State Consumer Disputes Redressal Commission
Veena Garg vs Greater Mohali Area Development ... on 12 June, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 685 of 2017
Date of Institution : 11.08.2017
Date of Reserve : 05.06.2018
Date of Decision : 12.06.2018
Veena Garg C/o Garg Nursing Home, 1058, Street-3, Circular
Road, Abohar.
....Complainant
Versus
1. Greater Mohali Area Development Authority (GMADA),
Mohali, through its Chief Administrator.
2. Estate Officer, Greater Mohali Area Development Authority
(GMADA), Mohali
....Opposite parties
Amended Consumer Complaint under
Section 17 of the Consumer Protection Act,
1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Amarpreet Singh, Advocate
For the opposite parties: Sh. Anuj Kohli, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Consumer Complaint No. 685 of 2017 2 Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that Ops advertised their project Purab Premium Apartments at Mohali on 12.12.2011 with a closing date 21.1.2012. For features of the project, brochure was issued. The complainant applied for Type 2 apartment under B Category for disabled persons. The flat was having covered area of 1366 sq. ft., 1571 sq. ft. as super area plus 690 sq. ft. as car parking area, total super area 2261 sq. ft. Alongwith the application, a sum of Rs. 5.50 Lacs was paid by the complainant. In the draw of lots, the flat was allotted to the complainant and Ops issued Letter of Intent (in short LOI) No. GMADA-EO/2012/1356 on 21.5.2012 showing the tentative price of the apartment i.e. Rs. 52,25,000/- i.e. Rs. 55 Lacs minus 5% rebate under disabled category. As per the terms and conditions of the brochure and LOI, ownership and possession of the flat was to be given after 36 months. As per the payment schedule, payment of Rs. 10,17,500/- being 20% price of the apartment was paid by her on 21.6.2012 completing it 30%. A sum of Rs. 32,26,438/- i.e. 65% of the tentative price of apartment was paid on 20.7.2012 with a rebate of 5% on the balance amount payable. Ops have orally asked the complainant to deposit an amount of Rs. 1,90,758/- i.e. Rs. 1,89,145/- as service tax and Rs. 1,613/- as interest, whereas in the brochure, there were no terms and conditions to deposit any Service Tax and Interest. Then complainant was issued allotment letter and offer of possession Consumer Complaint No. 685 of 2017 3 vide Memo No. GMADA-EO/2016/31661 dated 12.7.16 by the Ops that she has been allotted Apartment No. 101, Tower 6, Block - D, Ground Floor, Type 2, in which a sum of Rs. 49,84,696/- was admitted to be deposited by the complainant till date. A balance of Rs. 2,60,062/- was to be paid as on 11.8.2016. A total sum of Rs. 52,44,758/- was to be paid towards the price of the apartment after all concessions. It also included Rs. 1,89,145/- as Service Tax and Rs. 1,613/- as interest. In the allotment letter, the complainant was offered flat with covered area of 1353.56 sq. ft. whereas in the brochure its area was mentioned as 1366 sq. ft. In this way, the Ops reduced the covered area upto 13 sq. ft. As per the terms and conditions, the total super area including car parking was 2261 sq. ft. whereas in the allotment letter the super area has been increased to 2563 sq. ft. The changes have been made unilaterally without any knowledge/consent/notice to the complainant. The Ops have changed the layout plan of the main building against the layout plan shown in the prospectus/brochure because the open area / place between the blocks have been covered. The building has been joined, in such a way to give the look as a hostel. The material used in the construction as shown in prospectus/brochure is totally different. Boundary wall is low and unsafe. Building is still under construction and all the passages for movement are still barricaded. The parking and green area as promised are still to be developed, which shows unfair trade practice and deficiency in service on the part of Op. In this way, the complainant is entitled to compensation of Rs. 27,05,724/- or refund of the entire amount of Consumer Complaint No. 685 of 2017 4 Rs. 52,44,758/- alongwith interest @ 12%. Under the head of compensation, he has demanded Rs. 30,042/- being proportionate amount of 13 sq. ft., which has been less area, refund of Service Tax of Rs. 1,90,758/-, interest on Rs. 47,93,938/-, which comes to approximately Rs. 10,73,842/- @ 12% for 2 years for delay in giving possession, compensation of Rs. 25,000/- for frequent visits to Mohali, compensation of Rs. 8 Lacs for blocking/obstructing air, light and movement, compensation of Rs. 4,80,000/- @ Rs. 20,000/- per month for delay of 2 years in giving possession and Rs. 50,000/- as cost of litigation, total claim under compensation has been claimed as Rs. 27,05,724/-. The complaint has been filed by the complainant seeking directions against the Ops to refund the amount to the complainant as referred above.
