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Pankaj Sarmai, Vikas Pathania v/s WWICS Estates Pvt. Ltd

    Consumer Complaint Nos. 401 & 402 of 2019

    Decided On, 25 May 2021

    At, Punjab State Consumer Disputes Redressal Commission Chandigarh

    By, THE HONOURABLE MR. RAJINDER KUMAR GOYAL
    By, PRESIDING MEMBER & THE HONOURABLE MRS. KIRAN SIBAL
    By, MEMBER

    For the Petitioner: J.N. Bhandari, Advocate. For the Respondents: Raman Walia, Advocate.



Judgment Text

Kiran Sibal, Member

1. This order will dispose of above mentioned two Consumer Complaints filed by the different complainants, under Section 17 of the Consumer Protection Act, 1986 (in short, “the Act”), as the facts and the questions of law involved in these complaints are the same and both the complaints have been filed against the same opposite party by the different complainants. The facts are taken from

Consumer Complaint No. 401 of 2019

Main Complaint

2. The complainants have filed this complaint, under Section 17 of the Act, for issuance of the following directions to the opposite party:

(i) to handover the actual possession of Apartment in specified time;

(ii) to pay 24% interest on Rs. 44,96,468 from the date of payment and till the offering of actual date of possession;

(iii) to pay the damages of Rs. 3,00,000 on account of delay in possession;

(iv) to pay the damages of Rs. 16,000 on account of rent paid by the complainants after the expiry of date of possession, i.e., from June 2017 till February 2019.

(v) to pay the damages of Rs. 3,50,000 on account of mental and physical harassment; and

(vi) to pay the damages of Rs. 55,000 as litigation expenses; or any other relief which this Commission may deem fit may also be granted.

Facts of the Complaint:

3. Brief facts, as averred in the complaint, are that the complainant No. 1 is working in IT field doing private job at Mohali and complainant No. 2 is wife of complainant No. 1. The opposite party is developer of land and was developing a residential project namely Imperial Heights at Sector-115, Mohali, Punjab. In the year 2014, the opposite party allured the complainant to buy an apartment in its residential project by offering the best amenities in project i.e. World Class Club House, swimming pool, table tennis, community hall etc. Allured with the representations of the opposite party, complainants agreed to purchase the apartment in Imperial heights and applied vide application dated 20.8.2015 and paid Rs. 4,29,281 . Accordingly, the opposite party allotted an apartment to the complainants and got executed an agreement to sell dated 16.1.2015. Thereafter, the complainants made the payment to the opposite party as per the agreement clauses from time to time. The complainants also got sanctioned the housing loan of Rs. 12,56,293 from HDFC. The complainants have paid the total amount of Rs. 44,96,468 as per demand raised by the opposite party and Rs. 35,196 vide cheque bearing No. 188406 dated 12.12.2018 but the opposite party has not completed the said apartment and have delayed the possession. As per Clause 20 of the Agreement to Sell, the possession of the apartment was to be handed over within 30 months from the date of agreement to sell, i.e. 16.1.2015 but till date the possession has not been offered and there is no progress till date. The complainants were residing on a rented accommodation on monthly rent of Rs. 16,000 from August, 2016 to December 2018. In May, 2018, the opposite party gave an option that they may offer temporary possession for carrying out the works of Apartment as per their own requirements but then they would not pay any penalty on account of delay in possession. It was further submitted that the opposite party put a condition that if the complainants wanted to accept the temporary possession, then they have to give one affidavit cum undertaking for the same. In the compelling circumstances, the complainants had to sign the said affidavit cum undertaking in order to save themselves from the cost of rental, they accepted for temporary possession. As per Clause 28 of the Agreement to Sell, in case of delay in construction, the opposite party shall be liable to pay a sum of Rs. 5 sq.ft. per month of the super area as penalty, which is illegal and arbitrary as the opposite party is charging 24% interest from the complainants on account of delay of payment. The complainants have already paid a sum of Rs. 44,96,468 against the payment of Rs. 48,14,558 . The opposite party has also not obtained the Occupancy Certificate and other clearances from the competent authority. Despite repeated requests, the opposite party has failed to deliver the actual and physical possession to the complainants. Hence, the complainants filed the complaint seeking all the reliefs as prayed above.

