Act, 1986 is empowered inter-alia to order the opposite party to pay such amount as may be awarded as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party including to grant punitive damages. But the forums under the Act cannot award interest and/or compensation by applying rule of thumb. The order to grant interest at the maximum of rate of interest charged by nationalised bank for advancing home loan is arbitrary and no nexus with the default committed. The appellant has agreed to deliver constructed flats. For delay in handing over possession, the consumer is entitled to the consequences agreed at the time of executing buyer's agreement. There cannot be multiple heads to grant of damages and interest when the parties have agreed for payment of damages at the rate of Rs. 10/- per sq. ft. per month. Once the parties agreed for a particular consequence of delay in handing over of possession then, there has to be exceptional and strong reasons for the SCDRC/NCDRC to award compensation at more than the agreed rate."
Now the interest may be 6% to 10% in favour of the allottees if they have not been given possession of the flat/plot within promised or within a reasonable time. The complainant has deposited the entire agreed cost of the flat before June 2009. Now it is the duty and obligation of the opposite party to deliver the possession within stipulated time but they failed to do so.
In the case of PRIYANKA MITTAL & ANR. V. PARSVNATH DEVELOPERS LTD. & ANR. (NCDRC). These appeals arise out of single order of State Commission, hence, decided by common order. These appeals have been filed against the order dated 25.2.2015 in Complaint Nos.18 of 2013- Nalin Bhargava & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 34 of 2013- Jasleen Viswanathan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 58 of 2011- Janmejai Mani Tiwari Vs. Parsvnath Developers Ltd. & Anr.; 68 of 2013- Indu Singh Vs. Parsvnath Developers Ltd. & Anr.; 69 of 2013- Poonam Sagar Vs. Parsvnath Developers Ltd. & Anr.; 86 of 2010- Priyanka Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 101 of 2011- Mohd. Aslam Khan & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 130 of 2012- Dr. Sunil Kr. Singh & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 49 of 2012- Neera Mittal & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 74 of 2011- Deepak Bhalla Vs. Parsvnath Developers Ltd. & Anr.; 87 of 2010- Syed Gufran Ali Alvi & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 96 of 2011- Uppasana Malik Vs. Parsvnath Developers Ltd. & Anr.; 175 of 20130- Umesh Chandra Dixit & Anr. Vs. Parsvnath Developers Ltd. & Anr.; 97 of 2011- Pravin Kumar Goel & Anr. Vs. Parsvnath Developers Ltd. & Anr. which complaints were partly allowed.
The Hon'ble NCDRC held that:
"Brief facts of the cases are that opposite parties/respondents are engaged in the activity of housing construction and accordingly they have launched a project named as Parsvnath Planet situated in Gomti Nagar, Lucknow. The project was demonstrated to be very lucrative and made attractive to the vendees, in order to procure/collect money from the needy persons demonstrating themselves to be excellence in the field of construction activity as compared to other builders and assured the buyers/complainants that it has been duly approved by the Lucknow Development Authority and necessary permission has also been obtained from them. The emphasis was made by the opposite parties that the possession of the Unit shall be given within a scheduled period of 36+6=42 months stipulated in agreements executed in between the parties for the project launched in the year 2006. The complainants/appellants attracted by the promise and assurance of the opposite parties, somehow managed and arranged the money from their personal sources as well as on loan at attractive rate of interest and the hard earned money was paid by them to the opposite parties in a hope that the possession of the units shall be provided to them in the year 2009 and they can leave peacefully in their own houses, since the complainants are living in rented houses.