2. Ops appeared and filed reply taking preliminary objections that there is no deficiency in service and unfair trade practice on the part of Ops; complicated questions of law and facts are involved, which cannot be adjudicated in summary procedure, therefore, the matter be relegated to the Civil Court; the Commission does not have the requisite pecuniary jurisdiction to entertain this complaint; the complainant had purchased the flat for speculative purposes, therefore, she is not a consumer; offer of possession letter was delivered to the complainant on 12.7.2016 and there is an arbitration clause No. 21 that in case of any dispute or difference arising out of terms of allotment, the same shall be referred to the Sole Arbitrator i.e. Chief Administrator, GMADA, SAS Nagar or any other person appointed by him, therefore, the Consumer Complaint No. 685 of 2017 5 matter is required to be referred to the Arbitrator; after allotment of the flat remaining 5% was also deposited by the complainant, therefore, the complainant was required to take the physical possession of the apartment within 30 days from the date of issue of allotment letter as per Condition No. 5, however, the complainant instead of taking the possession has filed this complaint. In case the refund has been sought after the allotment then Condition No. 3 of the LOI is not applicable and the refund will be made according to Section 45(3) of the Punjab Regional and Town Planning and Development (Amendment) Act, 2013 after making deduction of 10% of the total amount of the consideration money; with regard to completion certificate, the Ops are exempted to get such a certificate under Section 44 of the Punjab Apartment and Property Regulation Amendment Act, 2014 (in short PAPRA). The notification dated 2.9.2014 is applicable to mega housing project and colonies developed by the private developers. The Ops have already carried out the necessary development at the site through its Engineering Wing and provided all the basic and other required amenities and a certificate duly signed by Divisional Engineer of Civil, Public Health and Electrical Wings have been placed on the record alongwith its photographs. So far as the Model Municipal Building Bye-Laws are concerned, those are not applicable to the Ops because the area has been developed by GMADA and not by Municipal Committee. On merits, moving of the application by the complainant with the Ops for allotment of a flat in their project Purab Premium Apartments is a matter of record. In the draw of Consumer Complaint No. 685 of 2017 6 lots, the complainant was successful applicant and LOI was issued on 21.5.2012. After receiving the LOI, the complainant deposited 20% of the total price with the Ops and after that another 65% of the total price of the flat. Even on issuance of the allotment letter, payment of Rs. 1,90,758/- was also deposited, therefore, the payments as referred in the complaint have been admitted by the Ops. After deposit of a sum of Rs. 1,90,758/-, the complainant was just to get the possession but she did not come forward to get the possession. There is no unfair trade practice or deficiency in service on the part of Ops. The entire development work has been completed. The allegations in the complaint for non-development are incorrect. There is no merit in the compliant, it be dismissed.
3. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in her evidence has tendered affidavit of Veena Garg as Ex. CW-1 and documents Exs. C-2 to C-14. On the other hand, Ops tendered affidavit of Sh. Mahesh Bansal, E.O. (Housing), GMADA as Ex. Op-A and documents Exs. Op-1 to Op-4.
4. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
5. A plea has been taken that complicated questions of law and facts are involved, which cannot be adjudicated in the summary procedure, therefore, the matter be relegated to the Civil Court. In case we go through the pleadings of the parties, the complainant had booked one residential apartment with Ops and Consumer Complaint No. 685 of 2017 7 had paid a sum of Rs. 52,44,758/-. In this case, there is no complicated question of law and facts involved as it is only the interpretation of documents and then to see whether there is any deficiency in service on the part of Ops. We do not see that any complicated questions of law and facts are involved, which cannot be adjudicated by this Commission. The benches of this Commission are headed by retired High Court Judges/retired District & Session Judges, who have long experience at their back and are fully competent to decide such like matters. In this regard, we are fortified by the judgment of "Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi", 2002(6) SCC 635 wherein it was held that 'the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the 'Consumer Fora' after obtaining evidence and if need be after getting an expert opinion'. Further reference can be made to "Shiv Kumar Agarwal versus Arun Tandon and another", 2007(2) CLT 287, decided by the Hon'ble National Commission. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled - Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. Therefore, we are of the opinion that this Commission is fully competent to decide this complaint and no cause of action is made out to refer the case to the Civil Court.