Defence of the Opposite Parties

4. Upon notice, opposite parties appeared and filed its written statement taking preliminary objections that the complainants have not approached this Commission with clean hands. The total amount payable by the complainants at the time of taking possession was Rs. 46,76,610 at the rate of Rs. 2,470 per sq.ft. The complainants made total payment of Rs. 45,42,647 and the amount of Rs. 1,37,948 was paid by them towards Service Tax (non-refundable), having been deposited with the Government Tax authorities. The complainants paid Rs. 37,45,449 (including Service Tax) from their own savings and an amount of Rs. 9,35,146 was paid by them through HDFC Ltd., by taking home loan from it. The agreement was executed between the complainant and opposite party and was signed on 16.1.2015. As per the said contract, the opposite party was required to deliver the possession of the Apartment by 15.1.2018, however due to delay in getting certain clearances at the Govt. level, the possession of the apartment was got delayed. It is pleaded that the Completion Certificate for Towers E, F, G, H, I, J and K has already been granted, vide letter dated 30.10.2017. Completion Certificate only for Towers A to D is awaited and is likely to be issued soon. As per terms of the Agreement for Apartment, possession of the unit was to be delivered by 23.11.2017. Further submitted that after receiving the complete payment, the physical possession of his apartment was handed over in the month of October, 2018 vide Affidavit-cum-Undertaking dated 12.10.2018. Even the delay penalty as per Clause 28-E of the Builder Buyer Agreement, in handing over the physical possession of his Apartment was also adjusted upto June 2018 while making the last instalment by the complainant vide email dated 23.5.2018. Moreover, the opposite party is ready to make compensation for delay in handing over the Completion Certificate as per the Builder Buyer Agreement. It is submitted that a sum of Rs. 65,175, i.e. penalty for the delay in handing over the possession of the flat from January 2018 to June, 2018 @ Rs. 5 per sq. ft. has already been adjusted which the complainant had accepted. The complainant has already taken the physical possession of his Apartment/Flat and paying the electricity bills etc. since October, 2018. The only issue remains between the complainant and opposite party-Company is with regard to the Completion Certificate for the said Apartment, thus no cause of action accrued to the complainant. It is further submitted that partial completion certificate for the entire project has already been given by the competent authority vide letter dated 30.10.2017. On merits, similar pleas, as raised in the preliminary objections, have been reiterated. It is submitted that the complainants have already taken the possession of the apartment and are presently residing at A-201, 2nd Floor, Sector -115, Mohali. All other allegations of the complainants were denied and it was prayed that the complaint be dismissed.

Evidence of the Parties

5. To prove their claim, the complainants filed their joint affidavit dated 15.05.2019 along with photo copies of documents i.e. Brochure as Ex.C-1, Application dated 19.8.2014 as Ex.C-2, Allotment Letter dated 20.8.2014 as Ex.C-3, Agreement to Sell dated 16.1.2015 as Ex.C-4, Loan Documents dated 27.1.2015 as Ex.C-5, Statement and demand and payments dated 24.3.2017 as Ex.C-6, Temporary Possession Letter dated 22.5.2018 as Ex.C-7, Affidavit dated 12.10.2018 as Ex.C-8, Pics (colly) as Ex.C-9, Rent Agreement dated 8.8.2016 as Ex.C-10 and Bank Statement as Ex.C-11.

6. On the other side, opposite party filed the affidavit of Rajiv Bajaj, Authorized Representative dated 22.8.2019 along with photocopies of documents, i.e. Builder Buyer Agreement dated 16.1.2015 as Ex.R-1, Payment Plan as Ex.R-2, Partial Completion Certificate dated 30.10.2017 as Ex.R-3, Affidavit-cum-Undertaking dated 12.10.2018 as Ex.R-4, Email and Statement of Account as Ex.R-5 (colly), Sale Deeds as Ex.R-6 (colly), Permission Letter dated 16.12.2011 as Ex.R-7 and Latest Photographs as Ex.R-8.

7. We have heard learned Counsel for the parties and have carefully gone through the pleadings, written statement and evidences available on the record as well as written arguments filed by the parties.

