STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.483 of 2019 Date of Institution: 10.06.2019 Reserved on : 08.02.2022 Date of decision : 28.02.2022
1. Balbir Singh S/o Late Sh.Chanan Singh, resident of H.No.126-A, Housing Board Complex, Sector 14, Panchkula-134113.
2. Sunita Punia W/o Balbir Singh, resident of H.No.126-A, Housing Board Complex, Sector 14, Panchkula-134113.
..….Complainants Versus
1. Future City Developers Pvt. Ltd., Kharar Landran Road, Sector 115- G, SAS Nagar (Mohali) 140301, through its Managing Director/Directors.
2. Deepak Kumar, Director, Future City Developers Pvt. Ltd., Kharar Landran Road, Sector 115-G, SAS Nagar (Mohali).
3. Ram Sarup, Director, Future City Developers Pvt. Ltd., Kharar Landran Road, Sector 115-G, SAS Nagar (Mohali). Email IDs: casahomes2016@gmail.com, vinay456280@yahoo.co.in ….…Opposite Parties
4. Punjab National Bank, SCO No.26-28, Sector 16 A, Chandigarh through its Branch Manager.
Email ID: bo0575@pnb.co.in
.…Performa Opposite Party
Consumer Complaint under Section 17 (1)(a)
(i) of the Consumer Protection Act, 1986 as amended up to date.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
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C.C.No.483 of 2019 2 2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No
Argued by:-
For the complainants : Sh.Kulwinder Singh, Advocate For OPs No.1&3 : Sh.A.P.Batra, Advocate For OP No.2 : Ex-parte
For OP No.4 : None
MRS.URVASHI AGNIHOTRI, MEMBER
Complainants-Balbir Singh and Sunita Punia have filed the present complaint under Section 17 (1)(a)(i) of the Consumer Protection Act, 1986 (in short "The Act"), against the opposite parties Future City Developers Pvt. Ltd., and Ors. (in short "OPs") alleging that on the allurements of OPs, the complainants booked one residential apartment. They deposited an amount of Rs.1,00,000/- on 23.03.2018 towards booking charges, vide receipt No.202. The complainants were allotted Apartment No.D-2 in Tower/Block-D in the project 'Casa Homes' situated at Kharar-Landran Road, Sector 115, Mohali with super area of 1350 square feet, vide allotment letter dated 07.04.2018. The total cost of the said flat was Rs.40,88,000/-. Thereafter, an agreement to sell was executed between the parties on 08.04.2018. As per Clause 7 of the said agreement, the OPs agreed to deliver the possession by 31.03.2018, extended upto 31.07.2018 along with basic amenities and Occupation Certificate. The complainants were sanctioned loan to the tune of Rs.38,99,000/- by the Punjab National Bank. The complainant paid Rs.36,79,200/-. The OPs did not handover the possession even after the expiry of extended period i.e. first week of September 2018, as per agreement dated 08.04.2018. OPs were requested to deliver the possession along with Occupation Certificate,
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C.C.No.483 of 2019 3 but of no avail. Complainants also visited the flat in question and pointed out certain discrepancies and requested OPs to remove the same through emails dated 15.09.2018 and 23.09.2018. The OPs
informed through email dated 24.09.2018 that 90% discrepancies had been rectified and 10% would be resolved till 26.09.2018 and also demanded payment of 10% of basic price payable at the time of
possession. They replied through email for depositing the amount of 10% after issuance of Occupation Certificate. The OPs failed to deliver the possession in time with Occupation Certificate. The OPs also failed to remove the discrepancies, as pointed out by the complainants. They sent a legal notice to the OPs, but of no avail. The OPs sent offer of possession letter on 03.03.2019 but without removing the defects and without Occupation certificate. They got inspected the said flat through Surveyor/Evaluator, who certified the defects as pointed out by the complainants and estimated the cost to the tune of Rs.5,00,000/- for rectification of the same, vide his report dated 30.04.2019.
2. Complainants have prayed that OPs be directed to deliver the possession of the apartment after obtaining necessary occupation/completion certificate from the authorities, to pay Rs.5,00,000/- as per report of Valuer, to pay interest @12% on the deposited amount from the date of due possession till date of actual possession, to pay Rs.15,000/- p.m. being rent, to pay Rs.5,00,000/- for mental agony and harassment and to pay Rs.55,000/- as litigation charges. In support of their pleadings, the complainants have filed affidavit of Sunita Punia-complainant No.2 along with documents Ex. C-
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C.C.No.483 of 2019 4 1 to Ex.C-24.
3. Upon notice, OPs No.1 & 3 and OP No.4 filed their separate written replies. OP No.2 was proceeded ex-parte vide order dated
13.08.2019.
4. OPs No.1 and 3 have raised preliminary objections that the complainants have not complied with all the relevant provisions of the applicable laws and complaint is premature as the date of completion of the project was 20.11.2020. The complainants are not consumer, as they purchased the flat for profit motives. The answering OPs admitted that the complainant purchased the flat in question and also admitted that they issued allotment letter, executed buyers agreement. Lastly 15% amount was remitted by the complainants in the month of August, 2018, then how the possession could be delivered on 31.07.2018 and remaining 10% amount was due against them. The answering OPs have averred that there was no delay in delivery of possession and also denied the allegations of deficiency in service and unfair trade practice on their part. In support of their arguments, OPs No.1&3 have filed affidavit of Ram Sarup along with documents Ex.R-1 to Ex.R-2.