Consumer Complaint No. 685 of 2017 8
6. It has been stated that this Commission does not have the requisite pecuniary jurisdiction to entertain the present complaint. Counsel for the Op has drawn the attention of this Commission towards para No. 16 of the complaint in which he has demanded refund of a sum of Rs. 52,44,758/- alongwith interest @ 12% p.a. and after that in Clause (c), he had demanded a refund of a sum of Rs. 1,90,758/-, interest on the deposited amount as Rs. 10,73,842/-, compensation of Rs. 25,000/- for frequent visits to Mohali, compensation of Rs. 8 Lacs for covering the area in between the blocks, compensation of Rs. 4,80,000/- @ Rs. 20,000/- per month for delay in giving the possession and Rs. 50,000/- as litigation costs. At the end, the total compensation claimed is Rs. 27,05,724/- and in case this amount is added in a sum of Rs. 52,44,758/- and interest @ 12%, it will exceed Rs. 1 Crore. However, this contention has been challenged by the counsel for the complainant. He has stated that para No. 16 be read alongwith para No. 15 in which it has been mentioned that the complainant is entitled to compensation of Rs. 27,05,724/- or refund of the entire amount of Rs. 52,44,758/- alongwith interest @ 12%. In Clause (a) of para No. 16, the complainant has asked for refund alongwith interest @ 12% and after that other amounts have been referred in Clauses, therefore, other amounts of compensation has been claimed in the alternative, therefore, in case para Nos. 15 & 16 are read together, it makes it to refund a sum of Rs. 52,44,758/- deposited by the complainant with 12% interest or in the alternative compensation of Rs. 27,05,724/-. In Consumer Complaint No. 685 of 2017 9 case a sum of Rs. 27,05,724/- be added in the sum of Rs. 52,44,758/-, it is less than Rs. 1 Crore and similarly in case interest is calculated @ 12% on the deposited amount of Rs. 52,44,758/- , it will also come less than Rs. 1 Crore. The counsel for the Ops has not placed on the record any calculation sheet that in case interest is calculated @ 12% on the deposited amount then it will go more than Rs. 1 Crore whereas counsel for the complainant has given calculation of the interest amount as under;-
Amount (Rs.) From - to Interest (Rs.) 5,50,000/- 21.5.12 to 11.8.17 4,45,419/- 10,17,500/- 22.6.12 to 11.8.17 8,04,569/- 32,26,438/- 20.7.12 to 11.8.17 24,98,905/- 1,90,758/- 29.12.15 to 11.8.17 38,623/- 2,60,062/- 11.8.16 to 11.8.17 31,207/-
In this way, the total amount comes to Rs. 90,63,481/- but the counsel for the Ops has not filed any calculation sheet contradicting this calculation sheet. Therefore, we do not agree with the plea taken by the Ops that this Commission does not have the pecuniary jurisdiction to entertain this complaint.
7. Another point has been taken by the counsel for the Ops that the complainant is not a 'consumer' as the flat was booked for speculative purposes, therefore, the complainant do not come within the definition of the 'consumer'. The complainant has specifically stated that she had booked the flat for residential purposes. It has not been proved on the record by the counsel for Consumer Complaint No. 685 of 2017 10 the Ops that the complainant has any other residential property in City Chandigarh/Mohali. He has not placed on the record any document showing that she had been trading in real estate. Therefore, Ops failed to prove that complainant is involved in trading business in real estate. The Hon'ble National Commission has observed that till the Ops prove that the complainant is trading in real estate, the booking made by the complainant cannot be said to be for speculative purposes. A reference can be given to the judgment 2017(3) CLT 459 "Pranab Basak versus Suhas Chatterjee". In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon'ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. No such evidence has been brought on the record by the Op. Therefore, we do not agree with the plea raised by the counsel for the Op that the complainant is not consumer.