Contentions of the Parties

8. Learned Counsel for the complainants argued on the similar lines as detailed in the complaint as well as written arguments. Learned Counsel for the complainants vehemently contended that opposite parties failed to deliver possession of the flat, in question, to the complainants despite receipt of entire sale price, along with taxes etc. from them, within the stipulated period. The complainants visited the office of the opposite parties many times to get possession, but all in vain. The opposite parties utilized the amount deposited by the buyers, including the complainants, for their own cause, without bothering to develop the project. They also failed to obtain the requisite approvals before launching the project, in question. Due to deficiency in service on the part of the opposite parties, the complainants suffered mental agony and harassment. Thus, they are entitled to all the reliefs, as prayed for in the complaint.

9. Per contra, learned Counsel for the opposite party vehemently contended that the flat, in question, has already been completed and certain compensation for delay in delivery thereof has been adjusted. The possession of the unit has already been handed over to the complainants. The unit, in question, is ready in all respects and even the Partial Completion Certificate of the whole project has already been issued by the competent authorities in favour of the opposite party. The opposite party waited for two years for Completion Certificate, however, the government authorities have not visited the project. Therefore, the opposite party-Company approached the Hon’ble High Court with the prayer for directions to the Government authorities with regard to issuance of Completion Certificate in respect of their project. It is argued that the opposite party-Company is ready to make compensation for the delay in handing over the Completion Certificate as per the Builder Buyer Agreement. It was further contended that the opposite parties have also obtained all the requisite approvals from the competent authorities. Thus, there is no deficiency in service on the part of the opposite parties and the complaint merits dismissal.

Consideration of Contentions

10. We have given our thoughtful consideration to the respective contentions raised by learned Counsel for the parties.

11. Admittedly, the flat, in question, was allotted in favour of the complainants by the opposite party, vide allotment letter, Ex.C-3 as per their Application Form dated 19.8.2014, Ex.C-2. Thereafter, an Agreement for Apartment, Ex.C-4, was executed between the parties on 16.1.2015. The basic price of the unit, in question, was Rs. 42,92,811 and a sum of Rs. 3,83,798 was payable towards other charges, as per Annexure-I. The complainants have averred in Para-5 of the complaint that they deposited a sum of Rs. 44,96,468 , against the apartment cost and Rs. 35,196 on account of maintenance charges, with the opposite parties towards the price of the flat. Whereas, the opposite party itself admitted in Para-1 of the preliminary objections that the complainant has made a total payment of Rs. 45,42,647 to the OP-Company and Rs. 1,37,948 towards Service Tax. As per Clause-20 under head ‘D-Possession’ of the said agreement, possession of the flat was to be delivered within 30 months or with an extended period of 6 months from the date of the agreement, i.e. 16.1.2015. As per Clause-28 under head “E- Penalty” of the agreement, in case of delay in construction of the said unit, irrespective of the natural cause of delay, the Company was liable to pay a sum of Rs. 5 sq.ft. per month of the super area of the flat, in question, as penalty. However, the opposite party could not deliver the possession of the flat to the complainants within the stipulated period. Only Partial Completion Certificate was issued to the opposite party, vide letter dated 30.10.2017, Ex.R-3; meaning thereby that up till 30.10.2017, the project of the opposite parties was not completed. The stand of the opposite party is that the complainants had already taken the possession of the unit in October, 2018 and an Affidavit-cum-Undertaking was got signed from the complainants. However, the opposite party offered the possession of the flat, in question, vide letter dated 22.5.2018, Ex.C-7, subject to clearance of remaining due amount, if any. On the other hand, the complainants did not agree to the contentions raised by the learned Counsel for the opposite party.

12. To settle this issue, the opposite party moved an application for appointing Local Commissioner to evident this fact whether the complainants are residing in the flat, in question, or not? The application was defended by the complainants. However, the application was allowed and Sh. Munish Goel, Advocate was appointed as Local Commissioner to determine the controversy whether complainants along with their family are residing in the flat, in question or not. The Local Commissioner, submitted his report dated 23.03.2021 along with photographs. In the said report, it is stated that the Local Commissioner pressed the bell 7 to 8 times of Flat No. 201, but no one came out of the said house. Thereafter, he knocked the door of Flat No. 202 and inquired from the lady namely Smt. Parul, who informed that Sh. Pankaj Sharma is regularly residing in the flat, in question, along with his wife, mother and two children. Objections to the said report were filed and contended that Local Commissioner did not inform the complainants’ Counsel about the time of his visit. The Local Commissioner has also not given its report regarding Completion and Occupation Certificates of the project of the opposite party, where the flat is located.

