State Consumer Disputes Redressal Commission
Charanjit Singh vs C & C Towers on 21 November, 2023
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
1) Consumer Complaint No.182 of 2019
Date of institution : 05.03.2019
Reserved On : 01.11.2023
Date of decision : 21.11.2023
1. Charanjit Singh S/o Sr. Surjit Singh;
2. Kamlajit Kaur wife of Sh. Charanjit Singh;
Corresponding Address: Mehak The Bridal Shop, Main Bazar,
Ahmedgarh, Sangrur.
....Complainants
Versus
1. C & C Towers Ltd., Site Office: C&C Towers, ISBT-cum-
Commercial Complex, opposite Verka Milk Plant, Gate No.5,
Phase-6 (Sector-57), Mohali, through its Chairman/Director/
Managing Director/Manager/Authorized Representative.
2. C & C Towers Ltd., Corporate Office: Plot No.70, Sector-32,
Gurgaon, Haryana, through its Chairman/Director/Managing
Director/Manager/Authorized Representative.
3. G.S. Johar, Chairman, C & C Towers Ltd., Corporate Office: Plot
No.70, Sector-32, Gurgaon, Haryana.
Email ID:candcinfrastructure.com
Mohalijunction.co.in
....OPs
2) Consumer Complaint No.184 of 2019
Date of institution : 05.03.2019
Reserved On : 01.11.2023
Date of decision : 21.11.2023
Gurdeep Singh S/o Jarnail Singh
Corresponding Address: VPO Jhmmat, Tehsil Payal, Ludhiana, Punjab.
....Complainant
Versus
Consumer Complaint No.182 of 2019 2
1. C & C Towers Ltd., Site Office: C&C Towers, ISBT-cum-
Commercial Complex, opposite Verka Milk Plant, Gate No.5,
Phase-6 (Sector-57), Mohali, through its Chairman/Director/
Managing Director/Manager/Authorized Representative.
2. C & C Towers Ltd., Corporate Office: Plot No.70, Sector-32,
Gurgaon, Haryana, through its Chairman/Director/Managing
Director/Manager/Authorized Representative.
3. G.S. Johar, Chairman, C & C Towers Ltd., Corporate Office: Plot
No.70, Sector-32, Gurgaon, Haryana.
Email ID:[email protected]
www.candcinfrastructure.com
www.Mohalijunction.co.in
....OPs
Consumer Complaints under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
1. Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether judgment should be reported in the Digest? Yes/No Present:
For the complainants : Sh. Pranab Bansal, Advocate for Sh. Sandeep Bhardwaj, Advocate For OPs No.1 & 2 : None For OPs No.1 & 2(IRP) : None For OP No.3 : None.
JUSTICE DAYA CHAUDHARY, PRESIDENT This order of ours shall dispose off two Complaints i.e. Consumer Complaint No.182 of 2019 and Consumer Complaint No.184 of 2019 filed by the complainants under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be referred as 'the Act"), as the Consumer Complaint No.182 of 2019 3 common questions of law and facts are involved therein and both the complaints have been filed against the same OPs. However, the facts are being extracted from Consumer Complaint No.182 of 2019.
2. Upon issuance of notices in both the complaints, the OPs had appeared through counsel Mr. Rohit Mittal on 24.04.2019. It was mentioned in the zimni orders dated 24.04.2019 that since the notices were sent to OPs No.1 to 3 through Registered Post (AD), which were reported to be delivered on 18 & 20.03.2019 as per the postal tracking report and, as such, the statutory period of 30 days had already lapsed, which could be extended further for a period of 15 days. As such, the total period of 45 days was required to be considered. However, OPs No.1 to 3 were directed to file the written statement in both the cases in the Registry with advance copy to the counsel opposite before the next date of hearing i.e. 06.05.2019. Mr. Rohit Mittal, counsel for the OPs had appeared on 06.05.2019 and had also filed his Power of Attorney on behalf of the OPs in both the complaints. He had submitted before this Commission that he was ready to file the written statements and had prayed for extension of time. However, this Commission had observed that since the statutory period of 45 days had already lapsed, as it was up to 04.05.2019, so the right of the OPs to file the written statement was closed vide similar orders dated 06.05.2019 passed in both the complaints by relying upon the judgment passed by the Hon'ble Supreme Court in the case of M/s SCG Contracts India Pvt.