8. There is Arbitration Clause in the LOI that in case of any dispute between the parties, the matter is required to be referred to the Sole Arbitrator i.e. Chief Administrator, GMADA. No application under Section 8 of the Arbitration and Conciliation Act, 1996 was filed by the counsel for the Ops with the written statement with regard to referring the matter to the Arbitrator. Moreover, under Section 3 of the CP Act gives the additional Consumer Complaint No. 685 of 2017 11 remedy to the complainant to adjudicate this complaint before this Commission because provisions of the Act are not in derogation but in addition, therefore, the objection raised by the counsel for the Ops is not tenable.
9. It is an admitted fact that Ops launched their scheme Purab Premium Apartments and in this regard, they have placed the brochure, copy of the same is Ex. C-2. The complainant had applied for type 2 apartment, which was having covered area 1366 sq. ft., super area 1571 sq. ft. and total covered area including car parking 2261 sq. ft. Alongwith the application, 10% of the amount i.e. Rs. 5,50,000/- was deposited by the complainant. On the basis of draw of lot, the complainant was issued LOI Ex. C-3 dated 21.5.2012. According to that, the complainant was required to deposit a sum of Rs. 52,25,000/-, although the total cost was Rs. 55 Lacs but 5% rebate was given to the Disabled category as the complainant had applied for under Disabled category, therefore, she was given relief of Rs. 2,75,000/-. The complainant was required to pay Rs. 10,17,500/- being 20% price of the apartment to complete it 30%, which was also paid within time i.e. 21.6.2012. For the balance payment 65% under Plan-A, the complainant was required to deposit Rs. 32,26,438/-, which was to be deposited within a period of 60 days of the issue of LOI with a rebate of 5% on the balance amount payable. This amount was also deposited by him on 20.7.2012 within a specified time and after that another sum of Rs. 1,90,758/- i.e. on account of service tax and interest Consumer Complaint No. 685 of 2017 12 was deposited by the complainant. According to LOI, Clause 3(II), it was provided as under:-
"(II) Possession of apartment shall be handed over after completion of development works at site in a period of 36 months from the date of issuance of Letter of Intent. In case for any reason, the Authority is unable to deliver the possession of apartments within stipulated period, allottee shall have the right to withdraw from the scheme by moving an application to the Estate Officer, in which case, the Authority shall refund the entire amount deposited by the applicant along with 8% interest compounded annually. Apart from this, there shall be no other liability of the Authority."
In case the period as mentioned above is taken, the Ops shall required to deliver the possession by 21.5.2015 but by that date, the possession was not delivered. The allotment letter was issued on 12.7.2016. In case the allotment/possession is not delivered within time, it amounts to deficiency in service and the complainant has a right to withdraw from the scheme. In this regard, we are fortified by the judgment reported in 2017(1) CPR 168 (NC) "Sanjay Kumar versus Sahara Prime City Limited & others"
wherein it was held that allottee is entitled to withdraw from the scheme in the event of delay in completion of the project.
10. With regard to the allotment letter, the complainant had not taken the possession. It has been stated by the complainant in Consumer Complaint No. 685 of 2017 13 the complaint that as per Ex. C-2, the total covered area was 1366 sq. yard whereas in the allotment letter it has been referred as 1353.56 sq. yard. In this regard, the flat was checked by the complainant on 27.7.2016 and some deficiencies were noted down and these were also noted by the official of the Company, who was carrying the project, the same is Ex. C-6. After that the complainant wrote a letter dated 27.7.2016 Ex. C-9 to the Estate Officer to the Ops stating the less covered area equal to 12.46 sq. ft., changing of the design of the flats and clubbing of the blocks. She was also forced to pay penal interest of Rs. 1613/-, although no such interest was payable and accordingly, request was made to refund a sum of Rs. 1,90,758/- taken by the Ops. She has written another letter dated 8.8.2016 Ex. C-10 regarding refund of the amount of Rs. 1,89,145/-. She wrote another letter dated 18.11.2016 Ex. C-11 to the Ops in which it was referred that she has referred 26 defects pending in the flat, irregularity unleveled floors. Another letter was issued on 25.1.2017 Ex. C-12 in which representation was made regarding defects in the flat and its possession, its reminder was issued on 6.4.2017 Ex. C-13 stating that the defects pointed out by the complainant has not been rectified and again request was made to rectify all the defects. The Ops in its reply dated 20.9.2016 Ex. C-14 had framed some questionnaire and some important issues were highlighted as under:-
Issue No. 2 Compensation for servant room balcony to allottees affected, due to change in layout.Consumer Complaint No. 685 of 2017 14
Decision The Servant Room has been prepared according to the plan.