13. From the perusal of the report and objections filed by the parties, we came to the conclusion that the report submitted by the Local Commissioner is not satisfactory and lacks proper investigation. Merely on the basis of statement of Smt. Parul, it is not evident that the complainants are actually residing in the apartment, in question, along with their family members. With regard to information regarding the time to visit the flat, in question, the contentions of the complainants’ Counsel does not carry any weight as the complainants’ or their Counsel should have approached the Local Commissioner themselves to assist him while visiting the said flat. The opposite party itself stated in the written statement that the Completion Certificate has not been issued to the opposite party. Even the opposite party has failed to bring on record any document/possession letter to evident that possession of the flat has been duly handed over to the complainants.

14. The fact remains that the opposite party has failed to produce final Completion or Occupation Certification regarding completion of the project on the record. Section 14 of Punjab Apartment and Property Regulation Act, 1995 (in short, “PAPRA”) deals with responsibility of the promoter to obtain Completion and Occupation Certificate from the competent Authority, which reads as under:

14. It is the responsibility of the promoter—

(i) in the case of apartments, to obtain from the authority required to do so under any law completion and occupation certificates for the building and if a promoter, within a reasonable time, after the construction of the building, does not apply for an occupation certificate from the aforesaid authority, the allottee of an apartment may apply for an occupation certificate from the said authority; and

(ii) in the case of a colony, to obtain completion certificate from the competent authority to the effect that the development works have been completed in all aspects as per terms and conditions of the licence granted to him under Section 5.

(2) The authority referred to in Sub-section (1) shall, after satisfying itself about the agreement of sale between the promoter and the allottee, and the compliance of the building regulations and all other formalities, issue an occupation certificate.”

15. Further, Clause 3.12 (i) of the Notification dated 7th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing), which is applicable to the properties falling within the Municipal Limits, provides as under:

“No person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use for which it is erected.”

16. A reference can also be made to Section 272 of The Punjab Municipal Corporation Act, 1976, which reads as under:

“272. Completion Certificate—

(1) Every person who employs a licensed architect or engineer or a person approved by the Commissioner to design or erect a building or execute any work shall, within one month after the completion of the erection of the building or execution of the work, deliver or send or cause to be delivered or sent to the Commissioner a notice in writing of such completion accompanied by a certificate in the form prescribed by byelaws, made in this behalf and shall give to the Commissioner all necessary facilities for the inspection of such building or work.

(2) No person shall occupy or permit to be occupied any such building or use or permit to be used any building or a part thereof effected by any such work until permission has been granted by the Commissioner in this behalf in accordance with bye-laws made under this Act: Provided that if the Commissioner fails within a period of thirty days after the receipt of the notice of completion to communicate his refusal in grant such permission, shall be deemed to have been granted.”

17. The Hon’ble National Commission in First Appeal No. 855 of 2018, Vision India Realtors Pvt. Ltd. & Anr. v. Sanjeev Malhotra, decided on 13.6.2018, categorically held that legal possession cannot be delivered in the absence of Completion Certificate by the Competent Authority. It was held in Para No. 5 as follows:

5. During the course of hearing, it was submitted by the learned Counsel for the appellant that the completion certificate in respect of the project was obtained by the appellant on 15.3.2016. A copy of the communication dated 15.3.2016 from Municipal Council, Kharar has been placed on record. It is therefore, evident that the completion certificate having been received only on 15.3.2016, the appellant could not have offered legal possession of the apartment to the complainant at any time before that date. As noted earlier, the amount of Rs. 1,81,375 was demanded on 20.4.2015 and the amount of Rs. 2,12,489 was demanded on 6.2.2016.

The complainant was requested to pay the aforesaid amount so that the appellant could offer the possession of the flat. The said offer of possession was meaningless being unlawful as the requisite completion certificate had not been obtained by that date…….”