5. OP No.4 has stated in its reply that the Bank has advanced the loan amount to the complainant and denied any deficiency in service on the part of Bank. OP No.4 has also prayed for dismissal of the complaint.
6. None has appeared on behalf of OP No.4 at the time of arguments. We have heard the learned counsel for the complainants and OPs No.1-3 and have also gone through the record of the case as
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C.C.No.483 of 2019 5 well as written arguments submitted by the complainants and OP No.4.
7. Learned counsel for the complainants and OPs No.1-3 have
raised submissions on the similar lines as pleaded in the complaint and written statement.
8. Admittedly, the complainants purchased Apartment No.D-2 in Tower/Block-D in the project of OPs and from OPs No.1-3 and they also executed agreement for sale dated 23.12.2017, Ex.C-3. As per Clause 7 of the agreement for sale, OPs No.1-3 promised to deliver the possession by 31.03.2018, extended upto 31.07.2018 along with occupancy certificate. The total price of the flat was Rs.40,88,000/-. The complainants deposited an amount of Rs.36,79,200/- with OPs No.1-3 till 16.08.2018 and this fact had not been denied by them. 10% of basic sale price was to be paid by the complainants at the time of possession. The main allegation of the complainants is that after receipt of hefty amount, OPs No.1-3 did not offer/deliver the possession alongwith occupation certificate. There is no evidence on record from the side of OPs No.1-3 that they ever offered the possession with occupation certificate. It is pertinent to mention that Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, "PAPRA") deals with responsibility of the builder/promoter to obtain Completion and Occupation Certificate from the competent Authority, which reads as under:
14. It is the responsibility of the promoter-
(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter,
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C.C.No.483 of 2019 6 within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and
(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under section 5.
(2) The authority referred to in sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate."
Further, Clause 3.12 (i) of the Notification dated 07th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing), which is applicable to the properties falling within the Municipal Limits, provides as under:
"No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected."
A reference can also be made to Section 272 of The Punjab Municipal Corporation Act, 1976, which reads as under:-
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C.C.No.483 of 2019 7 "272. Completion Certificate. -
(1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work.
(2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act: Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission, shall be deemed to have been granted."
9. The Hon'ble National Commission in its order dated 13.06.2018 passed in First Appeal No.855 of 2018 (Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra), categorically held that legal possession cannot be delivered in the absence of Completion Certificate issued by the Competent Authority. It was held in Para No.5 as follows:
5. During the course of hearing, it was submitted by the learned counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.03.2016. A copy of the communication dated 15.03.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident
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C.C.No.483 of 2019 8 that the completion certificate having been received only on 15.03.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs.1,81,375/- was demanded on 20.04.2015 and the amount of Rs.2,12,489/- was demanded on 06.02.2016. The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date…….emphasis supplied"
10. In view of above, the possession offered by OP No.1 vide Annexures OP-2 and OP-3 to the complainant without completion certificate is only a paper possession, as such, OP No.1 is deficient in service on this point. The Hon'ble National Commission in "Navin Sharma (Dr. ) & others v. Unitech Reliable Projects Pvt. Ltd. & Anr."
2016(2) CLT 457 has held that unless or until the complainants get possession of the flats, they have got continuous cause of action. In para 8 of the said judgment it has been observed by the Hon'ble National Commission as under:-
"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 this authority reported in
"Raghava Estates Ltd. v. Vishnupuram Colony Welfare Association" Special Leave to Appeal (Civil) No.35805 of 2012, decided on 07.12.2012."
11. Since neither possession with occupation/completion certificate has been delivered to the complainants by the OPs nor the defects/discrepancies have been removed by them, as pointed out by
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C.C.No.483 of 2019 9 complainants. It is evident that OPs No.1-3 have committed gross deficiencies in their services besides indulging in unfair trade practice.
12. In the prayer clause of the complaint the deposited amount has been mentioned as Rs.39,79,200/-, whereas in para no.20 of the complaint, the complainants stated that they paid total sum of Rs.36,79,200/- and in the application for additional evidence they have also mentioned amount as Rs.36,79,200/-. Accordingly, it is clear that complainants have deposited an amount of Rs.36,79,200/- with OPs No.1-3.
13. Consequently, we allow the complaint of the complainants against OPs No.1-3 and dismiss qua OP No.4-Bank, as Bank is a performa party in this case and issue the following directions to OPs No.1-3:-
i. to deliver the possession with occupation/completion certificate of the apartment/flat, in question to the complainants after removing the above noted defects/discrepancies; and complainants are directed to pay 10% remaining amount of basic sale price.
OR
If OPs No.1-3 fail to deliver the possession of the apartment/flat after removing the defects and after issuing completion/occupancy certificate then they are directed to refund the amount of Rs.36,79,200/- along with interest @ 9% per annum, w.e.f. the dates of payments till realization,
ii. to pay an amount of Rs.50,000/- as compensation for causing harassment and mental agony.
iii. to pay an amount of Rs.5,000/- as litigation expenses.
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C.C.No.483 of 2019 10 14. Since the main case has been disposed of, so all the pending miscellaneous applications, if any, are accordingly, disposed of.
15. The compliance of the order be made by OPs No.1-3 within a period of one month from the date of receipt of certified copy of the order.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court cases and non-sitting of this Commission due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY)
PRESIDENT
(URVASHI AGNIHOTRI)
MEMBER
February 28, 2022
Rupinder 2
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