The complainants visited the construction site of the opposite parties after depositing the entire amount, where it was revealed that the construction activities were on halt and the persons available on the site told the complainants that the apartments are likely to be completed till 2015. Even the partial construction done by the opposite parties was defective and did not match the specifications provided in the agreement. The complainants were shocked on hearing it and observing the site. The complainants immediately contacted the Area Manager, who told the complainants that there is some delay in the construction of the apartment and the apartments shall be ready till June, 2010. The complainants have to repay the amount taken on loan alongwith interest without getting the possession of the allotted units causing irreparable loss and injury to them. The complainants have come to know that the opposite parties have invested the funds earmarked for this project into their other projects in other city due to which they have not been able to complete the project in time. Besides this, it has also come to the light that although the opposite parties had collected huge funds from the buyers but in spite of that the opposite parties have miserably failed to pay the dues of Lucknow Development Authority which forced the Lucknow Development Authority to issue coercive measures against the opposite parties for the recovery of their dues. Alleging deficiency on the part of opposite parties/ respondents, complainants filed separate complaints before State Commission. Aggrieved by the order of Hon'ble State Commission, these appeals preferred before Hon'ble National Consumer Disputes Redressal Commission.
Hon'ble NCDRC discussed various case laws and after hearing the parties held, "Learned Counsel for appellants submitted that as complainants have been deprived of possession for a long period beyond agreed period, it amounts to restrictive trade practice under Section 2 (nnn) of Consumer Protection Act and complainants are entitled to get compensation. Section 2 (nnn) runs as under:- means a trade practice which tends to bring about restrictive trade practice manipulation of price or its conditions of delivery or to affect flow of supplies in the market relating to goods or services in such a manner as to impose on the consumers unjustified costs or restrictions and shall include- Delay beyond the period agreed to by a trader in supply of such goods or in providing the services which has led or is likely to lead to rise in the price; Any trade practice which requires a consumer to buy, hire or avail of any goods, or, as the case may be, services as condition precedent to buying, hiring or availing of other goods or services; Perusal of aforesaid provision reveals that when opposite party delays in delivery of goods which leads to rise in the price of goods meaning thereby, more price is charged from complainant, it amounts to restrictive trade practice. In the case in hand, opposite party on account of delayed delivery of possession is not charging higher rate than the agreed rate for delivery of possession of flat, so, it does not fall within the purview of restrictive trade practice under Section 2(nnn) of Consumer Protection Act.
"Admittedly, agreements were executed in 2006 and as per agreements, possession of flats was to be delivered within 42 months, meaning thereby, possession was to be given in the year 2009-2010 and possession has not been handed over so far though year 2016 has started. No doubt, complainants are entitled to get penalty amount for delayed delivery of possession as per clause 10 ( c) of the agreement but opposite party cannot be permitted to avail benefit of aforesaid clause for indefinite period. This penalty clause should be allowed for the benefit of parties for a limited period and in the cases in hand, I deem it appropriate to extend applicability of aforesaid clause for a period of one year beyond 42 months and after that, complainants are certainly entitled to compensation. Opposite party cannot be allowed to avail huge funds of complainants by paying merely Rs. 5/- per sq. ft. for example, complainants who have purchased flat measuring 164.901 sq. mtr., they have made payment of about Rs. 31.00 to 32 lakhs and in the garb of clause 10 (c), opposite party is paying penalty @ approximately Rs. 9,000/- per month against enjoying funds more than Rs. 30.00 lakhs. As complainants have been deprived to shift to their flats for a long period which would not only have given them satisfaction of living in their own house but also have raised their social status and opposite party has enjoyed funds of complainants for a long period, I deem it appropriate to allow compensation @ Rs. 15,000/- p.m. to the complainants who have applied for flats upto 175 sq. mtr and Rs. 20,000/- per month to complainants who have applied for flats above 175 sq. after 54 months of execution of agreement till delivery of possession".
Against this judgment, parties went to Hon'ble Supreme Court. The judgment of Hon'ble Supreme Court is:-
In Nalin Bhargava vs. Parsvnath Developers Ltd. CA 6662/2018 @ SLP(C) 7596/2016etc and other related civil appeals on 13 July, 2018, Hon'ble Supreme Court held:-
"Leave granted in all the special leave petitions.CA 6662/2018 @ SLP(C) 7596/2016 etc. It is submitted by Mr. M.L. Lahoty, learned counsel appearing for the appellants in all the appeals that the possession has been handed over and the deficiencies have been removed and, therefore, he has no grievance. However, Mr. Lahoty would insist that there should be imposition of costs as compensation.
Mr. Sachin Datta, learned senior counsel appearing for the developer has raised objections with regard to imposition of costs.