18. There is no evidence on record to prove that the unit, in question, or a part thereof has been got certified by the opposite party from the local/competent authority, so as to deliver its complete possession to the complainants for their use and occupation. It amounts to violation of above reproduced Section 14 of PAPRA and Clause 3.12 (i) of the Notification dated 7th July, 2015 published in the Punjab Government Gazette Extraordinary by Department of Local Government (Town Planning Wing) as well as Section 272 of The Punjab Municipal Corporation Act, 1976, reproduced above. Even till today, no Completion/Occupation Certificate has been produced before this Commission. Thus, in view of the law laid down by the Hon’ble National Commission in the above noted authority, without issuance of Completion Certificate by the competent authority, the opposite party cannot be said to be in a legal position to hand over possession of the unit, in question, to the complainants. The execution of Sale Deeds, Ex.R-6 (colly) in favour of other allottees can also not be given much weight, in the absence of Completion/Occupation Certificate issued by the competent authorities. In such circumstances, it is held that the possession handed over to the complainants by the opposite party cannot be considered as legal physical possession within the stipulated period, as per terms and conditions of the agreement, despite receipt of entire sale consideration.

19. The fact remains that the opposite party failed to deliver possession of the flat, in question, to the complainants within the above said stipulated period of 36 months from the date of the agreement, without any sufficient cause or explanation. No such circumstances/reasons have been explained/proved, delaying delivery of possession beyond the stipulated period fixed therefore. Rather, the opposite party has themselves admitted its deficiency regarding delay in delivery of possession, for which they also adjusted certain penalty amount in the account of the complainants, as per the terms of the agreement.

20. It also needs to be mentioned that opposite party was not having requisite approvals/permissions from the competent authorities at the time of launching their above said project or at the time of entering into agreement, Ex.C-4, with the complainants on 16.1.2015. All the above facts and circumstances clearly prove that the opposite party has not complied with the provisions of PAPRA. As per Section 3 (General Liabilities of Promoter) of the PAPRA, they were required to make full and true disclosure of the nature of their title to the land, on which such colony is developed or such building is constructed or is to be constructed, make full and true disclosure of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land. They were also required to give inspection on seven days’ notice or demand of the layout of the colony and plan of development works to be executed in a colony as approved by the prescribed authority in the case of a colony. However, there no evidence on record, from which it can be proved that they complied with Section 3 of the PAPRA.

21. As per Section 5 (Development of land into Colony) of PAPRA, the opposite party was liable to obtain permission from the competent authority for developing the colony, but it failed to produce on record any such permission. So, they also violated Section 5 of PAPRA.

22. As per Section 9 of PAPRA, every builder is required to maintain a separate account in a scheduled Bank, for depositing the amount deposited by the buyers, who intend to purchase the plots/flats/units, but no evidence has been led on the record by the opposite party to prove that any account has been maintained by them in this respect. As such, the opposite party also violated Section 9 of the PAPRA.

23. The C.P. Act came into being in the year 1986. It is one of the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite party to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite party with the hope to get the possession of the flat/plot in a reasonable time. The circumstances clearly show that the opposite party made false statement of facts about the goods and services, i.e. allotment of flat/unit/plot in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite party is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainants. Had the complainants not invested their money with the opposite party, they would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the apartment within a reasonable period. The complainants cannot be made to wait indefinitely to get possession of the apartment booked. From the facts and evidence brought on the record of the complaint, it is clearly made out that the opposite party, i.e. builder knew from the very beginning that it had not complied with the provisions of the PAPRA and the Rules framed thereunder and would not be able to deliver the possession within the stipulated period, thus by misrepresenting induced the complainants to book the apartment, due to which the complainants have suffered mental agony and harassment. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainants is a deposit held by the opposite party in trust of complainants and it should be used for the purpose of development of the project site, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainants for failure to deliver the possession, so has been held in catena of judgments by the Hon’ble Supreme Court and the Hon’ble National Commission. To get the relief, the complainants have to wage a long drawn and tedious legal battle. As such, the complainants were at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainants, are also required to be taken into consideration for awarding compensation. In addition to that they are also entitled to compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by them on account of the betrayal by the opposite party in shattering their hope of getting the apartment by waiting for all this period.