Ltd. v. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors. Civil Appeal No.1638 of 2019 decided vide order dated 12.02.2019. Consumer Complaint No.182 of 2019 4
3. Being aggrieved by the said orders dated 06.05.2019 passed by this Commission, the OPs had approached the Hon'ble National Commission by way of filing First Appeal No.896 of 2019 and First Appeal No.987 of 2019. Thereafter, the complaints were adjourned by this Commission on various dates for awaiting further orders from the Hon'ble National Commission. Ultimately, both the complaints were adjourned sine-die vide orders dated 29.04.2022 and the Registry was directed to put up the cases as and when any order was received from the Hon'ble National Commission or any application was moved by any party.
4. Said appeals filed by the OPs came up for hearing before the Hon'ble National Commission on 08.02.2023 but none had appeared on behalf of the appellants/OPs on the said date. Separate detailed orders were passed by the Hon'ble National Commission on 08.02.2023, whereby the orders dated 06.05.2019 passed by this Commission in both the complaints were modified subject to cost of ₹50,000/- to be paid to the complainants. This Commission was directed to accept/take the written statements of the OPs on the record, if filed within a period of 30 days from the date of passing of the orders i.e. 08.02.2023. The relevant portion of order dated 08.02.2023 passed by the Hon'ble National Commission in First Appeal No.896 of 2019 is reproduced as under:
"5. At the relevant time i.e. on 06.05.2019 when the State Commission passed its Order written version beyond the statutory period of 30 days and the extended period of 15 days thence i.e. beyond total 45 days stipulated under Section 13(1)(a) of The Consumer Complaint No.182 of 2019 5 Consumer Protection Act, 1986 (the old Act, then in force) could be permitted to be filed subject to "suitable terms, including the payment of costs" in accordance with the judgment dated 10.02.2017 of Hon'ble Supreme Court in Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardware Pvt. Ltd. & Anr.
Later on Hon'ble Supreme Court judgment in New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd., taking a stricter view on the subject, was delivered on 04.03.2020 but the same was made prospective in operation by the Hon'ble Court ("This Judgment to operate prospectively.").
6. Thus we have to consider the instant matter in the light of Hon'ble Supreme Court's judgment given in Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardware Pvt. Ltd. & Anr. whereby written version could be permitted to be filed subject to suitable terms.
Without expressing any opinion about the merits of the case, but considering the nature of the dispute and the overall facts and circumstances in their totality, and also keeping in perspective the first principles of natural justice, we find it just and appropriate that one opportUnity may be provided to the opposite parties to file their written version in a time-bound manner subject to suitable terms.
7. As such one opportUnity is granted to the opposite parties to file their written version before the State Commission within 30 days from today, without fail, subject to cost of Rs. 50,000/- to be paid to the complainants within the same period of 30 days from today.
The impugned Order dated 06.05.2019 of the State Commission stands modified accordingly.
The opposite parties are sternly advised to conduct their defence properly before the State Commission.
The State Commission is requested to take the written version of the opposite parties on record, if filed within 30 days from today and if the cost of Rs. 50,000/- is paid to the complainants within the same period of 30 days from today. It would then give opportUnity to the complainants to file their rejoinder thereto, and to proceed further with the adjudication of the case in the normal wont as per the law.
It goes without saying that if the written version is not filed within the stipulated period of 30 days from today or if the cost imposed is not paid within the stipulated period of 30 days from today, the written version of the opposite parties shall not be taken on record for consideration, and the State Commission shall so proceed further with the adjudication of the case.
The parties shall appear before the State Commission on 29.03.2023.
