Manoj Bagroy v. N.H. Matcon

2nd Additional Bench STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH. Consumer Complaint No.429 of 2019 Date of institution : 21.05.2019 Reserved on : 16.12.2019 Date of decision : 07.01.2020 Manoj Bagroy, son of Late Shri Sham Lal Bagroy, resident of Flat No.E-205, 2nd Floor, Aero Homes, Gazipur Road, Zirakpur, Mohali, Punjab-160104, Mobile No.9988054698 and e-mail id: destinytravels35@gmail.com. ...Complainant Versus

1. M/s N.H. Matcon, through its partner Sh. Sunny Bansal, Regd. Office at SCO-3, Level One, Royale Estate, Chandigarh-Ambala Highway, Near IDBI Bank, Zirakpur, Mohali, Punjab. Email id: nhmatcon@gmail.com.

2. Nitin Bansal S/o Sh. M.L. Bansal, Partner M/s N.H. Matcon, R/o House No.318, Sector 4, Panchkula, Haryana. Email id: nhm9216931@gmail.com .Opposite Parties Consumer Complaint under Section 17(a)(i) of the Consumer Protection Act, 1986. Quorum:- Mrs. Kiran Sibal, Presiding Member Present:- For the complainant : Sh. T.S. Khaira, Advocate For the opposite parties : Sh. Amit Kumar, Advocate MRS. KIRAN SIBAL, PRESIDING MEMBER: The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986, (in short the Act) seeking following directions to the opposite parties (in short OPs):- C.C. No.429 of 2019 2

(i) to obtain all the sanctions, approvals and permissions from the competent authorities, especially occupation and completion certificates in accordance with PAPRA Act & Rules;

(ii) to execute the sale deed/conveyance deed in favour of complainant and also acknowledge the 100% payment already made;

(iii) to complete the flat and the project in all respects in accordance with promised specifications and standards, as per the brochure/agreement and also to provide the facilities in common areas, as promised at the time of booking;

(iv) to provide the details of the common area & facilities and breakup of the super area and carpet area of the flat and project in question and to assign a parking space to complainant and to issue parking allotment letter;

(v) to direct the OPs not to charge for the club and service tax, as there is no club in existence and also their is no construction on site for the club;

(vi) to pay an amount on delayed possession as stipulated in the Agreement @ Rs.8800/- per month from 31.12.2014 till completion certificate is not obtained by OPs, as though the possession was handed over on 31.12.2014, but it was incomplete and ineffective, the said amount calculated till May 2019 comes out to be Rs.4,66,400/-;

(vii) to direct OPs not to charge any excess amounts under the head of external electrification charges & EDC over and above the legitimate charges amounting to Rs.44,479.16 for EDC and Rs.10,833.45/- for external electrification charges, C.C. No.429 of 2019 3 in view of the RTI appended by the complainant herein above;

(viii) to refund with interest @12% from the payment i.e. 31.12.2014 till payment of Misc. charges and service tax over it as the OPs have failed to provide any clause or heading under which the same can be charged, quantified as Rs.29,663/- + interest quantified till May 2019 is Rs.15,721/-, thus totally Rs.45,384/-;

(ix) not to sell roof tops or grant roof rights, as it is illegal as per MC Zirakpur, hence use of roof top be declared/directed common for all residents of that tower to avoid litigation in future;

(x) to appoint an expert or a Civil Engineer and seek his independent expert opinion and report depicting the shortcomings and irregularities in the entire project especially in the common facilities;

(xi) to pay compensation to the tune of Rs.2,00,000/- for mental harassment and deficiency in service;