24. As discussed above, as per Clause-20 under head “D-Possession” of the agreement, Ex.C-4, possession of the unit was to be offered within a period of 36 months (30+6); failing which the opposite party was liable to pay compensation at the rate of Rs. 5 per sq.ft. per month of super area of the flat for delay in delivery of possession, as per Clause-28 under head “E-Penalty”. Failure of the opposite party to provide complete/effective possession of the flat within the stipulated period amounts to deficiency in service.

25. In this case, it is alleged that the complainants have already taken the possession of the apartment and are residing in the same flat. Be that as it may, even then the possession handed over to the complainants is not legal delivery of possession with all the agreed amenities and Completion and Occupation Certificate issued by the competent authority. As per Clause 28 (E-Penalty) of the agreement, the opposite parties are liable to pay penalty to the complainant from the stipulated date of possession, i.e. 16.01.2018 till obtaining the Completion Certificate and other clearances from the competent authorities, in the manner as discussed above.

26. It needs to be mentioned that the onus to prove that the complainants are residing in the flat, in question, is upon the opposite party. The opposite party in its written statement alleged that the electricity bills and water bills are being issued to the complainants. However, no bill is placed on record as evidence to evident this fact. No Sale Deed/Conveyance Deed has been produced by the opposite party, which was executed in favour of the complainants. In the absence of any cogent and convincing evidence, it cannot be said that the complainants are given a legal possession of the apartment, in question.

27. In view of the above discussions, deficiency in service and unfair trade practice on the part of the opposite party has been fully proved. Thus, the opposite party is liable to compensate the complainants till the requisite permissions/approvals along with Completion/Occupation Certificate is obtained and to execute the Sale/Conveyance Deed in favour of the complainants.

28. In view of our above discussions, the complaint is partly allowed and following directions are issued to the opposite party:

(i) to deliver actual and physical possession of the unit, in question, to the complainants, complete in all respects, along with agreed facilities and Completion and Occupation Certificates issued by the competent authorities and to execute the Sale/Conveyance Deed in favour of the complainants;

(ii) to pay compensation for delay in delivery of possession @ Rs. 5 per sq. ft. per month of the super area of the flat, in question, after the expiry of the stipulated date of delivery of possession, i.e. from 16.1.2018 till the delivery of possession of the unit, as ordered above as per Clause 28 (EPenalty) of the agreement Ex.C-4. The penalty amount already paid by the opposite party to the complainants on account of the delayed possession be also adjusted.

It is made clear that the complainants are liable to pay the balance sale consideration, if any, to the opposite party without interest and penalty.

(iii) to pay Rs. 50,000 as compen-sation on account of mental agony and harassment as well as litigation expenses.

Consumer Complaint No. 402 of 2019

29. This complaint has been filed by the complainants under Section 17 of the Act, for issuance of the following directions to the opposite party:

(i) to handover the actual possession of Apartment in specified time;

(ii) to pay 24% interest on Rs. 41,14,831 from the date of payment till the offering of actual date of possession;

(iii) to pay the damages of Rs. 3,00,000 on account of delay in possession;

(iv) to pay the damages on account of rent paid by the complainants after the expiry of date of possession, i.e. from December, 2015 till the offering of actual date of possession;

(v) to pay the damages of Rs. 3,50,000 on account of mental and physical harassment;

(vi) to pay the damages of Rs. 55,000 as litigation expenses; or any other relief which this Commission may deem fit may also be granted.

Facts of the Complaint

30. In this complaint, the complainants alluring with the representation of the opposite party, agreed to purchase the apartment in Imperial heights and applied vide application dated 20.3.2021 and paid Rs. 4,12,770 . Accordingly, the opposite party allotted an apartment to the complainants and got executed an agreement to sell dated 4.5.2013. Thereafter, the complainants made the payment to the opposite party as per the agreement clauses from time to time. The complainant also got sanctioned the housing loan of Rs. 15,37,585 from SBI. The complainants have paid the total amount of Rs. 41,14,831 as per demand raised by the opposite party. As per Clause 20 of the Agreement to Sell, Ex.C-2, the possession of the apartment, in question, was to be handed within 30 months. Rest all the averments are same as averred by the complainants in Consumer Complaint No. 401 of 2019.