The opposite parties are not present or represented before this Commission today. As such, in the interest of justice, if, for whatever Consumer Complaint No.182 of 2019 6 reason, the opposite parties do not appear before the State Commission on 29.03.2023, the State Commission shall issue notice to them and ensure its due service."
5. The relevant portion of order dated 08.02.2023 passed by the Hon'ble National Commission in First Appeal No.897 of 2019 is reproduced as under:
"5. At the relevant time i.e. on 06.05.2019 when the State Commission passed its Order written version beyond the statutory period of 30 days and the extended period of 15 days thence i.e. beyond total 45 days stipulated under Section 13(1)(a) of The Consumer Protection Act, 1986 (the old Act, then in force) could be permitted to be filed subject to "suitable terms, including the payment of costs" in accordance with the judgment dated 10.02.2017 of Hon'ble Supreme Court in Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardware Pvt. Ltd. & Anr.
Later on Hon'ble Supreme Court judgment in New India Assurance Co. Ltd. vs. Hilli Multipurpose Cold Storage Pvt. Ltd., taking a stricter view on the subject, was delivered on 04.03.2020 but the same was made prospective in operation by the Hon'ble Court ("This Judgment to operate prospectively.").
6. Thus we have to consider the instant matter in the light of Hon'ble Supreme Court's judgment given in Reliance General Insurance Co. Ltd. & Anr. vs. M/s Mampee Timbers & Hardware Pvt. Ltd. & Anr. whereby written version could be permitted to be filed subject to suitable terms.
Without expressing any opinion about the merits of the case, but considering the nature of the dispute and the overall facts and circumstances in their totality, and also keeping in perspective the first principles of natural justice, we find it just and appropriate that one opportUnity may be provided to the opposite parties to file their written version in a time-bound manner subject to suitable terms.
7. As such one opportUnity is granted to the opposite parties to file their written version before the State Commission within 30 days from today, without fail, subject to cost of Rs. 50,000/- to be paid to the complainants within the same period of 30 days from today.
The impugned Order dated 06.05.2019 of the State Commission stands modified accordingly.
The opposite parties are sternly advised to conduct their defence properly before the State Commission.
The State Commission is requested to take the written version of the opposite parties on record, if filed within 30 days from today and if the cost of Rs. 50,000/- is paid to the complainants within the same period of 30 days from today. It would then give Consumer Complaint No.182 of 2019 7 opportUnity to the complainants to file their rejoinder thereto, and to proceed further with the adjudication of the case in the normal wont as per the law.
It goes without saying that if the written version is not filed within the stipulated period of 30 days from today or if the cost imposed is not paid within the stipulated period of 30 days from today, the written version of the opposite parties shall not be taken on record for consideration, and the State Commission shall so proceed further with the adjudication of the case.
The parties shall appear before the State Commission on 29.03.2023.
The opposite parties are not present or represented before this Commission today. As such, in the interest of justice, if, for whatever reason, the opposite parties do not appear before the State Commission on 29.03.2023, the State Commission shall issue notice to them and ensure its due service."
6. In compliance of the orders dated 08.02.2023 passed by the Hon'ble National Commission, both the complaints came up for hearing before this Commission on 29.03.2023. However, none had appeared on behalf of the OPs. Neither any written statements were filed nor the cost amount was paid. The cases were adjourned to 18.05.2023. The order dated 29.03.2023 passed by this Commission is reproduced as under:
"Order dated 08.02.2023 passed by the Hon'ble National Commission in F.A. No.896 of 2019 has been received vide which order dated 06.05.2019 of this Commission has been modified and an opportUnity has been granted to the OPs to file their written version within 30 days from the date of order, without fail, subject to cost of Rs.50,000/- to be paid to the complainant within the same period of 30 days. It has further been ordered by the Hon'ble National Commission that if the written version is not filed or cost imposed is not paid within the stipulated period of 30 days, the written version of the OPs shall not be taken on record. Parties have been directed to appear before this Commission today i.e. 29.03.2023.