(xii) to pay Rs.60,000/- as litigation expenses; and

(xiii) any other relief which this Forum may deem fit. Facts of the Complaint:-

2. Brief facts of the complaint are that the complainant wanted to buy a residential apartment for himself to reside alongwith his family in the vicinity of Chandigarh. He approached OP, believing it to be one of the leading construction companies especially after seeing all the advertisements made in the print media by OPs regarding their project AERO HOMES, Village Gazipur, Zirakpur, Mohali, Punjab, in which they enlisted the facilities, specifications, C.C. No.429 of 2019 4 amenities etc. OPs claimed that they have obtained the licences/approvals from the Punjab Govt. and other competent authorities for setting up their project. A perusal of brochure revealed that OPs would provide luxury apartments with elegant style, serene surroundings, fine architecture and other comforts as well as master bedroom and modular kitchen, other facilities and amenities like 24 hours backup, biometric entry system, platform, granite stone, system, biometric entry system video door phone with main gate, flat connectivity, boom barrier access on main entry, CCTV camera in campus, two high- speed lifts in each block, centralized communication system, gymnasium, conference room, fire fighting arrangements, DTH connection club. The complainant was induced by OPs to buy the flat in question. An allotment letter dated 06.10.2014 was issued by OPs to him allotting Flat No.205, 2nd Floor in Tower- E, having super area of 1760 square feet for a total price of Rs.37,00,000/-. The OPs acknowledge the receipt of Rs.5,00,000/- in allotment letter towards the price of the flat, in question. The date of delivery of physical possession was stated as 31.12.2014 in Clause-8 of the said letter and compensation for delayed possession, i.e. Rs.8,800/- per month for the period of delay, was provided in Clause 16 thereof. The complainant entered into Buyers Agreement dated nil with OPs regarding the flat. There were several Clauses i.e. 2 (k) & (i) regarding club membership registration charges & its operation; C.C. No.429 of 2019 5

4 (a), (b), & (e) regarding possession and default; and Clause 8 (d) regarding execution of sale deed and specifications sheet made in the agreement. There is no calculation leading to quantifying the amount of Rs.2,25,000/- for external electrification and how much has actually been charged by the competent authority for the said purpose and the OPs seek to illegally charge the same from him. The complainant was assured that OP's project was without any encumbrance, lien, charge or mortgage. The OPs had issued permission to mortgage in favour of Dena Bank, Phase 3B2, Mohali for the flat in question. Dena Bank sanctioned the home loan of Rs.17,00,000/- to complainant. Tripartite agreement dated 02.01.2015 was also executed between the parties. The complainants made a total payment of Rs.37,05,760/- to OPs, vide Ex.C-8 to C-14 and C-14/A towards the price of the flat. Thus, no amount was left to be paid by the complainant. OPs failed to deliver possession of the flat, in question, to the complainants within the stipulated period. OPs offered the possession to the complainant, which was taken by him on 31.12.2014, but it cannot be termed as complete or effective possession, as OPs had not received the Completion Certificate and/or Occupation Certificate as well as necessary sanctions to offer the possession of the flat, in question. The complainant pointed out several shortcomings in the said flat, as enumerated in para no.16 of the complaint and no promised facilities were C.C. No.429 of 2019 6 provided. The complainant many times requested OPs to do the needful, but to no avail. The maintenance charges could be charged only after one year of the completion of the project, but till date the project is not complete. As per information obtained by various residents of the project Aero Homes from competent authorities, under RTI Act, OPs have not obtained the Completion Certificate or other sanctions to deliver the effective possession of the flat. The complainant and other residents of the project approached M.C. Zirakpur, various other government departments and also local police, vide C-17 to C-27, regarding deficiency in service and unfair trade practice of OPs, but OPs have not mended their discrepancies and unfair trade practices. The co-residents also applied and sought information under RTI Act from relevant authorities regarding external electrification charges. As per annexure C-28 (External Electrification charges RTI) and letters, the OPs had paid a sum of Rs.31,20,031/- to the competent authority as electricity charges for the project in question. There are 288 flats in the project and each flat share comes out to be Rs.10,833.45, but OPs charged excess amount from individual flat owners including complainant, as external electrification. As per annexure C-29, the OPs charged excessively for the external development charges from the individual flat owners. The complainant and other residents of the project were flabbergasted to find out a affixation on the main wall of entry C.C. No.429 of 2019 7 gate of the project, stating that Punjab National Bank has moved an application under Section 14 of the Securitization & Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI, Act) before the office of District Magistrate for taking over the possession of the concerned properties. . The OPs also illegally sold roof to another consumer, vide Annexure C-33. Thus, OPs have also indulged in unfair trade practice and have been deficient in rendering services to the complainant like non-execution of sale-deed, non-compliance of instructions of other departments, vide Annexure C-31, C-32, C-34 and C-35. Hence, the present complaint. Defence of OPs