Defence of the Opposite Party

31. Opposite party filed its written statement the complainants submitted that the complainants booked an Apartment No. A-503, Type 3-BHK, Tower ‘A’ at 5th Floor, measuring 1,737.98 sq.ft. (super area) in Imperial Heights at Sector 115, Greater Mohali. The total amount payable by the complainants at the time of taking possession was Rs. 42,81,152. Against that, the complainant has paid a sum of Rs. 26,17,315 from his own savings and Rs. 14,97,516 by availing the housing loan from SBI. Rest all the submissions are on similar lines as filed in Consumer Complaint No. 401 of 2019.

Evidence of the Parties

32. The complainants in support of their contentions filed their joint affidavit dated 13.5.2019 along with photo copies of documents i.e. Brochure as Ex.C-1, Allotment letter dated 20.3.2013 as Ex.C-

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2, Agreement to Sell dated 4.5.2013 as Ex.C-3, Loan Sanctioned Letter dated 20.6.2013 as Ex.C-4, Interest Certificate dated 3.8.2016 as Ex.C-4/A, Statement of accounts issued by OP dated 21.5.2018 as Ex.C-5, Rent Receipt dated 11.5.2019 as Ex.C-6, Rent Agreement dated 26.9.2017 as Ex.C-7, Rent Agreement dated 10.4.2018 as Ex.C-8, Bank Statement as Ex.C-9 and Pictures of Towers and Apartment as Ex.C-10. 33. On the other hand, the opposite party filed the affidavit of Rajiv Bajaj, Authorized Representative dated 22.8.2019 along with photo copies of documents i.e. Builder Buyer Agreement dated 14.5.2013 as Ex.R-1, Payment Plan as Ex.R-2, Partial Completion Certificate as Ex.R-3, Statement of Account as Ex.R-4, Sale Deeds as Ex.R-5 (colly), Permission Letter as Ex.R-6 and Latest Photographs as Ex.R-7. Contentions of the Parties 34. Similar contentions have been raised by the parties as detailed in Consumer Complaint No. 401 of 2019. Hence, no need of repetition. Consideration of the Contentions 35. In this case, the Local Commissioner submitted his report wherein it has been mentioned that from the appearance no one is living/residing in Flat No. A-503, 5th Floor, Sector-115, Mohali. Even as per the statement of the workers, they have not seen anyone at 5th Floor of that building. Meaning thereby, in this case, the complainants are not in physical possession of the apartment, in question. 36. In view of the findings recorded in CC No. 401 of 2019, Pankaj Sarmai & Anr. v. WWICS Estates Pvt. Ltd., the complaint is partly allowed against the opposite party on the same terms. It is pertinent to mention here that the possession of the apartment was to be handed over to the complainants within 30 months with an extended period of 6 months from the date of Builder Buyer Agreement, i.e. 14.5.2013. Meaning thereby the possession was to be handed over uptill 14.11.2015 and maximum upto 14.5.2016, however, the opposite party failed to hand over the possession to the complainants within the stipulated period. The following directions are issued to opposite party: (i) to deliver actual and physical possession of the unit, in question, to the complainants, complete in all respects, along with agreed facilities and Completion and Occupation Certificates issued by the competent authorities and to execute the Sale/Conveyance Deed in favour of the complainants; (ii) to pay compensation for delay in delivery of possession @ Rs. 5 per sq. ft. per month of the super area of the flat, in question, after the expiry of the stipulated date of delivery of possession, i.e. from 14.5.2016 till the delivery of possession of the unit, as ordered above as per Clause 28 (E-Penalty) of the agreement Ex.C-3. The penalty amount already paid by the opposite party to the complainants on account of the delayed possession be also adjusted. It is made clear that the complainants are liable to pay the balance sale consideration, if any, to the opposite party without interest and penalty. (iii) to pay Rs. 50,000 as compensation on account of mental agony and harassment as well as litigation expenses. 37. The compliance of the above orders shall be made by the opposite party within a period of 60 days from the receipt of certified copy of the order. 38. Arguments in these complaints were heard on 27.4.2021 and the order was reserved. The certified copies of the orders be communicated to the parties, as per rules. 39. The complaints could not be decided within the statutory period due to heavy pendency of Court cases. Complaint partly allowed.
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