Learned counsel for the complainant submits that cost has not been paid by the OPs to the complainant.
None is present on behalf of the OPs even in the second round. Hon'ble National Commission has ordered that if the OPs do not appear before this Commission today i.e. 29.03.2023, notice shall be issued to them. Accordingly, notice be issued to the OPs through Registered Post A.D for 18.05.2023.Consumer Complaint No.182 of 2019 8
Intimation be also sent to the counsel for the OPs and IRP."
7. On 18.05.2023, OP No.3 had appeared through counsel, who filed his Memo of Appearance in both the complaints. The cases were adjourned to 29.05.2023. The order dated 29.05.2023 passed by this Commission is reproduced as under:
" Sh. Abhishek Kumar Jaiswal, Advocate, has filed memo of appearance on behalf of Sh. G.S. Johar, OP No.3. He undertakes to affix Punjab Advocates Welfare Fund Stamp on the memo of appearance and file power of attorney on or before the date fixed.
Notice sent to OP No.1 on 03.04.2023 has been received back with the report 'No such person in this address'.
Notice sent to OP No.2 on 03.04.2023 through registered post A.D. Neither RC nor AD has been received back. More than 30 days have elapsed. It is presumed to have been received by OP No.2. Case called several times since morning. None is present on behalf of OP No.2.
Intimations sent to counsel for OPs as well as Resolution Professional on 03.04.2023 through registered post A.D. Neither RCs nor ADs have been received back.
Adjourned to 29.05.2023 for further proceedings."
8. On 29.05.2023, the counsel for the complainants had submitted that the OPs had not complied with the order dated 08.02.2023 passed by the Hon'ble National Commission. Proxy counsel appearing on behalf of OP No.3 has sought time to get instructions and the cases were adjourned to 26.07.2023. Thereafter, the cases were further adjourned to 06.09.2023, 04.10.2023 and 01.11.2023 but none appeared on behalf of the OPs on all those dates and no written statements were filed. Even the cost amount was not paid despite service of notices in both the complaints.
Consumer Complaint No.182 of 2019 9
9. Therefore, we proceed to decide both the complaints on the basis of the evidence/material available on the record. Consumer Complaint No.182 of 2019
10. The complainants are husband and wife and they have filed the present complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be referred as 'the Act") against the OPs with the following prayer:
i) To hand over the possession of the allotted office space bearing No.9 at 6th Floor in Tower-C of Mohali Junction immediately with all the basic amenities along with Completion Certificate issued by GMADA, failing which the OPs be directed to refund the entire amount of ₹11,11,250/- so deposited by the complainants towards the price of the said Unit along with interest at the rate of 18% per annum from the respective dates of deposits till its realization;
ii) To pay compensation of ₹2 lac for causing mental agony, physical harassment to the complainants;
iii) To pay litigation expenses to the tune of ₹1 lac.
11. The facts of the case in brief as made out by the complainants in the complaint are that they had purchased an office space in the project of the OPs namely 'C&C Towers' at Mohali for the purpose of earning their livelihood by way of self-employment. The total price of the said Unit was ₹36,79,000/-, including the basic sale price, car parking, IFMS charges, Power Back-up charges, EEC charges, One Time Lease Administration Charges etc. The complainants had paid the total amount of ₹11,11,250/- to the OPs on different dates. However, the OPs had failed to complete the construction and development works Consumer Complaint No.182 of 2019 10 at the project site and to deliver possession of the Unit within the stipulated period despite a number of requests made by the complainants.
12. Stating to be a case of 'deficiency in service' and 'unfair trade practice' on the part of the OPs, the complaint was filed with the aforesaid prayers.
13. As already mentioned above, the OPs had neither appeared nor filed any written statement and even did not pay the costs in compliance of the order dated 08.02.2023 passed by the National Commission, despite service of notices.
14. In support of the averments as made in the complaint, the complainants filed their own self attested affidavits along with the documents Ex.C-1 to Ex.C-9 and Mark A to C.
