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Argued By:-

Sh. Shiv Kumar, Advocate for the complainant alongwith Sh. Purshottam Lal, complainant in person.

Sh. Tejeshwar Singh, Advocate along-with Ms. Surabhi Grover, Advocate & Sh. Mohit Uppal, Advocate for the opposite parties.

PER RAJESH K. ARYA, MEMBER

By this common order, we shall dispose of aforesaid two consumer complaints bearing Nos.60 of 2022 and 61 of 2022 filed by the respective complainants against the opposite parties.

2] As common questions of facts and law have been emerged in above captioned complaints and the facts thereof are analogous to each other to a great extent-therefore, this Commission would like to take them together and decide with a common order.

Brief facts:-

3] However, the facts necessary for disposal of these complaints, as culled out from one of the consumer complaint bearing No.60 of 2022 titled 'Mrs. Geeta Lal Vs. Country Colonisers Private Limited & Anr.' are that the complainant (Mrs. Geeta Lal ), who has crossed 70 years of age, is residing with her husband Shri Purshottam Lal (complainant in consumer complaint No.61 of 2022), who is also more than 75 years and her daughter at Chandigarh. As the complainant and her husband wanted to purchase built-up residential property around Chandigarh in individual names, the Complainant authorised her husband Shri Purshottam Lal to look for a property for her also and negotiate on her behalf. Accordingly, her husband sometime in October 2020, negotiated with Opposite Party No.1 and the complainant decided to purchase a 3-bedroom apartment with servant's quarter No.D-203 in multi-storey D Tower situated in the much-publicised Wave Garden, Sector 85, SAS Nagar, Mohali, whereas her husband decided to purchase a 2-bed-room apartment C- 203 in C-Tower.

4] It has been averred that it was informed by Opposite Party No.1 that Preferential Location Charges (PLC) with 5% GST would also be charged as they charged the same from all allottees of all apartments. The complainant protested against such a practice as all apartments could not be of PLC category. After various negotiations including the final one held on 23-10-2020 in the office of Opposite Party No.1 in club premises, following costs were projected by Opposite Party No.1 but it never disclosed the criteria for PLC though repeatedly asked by the complainant and rather, kept saying that it was charged from allottees of all apartments, about 370 in number:-

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Later on, it was found that IFMS was a non-GST item and hence, Grand Total

became Rs.93,07,090. During final negotiation on 23-10-2020, Opposite Party

No.1 also informed that if 50% payment of the total cost was made as booking

amount, the purchaser would be offered possession within 30 days of payment

of 50% of total cost and that the purchaser could then make the remaining

40% payment on the day of offering possession and further remaining 10% was

to be paid on the offer of actual possession after removal of defects if any on

joint inspection. The complainant made payment of Rs.2.50 Lakhs as token

amount vide cheque dated 23-10-2020. It has been averred that actually, as

per law, Opposite Party No.1 could not have taken more than 10% of Basic

Selling Price (BSP) as booking amount before signing of Agreement to Sale and

even at the time of signing of the Agreement to Sale, he could not have taken

more than 25% of BSP as per law.

5] It has been further averred that a representative of Opposite Party No.1 sent a WhatsApp message on 30^thOctober 2020 raising a demand of Rs.44,12,500/- for completing 50% payment as booking amount, which the complainant paid vide cheque dated 06-11-2020 and thus total payment demanded and taken by Opposite Party No.1 till 06-11-2020 stood at Rs.46,62,500/- i.e. 57.40%, which was much more than even 50% of the basic price of Rs.81,22,926/- which was arrived at after negotiation.

6] It has been averred that as per Section 13 of THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016, Opposite Party No.1 could not have accepted more than 10% of the cost of the apartment as an advance payment or as application money without first entering into a written agreement for sale and getting registered the same. In fact, the Agreement to

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Sale could be signed only on 05-12-2020 due to unfair trade practices and deliberate obfuscation resorted to by Opposite Party No.1 who never got it registered. It has further been averred that thus, Opposite Party No.1 demanded and accepted Rs.38,50,207.40 over and above to what it was entitled to accept under law at the relevant time.

7] It has further been averred that as per Section 6(1) of Punjab Apartment and Property Regulation Act, 1995, Opposite Party No.1 could not have taken more than 25% of the basic sale price which comes to Rs.20,30,731.50, even when Agreement to Sale had been signed on 05-12- 2020, though it took 57.40% of the Basic Sale Price of Rs.81,22,926/ till that time and subsequently took even 100% payment on 20-12-2020, not only of Basic Sale Price but also of components like Club Membership, Car Park etc, whereas it delivered possession of the Apartment as late as on 27-01-2021. Thus, it kept excess money of the Complainant for various periods of time against law.

8] It has further been averred that the Complainant's husband, on behalf of the Complainant, started pursuing with the agents and officials of the Opposite Party No.1 for sending him the draft of the Agreement to Sale but they deliberately provided false, incomplete and deceitful information in various drafts sent which were returned by the Complainant's husband again and again to the said agents and officials of Opposite Party No.1 for corrections which they did not fully carry out and ultimately, the Complainant had no alternative but to sign an Agreement to Sale on 05-12-2020, Annexure C-1, though it was defective and incomplete and one-sided as large amount of money of the Complainant was held up with Opposite Party No.1. It has further been averred that in spite of Complainant's repeated pleadings, Opposite Party No.1 did not even mention the area of the basement-car-park in Schedule A of the Agreement to Sale, the space for the same having been left blank and later, before handing over possession of apartment on 27-01-2021, Opposite Party No.1 allotted a car park measuring 17 feet x 10 feet on 04-01-2021. However, subsequently i.e. after handing over possession, Opposite Party No.1 changed the location and the dimensions unilaterally. On complainant's protests, Opposite Party No.1 allotted a car park of same dimension (17'x 10') on 9-2- 2021 at a different location but refused to mention the same in conveyance- deed dated 02 March 2021, saying that it would mention a lesser dimension. Thus, it left a major lacuna in the conveyance deed, leaving an opportunity in the hands of the Opposite Party No.1 to reduce the dimensions of the car park in future. Also, repeatedly the complainant wrote to Opposite Party No.1 to include the reasons for classifying the apartment as PLC in Agreement to Sale and Conveyance Deed but it did not do so for ulterior motive.

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9] It has further been averred that the Complainant received letter dated 20-12-2020 from Opposite Party No.1 demanding remaining 50% payment but Opposite Party No.1 with oblique motive wrote the "Subject" as

"OFFER OF HANDING OVER POSSESSION OF THE APARTMENT" so that the delay being caused by Opposite Party No.1 in handing over possession could be camouflaged. Complainant's husband, on behalf of the Complainant, lodged protest but Opposite Party No.1 didn't relent. Accordingly, to avoid further delay, complainant made payments of remaining 50% by cheques on 20-12- 2020, which were realised on 22-12-2020.

10] It has further been averred that it was incumbent upon Opposite Party No.1 to give actual physical possession of the Apartment on 22-12-2020 or soon thereafter, but it did not and complicated the matter knowingly by putting unreasonable and illegal provisions in documents like Declaration, Indemnity and Maintenance Agreement and not mentioning in any document the reasons for classifying the Apartment as preferential location meriting PCL and not mentioning car park area and marking its location which Opposite Party No.1 changed subsequently of its own volition as already mentioned even after the Complainant had taken possession of the Apartment and consequently of the Car Park also attached with it.

11] It has further been averred that even a meeting of the husband of the Complainant on 05-01-2021 with Shri H.S. Kandhari, one of the promoters of the Opposite Party No.1, could not resolve the issues and he referred the matter to the Head Office Legal Team in Delhi which did not accept most of the reasonable stands of the Complainant, and then the Complainant had no alternative but to sign the Declaration, Indemnity-Cum-Undertaking and Maintenance Agreement on 27-01-2021, Annexure C-4, 5 & 6 respectively, at the time of taking possession of the Apartment. It has further been averred that the Complainant's husband had also been raising the issue along with other ones like car park area in various WhatsApp messages sent by him to various authorities of Opposite Party No.1, notably Shri Abhishek Tandon, GM (Sales) and Shri Ravi Thakur of Opposite Party No.1, Annexure C-7 & C-8 but they never disclosed the reasons for the same.

12] It has further been averred that Opposite Party No.1 did not have even completion certificate of the whole project before handing over possession with the result that miscellaneous construction work in the area is still going on causing nuisance, disturbance, noise pollution and air-pollution. In fact, vide their email dated 29-12-2020, Opposite Party No.1 provided only copies of occupation certificates and informed the complainant's husband verbally that completion certificates would be obtained after the completion of the project.

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13] It has further been averred that on 29-01-2021, Complainant received in paper form a draft of the Conveyance Deed Apartment Number D- 203 on 27-01-2021 from Opposite Party No.1 which was full of negligent mistakes and which vide para 5 even reduced the dimensions of the car park by mentioning the same in metres, very wrongly and negligently worded-"2.5 Sq. Mtr. Ft. x 5 Sq.Mtr."- which perhaps meant 2.5 Mtr x 5 Mtr. converted into feet, it would be 8.2 feet x 16.40 feet which was less than that measured on 04- 01-2021 by the Complainant's technical representative in the presence of Shri Angad Singh, the then Maintenance Manager who represented Opposite Party No.1. The measurement then was 10' x 17'. It has further been averred that the Complainant had taken possession of the Apartment on 27-01-2021 which carried with it the Car Park also and therefore, subsequent to 27-01-2021, Opposite Party No.1 could not have reduced the size or the location of the Car Park unilaterally.

14] It has further been averred that Clause 18 of the Conveyance-Deed signed on 02-03-2021 permits provisions of the Deed to be determined as 'void or unenforceable under any applicable law and thus, the complainant has prayed for ordering deletion/amendment of such clauses in the Conveyance- Deed, Annexure C-10.

15] It has further been averred that subsequently, the complainant received Possession Certificate, Annexure C-11, purportedly handing over peaceful, vacant physical possession on 02-03-2021 of Apartment number 203 in Tower-D, 2nd Floor, Type 3 BHK + Servant. In this "POSSESSION CERTIFICATE", the chargeable super area was mentioned as "approx. 1990 sq ft." Such a possession certificate saying that the possession was handed over on 02-03-2021 is factually wrong as possession had already been handed over by Opposite Party No.1 to Complainant on 27-01-2021. Moreover, the chargeable super area has been mentioned in this as "approx. 1990 sq ft"

whereas all areas in earlier documents were exact. It has been averred that such a Possession Certificate dated 02-03-2021 was superfluous, unnecessary and contrary to previous records.

16] It has further been averred that a document received from Opposite Party No.1 in the evening of 02-03-2021 stipulated that the tenant and his family were not permitted to use any Club Facility without Security Deposit and Monthly Subscription. This was against the assurances given by the representatives of Opposite Party No.1 during negotiation wherein it was given out that during tenancy, club membership of the complainant would be transferable to the tenant.

17] It has further been averred that Opposite Party No.1 also did not agree to complainant's valid proposition that since her spouse was also

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purchasing an apartment (C-203), club membership should be charged only from one of them. Club never became fully functional nor any club membership card has been issued to the complainant so far. It was also assured to the Complainant that the club was meant only for the Wave Garden but it has been noticed that it has been thrown open by Opposite Party No.1 to other residents of Wave Estate also.

18] It has further been averred that after taking possession of the Apartment, the Complainant noticed many defects which were got rectified from Opposite Party No.1 which took about six months and even the flooring of the bathroom of the master bed room had to be dug up. It has further been averred that Opposite Party No.1 has started selling/allotting car parks against payment in common open area which it cannot do. Hence, allotment of specific parking lots to other owners against payment in the common open area just before the entrance to the Lobby of Towers interferes with the complainant's right to the free use of common open area. This illegal practice needs to be stopped immediately.

19] It has further been averred that it is also learnt by the Complainant that flats similar to that of the Complainant have been sold by Opposite Party No.1 to other buyers during the contemporary period at much cheaper rates which can be verified by reference to records of the concerned Sub-Registrar of SAS Nagar, Mohali and also by calling for the concerned records from Opposite Party No.1 and thus, Opposite Party No.1 has indulged in unfair trade practice vis-à-vis the Complainant.

20] It has further been averred that the complainant had paid Power Back Up charges etc. for Generator Set at the time of purchasing the Apartment and also had been paying all electricity bills in time, however, from the month of September 2021, Opposite Party No.2 started levying Diesel Generator Set Rental charges etc. (approx. Rs.225/ per month) which it had been paying itself till August 2021. Since then, Complainant requested Opposite Party No.2 many times to resolve the dispute but it took no steps, which amounted to unfair trade practice on its part.

Reply of Opposite Party No.1 (Country Colonisers Pvt. Ltd.)

21] On the other hand, Opposite Party No.1 (Country Colonisers Pvt. Ltd.), in its reply, while contesting the complaints on merit, has also taken following preliminary objections:-

(i) that this Commission lacks pecuniary jurisdiction because as per calculation provided at page 26 of the complaint, the total value of consideration of the transactions in dispute i.e. refund of PLC with GST and refund of club membership and annual charges within GST amounted to Rs.6,26,752.64,

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which is below Rs.50 Lakhs the minimum pecuniary threshold for this Commission to entertain a complaint;

(ii) that jurisdiction of any grievance arising from the agreement to sale lies with Real Estate Regulatory Authority;

(iii) that the complainant is not consumer qua opposite party No.1 as the entire agreement culminated on execution of the conveyance deed long back in 2020 and further she has sought to buy two housing units/apartments in question for commercial, speculative and investment purposes and not for residential purpose;

(iv) that this Commission has no territorial jurisdiction to entertain the complaint as the office of the opposite parties is situated at SAS Nagar, Mohali, the alleged cause of action arose at Mohali and the complainant also resides at SAS Nagar, Mohali;

(v) that numerous complicated disputed questions of facts are involved in the present complaint, which can only be adjudicated upon by the Civil Court;

(vi) that the complaint is time barred being misconceived and is merely an instrument for garnering illicit gains from the opposite parties by misusing the process of law.

22] However, on merits, it has been pleaded that the present project is registered under RERA with Registration Number "PBRERA-SAS81-PRO154"

(Exhibit OP- 1/17) and the complainant is deliberately trying to mislead with false facts and misrepresentations. It has been pleaded that in fact, even in Recital 'F' of the Agreement to Sale, it is duly acknowledged that the present project is registered with RERA and further the project where apartments in question are located, namely, "Wave Estate, Group Housing-2 (Phase-1)" is duly registered with RERA Punjab. It has further been pleaded that at the time of booking, Opposite Party No. 1 had shown a payment plan as per the relevant statutes and that is why, payment on the date of booking was only for Rs.2,50,000/- which was made on the day the Application for Allotment was submitted. It was only on 06.11.2020 that the complainant made a further payment of Rs.44,12,500/- of her own volition without any demand letter having been issued. Further, delay in executing agreements thereafter can solely be attributed to the complainant as she caused extensive delays due to negotiations of even a statutory contract. Denying issuance of any demand letter asking for 50% of the amount, it has been pleaded that on 06.11.2020, the complainant of her own volition, without any Demand Letter having been issued by Opposite Party No.1, issued a cheque for INR 44,12,500 and

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demanded a receipt for the same, stating that as per tax planning advice from her accountant, she was depositing the said amount well in advance. Further pleaded that demand letters were issued by Opposite Party No.1 either through post or e-mail but not through WhatsApp. Further denying that Opposite Party No.1 demanded or sought payment from the complainant in contravention of Section 13 of the RERA Act, it has been pleaded that the complainant may be put to strict proof for the same. It further pleaded that the signing of the Agreement to Sale was delayed by the complainant herself. The said Agreement was provided to the complainant soon after booking but she took a long time in discussing and finalizing the same.

23] It has further been pleaded that in fact, almost all agreements were delayed due to the complainant's extensive negotiations and she signed the agreements after fully satisfying herself. However, it has been denied that the Agreement to Sale was defective, incomplete or one-sided. It has further been pleaded that the said Agreement was based on the Model Agreement to Sale provided under the RERA Act, with changes made by the complainant and other negotiations. It has been denied that the area of the basement car park had to be mentioned in the agreement as the complainant had requested for a specific location of her parking (i.e. next to the lift), which would require re- arrangement of many other parking slots and therefore, it had been decided between the parties that a drawing showing the said parking shall be inculcated into the Conveyance Deed (which was then later done as well). It has been denied that Opposite Party No.1 ever changed the parking unilaterally. It has been pleaded that car parking of standard measure was provided to the complainant near the lift as per her request. It has been denied that any lesser dimension is mentioned in the Conveyance Deed or any lacuna was left in the Conveyance Deed as a specific drawing is attached with the Conveyance Deed which marks the parking space of the complainant. It has further been denied that the complainant was not aware of or was not informed the criteria for PLC. It has been pleaded that the PLC is mentioned in the Agreement to Sale and even as per the RERA Authority itself, criteria for the same is not mandatory to be disclosed as the complainant is well-aware. It has been pleaded that Annexure C-2 is simply a note by the complainant and is no proof of communication.

24] It has further been pleaded that on 09.12.2020, before possession was offered, a letter was sent to the complainant for final inspection, on which she duly provided her receiving (Exhibit OP-1/3). Thereafter, the letter offering possession was sent to the complainant. Of course, at the time of taking over possession, the complainant was required to sign a declaration and indemnity stating that everything was according to what was agreed between the parties.

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This is standard practice and is not against the law. The same is even mentioned in Clause 7.3 of the Agreement, where it says possession is to be taken after executing declaration, indemnities and any other documents agreed to between the parties (which in this case, as per Clause 11 of the Agreement, is the Maintenance and Services Agreement). It has been pleaded that the complainant may be put to strict proof as to how any of these agreements were unreasonable or illegal and even otherwise, the complainant chose to sign each agreement out of her free will, not only for one unit, but for two. It has been pleaded that the complainant cannot now, almost 1.5-2 years later, raise issues with every agreement he entered into with the opposite parties. It has been denied that PLC and car park area had to be mentioned in these agreements or any interim possession was offered to the complainant.

25] It has been denied that there is any law regarding PLC vis-à-vis advertisements in newspaper or other media. It has also been denied that the complainant/her husband was not informed that PLC would be charged on her desired unit at the time of booking and the said fact is admitted by her in her complaint. It has further been denied that Annexure C-7 & C-8 hold any evidentiary value and these are simply a note by the complainant and is no proof of communication. It has been pleaded that even otherwise, the complainant was already aware of the PLC charges as she was informed of the same at the time of booking, the charges were mentioned in the Agreement to Sale, and the same were duly paid by the complainant. Qua car park area, It has been pleaded that the complainant made a specific request requiring a car park right next to the lift and the car parks are designated sequentially as per apartment numbers and the complainant's apartment number's car park did not fall next to the lift, yet Opposite Party No.1 rearranged all the parking spaces in the said area in order to accommodate the complainant as a gesture of goodwill. It has been pleaded that the said parking space is even indicated in the Conveyance Deed by means of an attached drawing.

26] It has further been pleaded that Completion certificate with respect to the complainant's unit was obtained on 26.11.2019 (Exhibit OP-1/9) and Opposite Party No.1 also obtained Occupancy Certificate for Tower C on 16.10.2019 (Exhibit OP-1/10) and as such, possession was offered only after obtaining the same. It has further been pleaded that certain construction work is ongoing as per the law and relevant norms in other projects of Opposite Party No.1 and the complainant was informed of the same, who agreed not to raise any issues with it. It has further been pleaded that Clause 34(iv) of the Agreement to Sale, Clause 12 of the Conveyance Deed and Clause 24 of Indemnity-cum-Undertaking clearly state that the allottee has no objection to any development or construction activities and shall raise no issues with

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regard to the same. It has been pleaded that in any case, construction, if any, is only carried out in the day. It has been denied that the said construction is causing any noise or air pollution or is being carried out against the provisions of any law. It has been pleaded that Opposite Party No.1 is mindful of the air quality concerns and regularly gets the air quality tested by a laboratory accredited with the NABL and recognized by the Ministry of Environment, Forests and Climate Change. (Exhibit OP-1/16).

27] Denying that any location of the car park was changed unilaterally, it has been pleaded that in fact, special accommodation was made for the complainant and she was allotted a car park next to the lift even though as per the serial numbering of the parking lot, on 27.01.2021, on her request, keys were handed over to her because she wanted to start the work of installation of custom fittings in the apartment. This was done as a gesture of goodwill at the complainant's request and in fact her admission to this fact demonstrates the accommodating nature of Opposite Party No.1. It has further been pleaded that editing or amendment of a certificate does not fall within the purview of the Consumer Protection Act, 2019 and no prejudice or deficiency has been suffered by the complainant because of the same, even if it were true. It has been specifically denied that any assurances were given at any time regarding usage of the club membership by tenants. However, it has been pleaded that there is no bar on tenants using the club (provided the owners of the same unit are not residing and using the same), however, a security deposit has to be submitted in case of any damage to the facilities. It has further been pleaded that monthly prescribed fee has to be paid by the tenants, the same way as it would be payable by the owners (Exhibit OP-1/15).

28] It has been admitted that Opposite Party No.1 in advance straightway had told the complainant that different club membership shall have to be paid by different apartment unit owners. It has further been pleaded that as each transaction is done with each buyer, negotiations are held, much like they were held with the complainant and as per the specifications, location, facilities, state of the real estate market and various other factors, the consideration price was arrived at and thus, there is no illegality with respect to the same.

29] Denying that the complainant has been paying all electricity bills on time, it has been admitted that Rs.200/- for demand charges and Rs.25+GST for diesel generator rental charges have been demanded from September 2021 onwards as earlier these have been borne by Opposite Party No.1 as a gesture of goodwill and the complainant has been made aware that these charges were to be levied but as a gesture of goodwill, the same was being borne Opposite Party No.1 for a short period. It has been pleaded that

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Clause 6.7 of the Maintenance and Services Agreement clearly states that power back up charges are to be paid by the complainant and further Clause

6.4 states that the complainant agrees not to raise any dispute with regard to installation of power generating equipment and tariff payable, to which the complainant agreed. It has further been pleaded that the complainant is admitting to partial payments and therefore admitting to default in making payment under the Maintenance & Services Agreement. It has been pleaded that as per Clause 8.4, even if there is any difference or dispute as to the accuracy of charges, payment of the same shall not be withheld on any account. Part payment shall not be accepted and if made, shall constitute default in payment. Clause 10 empowers the Maintenance Manager to charge 9% interest and in case of additional delay of period of 30 days, 4% penal interest. It has been pleaded that as a gesture of goodwill, so far no interest has been charged on the complainant's account and no deduction has been made from his IFMS (under Clause 2) and her connection has not been disconnected on these occasions of default.

30] It has been pleaded that the prepaid model of electricity payment is being implemented. It has been denied that under the said model, Opposite Party No.2 will deduct 'whatever amount it wants', as the said deduction would depend upon usage and upon request the statement of the same will be available to the user. It has further been pleaded that the said system was agreed to by the complainant herself in the Maintenance & Services Agreement. Clause 1.1 (iii) of the Maintenance & Services agreement with Opposite Party No.2, which clearly states that monthly utility charges are to be paid on a prepaid recharge basis, while Clause 1.3 states that the said charges shall become payable from the date as and when determined by the Maintenance Manage, and the said date has nothing to do with the date of taking possession of the apartment. It has further been pleaded that as per Clause 1.3, the prepaid model is being introduced. Furthermore, the complainant herself has already agreed to the same.

Reply of Opposite Party No.2 (Dilbird Realhome Private Limited)

31] In its reply, Opposite Party No.2 - Dilbird Realhome Private Limited has taken same preliminary objections as have been taken by Opposite Party No.1 and on merits also, it has supported the case of Opposite party No.1 by reiterating same pleadings in its reply. However, in Para 16 of its reply, Opposite Party No.2, while denying any act or omission on its part, has pleaded that it is Opposite Party No.2, who is being harassed by the complainant as she has defaulted on her electricity dues repeatedly. Rest of the pleadings or allegations made by the complainant qua it have been denied by Opposite Party No.2.

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32] Pleading no deficiency in rendering service or unfair trade practice on their part, both Opposite Party No.1 and Oppostie Party No.2 have prayed for dismissal of the complaint.

Rejoinder

33] The complainant filed rejoinder(s), wherein, she reiterated the averments made in the complaint and repudiated those as contained in the replies filed by the opposite parties.

34] The parties led evidence in support of their respective cases.

35] We have heard the Ld. Counsel for the parties and have also carefully gone through the record.

Issues involved:-

(i) Whether this Commission has the pecuniary jurisdiction to try the complaint?

(ii) Whether jurisdiction of this Commission is debarred in view of jurisdiction of any grievance arising from the agreement to sale before Real Estate Regulatory Authority?

(iii) Whether the complainant is a consumer as the entire agreement culminated on execution of the conveyance deed long back in 2020?

(iv) Whether the complainants are consumers as they have sought to buy two respective housing units/apartments in question?

(v) Whether this Commission has the territorial jurisdiction to entertain the complaint?

(vi) Whether jurisdiction of this Commission is barred in view of alleged complicated disputed questions of facts by the opposite parties?

(vii) Whether the complaint is time barred?

(viii) Whether there is any deficiency in rendering service or unfair trade practice on the party of the opposite parties as alleged in the complaint and to what relief the complainant is entitled to?

Pecuniary jurisdiction

36] First dealing with the preliminary objection with regard to the pecuniary jurisdiction, it may be stated here that in the instant case, since the complainant has made specific averments in her complaint with regard to the contract/agreement to sale executed between the parties, being unfair, therefore, this State Commission has the jurisdiction to entertain the present complaint(s) keeping in view the provisions of Section 47(1)(ii) of Consumer Protection Act, 2019. Thus, the objection raised in this regards stands rejected.

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Real Estate Regulatory Authority

37] As regards the next objection with regard to the challenge to the jurisdiction of this Commission in view of jurisdiction of any grievance arising from the agreement to sale before Real Estate Regulatory Authority, it may be stated here that the same does not merit acceptance, in view of the ratio of law laid down by the Hon'ble Supreme Court of India in Civil Appeal No. 3581-3590 of 2020, M/s Imperia Structures Ltd. Vs. Anil Patni and another, decided on 02.11.2020, wherein it was held that the provisions of RERA Act does not in any way bar the Commission or Forum under the provisions of the CP Act to entertain any consumer complaint. This view has been reiterated by the Hon'ble Supreme Court of India in Civil Appeal No. 5785 of 2019, Ireo Grace Realtech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021. As such, this objection also stands rejected.

Execution of the conveyance deed - whether consumer

38] Even the next objection raised by the opposite parties with regard to the complainant not a consumer as the entire agreement culminated on execution of the conveyance deed long back in 2020, stands rejected in view the law settled by Hon'ble Supreme Court of India in 'DEBASHIS SINHA & ORS. Vs. M/S R.N.R. ENTERPRISE REP. BY ITS PROPRIETOR/CHAIRMAN, KOLKATA & ORS', CIVIL APPEAL NO.3343 OF 2020 decided on 09.02.2023, wherein the Hon'ble Supreme Court held that any deficiency detected post- purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora. Para 11 of the said judgment, being relevant, is extracted hereunder:-

"11. The conduct of the respondents, the NCDRC recorded in the impugned order, was far too casual and on the face of it, the respondents are guilty of "unfair trade practice" within the meaning of section 2(1)(r) of the C.P. Act. After so recording, the NCDRC held that this does little to rescue the complainants. The reason assigned therefor defies logic. We have failed to comprehend as to what the NCDRC meant when it observed that the appellants

"ought to have known what they were purchasing". More often than not, the jurisdiction of the consumer fora under the C.P. Act is invoked post- purchase. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora. The reasoning of the NCDRC is, thus, indefensible.

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Indeed, the appellants had purchased their respective flats on payment of consideration amounts as per market rate and there was due execution and registration of the deeds of conveyance preceded by agreements for sale and these instruments did indicate, inter alia, what formed part of the common facilities/amenities; however, the matter obviously could not have ended there. Whether the appellants had been provided what the respondents had promised did survive for consideration, which does not get reflected in the impugned order."

Consumer or not - more than one flat.

39] As regards the next objection with regard to the complainants not consumers as they have sought to buy two respective housing units/apartments, it may be stated here that the onus is upon the opposite parties to establish that the unit(s) in question were purchased by the complainant(s) to indulge in 'purchase and sale of units' i.e. for earning profits, as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since it failed to discharge its onus, hence, we hold that the complainant(s) are consumers as defined under the Consumer Protection Act, 2019, under which this complaint has been filed. As such, objection taken in this regard stands rejected.

Territorial jurisdiction.

40] Now coming to the objection raised with regard to territorial jurisdiction, it may be stated here that as per Section 47(4)(d) of Consumer Protection Act, 2019, a complaint can be instituted in a State Commission within the limits of whose jurisdiction, the complaint resides or personally works for gain. In the instant case, since the complainant is resident at House No.1481, Sector 42B, Chandigarh-160036, therefore, she has rightly filed the complaint within this Commission. Section 47(4)(d) of Consumer Protection Act, 2019 reads thus:-

"47. Jurisdiction of State Commission.

(1) to (3) xxx

(4) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,-

(a) to (c) xxx

(d) the complainant resides or personally works for gain."

Therefore, it is held that this Commission at Chandigarh has got territorial jurisdiction to entertain and decide this complaint. The objection raise in this regard stands rejected.

Complicated questions of facts.

41] As regards the next objection that the jurisdiction of this Commission is barred in view of alleged complicated disputed questions of facts involved in the present case, it may be stated here that the Hon'ble

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Supreme Court in the case titled 'Dr. J. J. Merchant vs. Shrinath Chaturvedi III (2002) CPJ 8 (SC); and 'C. Venkatachalam v. Ajit Kumar C. Shah', III (2011) CPJ 33 (SC) has specifically held that remedy under the Consumer Protection Act cannot be denied because complicated question was involved. It reads as under:-

"It should be kept in mind that legislature has provided alternative efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on the ground that complicated questions of facts cannot be decided in summary proceedings. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts required to be dealt with or decided. The Act provides sufficient safeguards."

In view of above, this objection raised by the opposite parties also stands rejected.

Whether complaint is time barred?

42] This objection with regard to the complaint being time barred also stands rejected in view of the fact that the opposite parties vide email dated 15.02.2021, Annexure C-58, sent Payment Demand Notice/Invoice dated 21.01.2021 to the complainant raising a demand of Rs.43,84,887/-, which the complainant alleged to be old demand, which he had already paid vide cheque dated 20.12.2020 as reflected in reply to the said email, Annexure C-

59. Thus, there was a continuing cause of action and the complaint filed on 22.07.2022 is well within time. Thus, the objection raised in this regard stands rejected.

Merits of the case.

43] Now coming to the merits of the case, we would like to determine the deficiency in service on the part of the opposite parties by considering the reliefs sought by the complainant in her complaint, one by one.

44] Relief (1), which the complainant has sought, is regarding refund of Preferential Location Charges (PLC) plus GST on the ground that since, it was not mentioned in the advertisement(s) and further repeatedly, the complainant wrote to opposite party No.1 to include the reasons for classifying the apartment as PLC in the Agreement to Sale and Conveyance Deed, which it did not do for ulterior motive. It has been stated that PLC criteria has to be fixed before floating the scheme.

Bare perusal of Agreement to Sale dated 05.12.2020, Annexure C-1 transpires that Term 1.2 of said Agreement to Sale defines total price of the unit, in question, as Rs.91,14,688.63 and the detail of break-up of total price is given in Schedule-B attached with the Agreement. Further, Term 1.4 of the said Agreement stipulates that the complainant was required to make the payment as per the payment plan set out in Schedule C ("Payment Plan"). Now

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coming to these Schedules B and C, clearly, PLC @5% of Basic Selling Price has been mentioned in these schedules. In Schedule B i.e. break up of total sale price, PLC @5% of Basic Selling Price has been mentioned as Rs.4,06,146.30, whereas in Schedule C, which is Payment Plan, PLC (100%) to the tune of Rs.4,06,146.30 is also mentioned therein, payable on the day of offering actual possession. The Agreement to Sale and both these Schedules B and C have duly been signed and accepted by the complainant. Same PLC was charged by Opposite Party No.1 vide letter dated 20.12.2020, which is offer for handing over possession of the apartment. Further, with regard to PLC and disclosure of break-up of the amount, registration certificate etc., Punjab Real Estate Regulatory Authority vide Memo No.RERA/Pb/RTI/2021/1815 dated 04.03.2021, Annexure OP-1/12, under Right to Information Act, 2005, furnished following information to the complainant, inter-alia, as under:-

"1-2) There are no guidelines, rules or instructions issued by this Authority that govern "Preferential Location Apartments" or

"Preferential Location Charge (PLC)". Declaring a particular location within a project as 'preferred location' is not a violation of the Real Estate (Regulation and Development) Act, 2016. In fact, the model 'Agreement for Sale' prescribed in The Punjab State Real Estate (Regulation and Development) Rules, 2017 does provide for levy of PLC.

3) The promoter is required to disclose break up of amounts such as cost of apartment, proportionate cost of common areas, preferential location charges, taxes etc. The Format of 'Agreement for Sale' prescribed in The Punjab State Real Estate (Regulation and Development) Rules, 2017 provides the same. However, the criteria adopted in this regard does not need to be disclosed."

In our concerted view, there was nothing wrong with opposite party No.1 in charging Preferential Local Charges (PLC) from the complainant as opposite party No.1 clearly mentioned the charging of the same in the Agreement to Sale vide Schedules B and C and further, declaring a particular location within a project as 'preferred location' is not a violation of the Real Estate (Regulation and Development) Act, 2016 and the model 'Agreement for Sale' prescribed in The Punjab State Real Estate (Regulation and Development) Rules, 2017 does provide for levy of PLC. Thus, the complainant was liable to pay PLC as agreed upon vide the Agreement to Sale and Schedules appended thereto. Therefore, the relief for refund of PLC sought by the complainant is denied.

