w w w . L a w y e r S e r v i c e s . i n



Bimal Jain & Others v/s M/s. Manohar Infrastructure And Construction (P) Ltd. & Others

    Complaint Case No. 269 of 2019

    Decided On, 19 April 2021

    At, Union Territory Consumer Disputes Redressal Commission UT Chandigarh

    By, THE HONOURABLE MR. JUSTICE RAJ SHEKHAR ATTRI
    By, PRESIDENT
    By, THE HONOURABLE MRS. PADMA PANDEY
    By, MEMBER & THE HONOURABLE MR. RAJESH K. ARYA
    By, MEMBER

    For the Appellants: T.S. Khaira, Advocate. For the Respondents: Anil Mehta, Advocate.



Judgment Text

Raj Shekhar Attri, President

The complainants have filed this complaint seeking directions to the opposite parties either to deliver actual physical possession of the plot bearing no. 1202, measuring 250 square yards located in their project named 'The Palm', Mullanpur District SAS Nagar, Mohali, Punjab, against which they had paid substantial amount of Rs.41,97,650/- for the period starting from 21.03.2011 to 13.08.2016; alongwith compensation for the period of delay or in the alternative to refund the amount paid alongwith interest, compensation etc. It is the case of the complainants that deficiency in rendering service and adoption of unfair trade practice on the part of the opposite parties is writ large because despite the fact that plot had been booked as far as back on 21.03.2011, yet, neither agreement was executed nor possession thereof was delivered within a reasonable period from the date of booking. During the period intervening, the opposite parties reduced the plot size to 250 square yards from 300 square yards and its total sale consideration stood fixed at Rs.45 lacs. Ultimately, on much persuasion agreement, Annexure C-5 in respect of plot no. 1202, measuring 250 square yards, was executed after an inordinate delay on 11.04.2016, yet, possession thereof has also not been offered for dearth of basic amenities. Even illegal charges towards EDC and IDC were also demanded by the opposite parties. Since the complainants found that there were no development activities at the project site and also possession of the plot has not been offered as such they did not pay the remaining amount to the opposite parties. Hence this complaint.

1. Their claim has been contested by the opposite parties on numerous grounds, inter alia, that the complainants have concealed material facts from this Commission; that they being speculators did not fall within the definition of consumer; that this Commission did not vest with territorial jurisdiction to entertain this complaint; that after booking of a plot measuring 300 square yards on 21.03.2011, the complainants vide letter dated 17.12.2014, Annexure O-1 requested for relocation to a plot measuring 250 square yard which was accepted vide application dated 10.02.2015, Annexure C-4; that as per terms and conditions of the agreement dated 11.04.2016, possession of plot bearing no.1202 was to be offered within a period of 36 months plus 6 months grace period i.e. on or before 10.10.2019 and the same was offered on 21.10.2019 after completing all the basic amenities; that the complainants failed to come forward to take over possession of the said plot after making balance payment as such they are defaulters; that notices followed by reminders were sent in the matter but they did not bother; that delivery of possession of the plot in question was subject to making timely payments by the complainants; that the date of allotment is to be taken as 11.04.2016 i.e. the date when agreement was executed between the parties and not 21.03.2011; that remaining facilities like club house, sewerage treatment plant (STP) is under construction and the same would be provided in due course of time; that the complainants are bound to pay IDC and EDC as per terms and conditions of the application and agreement; that the complainants may come for taking over possession on making payment of remaining amount; that in case refund is ordered forfeiture clause will be made applicable to this case as per terms and conditions of the agreement; that claim of the complainants seeking higher rate of interest on the deposited amount is totally unjustified.