3. Upon notice, OPs appeared and filed their written reply, raising certain preliminary objections that the complainant does not fall under the definition of consumer as defined under Section 2(d) of the Consumer Protection Act, 1986 as the complainant is owning other residential properties in various parts of the country. The complaint has been filed by complainant with huge delay of 5 years after offering of possession by OPs. The complainant has not made Maintenance Agency/Society party to the complaint. There is arbitration clause in the agreement/allotment dated 06.12.2014 and as such this complaint is not maintainable. the OPs had obtained license from GMADA. The total consideration of the C.C. No.429 of 2019 8 flat was Rs.37,90,000/- excluding of E.E.C., E.D.C., and govt. taxes as applicable. The complainant had paid Rs.37,05,000/- till date (exclusive of EDC, EEC, GST and rest of taxes and charges are to be paid by him). The complainant never objected to the terms and conditions of the Apartment Buyers Agreement. The outstanding amount due towards the complainant is more than Rs.14,57,340/- inclusive of EEC, EDC, interest, holding charges, as per clause 4(c) of agreement. As per the agreement, the possession was to be delivered upto 31.12.2014 subject to force majeure circumstances. As per clause 2 (d) of the agreement, timely payment of each instalment and other charges payable was the essence of the agreement. As such, the claim of the complainants of non-execution of sale deed is false and baseless. OPs are ready to get the sale deed registered, on payment of full and final amount by the complainants. Complete possession of the said flat, with all the basic amenities, was taken by complainant without any objection or protest, so no question arises for the payment of Rs.8,800/-, as the possession delivered on committed dated i.e. 31.12.2014. As per Clause 6(c) of the agreement, OPs/developer can raise fund from any Bank/financial institution to create equitable mortgage, which was to be vacated before completion of project/complex. OPs have already taken required permissions from the concerned authorities and Completion Certificate has C.C. No.429 of 2019 9 already been applied by them. OPs denied any deficiency in service on their part. As per clause 5(d) of the agreement, the complainant is liable to pay charges like External Electrification Charges etc. The complaint is alleged to be malafide, frivolous and vexatious and is liable to be dismissed with costs. There is disputed questions of facts in this case, which cannot be decided in the summary proceedings and the same the liable to be relegated to the Civil Court. On merits, OPs have averred that complainant purchased the flat for investment and commercial purposes. OPs have provided all the basic amenities in the society and since 5 years, 200 families have been residing happily there. The complainant is twisting the matter and making false averments regarding super area i.e. 1760 sq. ft. and covered area of the said flat as 1450 sq.ft. The covered area is always less than the super area. Super area is duly defined in the agreement. Similar pleas as raised in the preliminary objections, were reiterated on merits. OPs have prayed for dismissal of the complaint by denying all other allegations of the complainant. Evidence of the parties

4. To prove his claim, the complainant along with complaint filed affidavit and documents as Ex.C-1 to Ex.C-36

5. On the other hand, OPs filed affidavit of Nitin Bansal alongwith documents Annexure R-1 to Annexure R-7 along with their written reply. C.C. No.429 of 2019 10 Contentions of the parties