45] Coming to the Reliefs sought by the complainant at (2) & (3) qua interest on excess payments made at the time of booking and subsequently, before delivery of possession, it may be stated here that the complainant is not entitled to any interest thereon as the payments were to be made as per the Payment Plan, Schedule C and in case, he chose to pay the amounts in excess to the amounts to be paid as per the payment plan, or may be on the asking of

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opposite party No.1, now at this stage, he cannot claim interest thereupon because, had it been agitated at the time of making the excess payment over and above the Payment Plan, the matter would have been different. Now at this stage, claiming such a relief by the complainant is an afterthought. Therefore, these reliefs also stand denied.

46] As regarding Relief (4) claimed by the complainant qua refund of club charges on the ground that opposite party No.1 could have charged the club charges from only one of the spouse, it may be stated here that opposite party No.1 has charged Rs.1,25,000/- as Club Membership Charges each from both Mrs. Geeta Lal and Sh. Purshottam Lal against their respective units, for which, these two separate complaints are before us. Thus, by doing so, opposite party No.1 has not charged anything extra or double the Club Membership Charges from the complainants being husband and wife. Both the complainants were liable to pay the Club Membership Charges for their respective allotments and they cannot claim such a refund. Thus, the relief claimed qua refund of Club Membership Charges, being not tenable, stands rejected.

47] Since Relief (8) as claimed by the complainant also relates to Club Membership, therefore, we would like to discuss the same hereinafter. Vide this relief, the complainant is seeking refund of Club Membership charges of Rs.1,25,000/- with GST amount of Rs.22,500/- and annual charges of Rs.5,000/- with interest on the ground that since neither the club is fully functional nor any membership card has so far been issued. It is admitted position on record that vide letter dated 28.09.2022, Annexure C-84, Opposite Party No.1 informed the President, Resident Welfare Association (RWA), Wave Garden, Sector 85, SAS Nagar, Mohali that Wave Garden Club house has been made available for the exclusive usage of Residents of Wave Garden and the same shall be applicable with immediate effect i.e. from 28.09.2022. It was further informed that the Club house shall be fully operational during the first week of October 2022. Thus, is it is established that the Club House was not fully functional till October 2022. Opposite Party No.1 has placed on record as Exhibit OP-1/14 the photographs of the club house to contend that now the club house is fully functional and occasionally, ongoing development or addition of newer facilities/renovation goes on at the request of the allottees; the project Wave Estate has a swimming pool, a gym, a badminton court, a tennis court, a skating rink, a kid's area, common room, theatre, billiards, community hall, multiple jogging parks, a fountain etc. It is further contended that as per Clause 34(v) of the Agreement to Sale, the development of the Community Centre/Building (Club) may be done simultaneously with or after the development of the project. Per record, it is established that the club house

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was not ready till the date of execution of conveyance deed i.e. 02.03.2021 and also subsequent thereto up to October 2022. As such, for this deficiency in service, Opposite Party No.1 is held liable to compensate the complainant(s) for harassment and mental agony suffered by them on this count. Compensation in the sum of Rs.75000/- if granted, in each case, shall meet the ends of justice.

48] Further, vide Relief (15), the complainant has sought direction to Opposite Party No.1 to allow the tenant, if any, to use club facility during the period of tenancy without any additional payment. In this regard, it may be stated here that club membership is onetime payment, which the complainant had already paid. Once the club membership is already paid, whether it is the owner or the tenant, residing in the unit in question can use the club facilities. Thus, Opposite Party No.1 cannot deny a tenant residing in an apartment in its project from using club facility. This relief is granted in favour of the complainant.

49] The next Relief which the complainant has claimed at (5) & (6) is with regard to mentioning of Car Parking dimensions in the Conveyance Deed and get the amended Conveyance Deed registered with Sub-Registrar at own cost and further, direct opposite party No.1 to give full ownership rights of car park as the Conveyance Deed has given only usable rights of car park and not ownership rights. The plea of Opposite Party No.1 is that the complainant cannot be given the desired relief in view of the law laid down by Hon'ble Supreme Court of India in General Assurance Society Ltd. v. Chandumull Jain, AIR 1966 SC 1644, wherein the Hon'ble Supreme Court held that it is not for the Court to make a new contract, however, reasonable, if the parties have not made it themselves. It is further pleaded that the complainant has full rights over the apartment and by extension, the allotted parking space as well. It is further pleaded that as per Clause 5 of the Conveyance Deed, the exclusive rights shall be given to the complainant, and that the same shall be treated as an integral part of the apartment and shall not have an independent legal entity detached from the said apartment. Perusal of Clause 1.9 of the Conveyance Deed reveals that both the Promoter and the allottee (complainant) agreed that the apartment alongwith garage/closed parking/covered parking in basement/stilts shall be treated as a single indivisible unit for all purposes. Further as per Clause 5, the usable rights of one covered car parking have been earmarked for the apartment in the parking bay of the vendee, which is available inside the project and the vendees further agreed that the car parking shall always be treated as integral part of the apartment and the same shall not have independent legal entity detached from the said apartment. In our considered view, the complainant has complete rights over the usage of the car

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parking. Therefore, the complainant is not entitled to these reliefs and the same stand declined.

50] Relief (13) as claimed by the complainant also relates to car parking wherein the complainant has sought cancellation of allotment against payment/sale of car park in open common area on the ground that Opposite Party No.1 is allotting car parks in open common area, which it cannot do. In this regard, it may be stated here that we do not find any violation on part of Opposite Party No.1 as the car parks have only been allotted or reserved in areas that were maked as car parks as per the layout plan and no car parks are being allotted or reserved in areas that are common open areas. The complainant has also failed to prove this allegation of her. Therefore, this relief is rejected.