Rather, it should be as specified under Section 19 of the RERA i.e. MCLR + 2% interest or @6% p.a.; that the complaint filed is barred by limitation

2. On merits, it has been stated that the project was approved on 22.03.2013 and the formal agreement was signed with the Government of Punjab on 14.06.2013; that thereafter some more land was added to the project, for which completion period was given upto 13.06.2018, vide supplementary agreement dated 16.06.2016 executed with the Government; that later on exemption from the applicability of provisions of the Punjab Apartment and Property Regulation Act, 1995, (PAPR Act) stood granted by the Government on 25.01.2017 and as such all the irregularities committed by the company stood compounded, as exemption granted will have retrospective effect; that delay if any in issuance of the said notification on 25.01.2017 was procedural and it will relate back from the day when the project in question had been launched by the opposite parties; that once the State Government has not held that the opposite parties had violated the provisions of PAPR Act, as such, this Commission cannot go into the said question; that Section 35 of PAPR Act bars the jurisdiction of this Commission to entertain the complaint arising out of the project in question; that the project has been got registered under RERA on 25.09.2017; that in order to facilitate the completion of project, the State Government has further extended period upto 31.12.2022, vide notification dated 30.01.2020; and that the opposite parties have obtained all permissions/approvals in respect of the project in question

3. However, ironically, it has been claimed in the reply that the opposite parties are trying to complete the project, as early as possible i.e. within the extended period, as the development work is going on in full swing and work with regard to provision of basic amenities such as sewerage, water, electricity etc. is near completion and that one wing of flats has already been delivered to the customers. While applying the theory of force majeure circumstances ( which means irresistible circumstances beyond ones control such like act of God), it has been alleged that delay in delivery of possession of plots occurred, also on account of shortage of building material and ban on mining by the Government concerned; Govt. Departments delayed in issuance of approvals/sanctions; that due to COVID-19 also the development at the project was hampered as there was slowdown in the real estate and the Govt. and Banks have come forward to help the builders/developers.

4. On merits, fact with regard to purchase of plot by the complainants; payment made by them as mentioned in the complaint and that agreement was not executed before 2016 despite the fact that booking of the plot was made in the year 2011 has not been disputed by the opposite parties. Remaining averments of the complaint have been denied.

5. The parties led evidence in support of their case.

6. We have heard the contesting parties and have gone through the record of the case, including the written arguments filed by them, very carefully.

7. First we will deal with the objection taken by the opposite parties to the effect that the complainants did not fall within the definition of 'consumer', it may be stated here that the objection raised is not supported by any documentary evidence and as such the onus shifts to the opposite parties to establish that the complainants have purchased the plot in question to indulge in 'purchase and sale of plots' as was held by the Hon'ble National Commission in Kavit Ahuja vs. Shipra Estates I (2016) CPJ 31 but since they failed to discharge their onus, hence we hold that the complainants are consumers as defined under the Act. In this view of the matter, objection taken in this regard stands rejected.

8. As far as objection taken with regard to territorial jurisdiction of this Commission is concerned, it may be stated here that perusal of application form dated 21.03.2011, Annexure C-1 reveals that the same was received by the opposite parties at their Chandigarh Office i.e. SCO No. 139-141, Sector 17-C, Chandigarh. Alongwith the said application, the amount of Rs. 16,20,000/- has also been shown to be received by the opposite parties at the said Chandigarh Office. Furthermore, even the payment receipt dated 12.02.2015 in the sum of Rs.15,75,000/- has also been issued by the opposite parties from the said Chandigarh Office. Even the agreement dated 11.04.2016, Annexure C-5 also reveals that the same has been made at Chandigarh, meaning thereby that the opposite parties were actually and voluntarily residing and carrying on their business, at the said Chandigarh Office for gain. Not only as above, the said fact is further fortified when we perused the information dated 01.10.2020 (at page 91 of the paper book) placed on record by Counsel for the opposite parties, wherein the address of the Company has been mentioned as SCO No. 139-141, Sector 17-C, Chandigarh-160017 only. Thus, this Commission at Chandigarh has territorial jurisdiction to entertain this complaint. Objection taken by the opposite parties in this regard stands rejected.