15. Advocate Pranab Bansal, proxy for Mr. Sandeep Bhardwaj, representing the complainants has submitted that the OPs had failed to complete the construction and development works at the project site as well as to deliver possession of the Unit within the stipulated period. Initially, a false assurance was given by the OPs that the possession of the Unit complete in all respects with all amenities would be handed over but still there was no progress at the project site. Learned counsel has further submitted that the issues and relief in both the cases are squarely covered by the earlier order dated 19.11.2019 passed by this Commission in Consumer Complaint No.663 of 2019 (Arvind Dhiman Consumer Complaint No.182 of 2019 11 v. C & C Towers Ltd. & Ors.) and as such, both the complaints be also decided in terms of said order.
16. We have heard the arguments of learned counsel for the complainants. We have also carefully perused the contents of the complaint, terms and conditions of the allotment letter and other relevant documents available on the file.
17. Undisputedly, the complainants were allotted office space i.e. Unit No.9, Block/Tower-C, 'C & C Capital', 6th Floor, measuring 635 sq.ft. vide allotment letter dated 06.04.2011 (Ex.C-3) in the project launched by the OPs. The basic sale price of the said Unit was ₹5,000/- per sq.ft. plus additional charges as mentioned in Annexure-A of the allotment letter. The complainant had paid an amount of ₹11,11,250/- to the OPs as is evident from the Account Ledger (Ex.C-2).
18. The complainants have specifically mentioned in Para-7 of the complaint that complainant No.1 has been running the business of 'Collegiate Tailors and Boutique', whereas complainant No.2 has been running the business in the name and style of 'Mehak The Bridal Shop'. The complainants had purchased the Unit in question for the purpose of earning their livelihood by way of self-employment. There is no reply or counter evidence on behalf of the OPs to rebut the said averments as made in the complaint.
19. As per Clause 1.3.5 of the allotment letter, the construction of the Unit was to be completed within a period of 30 months from the date of the start of lease period i.e. 15.12.2009, after obtaining all the Consumer Complaint No.182 of 2019 12 necessary approvals and sanctions subject to force majeure circumstances and the reasons beyond the control of the OPs (Transferor). In case, there was delay in handing over the possession on the part of the OPs (Transferor) beyond the stipulated period as mentioned above, the OPs were liable to pay simple interest @ 6% per annum on the amount so paid by the complainants. The possession was to be delivered up to 15.06.2012. However, the OPs had failed to complete the development works/infrastructure of the project in dispute and to deliver the possession of the Unit to the complainants within the stipulated period.
20. The complainants have produced on record the letter dated 29.09.2016 issued by GMADA to another allottee namely Sharanjeet Kaur, whereby the information under RTI Act was supplied. It is mentioned in the said letter that neither any licence for raising the construction was granted to the OPs and nor any agreement was executed between the Government and the OPs. From perusal of another letter dated 07.05.2015 (Ex.C-4), it is apparent that the work of the project had been stopped and the OPs had undertaken to restart the construction by July, 2015 which was to be completed by the year 2017. Further on perusal of letter dated 11.03.2016 (Ex.C-7), it is apparent that GMADA had cancelled the licence of the OPs due to non- completion of the project within the stipulated period and the work had been stopped. The work was delayed due to paucity of finances with the OPs. Further vide letter dated 14.07.2017, due to delay in completion of the project, the OPs had also offered to pay interest at the Consumer Complaint No.182 of 2019 13 rate of 8.8% per annum on the amount so paid by the complainants from the date of receipt of 35% of BSP till 31.08.2016, which was to be paid in four equated quarterly instalments commencing w.e.f. the quarter October-December, 2017 subject to giving an undertaking to extend the period for completion of the construction. Meaning thereby the OP had admitted their fault for causing delay in completing the project and delivering the possession.