Having heard learned counsel for the parties, we are of the considered opinion that the cause of justice would be best subserved if each of the appellants in the present appeals are given Rs.1,50,000/- (Rupees one lakh fifty thousand only) per flat, towards costs. When we say "cost", we mean costs alone and nothing else."
In the case of Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra [Civil Appeal No. 3182 of 2019 @ SLP (C) No(S). 1795 of 2017] judgment delivered on 25.03.2019, the Hon'ble Supreme Court has held:-
"Interestingly, where the buyer is in default, the agreement stipulates that interest at the rate of 18 per cent from the date of default until the date of payment would be charged for a period of two months, failing which the allotment would be cancelled by deducting 5% of the entire value of the property. The agreement was evidently one sided. For a default on the part of the buyer, interest at the rate of 18% was liable to be charged. However, a default on the part of the developer in handing over possession would make him liable to pay interest only at the savings bank rate prescribed by the SBI. There is merit in the submission which has been urged by the buyer that the agreement was one sided.
In the Case of Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. Versus DLF Southern Homes Pvt. Ltd (now Known as BEGUR OMR Homes Pvt. Ltd.) and Ors. (Civil Appeal No. 6239 of 2019 With Civil Appeal No. 6303 of 2019); The Hon'ble Supreme Court has held:-
"24. A failure of the developer to comply with the contractual obligation to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression "service" in Section 2 (1) (o) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. Under Section 14(1)(e), the jurisdiction of the consumer forum extends to directing the opposite party inter alia to remove the deficiency in the service in question. Intrinsic to the jurisdiction which has been conferred to direct the removal of a deficiency in service is the provision of compensation as a measure of restitution to a flat buyer for the delay which has been occasioned by the developer beyond the period within which possession was to be handed over to the purchaser. Flat purchasers suffer agony and harassment, as a result of the default of the developer. Flat purchasers make legitimate assessments in regard to the future course of their lives based on the flat which has been purchased being available for use and occupation. These legitimate expectations are belied when the developer as in the present case is guilty of a delay of years in the fulfillment of a contractual obligation. To uphold the contention of the developer that the flat buyer is constrained by the terms of the agreed rate irrespective of the nature or extent of delay would result in a miscarriage of justice."
"Undoubtedly, as this court held in Dhanda, courts ordinarily would hold parties down to a contractual bargain. Equally the court cannot be oblivious to the one-sided nature of ABAs which are drafted by and to protect the interest of the developer. Parliament consciously designed remedies in the CP Act 1986 to protect consumers. Where, as in the present case, there has been a gross delay in the handing over of possession beyond the contractually stipulated debt, we are clearly of the view that the jurisdiction of the consumer forum to award just and reasonable compensation as an incident of its power to direct the removal of a deficiency in service is not constrained by the terms of a rate which is prescribed in an unfair bargain."
These builders are just earning money from the consumers to whom they issued allotment letters and got a huge amount. They keep this amount for a long time and earn interest on it. Property dealing is that part of business where they never pay a penny to the consumers on their amounts deposited for a long-term or if they pay, they pay a meagre interest of about 5% or so but they charge 18 to 24% or more if the consumers default in depositing any instalment. It reminds us the story of "The Merchant of Venice" The Merchant of Venice is the story of a Jewish money lender Shylock who demands that an antisemitic Christian offer "a pound of flesh" as collateral against a loan. These acts of builders also remind us the age of Sahukari during ancient India and also during British Raj. Whether these builders have power to frame their own law? They put their terms and conditions in such a way that the sufferer will always be the consumer. The Consumer Protection Act 1986 has been enacted for the benefits of consumers, so the courts dealing with Consumer Protection Act 1986 should come forward for their rescue. The courts are not governed by the builders but they are governed by the law, Custom and Usages. Now in the background of all the facts and also the facts of the present case, we will also discuss something more.
Now it has been very well established that the opposite party completely failed to deliver the possession of the said flat on 18.02.2013 as per their own promise. Later onoffer of possession has been given but without completion certificate and occupancy certificate which is not a valid offer of delivery of possession in the eye of law.