9. There is no dispute with regard to the fact that vide application dated 21.03.2011, the complainants had booked a plot in the said project on making payment of Rs.16,20,000/-which was equal to 30% of the total sale consideration of Rs.54,00,000/- yet, neither agreement was executed between the parties for a long time nor possession thereof was offered and delivered within a reasonable period of two to three years from the date of booking. It is significant to mention here that once the opposite parties, in the first instance, had already received substantial amount which was equal to 30% of the total sale consideration from the complainants, it was required of them to execute agreement under law within a reasonable period say two to three months; raise demands in accordance with the stage of development at the project site; complete the development work; obtain completion certificate from the competent authorities; and then deliver possession of the plot to the complainants. However, instead of doing that, it is evident from the record that the opposite parties were interested only in raising demands from the complainants. Thus, the act of raising demands and receiving substantial amount, without executing the agreement and also in the absence of development work at the project site; was not only unfair but illegal, which act also contravenes Section 6 (1) of the PAPR Act, which lays a duty on the opposite parties to execute the agreement for sale as per law, after obtaining the maximum sale consideration of 25%. It is apposite here to reproduce the said provision: -

"6. Contents of agreement of sale:- (1) Notwithstanding anything contained in any other law for the time being in force, a promoter who intends to construct or constructs a building of apartments, all or some of which are to be taken or are taken on ownership basis, or who intends to offer for sale plots in a colony, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty five per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such apartments, or plots, as the case may be, and the agreement shall be in the prescribed form together with prescribed documents and shall be registered under the Registration Act, 1908 (Central Act No. 16 of 1906) ;

Provided that, if only a refundable application fee is collected from the applicant before draw of lots for allotment, such agreement will be required only after such draw of lots.

(2) xxxxxxxxxxxxxxxx.................

(3) xxxxxxxxxxxxxxxxx.................."

1. The opposite parties were legally bound under law to execute the agreement and to get the same registered under the Registration Act 1908, after obtaining 25% of the sale consideration, but in this case, the said provision has been violated. The opposite parties also cannot take shelter under the exemption certificate from the provisions of PAPR Act, which was issued in their favour only on 25.01.2017 i.e. much after booking of the plot in question. It has no where been proved that the said exemption will have retrospective effect but in our considered opinion, it will have prospective effect only. The opposite parties were deficient in providing service and adopted unfair trade practice on this count.

2. Furthermore, to defend the objection raised by Counsel for the complainants to the effect that at the time of booking of the plot and collecting money from the complainants the opposite parties were not having requisite licences, approvals and permissions from the competent authorities, it has been stated by the opposite parties, through their Counsel, that it would not make any difference regarding the title of plot, if the project was approved later on, as all the irregularities stood compounded when notification exempting the provisions of PAPR Act was issued in favour of the company on 25.01.2017. We do not agree with the said assertion.

In the first instance, the candid admission of the opposite parties to the effect that if the State Govt. has not taken any action against the violation of terms and conditions of PAPR Act, and as such it has not caused any prejudice to the complainants in relation to the said violation, is sufficient to prove the case of the complainants. Further admission of the opposite parties in para no.20 of the preliminary objections to the effect that the project was got approved only on 22.03.2013, leaves no doubt with the Commission to believe that that, in 2011, money has been collected from the complainants and other prospective buyers, with animus of cheating and fraud, by launching the project and selling units/plots therein by violating the terms and conditions of PAPR Act, which act cannot be cured by obtaining the exemption from the provisions of PAPR Act, at the subsequent stage. It is settled law that a builder cannot take advantage of the situation by simply saying that the statutory approvals had not been obtained from the Government Authorities or that the same had been delayed by the competent Authorities. The builder is duty bound to ensure that before accepting the amount of booking, necessary permission/sanctions have been granted for launching the project and selling the units/plots therein. It was so said by the Hon'ble National Commission in Omaxe Limited and anr. Vs. Dr. Ambuj Chaudhary, First Appeal No. 300 of 2012, decided on 13.02.2017.

1. There is another valid reason with this Commission to hold that the money has been collected from the complainants and other prospective buyers, with animus of cheating and fraud, which act cannot be cured by obtaining the exemption dated 25.01.2017 from the provisions of PAPR Act, at the subsequent stage. Recently, in Puja Garg Vs M/s Manohar Infrastructure & Constructions Pvt. Ltd., CC No. 278 of 2019 , decided by this Commission on 31.03.2021, it has come to our knowledge when we went through the documentary evidence therein, that despite the fact that as per condition no. v) of the Letter of Intent (LOI) dated 03.05.2013 granted in favour of the opposite parties in respect of the project in question, they were directed not to advertise/launch it and not to collect money from general public for allotment of land, plot etc. without the approval of layout and zoning plans and also exemption under section 44 of PAPR Act is issued by the State Govt. yet, they violated the same and launched the project and starting selling the plots therein, starting from February 2011, when they were not even the owners of the land underneath the said project. Under those circumstances, they were held liable for adopting unfair trade practice on this count. Relevant contents of Puja Garg's case (supra) are reproduced hereunder :