6. I have heard learned counsel for the complainant and OPs and have also gone through the record carefully.

7. Learned counsel for the complainant vehemently contended that the physical possession of the flat, in question, was to be delivered by 31.12.2014, but the same was delivered to the complainant without completion certificate/occupation certificate and without necessary sanctions. Hence, he is entitled to penalty at the rate of Rs.8,800/- per month from 31.12.2014 till the date of obtaining completion certificate. The complainant paid more than the total cost of flat i.e. Rs.37,05,760/-, vide Ex.C-8 to C-14 and C-14/A. OPs are not entitled to charge external electrification charges & EDC over and above the legitimate charges amounting to Rs.44,479.16, and Rs.10,9833.45, because there is no amount mentioned in the agreement to this effect. They are also not entitled to charge the annual maintenance charges and service tax over it, as no maintenance activity has been undertaken by OPs. They cannot charge the maintenance charges before obtaining the Completion Certificate and Occupation Certificate. No detail of the alleged fictitious amount of Rs.14,57,340/- has been given in the reply, whereas the possession was delivered only after receipt of full amount, as mentioned above. OPs also could not have charged Misc. Charges, without specifying their details. The complainant found various irregularities and defects in flat C.C. No.429 of 2019 11 and project and duly pointed out the same to them, but they failed to rectify those defects. The electricity charges have been excessively charged by OPs. As per letter Ex.C-28, OPs have deposited Rs.31,20,031/- with competent authority. That amount was to be divided proportionately between all the purchasers and was to be equally shared by all the allottees but no detail in that regard was furnished by OPs. The Service Tax was also illegally received from the complainant in excess. There are shortcomings in project as well as in flat, as stated in para no.16 of the complaint. The deficient and careless act OPs has caused great mental agony and harassment to the complainants and they are entitled to all the reliefs, as prayed in the complaint.

8. On the other hand, learned counsel for OPs argued that complainant had taken over the physical possession of the flat in question on the stipulated date i.e. 31.12.2014 with all the basic amenities, without raising any protest or objection, vide Ex.R-1. The OPs have all the necessary approvals and necessary sanctions regarding the project in question, vide Ex.R-5 to R-7. 200 families are already residing in the said project and OPs executed the sale deed in favour of some residents of the project and Ex.R-4 is one of them. The complainant is liable to pay all the charges, as per terms and conditions of the agreement. The total amount of Rs.14,57,340/- is still due towards complainant, vide Ex.R-2. There is no C.C. No.429 of 2019 12 deficiency in service and unfair trade practice on the part of OPs. Therefore, the complaint be dismissed against it with costs. Consideration of Contentions

9. I have given my thoughtful consideration to the rival contentions raised by the learned counsel for the parties. First of all, I would like to dispose the preliminary objections raised by OPs that the complainant does not fall within the definition of consumer as they purchased the unit for investment purposes. In this regard, it is relevant to mention that there is no evidence from the side of OPs to prove that the complainant is indulging in sale purchase of property for commercial purpose and simple assertion in this regard in the reply of the OPs is not sufficient to prove this fact. Honble National Commission in M/s IREO FIVERIVER PVT. LTD. v. SURINDER KUMAR SINGLA & OTHERS First Appeal No.1358 of 2016, decided on 29.11.2016, while relying upon its earlier decision in KAVITA AHUJA & OTHERS v. SHIPRA ESTATE LTD. & JAI KRISHNA ESTATE DEVELOPERS PVT. LTD. & OTHERS Consumer Case No.137 of 2010, decided on 12.02.2015, held the complainants as consumers, observing that that the appellant failed to show any cogent evidence, which may indicate that the respondents/complainants or any of them has been indulging in sale purchase of the properties or that the complainants or any one of them had booked the subject plots C.C. No.429 of 2019 13 in the development project undertaken by the appellant with the intention to sell the plot on subsequent date for earning profit. Accordingly, the above said objection/contention of the OPs is also rejected and the complainant is held to be consumer, under the Act.