51] The complainant at Relief (7) has sought direction to impose penalty upon opposite party No.1 and award of compensation for selling the apartment without obtaining completion certificate. It may be stated here that a completion certification is a mandatory legal document attesting that a new building has been constructed and completed according to all the safety norms and regulations. Perusal of record transpires that opposite party No.1 has placed on record both Partial Completion Certificate and Occupancy Certificate as Annexures OP-1/9 and OP-1/10 respectively. Opposite Party No.2 has also placed on record these certificates alongwith its reply as Exhibits OP-2/7 & OP-2/6 respectively. Application for allotment, Annexure OP-1/1, was submitted by the complainant on 23.10.2020. Allotment of the apartment No.203, 2^ndFloor, Tower-D was made in favour of the complainant on 07.12.2020 vide letter, Annexure OP-1/2. Annexure OP-1/9 is the Partial Completion Certificate issued by Greater Mohali Area Development Authority (GMADA) to Opposite Party No.1 on 05.03.2020 and Annexure OP-1/10 is the Permission for Occupancy or Use of the Group Housing Towers including Tower-D wherein the complainant was allotted the apartment in question, issued by GMADA on 19.03.2020. Thus, Opposite Party No.1 had already obtained these certificates before submitting the application by the complainant or say before allotment of the apartment in question to her. The argument raised by the complainant that the apartment was sold to her without obtaining completion certificate is bereft of any merit and stands rejected.

52] The complainant at Relief (9) is seeking refund of excess price charged by Opposite Party No.1 on the ground that Opposite Party No.1 had charged much less price from various buyers during contemporary period for apartments similar to that of the complainant having super area of 1990 sq. feet, which is unfair trade practice. This relief is denied to the complainant

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being an afterthought and for the simple reason that nothing has been placed on record to establish this claim of her.

53] Relief (10) sought by the complainant to issue direction to Opposite Party No.1 to disclose the formula for connection between common area and built up area, stands denied, being not tenable. Furthermore, the said area is clearly mentioned in the Agreement to Sale and was checked and agreed to by the complainant.

54] Further at Relief (11), the complainant has sought suitable action against Opposite Party No.1 alleging that Wave Garden project is not being registered with Punjab Real Estate Regulatory Authority, whereas, it is admitted position on record that the project of Opposite Party No.1 is duly registered under Real Estate Regulatory Authority vide Certificate of Project Registration bearing Number "PBRERA-SAS81-PR0154", issued on 23.09.2019, Exhibit OP-1/17. Thus, this relief, being based on vague averments, stands denied.

55] As regards claiming interest on Interest Free Maintenance Security vide Relief (12), it may be stated here that the complainant is not entitled to such a relief being not tenable in the eyes of law.

56] So far as the relief claimed at (14) for not disclosing connection inter se the opposite parties, (16) seeking direction to Opposite Party No.2 to stop charging Diesel Generator Set Rental etc. from the electricity bills of September 2021 onwards, (17) for correction in Possession Certificate & specially (18) with regard to amendment in/cancellation of certain documents like Declaration, Annexure C-4, Indemnity Bond cum Undertaking, Annexure C-5, Maintenance and Services Agreement, Annexure C-6, Conveyance Deed dated 02.03.2021, Annexure C-10 are concerned, these reliefs being not tenable or justifiable, stands rejected.

57] In view of above observations, the complainant, namely, Sh. Purshottam Lal, in Consumer Complaint No.61 of 2022, is also entitled to same relief as has been awarded in complaint No.60 of 2022 in Para 47 above. Rest of the reliefs sought by him stands rejected in view of above observations.

58] For the reasons recorded above, both the complaints bearing No.60 of 2022 & 61 of 2022 are partly allowed with costs in the following manner against Opposite Party No.1 only:-

Consumer Complaint No.60 of 2022

In this case, Opposite Party No.1 is directed as under:-

(i) to pay an amount of Rs.75,000/- to the complainant (Mrs. Geeta Lal) for deficiency in service and for causing harassment and mental agony on account of non- functionality of club house till October 2020, within a period

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of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual payment.

(ii) to pay an amount of Rs.25,000/- to the complainant as litigation costs, within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual payment.

Consumer Complaint No.61 of 2022

In this case, Opposite Party No.1 is directed as under:-

(i) to pay an amount of Rs.75,000/- to the complainant (Sh. Purshottam Lal) for deficiency in service and for causing harassment and mental agony on account of non- functionality of club house till October 2020, within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual payment.

(ii) to pay an amount of Rs.25,000/- to the complainant as litigation costs, within a period of 30 days from the date of receipt of certified copy of this order, failing which, the said amount shall carry interest @9% per annum from the date of passing of this order till actual payment.

59] However, both the complaints against Opposite Party No.2 - Dilbird Realhome Private Limited are dismissed with no orders as to costs.

60] Copy of this order be placed in the file of Consumer Complaint No.61 of 2022.

61] Certified copies of this order be sent to the parties free of charge.

62] File be consigned to Record Room after completion. Pronounced

09.03.2023.

(RAJ SHEKHAR ATTRI)

PRESIDENT

(RAJESH K. ARYA)

MEMBER

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STATE COMMISSION

(Complaint No.60 of 2022) Present:-

Sh. Shiv Kumar, Advocate for the complainant. Sh. Tejeshwar Singh, Advocate along-with Ms. Surabhi Grover, Advocate & Sh. Mohit Uppal, Advocate for the opposite parties.

Dated: 09.03.2023.

ORDER

Vide our detailed order of even date, recorded separately, both the complaints bearing No.60 of 2022 & 61 of 2022 have been partly allowed with costs against Opposite Party No.1 only. However, against Opposite Party No.2 - Dilbird Realhome Private Limited, the complaints have been dismissed with no orders as to costs.

(RAJESH K. ARYA) (RAJ SHEKHAR ATTRI)

MEMBER PRESIDENT

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