Issue No. 4 No extra demand of any kind like so called Increase in super area/common area etc. Decision In this regard, Senior Architect, GMADA and Engineering Bank will prepare a detailed note whether any cost including the super area is to be taken from the allottee and whatever will be the decision that will be conveyed.
Issue No. 6 Height of boundary wall is too less. Even anybody can easily trespass. It should increase or barbed wire should be fixed.
Decision A Committee including Estate Officer (Housing), GMADA, Divisional Engineer (Civil), GMADA, Divisional Engineer (Public Health), GMADA and Divisional Engineer (Electrical) was constituted. Issue No. 10 Quality of construction; It is observed that the quality promised in the brochure of scheme was premium but actually is far from truth and flats are of poor quality. There are several defects and deficiencies. The finishing work of flat exterior and interior is sub standard.
Decision Three Members Committee Divisional Engineer (Civil), Divisional Engineer (Electrical) and Divisional Engineer (Public Health) was constituted. Consumer Complaint No. 685 of 2017 15
That Committee will take up the matter with M/s Symplex Company and will got remove the deficiencies within a period of 7 days, who will submit their report within a period of 7 days and the report will be intimated.
Issue No. 12 Project layout change: Layout of the project has been changed. The towers were supposed to be separated as per the brochure of scheme but at the time of construction these have been combined together and are in contiguity which has resulted in a typical look of hostel which has not only impacted the privacy, security and the exclusively, but also 50% of us are not getting servant balconies, therefore I may not be getting servant balcony and thus the covered area of the flat is lesser by 27 sq. ft. I need to be compensated for having lesser area of 27 sq. ft. for the servant balcony not provided to me.
Decision The flats have been construction according to the layout plan by M/s Simplex Company.
Issue No. 18 Non-operational swimming pools, Lawn tennis courts, Skating rinks, Indoor Badminton courts, basket court, volley ball courts, gyms, football ground, mile long walking tracks, community centre+club+yoga & meditation with and Consumer Complaint No. 685 of 2017 16 construction is still going on site in almost all the towers.
Decision 4 Members Committee was constituted and they will complete the work in date bound manner.
Issue No. 19 GMADA has nowhere displayed the;
a) Project completion certificate
b) Occupancy certificate
c) Pollution clearance
d) Environmental Clearance
e) Clearance from institute of explosives, as LPG/CNG being stored.
f) Fire safety certificate
g) Approval from ministry of civil aviation being high rise project.
h) Clearance water storage tanks have been placed against no overhead or rooftop water tanks mentioned in the brochure.
Decision The 3 Members Committee of the Divisional Engineer (Civil), Divisional Engineer (Electrical) and Divisional Engineer (Public Health) was constituted and that Committee after consultation with the Simplex Company will remove the deficiencies. With regard to compliance of these issues referred above, no further progress report has been placed on the record. They have Consumer Complaint No. 685 of 2017 17 also placed on the record a certificate Ex. Op-3, which reads as under:-
"This is certified that the basic amenities such as water supply, electricity and sewerage system etc. including development works related to Civil, Public Health and Electrical services have been completed in all respects in Tower No. A-4, A-5, A-6, B-3, B-4, B-5, B-6, C-3, C-4, C-5, C- 6, C-7, C-8, D-4, D-5, D-6 and D-7 on date 30.6.2016."
11. Now we have to check it whether it constitutes the completion/occupation certificate. Firstly, no Architect has been joined in the Committee, who was an important person in case there is change of design/layout. Some photographs Ex. Op-4 have been placed on the record, these are the photographs from the outside, therefore, all the amenities as referred in the brochure cannot be judged from the photographs. In the brochure Ex. C-2, the Ops had undertaken with the following salient features and list of approved makes of finishing items, fittings, fixtures and engineering installations:-
"* 75% open spaces.