10. The other objection of OPs is that as per Clause 14 of the agreement, Ex.C-5, the dispute between the parties is liable to be referred to the Arbitrator, as per Arbitration Act. It is relevant to mention here that larger Bench of the Honble National Commission passed dated 13.07.2017 in Consumer Complaint No.701 of 2015 titled as Aftab Singh

v. EMAAR MGF Land Limited & Anr., to the effect that an Arbitration Clause in the afore-stated kind of Agreements between the Complainant and the Builder cannot circumscribe the jurisdiction of a Consumer Fora, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. The Civil Appeal No.(s) 23512-23513 of 2017 (M/s EMAAR MGF Land Limited & Anr. Vs. Aftab Singh) was filed against the said order of the Honble National Commission, has also been dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an Arbitration Clause is not a bar to resolution of this dispute by this Commission. Accordingly, the said objection of OPs is also rejected. C.C. No.429 of 2019 14

11. OPs took another objection that the complaint is time barred, on the ground that the complainant was offered possession on 31.12.2014 and the complaint has been filed in the year 2019. In this regard, it is relevant to mention here that the flat, in question, was allotted, vide allotment letter dated 06.12.2014, vide Ex.C-4, and the possession was to be delivered on 31.12.2014, as per clause 8 of allotment letter and as per clause 4(a)(i) of the agreement, Ex.C-5. No doubt, the possession was offered on 31.12.2014 and was taken by the complainant on 31.12.2014, but the fact remains that it was an incomplete and invalid delivery of possession, as OPs had not obtained the Occupation Certificate and Completion Certificate from the competent authorities to enable them to deliver the complete and effective possession to the allottees. Until and unless, they obtain such certificates, it cannot be held that complete possession has been delivered and there is continuous cause of action in favour of the complainant till the obtaining of such certificates by OPs. Honble National Commission in Navin Sharma (Dr.) & others V. Unitech Reliable Projects Pvt. Ltd. & Anr. 2016(2) CLT 457 has held that unless and until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the judgment, it has been observed by the Honble National Commission as under:- C.C. No.429 of 2019 15

8. The first submission made by the counsel for the opposite party was that the case is barred by time. This argument was raised merely for the sake of cavil. It is now well settled that unless or until the complainants get the possession of the flats, they have got continuous cause of action. This view finds support from the judgment passed by the Hon'ble National Commission in case titled as Raghava Estates Ltd. V. Vishnupuram Colony Welfare Association Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012.

12. I am of the opinion that till the complete and effective possession of the flat has not been delivered, the complainant has the continuous cause of action. As such, in view of the ratio of the law laid down in the above noted authority, the complaint filed by the complainant is within limitation.

13. At the outset, it is relevant to mention that the merits of the present complaint are squarely covered by the earlier verdicts given by this Commission in following cases:

i) Consumer Complaint No.839 of 2017 (Gaurav Uppal

v. M/s N.H.Matcon & Anr.) decided on 09.02.2018; ii) Consumer Complaint No.840 of 2017 (Kamal Khetarpal & Anr. v. M/s N.H.Matcon & Anr.) decided on 09.02.2018; and C.C. No.429 of 2019 16 iii) Consumer Complaint No.696 of 2017 (Varun Bhasin & Anr. Vs. M/s N.H.Matcon & Ors.) decided on 09.02.2018. iv) Consumer Complaint No.400 of 2018 (Daksh Goyal & Anr. Vs. M/s N.H. Matcon & Ors.) decided on 09.10.2018.

14. In light of above verdicts, I proceed to decide the case further. There is no dispute of the allotment of the flat, in question and delivery of possession thereof, though incomplete and ineffective.

15. The averments of the complainant are that the incomplete and ineffective possession of the flat was handed over to him by OPs, as they were not having the Occupation and Completion Certificates at that point of time. He also averred that OPs charged club fee and maintenance charges illegally. OPs raised objection that the Maintenance Agency was necessary party, but it was not impleaded as party. In my view, the Maintenance Agency of the project, in question, is not necessary party, because it is for OPs to arrange the same and they can only charge maintenance after the delivery of complete and effective possession. Once the complete and effective possession has not been delivered, OPs cannot claim the amount from the complainant towards maintenance charges and those charges would be payable only with effect from the date of obtaining Completion Certificate and Occupation Certificate by OPs as well as after providing all the required and C.C. No.429 of 2019 17 promised facilities and amenities to the allottees and before that, they are not entitled to charge any kind of maintenance charges from the complainant. The maintenance charges is liable to be refunded to complainant along with interest, in view of above observations.