They have not filed the copies of the completion/occupancy certificate and NOC from the various departments as said earlier. Keeping in view the judgment of the different Hon'ble higher courts we come to the conclusion that the complainant is entitled to the following reliefs are:-
The opposite party is liable to deliver the possession of the said flat within 60 days from the date of judgment of this complaint case with, copy of completion certificate, occupancy certificate and NOCs of fire department, pollution Department, civil aviation department, environment department et cetera without asking any amount in any head whatsoever it may be.
We are of the view that the complainants are entitled to get monthly damage according to the area. The area of the said unit is less than 1561 sq. ft. and keeping in view the judgment of Hon'ble NCDRC in the case of Priyanka Mittal (supra)The complainant is entitled to get Rs.15,000/- per month towards rent from 01.04.2014 till the delivery of actual possession and execution of sale deed in favour of the complainant with interest at a rate of 10% per annum within 60 days from the date of judgment. If the amount is not paid within 60 days from the date of judgment, the rate of interest will be 15% per annum.
The complainant is entitled to get Rs.150,000/- in view of Nalin Bhargava Case (supra) as cost.
The complainant is entitled to get interest on his total deposits at the rate of 10% per annum from 01.04.2014 till the delivery of actual possession and execution of sale deed in favour of the complainant with interest at a rate of 10% per annum within 60 days from the date of judgment. and if not paid within 60 days, the rate of interest shall be 15% per annum.
In the relief clause of the complaint, the complainant has prayed that any other order which This Hon'ble State Commission may deem fit and proper in the circumstances of the case may also be passed. The complainant has prayed for compensation in different heads and taking all the has to be a we are of the opinion that there is clear deficiency and unfair trade practice on the part of the opposite parties so keeping all the facts in view we find that the complainants are also entitled to get ₹30 lakhs towards mental harassment, agony sufferings, cost of the suit No amount shall be adjusted by the opposite parties to these amounts whatsoever it may be.
The present complaint is decided accordingly.
ORDER The opposite party is directed to deliver the possession of the said flat within 60 days from the date of judgment of this complaint case with, copy of completion certificate, occupancy certificate and NOCs of fire department, pollution Department, civil aviation department, environment department et cetera without asking any amount in any head whatsoever it may be.
The opposite party is directed to pay Rs.15,000 per month towards rent from 01.04.2014 till the actual date of delivery of possession with all the necessary certificates and NOCs ith interest at a rate of 10% per annum within 60 days from the date of judgment of this complaint case . If the amount is not paid within 60 days from the date of judgment, the rate of interest shall be 15% per annum.
The opposite party is directed to pay Rs.150,000/- in view of Nalin Bhargava Case (supra) as cost.
The opposite party is directed to pay interest on the total deposits of the complainant at the rate of 10% per annum from 01.04.2014 till the actual date of delivery of possession with all the necessary certificates and NOCs with interest at a rate of 10% per annum within 60 days from the date of judgment of this complaint case . If the amount is not paid within 60 days from the date of judgment, the rate of interest shall be 15% per annum.
The opposite party is directed to pay Rs.30 lakhs to the complainant towards all the harassment and mental agony, depression, cost of the suit within 60 days from the date of judgment without any interest but if the amount is not paid within 60 days from the date of judgment, the rate of interest will be 15% per annum.
No amount shall be adjusted by the opposite party to these amounts whatsoever it may be.
All the decreetal amount shall be paid within 60 days from the date of judgment of this appeal, otherwise the opposite parties shall pay interest at a rate of 15% per annum on all the decreetal amount. If it is not paid within 60 days from the date of judgment of this appeal, the complainant shall be entitled to present Execution proceedings before this court at the cost of the opposite parties.
The stenographer is requested to upload this order on the Website of this Commission today itself.
Certified copy of this judgment be provided to the parties as per rules.
(Vikas Saxena) (Rajendra Singh) Member Presiding Member Judgment dated/typed signed by us and pronounced in the open court. Consign to the Record Room. (Vikas Saxena) (Rajendra Singh) Member Presiding Member Dated July 28,2022 Jafri, PA II C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER