State Consumer Disputes Redressal Commission
Mohd. Usman vs M/S Earth Infrastructure Ltd on 7 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/296/2017 ( Date of Filing : 08 Aug 2017 ) 1. Mohd. Usman Gorakhpur ...........Complainant(s) Versus 1. M/S Earth Infrastructure Ltd New Delhi ............Opp.Party(s) BEFORE: HON'BLE MR. Rajendra Singh PRESIDING MEMBER HON'BLE MR. Vikas Saxena JUDICIAL MEMBER PRESENT: Dated : 07 Jul 2022 Final Order / Judgement Reserved State Consumer Disputes Redressal Commission, U.P. Lucknow. Complaint Case No.296 of 2017 Mohammad Usman aged about 26 years, S/o Sri Mohammad Ayub, R/o Zohra Complex, Barhalganj, District Gorakhpur, Uttar Pradesh. ...Complainant. Versus 1- M/s Earth Infrastructures Ltd. through its Directors, having registered office at B-100, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 2- Mr. Avdhesh Goel, Director of M/s Earth Infrastructures Ltd., B-100, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 3- Mr. Atul Gupta, Director of M/s Earth Infrastructures Ltd., B-100, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 4- Mrs. Priyanka Gonguly, General Manager, M/s Earth Infrastructures Ltd., B-100, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 5- Mr. Nikhil Kashyap, Assistant General Manager, M/s Earth Infrastructures Ltd., B-100, 2nd Floor, Naraina Industrial Area, Phase-1, New Delhi-110028 ...Opp. Parties. Present:- 1- Hon'ble Sri Rajendra Singh, Presiding Member. 2- Hon'ble Sri Vikas Saxena, Member. Sri Jagrit Sharma, Ld. counsel for the complainant. None appeared for the opposite parties. Date 18.07.2022 JUDGMENT
Per Sri Rajendra Singh, Member- This Complaint Case has been filed by the complainant against the opposite parties to direct them to issue an allotment letter to the complainant for the residential unit (as booked by the OPs vide customer code EGR-0219), a 3 BHK flat on the ground floor, having a super area of 1545 square feet in their project "Earth Gracia" at sector - 1, Greater Noida, UP to direct the opposite parties to execute a Builder Buyers Agreement with the complainant and hand over the physical and legal possession of the residential unit to be completed in all respects as soon as possible after obtaining all due permissions and certificates including the completion certificate inter alia from the concerned authorities along with all basic and promised facilities/communities; in alternate to direct the opposite parties to return the amount of ₹ 605,000/- along with interest at a rate of 24% per annum from the date of receipt of amount, received by them from the complainant against the booking of the residential unit/flat, till the date of actual payment; to direct the parties to pay a compensation of ₹ 10 lakhs in respect of the flat booked on account of financial risk, hardship, harassment and mental agony suffered by the complainant and deficiency in service as well as unfair trade practice adopted by the opposite parties ; to direct the opposite parties to pay to the complainant ₹ 1 lakh towards the cost of this complaint including the legal fee and charges incurred by the complainant to institute this complaint and any other relief which may be deemed appropriate by the Hon'ble Commission.
The brief facts of the complaint that the complainant is a law-abiding citizen of India and is currently residing at Zohra Complex, Barhajganj, District Gorakhpur. The OP no. 1 is a Real Estate Company and has, at all material point of time, been and still engaged in the business of construction, development, selling, leasing and managing of residential and commercial spaces. While opposite parties no.2 & 3 are Directors of opposite party no.1, opposite parties no.4 & 5 are General Managers and Assistance General Manager of opposite party no.1.
Sometime in August 2014, the opposite parties started wrapping a residential project namely "Earth Gracie" at sector - 1, Greater Noida, whereby they inter alia proposed to develop the residential complex/hour/building for sale on the project land the opposite parties induced the complainant to book a residential unit/flat in the said project through various representations made by them regarding the stated projects affordability, construction, convenience et cetera. Due to their representations, sometimes in the first week of September 2014, opposite party no.5, being the AGM along with one Mr. Manoj, Senior Manager in OP-1 contacted the complainant for sale of flats in the above-mentioned project. Even the complainant was persuaded to visit the office of the opposite party - 1 where the complainant met opposite party no.3 Mrs. Priyanka Ganguly, general manager of OP-1. The complainant, who had recently completed his degree in Masters of Technology (M. Tech) was eager to work in an IT company in the expanding region of Greater Noida were a lot of IT companies have their offices. That, being a resident of District Gorakhpur which is at a distance of about 786 km from greater Noida, the complainant wanted to have a residential unit in greater Noida so that it would be convenient for him to travel to any company for work in Greater Noida itself. The complainant's mother was willing to support to her son, made a payment of ₹605,000/- in complainants account. However, the complainant's family also wanted to stay together with their son while at the same time giving space to him for his personal growth and for his purpose, complainant's mother desired to book another residential unit for her family to stay there in the same project.
Induced by the reputations are made by the opposite parties, the complainant booked a flat in the above-mentioned project. As already mentioned above along with one flat for himself, the complainant also booked another residential unit for his family and sister for their residential purposes. Since the complainant's sister was still studying, the said flat was also booked in the name of the complainant. At the time of making the payment, the complainant was assured that the same would be a four BHK unit having covered area of 1995 square ft. Accordingly, the complainant made following payment through cheque for booking of two residential units.
HDFC Cheque no./date Amount in rupees HDC Bank 005587/02.01.13 ₹ 605,000/- HDC Bank 005588/02.01.13 ₹ 605,000/- Total : ₹ 1,210,000/-
The opposite parties issued acknowledgement no 320 bearing customer code EGR-0219 dated 12.02.2013 against receipt of an amount of ₹605,000/- vide cheque no.005587 issued to the complainant. Another acknowledgement no.319 bearing customer code EGR-0220 dated 12.02.2013 was also issued against receipt of the ₹ 605,000/- vide cheque no.005588 by the opposite party. The payments were realized by opposite parties in February 2013 and thereafter there was no common occasion from the side of a opposite parties. The complainant thereafter visited office of the opposite parties and asked him to allot a letter Or Execute a Builder Buyer Agreement but he did not get any response from the opposite parties. Ultimately in the month of November 2013, the complainant along with his father was able to secure a meeting with opposite parties where, it was assured by the opposite parties that they would give allotment letter within two days of the meeting.
However the opposite parties did not issue any allotment letter. The complainant made consistent efforts to obtain a favourable response from the opposite parties but did not get any response. Thus from February 2013, the opposite parties were conveniently sitting over the hard earned money of the complainant. On 22.05.2014, upon consistent persuasion from complainant, a meeting could be arranged in the office of OP-1 along with OP-3 & 4 where complainant came to know that the opposite parties did not have any 4 BHK residential unit and the OPs offered to adjust the amount of the complainant for 3 BHK flat and thus requested the complainant to book a 3 BHK flat. The complainant, who did not have any other option, agreed to the same. The OPs agreed that the price of three BHK would be reduced accordingly on proportionate basis. Accordingly in the same meeting, the price of each residential unit was fixed at ₹ 5,670,712/-. It was further decided that OP-1 would issue allotment letter with regard to the two flats within three days from the date of meeting i.e latest by 25.05.2014. But the opposite parties did not issue any allotment letter. On 05.09.2014 the complainant further addressed a letter to OP-1 stating that despite having several meetings and follow-ups, still the allotment letter has not been issued. On 26.09.2014 another letter was addressed by the complainant's father whereby reference of earlier letter dated 05.09.2014 was made and again requested the opposite parties to issue allotment letter. On 26.09.2014 upon constant persuasion by the complainant, the opposite parties got filled two applications forms from the complainant which were pre-written agreements containing favourable terms for the opposite parties. The complainant had no option but to sign the same. The complainant filled two application forms, both dated 24.09.2014 for booking of two flats in the above-mentioned project. Each of the flat booked by the complainant was mentioned to be a three BHK flat on the ground floor having a super area of 1545 square ft. It is pertinent to mentioned that the total price of the flat including all taxes was fixed at ₹ 5,670,712/-.
At the time of signing of the application form, the OPs assured the complainant that the allotment of the flats would be made soon. Clause 4 of the application form states that the complainant's application will be considered valid upon realisation of 10% of the total sale consideration. It is pertinent to mentioned that, in terms of clause 12(A) of the residential unit shall constitute as 'Earnest Money'. Furthermore, in terms of clause 12(B) of the application form the booking amount for the residential shall be 10% of the total sale consideration of the unit and in case of failure to pay the booking amount within 15 days of the payment of initial token amount, OPs could change the booking rate and if the intending purchaser did not accept the new rate, the booking could be treated as cancelled. These clauses are reproduced herein for ready reference:
"4 Notwithstanding anything contained herein in this application, I/we understand that my/our application will be considered as valid and proper only upon realisation of the 10% of the total sale consideration of the apartment".
xxx xxx xxx "12(A) I/we agree that the amount paid with the application and in instalments as the case may be, to the extent of 15% of total sale consideration of the residential apartment shall collectively constitute the earnest money". xxx xxx xxx "12(B) I/we agree that if I/we do not pay the booking amount in full, which is 10% of the total consideration of the unit, within 15 days of the payment of initial token amount the company shall have full right to change my booking rate and I/we shall pay the rate prevalent at time of completing 10% and I/we shall have no objection to the same, and the rate mentioned in this application form will not be applicable against my/our booking. In case of non-acceptance of the new rate of the company by me/us, the booking shall be treated as cancelled and I/we shall have no right/claim in the provisional booking".
It is submitted that in the print case, the total sale consideration for one flat was fixed at rupees fixes 56,70,712/-. In terms of clause 12 (B) of the operation form mentioned above, 10% of the total sale consideration i.e., ₹ 567,071/- shall constitute as the booking amount. Even though the complainant paid the booking amount for each flat in the year 2013 yet the opposite parties did not issue any allotment letter. These plans were under construction linked plan. Under the said plans the complainant had to pay 10% of the basic sale price at the time of booking, 10% of basic sale price had to be paid within 45 days of booking and thereafter 10% of the basic sale price had to be paid at the start of excavation work. The construction linked plan further provided for the scheme of payment of other instruments as per the progress of the construction. The opposite parties realised the booking amount of 10% of total sale consideration in February 2013 and thereafter opposite parties did not issue any allotment letter and after repeated reminders application forms were got filled in September 2014. The complainant had been constantly approaching the opposite parties for the issuance of allotment letter but they did not issue with. The complainant visited the project site and was shocked to see that no progress at all has been made in the said project. To the utter shock and surprise of the complainant, the opposite parties issued a letter dated 23.01.2015 cancelling the provisional booking of the complainant in the two residential units booked by him. Thus the opposite parties illegally and arbitrary cancelled the provisional allotment of the complainant. The opposite parties deliberately used the term provisional allotment whereas the sector was never used in any communications by the opposite parties. The opposite parties can only demand the instalment if the construction of the project was going on. Being harassed by the opposite parties and fed up with their callous attitude, the complainant issued legal notice through his counsel to the opposite parties on 08.05.2015 asking the opposite parties to issue booking letter/allotment letter and also to execute the Builders Buyer Agreement within 15 days of the receipt of notice. The notice over duly delivered to all the opposite parties on 22.05.2015. The opposite parties vide their reply dated 24.05.15 stated that the complainant had not even paid 10% of the cost of the unit which was the booking amount and therefore the booking of the complainant was cancelled and amount forfeited. The opposite parties were not in the position of giving possession of the flats in question as the construction work has not been completed. This act and omission of the opposite parties amount to clear deficiency in service and the same also amount to abuse of dominant position and unfair trade practice. The opposite parties had given false promises and assurances to the complainant and had made malafide intention with the motive to cheat and extract money on various illegal grounds from the complainant and further the opposite parties dealings were vague from the very inception resulting into harassment and mental agony to the complainant and also amount to breach of trust. The opposite parties had given false promises and assurances to the complainant while their intention was to cheat and extract money from the complainant.
The complainant being aggrieved by the aforementioned non-actions on the part of the opposite parties had filed a Consumer Complaint no 193 of 2017 before the Hon'ble National Consumer Commission, New Delhi on 19.01.2017. On 06.02.2017 the Hon'ble National Consumer Commission passed the following order:
"learned Counsel appearing for the complainant submits that in view of the decision of the larger bench of this commission in'Consumer Complaint no 97 of 2016 Ambrish Kumar vs Ferrous Infrastructure Private Limited' having regard to the cost of each of the two units and the compensation claimed in respect thereof, the Pecuniary Jurisdiction to entertain the complainant shall lie with the State Consumer Disputes Redressal Commission, Uttar Pradesh at Lucknow. He, therefore prays that the complainant may be permitted to withdraw this complaint with liberty to present the same before the State commission.
In view of the above we dismiss the complaint as not pressed with liberty as prayed. In order to avoid any controversy on the question of limitation, we direct the office to return the original complaint to the complainant within one week for being filed in the State Commission after retaining a copy thereof. While doing so, the office shall make an endorsement on the original petition the date of filing of the complainant in this commission as also the date of the return of the same. If the complaint is presented in the State Commission within four weeks from today, the date for the purpose of limitation shall be taken as the date of filing of the present complaint in this commission. The complaint stands disposed of according".
Thereafter this complaint has been filed before this Hon'ble State Commission. The Hon'ble Commission had returned the complaint to the complainant with liberty for filing the same before the competent commission. Again the complainant reached before the Hon'ble NCDRC who in its order dated 10.07.2017 directed to file this complaint before the State Commission. Thereafter the complaint has been filed before this Hon'ble Commission. Hence it is prayed from the Hon'ble Commission to grant the relief as prayed in the relief clause.
Vide order dated 09.11.2017, service on opposite parties no.1 to 3 has been held sufficient and vide order dated 23.01.2018 notice on opposite parties no.4 & 5 has been held sufficient on account of refusal.
We have heard the learned counsel for the complainant Jagriti Sharma and perused the pleadings, evidence and documents on record.
We have seen the acknowledgement no.320 dated 12.02.2013 in relation to customer code EGR-0219 by which registration amount of ₹605,000/- has been deposited vide cheque no.005587/ 02.01.2013. Another acknowledgement no.319 dated 12.02.2013 is in relation to customer code is EGR-0220 by which registration amount of ₹ 605,000/- has been deposited vide cheque no.005588/ 02.01.2013. Both the copies of the acknowledgements have been filed by the complainant. Thereafter a copy of the minutes held on 22 May 2014 has also been filed. Both the application forms have also been filed by the complainant. We have seen the copy of reply of the opposite party dated 24.05.2015 sent to the complainant in which the opposite parties, through their counsel has written "on your client persistent default in making payment of the due amount as per payment plan and agreed terms of application form duly signed and accepted by your client, our client had to cancel the provisional booking and forfeit the earnest money on account of administrative charges and accordingly your client were communicated vide separate letter dated 23.01.15 for each flat".
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 responsibilities 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. vs. Go 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.
The beneficial legislation of Consumer Protection Act aims at reducing the grievances of the all classes of customers by providing them the preferential treatment. According to the Consumer Protection Act, the consumer dispute is the entity where the consumer/ customers have been given the convenient safeguards against ample exploitation like bad customer service, faulty goods or any unfair trade practices. The interest of the customers is protected by setting up, the three tier quasi-judicial consumer Redressal machinery which are at national, state and district levels as per section 9 of Consumer Protection Act. The Consumer Protection Act, 1986 (CPA) has been enacted in light of certain concerns related to public policy and the benefit of consumer.
In India, people are least aware with the consumer's rights and lags behind having low general understanding of arbitration as dispute resolution mechanism. The arbitration clause can curtail the grounds on which the consumers can raise the disputes, whereas on the other side the consumer protection act may grant the consumer various grounds on which he can file the complaint which may not be otherwise permitted in the standard form agreement having the arbitration clause."
Now we come to the facts of the present case. The opposite parties did not appear even after service of the notices on them. The documents filed by the complainant show that they have deposited amount for two flats on 12 February 2013 and acknowledgements has been issued to them. For each flat, ₹ 605,000/- has been deposited separately. The complainant has written many letters to the opposite party for justice and also warned the opposite party that if his grievance is not meted out, he has no other option than to approach government authorities and legal institution for harassment and consumer rights. The opposite party has mentioned in the terms and condition that they will charge 18% per annum for one month delay of payment of any instalment and thereafter they will charge 24% per annum compounded quarterly on all outstanding dues from their respective due dates. Article 43 of the condition says that the company shall endeavour to give possession of the residential apartment to the applicant within 36 months computed from the date of receipt of all approvals, but not limited to sanction of final/modified/revised layout plan,, filed by the insurance, environmental clearances, pollution clearance, mining permissions et cetera by the company excluding additional grace period of six months, subject to force majeure circumstances and any reasons beyond the control of the company and subject to timely payment of instalments to the company by me/us against the residential apartment. This executed on 2 January 2013 though the money has been deposited on 12 February 2013.
In this case we take 12 February 2013 as the commencing date of reckoning the period of giving possession of the flat. The opposite party promised to deliver the possession within 36 months excluding grace period of six months. Taking both periods together, it comes 42 months. It means that the delivery of flat was to be given after 42 months that is on 12 August 2016. For the purpose of convenience we take the cut-off date as 1 September 2016. In the application form it has been written that this is construction linked payment plan. So it was the duty of the opposite party to present demand at each level of construction so that the complainant could deposit the amount as promised to be deposited. There is no document which can show that the opposite party has ever started any construction or has constructed any flat in the said project. On 23rd January 2015 a letter has been issued to the complainant for cancelling his allotment. In this letter the opposite party has written that "we would like to inform you that despite repeated reminders through demand letters/reminder letter/letter of intimation/final opportunity letter and or telephone calls made to you between date of your booking till now, to clear the long pending outstanding payments against your provisional booking as per the payment plan opted and accepted by you, you have failed to clear the same."
In view of the above, we regret to inform you that your provisional booking stands cancelled on account of non-payment of due instalments are on time and thus the said provisional booking is no more a live booking with us. Henceforth he will not have any claim whatsoever against the said booking."
No payment plan has been annexed with this letter nor any statement of account has been annexed with this letter. This letter is cleverly drafted before the cut of date for delivery of possession of the flats. The opposite party failed to fulfil his promise. In the acknowledgement there is written "registration amount for project situated at greater Noida" nothing like provisional allotment has been written anywhere. This really shows the deficiency of service on the part of the opposite party. The opposite party is liable to pay compensation, to refund the money deposited with interest and to pay other liabilities as per Act and as per various judgements of the Hon'ble Supreme Court and Hon'ble NCDRC which will be discussed here after.
In a case where no time limit has been mentioned for the delivery opposition, Hon'ble Supreme Court has said that it should not be limitless and there shall be deemed reasonable period of three years for the delivery of possession.
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. ( Judgement 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) In this case the opposite party has given a time limit of 42 months therefore it will be taken as true. Even if no time limit would have been given, it will be presumed 36 months in the light of Hon'ble Supreme Court's judgment.
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.
Now it is clear that the reasonable period for handing over the possession of the flat/plot is three years from the date of allotment order and also if the occupancy certificate has not been obtained, offering delivery of possession is deficiency of service. Also the completion certificate is of utmost importance. In the present case the above mentioned certificates have not been produced before this court. In addition to it there is no NOC of fire department, civil aviation Department and pollution department. Therefore it will be said that the said flat is not ready for the delivery of possession in the absence of these certificates.
In the present case, and eye-opening fact has also been raised by the complainant that the opposite party has taken the token money for registration amount for the project for two flats each amounting to ₹ 605,000/- but the opposite parties did not allot or deliver the possession of the flats in question, So this is due to fault, deficiency in service of the opposite party and the complainant has to bear this without any fault of their own. Who will pay damages for this fault? Clearly it is the builder/party who will compensate the allottee.
Now the next question comes as to whether the opposite party was entitled to cancel the allotment already made to the complainant. This payment plan was construction linked payment plan and no stages of construction has been shown by the opposite parties. Without any genuine cause the opposite parties have no right to cancel the allotment made to the complainant after taking registration amount for the project.
Now some case laws of Hon'ble Supreme Court and Hon'ble NCDRC are to be discussed in this light.
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) 7596/2016 etc 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 parties failed to deliver the possession of the said flat on 12.08.2016, as per their own promise. It is deficiency of services on the part of opposite party and cancelling the allotment without showing any cause or without submitting any statement of account or without submitting any scheme of construction linked payment is unfair trade practice. So in the circumstances they are not entitled to point cancelled the allotment stating that it was a provisional allotment. 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 parties are liable to issue an allotment letter to the complainant for the residential units (EGR-0219)with complete finishing work, within 60 days from the date of judgment of this Complaint case and they will not charge any penny in future except the monthly maintenance charge that too after handing over the possession with completion certificate , occupancy certificate, NOC from Fire Department, NOC from Pollution Control Department, NOC from Civil Aviation department, Traffic Department and they shall also pay interest at a rate of 10% on the deposited amount to the complainants from respective dates of deposits till the date of giving actual possession of the said unit . If it is not complied with, within 60 days from the date of judgment of this complaint case, the opposite parties shall be liable to pay interest at a rate of 15% per annum on this amount.
IN ALTERNATE The opposite parties are directed to refund ₹ 6,05,000/ to the complainant within 60 days from the date of judgment of this appeal with interest at a rate of 10% from the date of deposit and if it is not paid within 30 days from the date of this judgment, the rate of interest shall be 15% per annum.
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 175 m² and keeping in view the judgment of Hon'ble NCDRC in the case of Priyanka Mittal (supra), the opposite parties are jointly and severally directed to pay ₹ 15,000/- per month from 01.09.2016 till the date of compliance of this order and the order shall be complied with, within 60 days from the date of judgment of this appeal otherwise they shall be liable to pay interest at a rate of 15% per annum on this amount.
The complainants are entitled to get ₹ 150,000/- in view of Nalin Bhargava Case (supra) as cost.
In the relief clause of the complaint, the complainant has prayed that any other relief which may be deemed appropriate By the Hon'ble Commission . So keeping in view all the fraud, unfair trade practice and deficiency in service committed in this case, all the harassment and mental agony given to the allottee's father, being South Indian, appeared personally for the justice of his son and arguing the case at his own, we find that the complainants are also entitled to get ₹ 30 lakhs towards payment of rent of the flat, mental harassment, agony and sufferings.
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 parties are directed to issue an allotment letter to the complainant for the residential units (EGR-0219)with complete finishing work, within 60 days from the date of judgment of this Complaint case and they will not charge any penny in future except the monthly maintenance charge that too after handing over the possession with completion certificate , occupancy certificate, NOC from Fire Department, NOC from Pollution Control Department, NOC from Civil Aviation department, Traffic Department and they shall also pay interest at a rate of 10% on the deposited amount to the complainants from respective dates of deposits till the date of giving actual possession of the said unit . If it is not complied with, within 60 days from the date of judgment of this complaint case, the opposite parties shall be liable to pay interest at a rate of 15% per annum on this amount.
IN ALTERNATE 1-The opposite parties are directed to refund ₹ 6,05,000/ to the complainant within 60 days from the date of judgment of this appeal with interest at a rate of 10% from the date of deposit and if it is not paid within 60 days from the date of this judgment, the rate of interest shall be 15% per annum.
The opposite parties are directed to pay ₹ 15,000/- per month from 01.019.2016 till the date of compliance of this order and the order shall be complied with, within 60 days from the date of judgment of this appeal otherwise they shall be liable to pay interest at a rate of 15% per annum on this amount.
The opposite parties are directed to pay ₹ 150,000/- to the complainant within 60 days from the date of judgment of this complaint otherwise the opposite parties shall pay interest at a rate of 15% per annum.
The opposite parties are directed to pay ₹ 30 lakhs towards payment of rent of the flat, mental harassment, agony and sufferings.
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 Jafri, PA II C-2 [HON'BLE MR. Rajendra Singh] PRESIDING MEMBER [HON'BLE MR. Vikas Saxena] JUDICIAL MEMBER