21. None had appeared on behalf of the OPs at the time of arguments despite service of notices. Even the IRP, who had appeared earlier on behalf of OPs No.1 & 2, had not appeared at the time of arguments. Neither the written statements were filed nor any evidence was led by the OPs in compliance of the order passed by the Hon'ble National Commission and even the cost was not paid. Therefore, the averments as made in the complaint and the evidence produced on record by the complainants had remained unrebutted.
22. It is relevant to mention that the OPs have failed to comply with the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, 'PAPRA'). As per Section 3 (General Liabilities of Promoter) of the PAPRA, the OPs were required to disclose complete and correct disclosure of the nature of their title to the land, on which such project was developed or such building was constructed or was to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give opportunity of Consumer Complaint No.182 of 2019 14 inspection within a period of seven days notice or demand of the layout of the colony and plan of development works to be executed in a project, as approved by the prescribed authority in the case of a project. However, the OPs had failed to comply with Section 3 of the PAPRA.
23. As per the Section 5 (Development of land into Colony) of PAPRA, the OPs were liable to obtain the required sanctions/ permissions from the competent authority for launching and developing the project, but they had failed to produce on record any such sanctions/permissions. So, the OPs have also violated Section 5 of PAPRA.
24. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/commercial space/Unit but no such evidence has been brought on the record by the OPs to prove that any account has been maintained by them in this regard. As such, the OPs have also violated Section 9 of the PAPRA.
25. As discussed above, as per Clause 1.3.5 of the allotment letter, the construction of the Unit was likely to be completed within a period of 30 months from the date of start of lease period i.e. 15.12.2009, after all the necessary approvals and sanctions had been obtained subject to force majeure circumstances and reasons beyond the control of the OPs (Transferor). In case, there was delay in handing over the possession on the part of the OPs (Transferor) beyond the Consumer Complaint No.182 of 2019 15 stipulated period as mentioned, the OPs were to pay simple interest @ 6% per annum on the amount so paid by the complainants, whereas as per Clause 1.2.2 of the allotment letter, the OPs had made the provision to charge the interest at the rate of 2% per month on account of delay in depositing the instalments by the buyers. It clearly shows that the terms and conditions of the allotment letter, which were drafted by the OPs, are one-sided and are in favour of the OPs and not the buyers. It is matter of common knowledge that the buyers have no option but to sign on the dotted lines or pre-drafted agreements prepared by the developer/builder. Failure of the OPs to provide complete/effective possession of the Unit within the stipulated period amounts to 'deficiency in service'. It is also matter of common parlance that for purchasing the flat/plot/Unit, normally the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers reside in rented house in the absence of timely delivery of possession. On account of delay in delivery of possession within the stipulated period, they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case of Lucknow Development Authority v. M K Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court has discussed about the extent of the jurisdiction of the Consumer Commission to award the just and reasonable compensation for the harassment and agony suffered by a consumer. Further in the case of Ghaziabad Development Authority v. Balbir Singh (2004) 5 SCC 65 (SC), the Hon'ble Supreme Court has observed as follows:
Consumer Complaint No.182 of 2019 16
"6...The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done."
8...... 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."
26. In another case titled as "Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Geetu Gidwani Verma & Anr." II(2019) CPJ 34, it was held by the Hon'ble Supreme Court that the Builder cannot bind the flat purchaser with such one-sided contractual terms. The relevant para of the said judgment is reproduced hereunder:-
"6.7 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(r) of the Consumer Protection Act, 1986 since it adopts unfair methods or practices for the purpose of selling the flats by the Builder.
XX XX XX XX XX XX
9. We see no illegality in the impugned dated 23.10.2018 passed by the National Commission. The Appellant-Builder failed to fulfill his contractual obligation of obtaining the Occupancy Certificate and offering possession of the flat to the Respondent-Purchaser within the time stipulated in the Agreement, or within a reasonable time thereafter. The Respondent-Flat Purchaser could not be compelled to take possession of the flat, even though it was offered almost 2 years after the grace period under the Agreement expired. During this period, the Respondent-Flat Purchaser had to service a loan that he had obtained for purchasing the flat, by paying Interest @10% to the Bank. In the meanwhile, the Respondent-Flat Purchaser also located an alternate property in Gurugram. In these circumstances, the Respondent -Flat Purchaser was entitled to be granted the relief prayed for ....."Consumer Complaint No.182 of 2019 17
27. In view of the law laid down by the Hon'ble Supreme Court in the above noted judgments, we are of the considered view that the provision of compensation for causing delay in delivery of the possession at the rate of 6% simple interest as per Clause 1.3.5 of the allotment letter is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on account of this reason.