"........The another valid reason with this Commission to hold that the money has been collected from the complainant and other prospective buyers, with animus of cheating and fraud, which act cannot be cured by obtaining the exemption dated 25.01.2017 from the provisions of PAPR Act, at the subsequent stage, is the contents of Letter of Intent (LOI) dated 03.05.2013 which was granted in favour of the opposite parties in respect of the project in question. In condition no. v) of the said LOI it has been in a very candid manner stated that the project shall not be advertised/launched and money could not be collected from general public for allotment of land, plot etc. without the approval of layout and zoning plans and also exemption under section 44 of PAPR Act is issued by the State Govt. Relevant part of the said condition of LOI is reproduced hereunder:

"v. .... The project shall not be Advertised/launched and no money will be collected from general Public for allotment of land/plot/flat/any space till such time the layout plans/Zoning plans are approved by the Competent Authority and exemption u/s 44 of PAPR Act 1995 is issued by the State Govt.."..

It is further evident from the contents of said LOI that application for setting up the residential project was moved by the opposite parties before the competent Authority, for the first time on 16.09.2011 and project was approved only on 22.03.2013. It is also evident from information dated 23.05.2016 supplied by Chief Town Planner, Punjab, that Change of Land Use was approved for the first time on 31.03.2014 and layout plan was approved only on 06.10.2015. It is also evident from the contents of notification dated 25.01.2017aforesaid that thereafter also, the opposite parties got the layout plans revised on 21.10.2015. Thus, in the present case, despite the fact that vide condition no. v) of LOI aforesaid, it has been in a very candid manner stated that the project shall not be advertised/launched and money could not be collected from general public for allotment of land, plot etc. without the approval of layout and zoning plans, ( which in the present case has been approved only on 21.10.2015) and also exemption under section 44 of PAPR Act is issued by the State Govt. ( which in the present case has been issued only on 25.01.2017), yet, the opposite parties violated the same and launched the project and starting selling the plots therein, starting from February 2011, when they were not even the owners of the land underneath the said project. It is therefore held that by launching and selling the project before 25.01.2017, i.e. the date when the said exemption was granted to the opposite parties from the provisions of PAPR Act, they indulged into unfair trade practice and the said practice needs to be deprecated.... "

In the present case also, the opposite parties have repeated the said violations. However, surprisingly, the Government of Punjab, Department of Housing and Urban Development (Housing II Branch) i.e. the competent Authority was well aware of the fact that the project has been launched and plots/units have been sold to the general public starting from the year 2011 itself, without necessary approvals/permissions and huge money has been collected and usurped by the opposite parties from the innocent buyers, yet, it did not hear the aggrieved consumers before granting exemption to the project on 25.01.2017 from the provisions of PAPR Act. As such, the said act of the competent authority is against the principles of natural justice; fair play and not binding on the complainant and other prospective buyers. If the competent Authorities failed to take any action under relevant Rules and Regulations against the company, no benefit can be taken out there-from by the opposite parties, in this complaint filed by the complainants under Consumer Protection Act, filed for deficiency in providing service, negligence and adoption of unfair trade practice on the part of the opposite parties.

1. To wriggle out of the situation, it has been contended by Counsel for the opposite parties that the complainants were relocated to a plot measuring 250 square yards, only upon the request made by them letter dated 17.12.2014, Annexure O-1 as such, they became entitled for allotment of plot only on 10.02.2015, when application Annexure C-4 for plot measuring 250 square yards was got filled from them. It was further contended that period of possession if any has to be reckoned from the date 11.04.2016 i.e. when the agreement was executed between the parties and not before that. We do not agree with the contentions raised for the reasons reordered hereinafter.

In the first instance, it has not been clarified by the opposite parties, as to why, when the booking of a plot measuring 300 square yards had been done by them in the year 2011 against which they had received substantial amount, yet, they failed to execute agreement and deliver possession thereof within a reasonable period say two to three years i.e. latest by 20.03.2014. Under these circumstances, if the complainants sought relocation to a plot measuring 250 square yards with a hope to get early possession, will not attract any adverse inference against them. On the other hand, the opposite parties were deficient in providing service and adopted unfair trade practice on this count because the amount paid by the complainants was utilized by them for a long time without providing them anything. As such, in the facts and circumstances of this case, since the complainants were relocated to plot measuring 250 square yards on 10.02.2015 and at the same time plot measuring 300 square yards stood cancelled, as such, in our considered opinion, if interest is awarded on the amount retained by the opposite parties for the entire period against a plot measuring 300 square yards till 10.02.2015, that will meet the ends of justice.

1. Now coming to the possession so allegedly offered by the opposite parties in respect of plot in question vide letter dated 21.10.2019, it may be stated here that we did not find any such letter on record. At the same time, the complainants have vehemently contended that possession of the plot measuring 250 square yards has not been offered and delivered to them. In the absence of any documentary evidence with regard to offer of possession of the plot in question, bald assertion in that regard has no value in the eyes of law. It is therefore held that possession of the plot in question has not been offered and delivered to the complainants by the opposite parties till the date when this complaint has been filed or even thereafter.

2. Now the next question that falls for consideration is as to whether the opposite parties are still ready to deliver possession of the plot shortly or not. It may be stated here that it is well settled law that onus to prove the stage and status of infrastructure and development work at the project site and that all the permissions/certificates/approvals have been obtained in respect of the project in question, is on the builder/developer. It was so said by the National Commission, in Emaar MGF Land Limited and another Vs. Krishan Chander Chandna, First Appeal No.873 of 2013 decided on 29.09.2014 .

However, in the present case, there is a strong reason with this Commission to believe that opposite parties are still not ready with the possession of the plot in question and the said reason is the candid admission of the opposite parties in their written reply in para no.6 that club house and sewerage treatment plant is still under construction and will be completed in due course of time. Not only as above, it has further been admitted by the opposite parties in para no. 13 that the landscaping, electricity lines, internal roads, street lighting, open green spaces, sewerages and other development works are near completion. This reply has been filed by the opposite parties on 05.10.2020 and in this reply itself, the opposite parties are still saying that landscaping, electricity lines, internal roads, street lighting, sewerage, open green spaces, sewerages and other development works at the project site are near completion. This candid admission of the opposite parties itself leaves no scope for them to say that they are ready for delivery of possession of the plot. The case of the complainants is proved from the admission made by the opposite parties themselves. Even otherwise, as stated above, in case, the development/ construction activities were completed, when possession of the said plot was allegedly offered to the complainants, then it was for the opposite parties, which could be said to be in possession of the best evidence, to produce cogent and convincing documentary evidence, in the shape of the reports and affidavits of the Engineers/Architects, as they could be said to be the best persons, to testify, as to whether, all these development/construction activities, had been undertaken and completed at the site or not, but they failed to do so. Mere placing on record some photographs (most of which pertain to the flats), perusal of which too reveal that still a lot of work is pending to be done at the project site, no other cogent and convincing evidence has been placed on record, to prove that the development is at the advance stage and that basic amenities such as roads, electricity, sewerage etc. are near completion, as alleged in the reply. Infact contrary stands have been taken by the opposite parties in their reply. In para no. 13 referred to above, it has been stated that the development work is near completion, whereas in para no. 12 it has been stated that initially the State Government has granted completion of project ill 13.06.2018, which has been extended till 13.06.2020. Again in para no. 17 it has been stated that as per notification dated 30.01.2020 issued by the Govt. of Punjab, the period of completion of the project has been extended upto 31.12.2022.

1. In this view of the matter, the opposite parties also cannot wriggle out of their liability, by saying that delay took place on account of the reason that the complainants defaulted in making remaining payment, in view of principle of law laid down by the Hon'ble Supreme Court of India in Haryana Urban Development Authority Vs. Mrs. Raj Mehta, Appeal (Civil) 5882 of 2002, decided on 24.09.2004 , wherein it was held that if the builder is at fault in not delivering possession of the units/plots by the stipulated date or within a reasonable period where no agreement is executed, it cannot expect the allottee (s) to go on paying installments to it. Similar view had also been taken by the Hon'ble National Commission, in Prasad Homes Private Limited Vs. E.Mahender Reddy and Ors., 1 (2009) CPJ 136 (NC), wherein it was held that when development work was not carried out at the site, the payment of further installments was rightly stopped by the purchaser. Thus, in the present case also, if the complainants did not make remaining payment or withheld some part of payment for a short duration, when they came to know that the project has been launched without obtaining necessary approvals/sanctions from the competent Authorities; there was no development at the project site and also there was gross violation on the part of the opposite parties, of the provisions of Section 6 of PAPR Act, in not getting the agreement executed within a reasonable period of receiving amount equal to 25% of the total sale consideration, they were right in doing so, in view of principle of law laid down by the Hon'ble Supreme Court in Haryana Urban Development Authority (supra).

2. To wriggle out of the allegations leveled by the complainants, the opposite parties have stated that delay in completing the project occurred on account of force majeure circumstances having been faced by the company i.e. due to COVID-19 the project was hampered; ban on mining by the state Govt. resulting into shortage of building material; delay in approvals by the Govt. concerned; and recession in the real estate market.

First coming to delay in approvals on the part of the Govt. Departments, it may be stated here that not even a single letter has been placed on record by the opposite parties showing that they ever reported the Govt. Authorities concerned that there is a delay on their part in granting such sanctions/approvals in respect of the project in question or that any such letter, by which they have given notice to the said Authorities that in case the needful is not done in a prescribed time, the Company shall move to the appropriate platform of law, in the matter.

Now coming to the plea regarding shortage of construction material like sand etc. it may be stated here that nothing has been placed on record by the opposite parties to prove that they were unable to procure the said construction material, in adequate quantity, on account of the alleged litigation. There is no evidence of the opposite parties having invited tenders for supply of construction material and there being no response to such tenders. A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the plots/units was taken by a builder before the Honble National Commission in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints), decided on 14 Aug 2015 , which was rejected and the complaint was allowed in favour of the complainant.

As far as plea taken with regard to COVID-19 is concerned, it may be stated here that the said pandemic took place in India in March 2020, when lockdown was executed. However, lockdown which took place in March 2020 due to COVID-19, has no relation whatsoever, with the inordinate delay in the matter, as the plot had been purchased by the complainants as far as back in 2011. In this view of the matter, no help therefore can be drawn by the opposite parties, in this regard. Thus, in the present case, the opposite parties failed to convince this Commission, that they actually encountered force majeure circumstances ( which means irresistible circumstances beyond ones control such like act of God etc.) as a result whereof, delay in handing over possession of the plot occurred. Plea taken by the opposite parties, in this regard, therefore stands rejected.

1. Now coming to the objection taken by Counsel for the opposite parties to the effect that in the face of registration of the project under the RERA in the year 2017 or Section 35 of the PAPR Act, jurisdiction of this Commission is barred to entertain this complaint arising out in respect of the plot in question. First coming to objection that this Commission is not competent to entertain this complaint as the project has been registered under RERA, 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 Consumer For as 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 Real tech Pvt. Ltd. Versus Abhishek Khanna & Others, decided on 11.01.2021 .

Now coming to the objection raised to the effect that in the face of provisions of Section 35 of the PAPR Act, this Commission is not competent to entertain this complaint, it may be stated here that in the present case, the opposite parties were legally bound to allot plot no., execute agreement within a reasonable period from the date of booking and then deliver possession of the plot in question to the complainants and the nature of such transactions is covered by the expression 'service'. Our this view is supported by the principle of law laid down in Narne Construction P. Ltd., etc. etc. Vs. Union of India and Ors. Etc., (supra) II (2012) CPJ 4 (SC) and Haryana Agricultural Marketing Board cases (supra). Furthermore, it is an undisputed fact that the opposite parties neither allotted plot no.; nor executed buyers agreement; nor delivered possession of the plot purchased by the complainant within a reasonable period of three years aforesaid, starting from 2011. There has been violation of terms and conditions of the agreement dated 11.04.2016 also, as the opposite parties failed to deliver possession of relocated plot no.1202, measuring 250 square yards within a period of 42 months from the date of allotment thereof, as per clause 35 of the agreement i.e. from 10.02.2015 which date comes to 09.08.2018. Since, no cogent and convincing reason has been given for the same, as such, it can very well be said that there is a denial of service to the complainants on the part of the opposite parties, for which they were at liberty to avail remedy by way of filing this consumer complaint.

In view of above findings, we can safely say that the provisions of the RERA and PAPR Act will not debar the jurisdiction of this Commission in entertaining the complaints filed by a consumer alleging deficiency in providing service, negligence and adoption of unfair trade practice, on the part of the builder/developer. Since, this complaint involves the consumer dispute and the same is maintainable before this Commission, as such, objection taken in this regard by the opposite parties stands rejected.

1. Now the question arises, as to what compensation shall be granted to the complainants, for delay in delivery of possession of the plot to them and for what period? No doubt, the complainants have sought consolidated compensation to the tune of Rs.5 lacs, over and above the compensation amount as mentioned in Clause 35 of the agreement, alongwith other reliefs, yet, we are of the considered opinion that they are liable to get compensation, similar to what is being granted to the similar located consumers. The Consumer Protection Act has been made to safeguard consumer rights. This Act is regarded as the 'Magna carta' (everyone is subject to the law, even the king, and guarantees the rights of individuals, the right to justice and the right to a fair trial) in the field of consumer protection for checking unfair trade practices, 'defects in goods' and 'deficiencies in services' and it works and protects consumers even in situations where they do not know their rights. At the same time, it is relevant to mention here that, in the absence of a specific prayer, it is still open to the Courts/For as/Tribunals to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case. Our this view is supported by the findings given by the Hon'ble National Commission in BPTP Ltd. Vs. Pradeep Sharma, First Appeal No. 1516 of 2019 decided on 23 Dec 2019. Relevant part of the said order is reproduced hereunder:-

"...... With regard to the objection of the Developer that the Complainants are not entitled for the relief other than prayed for in the Complaint, the Hon'ble Supreme Court as well as this Commission in catena of judgments has laid down the principal that in the absence of a specific prayer, it is still open to the Courts to grant a relief which is appropriate, justified and warranted in the facts and circumstances of the case......"

1. As per Clause 35 of the agreement dated 11.04.2016, the opposite parties committed to offer possession within a period of 36 months with grace period of 6 months i.e. total 42 months from the date of allotment of the said plot, failing which, they were liable to pay compensation @Rs.40/- per square meter per month of area of the said plot, for delay in delivery of possession. At the same time, record reveals that the application form in respect of the relocated plot measuring 250 square yards was got signed from the complainants on 10.02.2015 and by that time they had already receipt substantial amount i.e. Rs.29,25,000/-which was equal to more than 55% of the total sale consideration of Rs.54 lacs. Thus, under these circumstances, allotment of plot in question has to be reckoned from 10.02.2015 only. As such, as per clause 35 of the agreement, the opposite parties were liable to deliver actual physical possession of the plot no.1202 measuring 250 square yards latest by 09.08.2018 i.e. 42 months (36 months plus 6 months grace period from 10.02.2015).

2. Now the next question that falls for consideration is, as to what amount of compensation should be granted to the complainants, for the period of delay in delivery of possession, starting from 09.08.2018. It may be stated here that failure of the opposite parties to provide complete/effective possession of the plot within the stipulated period amounts to deficiency in service. It is also matter of common parlance that for purchasing the plot, the purchasers take loans from their family members, relatives and friends or financial institutions. In some cases, the purchasers live on rent in the absence of timely delivery of possession. On account of delay in actual delivery of possession within the stipulated period (in the present case by 09.08.2018), they suffer mental agony, hardship and financial loss at the hands of the developers/builders. In the case titled as Lucknow Development Authority v. MK Gupta (1994) 1 SCC 243, the Hon'ble Supreme Court discussed about the extent of the jurisdiction of the Consumer For a to award just and reasonable compensation for the harassment and agony suffered by a consumer. Recently in Civil Appeal No.6239 of 2019 (Wg. Cdr. Arifur Rahman Khan and Aleya Sultana and Ors. v. DLF Southern Homes Pvt. Ltd. (now Known as BEGUR OMR Homes Pvt. Ltd. and Ors.) decided on 24.08.2020 , while discussing the above authorities and discarding the one-sided terms of the Buyer's Agreements, the Hon'ble Supreme Court awarded simple interest @ 6% per annum on the amount deposited by the complainant therein, in addition to the penalty amount, as prescribed in the agreement for delay in delivery of possession till delivery of actual and physical possession of the unit. In view of the observations of the Hon'ble Supreme Court in the above noted case, we are of the view that the provision of penalty @Rs.40/- per square meter per month of area of the said plot as per Clause 35 of the agreement, which comes around between 2% to 2.5% p.a. only, is not sufficient to compensate the complainants for the delay in delivery of possession and the mental agony, harassment and financial loss suffered by them on acco