• All locations good. All apartments North-East facing with big
Windows and Balconies. Designed respecting the age old wisdom of Vaastu. All areas in each apartment designed to let Fresh Natural Air flow through and with movement of Sun in view. Minimal requirement of electricity.
• To be built by firms of national repute, with steel, cement, paints, flooring, prefabricated doors, bathroom fittings and kitchen fittings of only reputed brands (*see overleaf). Pipes only through open ducts and not walls. Quality of construction to be supervised by third party independent agencies.
Consumer Complaint No. 685 of 2017 18• 24 hour pressurized water supply. No overhead or rooftop water tanks.
• Piped metered LPG/NPG, Garbage chute.
• Automatically switching Common Generator backup for fans, lights, TV and Fridge @ 0.8, 1 & 1.2 kW per house, as per size. Underground electric cabling no electric poles. • Alternatives over parental controls - 3 All Weather 25 meter Indoor Swimming Pools, 8 Lawn Tennis Courts, 2 Skating Rinks, 8 Indoor Badminton Courts & 8 Table Tennis tables, two 5000 sq. ft. Gyms, 8 Basket Ball Courts, 8 Volley Ball Courts, 2 Football Grounds, Over mile long Walking Tracks, a Community Centre + Club + Yoga & Meditation Hall with 30000 sq. feet covered area and Convenient Shopping for day to day needs to be provided within 5 minutes walking distance of every apartment as a matter of right, as soon as construction of apartments concludes.
• Card plus Finger Print based Common Entry Control for security. 4 feet high railings for safety.
• To be designed and built so as to withstand earthquakes as per Zone 4 notified by GOI. (7 on Richter scale) • Spacious fast elevators and fire fighting equipment. • Possession to be handed over in 36 months from date of draw."
Items Approved make / materials
Civil Finishes
Flooring in Bed Rooms, Living Full thickness vitrified tiles 600 MM X
600MM (RAK, Restile, Nitco)
Flooring in Corridors, Balconies, Full thickness anti-skid vitrified tiles Toilets, Kitchen (RAK, Restile, Nitco) Staircase Treads Kota Stone Flooring in Lift Lobbies Full body anti-skid vitrified tiles with flame-torched granite border (makes as above) Wall finishes (interior) Gypsum Punning on walls finished with Plastic emulsion Paint with Birla White Putty (Paints-Asian, ICI Dulux, Berger) Wall finished in Toilets and Kitchen Wall tiles in dado up to 2100mm (Kajaria, Somany) Kitchen counter 19mm Granite slab with 750mm dado in ceramic wall tiles (8" x 12" min) above Counter (makes as above) Kitchen Wash Basin Stainless Steel (Nirali, Neel Kanth) Kitchen Storage 8" deep row of Stainless Steel wire net drawers under the entire length of counter with real wood facing and 9 inch x 12 feet long Granite slab at 21"
above counter. Rails: Hettich Railings on Balconies, Passages 4' high in Stainless Steel (SS 304) Consumer Complaint No. 685 of 2017 19 Doors (Dry areas) Pre molded door shutters with Chip Board / Eco Lax Board core, covered with HDF skin (Make :
MASONITE/Durian/KALPATRU) Doors (Wet areas) Permafinish Almira Shutters Pre-laminated Windows UPVC (Fenesta or Aluplast) with manufacturer approved Stainless Steel friction stays and hardware Items Approved make / materials Plumbing Services LPG/NPG Pipe & Fittings Conforming to safety standards Water supply system Hydro-Pneumatic (DP pumps, Grundfos) Water supply main risers and Stainless Steel pressed joints (SS 316 distribution Viega, Geberit) Waste, vent pipes, fittings Neeco, RIF Valves Sant, Leaders Bathroom faucets, showers, health Jaquar, Kohler, Roca faucets, kitchen faucets wash basis mixers, floor gratings, CP Towel rails, soap dishes Bathroom drains Viega WCs (Wall mounted), Wash Basins Hindware, Roca, Kohler Electrical Services Emergency back-up (1KW each flat) Lights (One CFL in each room) Philips, OSRAM, WIPRO, GE Switches, Sockets Legrand Mylinc, ABB, L&T, North West MCBs, ELCBs and switch gears Legrand Mylinc, ABB, L&T, North West Exhaust Fans Bajaj, Crompton, Orient;
Wires Copper FRLS (Kalinga, Plaza,
Anchor)
Fire Protection
Fire Hose Reel and Fire Hose Cabinet with wet-riser at each Lift and Staircase Lobby and Yard hydrants Fire Pump (1 electric main pump+1 diesel standby pump) + 1 jockey pump However, the certificate referred as Ex. Op-3 does not say so that all these amenities as undertaken by the Ops have been given by them to the allottees. Therefore, Ex. Op-3 cannot in any manner be taken as a completion certificate. It has been argued by the counsel for the Ops that under Section 44 of the PAPRA, the Ops are exempted from getting the completion. Section 44 of the PAPRA Act is mentioned as under:-Consumer Complaint No. 685 of 2017 20