28. Learned counsel for the complainants has also relied upon the order dated 19.11.2019 passed by this Commission in similar case i.e. Consumer Complaint No.663 of 2019 (Arvind Dhiman v. C & C Towers Ltd. & Ors.) which pertained to the same project. In that case also, this Commission had held the OPs deficient in not delivering the possession of the Unit to the complainant within the stipulated period and while granting the relief, the interest was also awarded at the rate of 12% per annum. However, it is relevant to mention that the Hon'ble Supreme Court in the case of Ireo Grace Realtech Pvt. Ltd. v. Abhishek Khanna and Ors. Civil Appeal No.5785 of 2019 decided on 11.01.2021 had awarded 9% interest on the refundable amount. The relevant portion of said judgment is reproduced as under:
"We are cognizant of the prevailing market conditions as a result of Covid-19 Pandemic, which have greatly impacted the construction industry.
In these circumstances, it is necessary to balance the competing interest of both parties. We think it would be in the interests of justice and fairplay that the amounts deposited by the Apartment Buyers is refunded with Interest @ 9% S.I. per annum from 27.11.2018 till the date of payment of the entire amount.Consumer Complaint No.182 of 2019 18
29. Therefore, the interest at the rate of 9% is quite reasonable with regard to the compensation for the delay in delivery of the possession or on the refund of the deposited amount.
Consumer Complaint No.184 of 2019
30. Similarly the Consumer Complaint No.184 of 2019 was filed by the complainant under Section 17 of the Consumer Protection Act, 1986 against the OPs with the following prayer:
i) To hand over the possession of the allotted office space bearing No.19 at 8th Floor in Tower-C of Mohali Junction immediately with all the basic amenities along with Completion Certificate issued by GMADA, failing which the OPs be directed to refund the entire amount of ₹9,60,750/- so deposited by the complainant towards the price of the said Unit along with interest at the rate of 18% per annum from the respective dates of deposits till its realization;
ii) To pay compensation of ₹2 lac for causing mental agony, physical harassment to the complainant; and
iii) To pay litigation expenses to the tune of ₹1 lac.
31. Undisputedly, the complainant was allotted office space i.e. Unit No.19, Block/Tower-C, 'C & C Capital', 8th Floor, measuring 549 sq.ft. vide allotment letter dated 15.11.2010 (Ex.C-3). The basic sale price of the said Unit was ₹5,000/- per sq.ft. plus additional charges as mentioned in Annexure-A of the allotment letter. The complainant had paid an amount of ₹9,60,750/- to the OPs as is evident from the Statement of Account (Ex.C-2). It was mentioned in Para-7 of the complaint that he is doing the work of excavation with two excavation machines. He had applied for the Unit in dispute for open his office Consumer Complaint No.182 of 2019 19 there for earning his livelihood by way of self-employment. There is no reply or counter evidence on behalf of the OPs to rebut the said averments as made in the complaint. Other averments are similar to that of Consumer Complaint No.182 of 2019.
32. None had appeared on behalf of the OPs at the time of arguments despite service of notices. Even the IRP, who had appeared earlier on behalf of OPs No.1 & 2, had not appeared at the time of arguments. Neither the written statements were filed nor any evidence was led by the OPs in compliance of the order passed by the Hon'ble National Commission and even the cost amount was not paid. Therefore, the averments made in the complaint and the evidence produced on record by the complainants have remained unrebutted.