16. The next point raised by complainant is that the External Electrification Charges and Service Tax have been excessively charged by OPs. There is no doubt that those charges are payable by the complainant and other allottees, as per Clause 5(d) and 5(k) respectively, of the agreement, but OPs cannot charge those charges over and above the permissible limit, as per the specified norms. In fact, as per information obtained under RTI vide letter Ex.C-28, OPs had to deposit Rs.31,20,031/- with PSPCL. In my view, the said amount is to be divided proportionately between all the allottees/owners of the flats in the said project and the same is to be equally shared by all the owners/allottees. However, no detail in that regard has been furnished by OPs. They are bound to provide the calculation of the amount paid by them to PSPCL and of the amount to be charged from the various allottees, including the complainant. As such the charges of EEC, EDC and Service Tax can either be calculated as per the super area or the covered area of the flat, in question, in accordance with law. It is made clear that if any excess amount has been charged by OPs from the complainant towards C.C. No.429 of 2019 18 Service Tax or EEC or EDC, the same is liable to be refunded to the allottees by them.

17. It has been proved on record that the Completion Certificate and Occupation Certificate have not been issued to OPs by the competent authorities in respect of the project. As per information dated 15.01.2016 obtained under RTI Act, vide Ex.C-16/L, the completion certificate has not been issued to OPs. Vide Ex.C-16/J, no revised map of Aerohomes was passed. Moreover, the Partial Completion Certificate, if issued, cannot be treated as a valid document, which can permit the developer to hand over the effective possession of the flats/plots. Thus, the complainant is entitled to valid possession, which can only be termed complete when the same is given to him after obtaining Completion & Occupation Certificates by OPs, on completion of the project in all respects i.e. by providing effective sewerage system, proper water supply, electricity supply, roads, along with other promised facilities, as per the agreement and brochure.

18. It is also relevant to mention here that Punjab National Bank LCB, PNB House, Sector 17-B, Chandigarh has also initiated recovery proceedings against OP no.1-M/s N.H. Matcon and notice dated 02.08.2016, Ex.C-30, was issued to OPs by the office of the District Magistrate, S.A.S. Nagar, under Section 14 of SARFAESI Act, for taking over the possession of the concerned properties of OP no.1, as mentioned therein. C.C. No.429 of 2019 19 This fact further proves that OPs have committed default towards their liabilities towards the above said branch of Punjab National Bank, as a result of which the above said proceedings were initiated against them.

19. The complainant has also prayed for execution of the sale deed. Thus, OPs are liable to execute sale deed of the flat, in question, in favour of the complainant.

20. As per Clause 4 (a) (i) of the agreement Ex.C-5, the possession was to be delivered by 31.12.2014, but the same has been delivered without completion/occupation certificate and the same is treated as incomplete and ineffective. Therefore, complainant is entitled to compensation at the rate of Rs.5/- per sq.ft. (Rs.8,800/- per month), as per Clause 4 (a) (ii) of the agreement, from 31.12.2014 till the issuance of Occupation and Completion Certificates to the OPs by the competent authorities.

21. So far as the averment of the complainant regarding sale of roof tops by OPs is concerned, it is relevant to mention that Clause 9 of letter dated 09.08.2016 Ex.C-24 issued by Municipal Council, Zirakpur, shows that the roof tops/terrace cannot be sold, as they are meant for common use. As per letter dated 29.02.2016, Ex.C-20, issued by Municipal Council, Zirakpur, there is no provision in the law by which the sale of roof tops/terrace can be carried out. It was further mentioned therein that any construction against the sanctioned plan is C.C. No.429 of 2019 20 violative of the rules and is not permissible. Shortcomings were still not removed and notice to that effect was issued to the Developer, vide No.4540 dated 26.02.2016 (Ex.C-21). Thus, from the above letter, it is clear that the roof rights cannot be sold. Rather, it should be used for the common interest of the residents of the particular Tower. Thus, OPs are not entitled to sell the roof tops/roof rights of the particular Tower to anybody else.

