Indian Kanoon - Search engine for Indian Law

4. The complaint is contested by the OPs. OP No.1 & 2 filed joint written reply and raised certain preliminary objections, inter-alia, that the present complaint is barred by limitation. The complainant has not approached this Commission with clean hands and has rather concealed the material facts regarding filing of other consumer complaints and civil suit by him. The present complaint is not maintainable in the eyes of law as not filed in proper form and the present complaint has been filed by the complainant with malafide intention and bad motive just to get undue advantage against the answering OPs. On merits, OPs No.1 & 2 stated that the complainant visited the project repeatedly, observed and verified the same and only after his satisfaction applied with the OPs for purchasing the flat. The sample flat was temporary building with temporary roof etc., however the flats to be sold were ready for possession and the complainant shown the actual flat, the possession of which was handed over to him on his option to purchase the same. The flats were provided with same quality of items and fixtures as displayed in the sample flat. All necessary approvals and sanction from the Competent Authority were obtained by the OPs. The complainant after verifying the quality of construction and amenities etc. in the project, booked the flat in question on 11.06.2011 and further filed application dated 20.06.2011 for allotment of the same, which was allotted to him vide allotment letter dated 21.06.2011 for Rs.29,91,355/-. The main construction work of the flat was complete, however the finishing work/fixtures and fitting work was in progress, which was got done by the complainant in his presence by paying his regular visits to the site. The entire finishing work of fixtures/fittings etc. was done by the experts of the OPs. When the entire work of the flat was competed to the entire satisfaction of the complainant, only then he agreed to take the possession of the flat in question, vide possession letter dated 02.09.2011. At the time of taking possession of flat along with the keys he did not raise any kind of objection. The complainant could have refused to take possession, if there was any defect in the apartment/flat. But since there is no such instance, it shows that the apartment was without any defect. The complainant filed a consumer complaint initially on 03.05.2012 before the District Commission and at the first appearance of the OPs, without filing the written statement, as a gesture of goodwill and with a view to satisfy the complainant, they provided the extra facilities and did the entire extra work, whatsoever demanded by the complainant and that work was beyond the settled terms and conditions enshrined in the letter of allotment. After the said work there was no defect left over in the apartment and furthermore, the complainant is using the apartment since 2011 i.e. for the last more than 8 years and normal wear and tear in the premises are natural with the use of the same by the occupants/residents of the apartment. The said normal wear and tear cannot be claimed by the complainant against OPs No.1 & 2. The maintenance agreement dated 16.08.2011 was executed between the parties containing the settled terms and conditions and the complainant is bound to pay the maintenance charges. But he has failed to pay the same and is in huge arrears amounting to Rs.3,26,349/- along with interest. The OPs ultimately compelled to file the complaint under Section 19 of the Real Estate (Regulation and Development) Act 2016 against the complainant for recovery of the said amount before the Chairman, Punjab State Regulatory Authority, which is also pending. The complainant had also been availing all the common services being provided such that lift, water supply, sewerage, roads, drainage, street lights, club and security etc. The sale deed of the apartment was also got done by the complainant on 09.09.2011 as per his convenience and without any objection from the OPs. There is no negligence or unfair trade practice on the part of OPs No.1 & 2 in any manner. After denying the other averments made in the complaint, OP No.1 & 2 prayed for dismissal of the complaint.

9. On the other hand, the learned counsel for OPs No. 1 & 2 argued that the flats were provided with same quality of items and fixtures of the same company as displayed in the sample flat. All necessary approvals and sanction from the competent authority were obtained by the OPs. The partial completion certificate of the project has already been issued by the competent authority. The complainant was at liberty to obtain the occupation certificate from the authority. There is no hindrance by the OPs in obtaining the occupation certificate. Moreover, it is the obligation on the part of the allottee to obtain the occupation certificate. The learned counsel further argued on the similar lines as stated in the written reply and prayed for dismissal of the complaint.