33. In view of the above discussion as well as the facts and circumstances as mentioned above, it has been proved on record that the OPs had failed to complete the project in all respects and to deliver the possession of the Units in dispute to the complainants within the stipulated period, in both the complaints. The 'deficiency in service' on the part of the OPs has been proved on record in both the complaints.
34. Accordingly, finding merits in the contentions raised by learned counsel for the complainants, both the complaints i.e. Consumer Complaint No.182 of 2019 and Consumer Complaint No.184 of 2019 are partly allowed and the following directions are issued:
Consumer Complaint No.182 of 2019 20
Consumer Complaint No.182 of 2019
i) The OPs are directed to deliver vacant physical possession of the Unit/office space in question complete in all respects along with 'Completion Certificate' and 'Occupation Certificate' from the concerned competent authorities and all the promised amenities subject to the payment of balance outstanding amount towards the price thereof, if any, by the complainants without any interest or penal interest;
(ii) to execute the sale/conveyance deed and get the same registered in the name of the complainants, for which the expenses shall be borne by the complainants;
(iii) to pay compensation for delay in delivery of possession of the Unit in dispute in the form of interest at the rate of 9% per annum on amount so deposited by the complainants from the expiry of the stipulated date of delivery of possession i.e. 15.06.2012 till the date of actual delivery of possession of the Unit/office space in question; and
(iv) to pay ₹25,000/-, as composite compensation, for mental tension and harassment suffered by the complainants including litigation costs.
v) The OPs shall adjust the amount of compensation and litigation costs as awarded above towards the amount payable by the complainants, if any, towards the price of the Unit/office space in dispute.
In case the OPs fail to comply with the aforesaid directions, then in the alternative, the following directions are issued to the OPs:-
(i) to refund the amount of ₹11,11,250/- along with compensation for causing financial loss and depriving the complainants of the use of the said amount during the period the same remained with the OPs at the rate of 9% per annum with effect from the different Consumer Complaint No.182 of 2019 21 dates of deposits of different amounts till the date of actual payment; and
(ii) to pay ₹25,000/-, as composite compensation, on account of mental tension and harassment suffered by the complainant including litigation costs.
Consumer Complaint No.184 of 2019
i) The OPs are directed to deliver vacant physical possession of the Unit/office space in question complete in all respects along with 'Completion Certificate' and 'Occupation Certificate' from the concerned competent authorities and all the promised amenities subject to the payment of balance outstanding amount towards the price thereof, if any, by the complainant without any interest or penal interest;
(ii) to execute the sale/conveyance deed and get the same registered in the name of the complainant, for which the expenses shall be borne by the complainant;
(iii) to pay compensation for delay in delivery of possession of the Unit in dispute in the form of interest at the rate of 9% per annum on amount so deposited by the complainants after the expiry of the stipulated date of delivery of possession i.e. 15.06.2012 till the date of actual delivery of possession of the Unit/office space in question; and
(iv) to pay ₹25,000/-, as composite compensation, for mental tension and harassment suffered by the complainant including litigation costs.
v) The OPs shall adjust the amount of compensation and litigation costs as awarded above towards the amount payable by the complainant, if any, towards the price of the Unit/office space in dispute.
Consumer Complaint No.182 of 2019 22In case the OPs fail to comply with the aforesaid directions, then in the alternative, the following directions are issued to the OPs:-
(i) to refund the amount of ₹9,60,750/- along with compensation for causing financial loss and depriving the complainants of the use of the said amount during the period the same remained with the OPs at the rate of 9% per annum with effect from the different dates of deposits of different amounts till the date of actual payment; and
(ii) to pay ₹25,000/-, as composite compensation, on account of mental tension and harassment suffered by the complainant including litigation costs.
35. The compliance of the orders passed in both the complaints shall be made by the OPs within a period of 45 days from the date of receipt of certified copy of the order.
36. Since the main cases have been disposed of, so all the pending miscellaneous applications, if any, are accordingly disposed of.
37. The complaints could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER November 21, 2023.
(Gurmeet S)