22. So far as the club charges of Rs.1,00,800/- is concerned, it is relevant to mention that neither any club has been constructed, nor the same has been got approved in the layout plan of the said project. Perusal of letter dated 09.08.2016, Ex.C-24 issued by Municipal Council, Zirakpur shows that only basement has been constructed for the club and on the roof of basement, heap of garbage is lying. This proves that no proper club is in existence at the site, nor there is any kind of maintenance of the site on the part of the opposite parties. Without proper sanction, the club cannot be run in the premises and, thus, OPs are not entitled to charge any club charges from the complainant at this stage.

23. So far as the Service Tax charged on other counts and EDC charges is concerned, it is relevant to mention that the complainant is liable to pay the same, as per the terms and of agreement as well as Notifications issued by the Govt. from time to time. Regarding excess charging of Service Tax and C.C. No.429 of 2019 21 EDC, if any, the complainant can bring the same to the notice of the competent authority and if excess charging would be found against rules, then the complainant would be entitled to the refund of the same. Otherwise, they can also seek information in that regard under RTI Act from the concerned authorities.

24. So far as the prayer of the complainant for providing him the car parking space is concerned, it is relevant to mention that Clause 2 (n) Parking Space, of the agreement, Ex.C-5, provides as under: That the purchaser (s) shall be provided with 01 (one) number of car parking space (covered/open) for exclusive use in the said complex, but the purchaser(s) shall not have any ownership rights over the parking space allotted to him/her/them. It shall be a right to use only, which shall stand automatically transferred with further sale of the Apartment. Thus, in view of above Clause of the agreement, OPs are bound to provide covered/open car parking space for the exclusive use of the complainant in the said project.

25. With regard to appointment of an expert or a Civil Engineer to seek independent expert opinion is concerned. I am of the opinion that the detailed evidence has already been led by the parties, which is sufficient to decide the controversy C.C. No.429 of 2019 22 between the parties, as such the prayer of the complainant is not tenable.

26. In view of above discussion, the complaint is allowed and following directions are issued to the OPs:

i) to obtain the requisite sanctions/approvals/ permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per the provisions of PAPRA & Rules; ii) to execute the Sale Deed regarding the flat, in question, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any. In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned. The complainants will submit the draft of the Sale Deed to the opposite parties within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter; iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and to provide all the promised facilities/amenities in the project; iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainant and to provide covered/open car parking space for the exclusive use of the complainants in the said project, as per Clause 2 (n) of agreement, Ex.C-5;

v) OPs are further directed not to charge Rs.90,000/- towards club fee plus service tax thereon as there is no construction of club at the site; C.C. No.429 of 2019 23 vi) to pay compensation at the rate of Rs.5/- per sq.ft. (i.e. Rs.8,800/-) per month for incomplete possession from 31.12.2014 till the issuance of Occupation Certificate and Completion Certificate to the opposite parties by the competent authority, as per Clause 4 (a) (ii) of the agreement. If any amount has been paid by the opposite parties towards above compensation, the same shall be adjusted; vii) to refund maintenance charges along with interest at the rate of 12% per annum from the date of deposit, if any, till realization; viii) not to sell the roof tops or grant roof rights to anybody, which is in violation of norms of Municipal Council, Zirakpur; and ix) to pay Rs.50,000/-, as composite compensation and litigation expenses to the complainant.

27. The above amounts shall be payable by OPs to complainant within 60 days from the date of receipt of certified copy of the order, failing which OPs shall be liable to pay interest @9% per annum from the date of filing of the complaint.

28. The complaint could not be decided within the statutory period due to heavy pendency of court cases. (KIRAN SIBAL) PRESIDING MEMBER January 07, 2020.