"44.(1) Subject to the provisions of section 32, nothing in this Act shall apply if the Promoter is:-
(a) a local authority or statutory body constituted for the development of land or housing; or
(b) a company or a body created for development of land or housing or promotion of industry wholly owned and controlled by the State Government or the Central Government; (2) If the State Government is of the opinion that, the operation of any of the provisions of this Act, causes undue hardship, or circumstances exist which render it expedient to do so, it may exempt, by a general or special order, any class of persons or areas from all or any of the provisions of this Act, subject to such terms and conditions as it may impose."
According to this Section, the Government Body is exempted from all other Sections except 32, which deals with Service Charges. The Ops are Promoter, just like other Promoters, therefore, there should be no exemption in favour of the Ops. Even if for the sake of arguments, it is taken that they were not required to get completion certificate under PAPRA, Section 3(II) and the LOI says that they will deliver the possession of the apartment, after completion of development work at site. The development work at the site are salient features and list of approved makes of finishing items, fittings, fixtures and engineering installations referred above and without that it cannot be said that they have completed the development work at the site. Therefore, in case the Ops are not coming with clean hands and not delivering the possession as promised by them then the complainant has a right to withdraw from the scheme. Therefore, we are of the opinion that the complainant is entitled to withdraw from the scheme and asked for Consumer Complaint No. 685 of 2017 21 the refund on the ground that the Ops failed to deliver the possession within the promised time. Therefore, there is deficiency in service on the part of Ops and that the complainant has a right to withdraw from the scheme and seek the refund. Further in case the plea of allotment letter issued by the Ops is taken, according to the LOI conditions, there is no bar, even after issuance of the allotment letter, the complainant has a right to withdraw from the scheme in case the possession is not delivered within the stipulated time i.e. as per Clause 3(II) of the LOI. The Ops are not delivering the possession after completion of the development works as observed above and in that eventuality again the complainant has a right to withdraw from the scheme and seek for the refund, therefore, the complainant is entitled for the refund of the amount deposited by him with the Ops on account of deficiency in services on the part of Ops.
12. What will be the rate of interest? The rate of interest has been agreed between the parties in the LOI. In case the Ops failed to deliver the possession within the stipulated period of 3 years according to Clause 3(II) of the LOI then the complainant shall have a right to ask for the refund of the deposited amount alongwith interest @ 8% compounded annually, therefore, the complainant will be entitled to interest @ 8% p.a. compounded annually. The complainant will not be entitled to interest @ 12% p.a. as demanded by her from the various dates of deposit.
13. A sum of Rs. 1,90,758/- was got deposited with the Ops by the complainant on account of Service Tax and Interest. Since Consumer Complaint No. 685 of 2017 22 the complainant has not availed any service from the Ops and asked for the refund, therefore, he is not liable to pay the service tax. No service tax receipt has been placed on the record by the Ops, in case they paid it then they can seek the refund from the concerned Department.
14. Sequel to the above, we accept the complaint and direct the Ops as under:-
(i) pay Rs. 52,44,758/- alongwith interest @ 8% compounded annually from the various dates of deposit till the date of payment;
(ii) pay Rs. 21,000/- as litigation expenses.
The abovesaid directions be complied by the Ops within 45 days from the receipt of a certified copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
15. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
16. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER June 12, 2018.
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