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unt of this reason. Therefore, in addition to aforesaid penalty @Rs.40/- per square meter per month of area of the said plot, after the expiry of stipulated date of delivery of possession i.e. 09.08.2018 till the date of actual, physical and legal delivery of possession, the complainants are also entitled to simple interest on the entire amount deposited by them @ 6% per annum from 09.08.2018 till delivery of possession of the plot in the manner, as discussed above. 3. As far as payment of EDC and IDC is concerned, it may be stated here that since the complainants vide application dated 10.02.2015, have agreed to pay the said charges, as such, now they cannot wriggle out of the same and are liable to pay the same to the opposite parties. As such, plea taken by the complainants in this regard stand rejected. 4. Since, it is an admitted fact that actual physical possession of plot in question, complete in all respects, has not been delivered to the complainants till the date of filing of this complaint, as such, there is a continuing cause of action in their favour to file this complaint in view of law laid down in Lata Construction & Ors. Vs. Dr. Rameshchandra Ramniklal Shah and Anr., II 2000 (1) CPC 269=AIR 1999 SC 380 and Meerut Development Authority Vs. Mukesh Kumar Gupta, IV (2012) CPJ 12 (SC), wherein it was held that when actual physical possession of the residential units is not offered, there is a continuing cause of action in favour of the allottee/buyer. Objection raised in this regard, as such, stands rejected. 5. For the reasons recorded above, this complaint is partly accepted with cost and the opposite parties, jointly and severally, are directed as under:- 1. To deliver actual physical possession of the plot in question, complete in all respects i.e. after providing all the basic amenities referred to above, to the complainants, within a period of 3 months from the date of receipt of a certified copy of this order, on making remaining payment, if any, by them. However, since fault if any is on the part of the opposite parties, as such, they are not entitled to any delayed payment interest, for the remaining amount. However, the complainants shall also be liable to make the remaining payment within the prescribed period, after possession of the plot in question complete in all respects is offered to them and shall not be entitled to get any immunity from delayed payment charges, in case, they defaulted the same. 1. To pay compensation @Rs.40/- per square meter per month of area of the said plot, as per clause 35 of the agreement and also interest @6% p.a. on the entire deposited amount, starting 09.08.2018 till 30.04.2021, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount shall carry penal interest @12% p.a. from the date of default till this payment is made. 2. To pay compensation @Rs.40/- per square meter per month of area of the said plot aforesaid and also interest @6% p.a. on the entire deposited amount w.e.f. 01.05.2021, onwards (per month), by the 10 of the following month to the complainants till actual delivery of physical possession of the plot, complete in all respects. 3. To pay interest @12% p.a. on the entire amount paid by the complainants for the period from 21.03.2011 to 10.02.2015 (the date of booking of relocated plot no. 1202 measuring 250 square yards) towards the financial loss caused to them, as the amount deposited by them was utilized by the opposite parties for their own purposes and the plot measuring 300 square yards was not provided to them and they were relocated after a long delay of about more than 3 years of initial booking. 4. To pay lumpsum compensation for mental agony and harassment; and cost of litigation to the tune of Rs.50,000/- to the complainants, within a period of 30 days, from the date of receipt of a certified copy of this order, failing which the said amount shall carry interest @9% p.a. from the date of passing of this order till realization. 1. Certified Copies of this order be sent to the parties, free of charge. 2. The file be consigned to Record Room, after completion.
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