M/S. N.H. Matcon vs Chander Kanta Gujral & Anr

Prem Narain, Presiding Member

This appeal has been filed by the appellant M/s. N.H.Matcon against the order dated 29.11.2017 of the State Consumer Disputes Redressal Commission, Punjab, (in short 'the State Commission') passed in MA No.780 & 1738 of 2017 in/and CC No.230 of 2017.

Brief facts of the case are that in the year 2011 the appellant issued the advertisements and brochures regarding the development of its upcoming residential project "Aero Homes" situated at village Gazipur, Zirakpur, Mohali, Punjab (hereinafter referred as "project"). It is submitted that the said project consisted of various luxurious apartments along with all the basic amenities, modular kitchens, 24 hours power backup, biometric entry system, gymnasium, CCTV cameras etc. In the year 2011, the respondents showed interest in purchasing a flat in the said project. On 30.08.2011, the appellants issued an allotment letter and allotted a flat bearing no.502, fifth floor, tower F (herein after referred as "flat") having super area of about 1760 sq.ft. for a total consideration of Rs.40,99,200/-. On 02.11.2011, the parties entered into agreement in reference to the flat. On 28.06.2013, the possession of the flat was offered to the respondents along with the demand letter calling upon the respondents to make the payment of the remaining amount. On 04.02.2014, the respondents took the possession of the flat. On 12.04.2017, the respondents filed a consumer complainant No.230 of 2017. The State Commission passed the following order on 29.11.2017:-

"91. In view of reasons and discussion held in Consumer Complaint No.225 of 2017 (Arjun Singh & Ors. Vs. M/s. N.H.Matcon & Ors.), the Consumer Complaint No.230 of 2017 (Chander Kanta Gujral & Anr. V. M/s. N.H.Matcon & Anr.) is allowed against opposite parties No.1 & 2 and following directions are issued to opposite parties No.1 & 2:

i) to obtain the requisite sanctions/approvals/permissions from the competent authorities, especially Occupation Certificate and Completion Certificate, as per the provisions of PAPRA & Rules;

ii) to execute the Sale Deed regarding the flat, in favour of the complainants, after furnishing the complete details of the proportionate amount due, if any.In the Sale Deed, details of super area and carpet area of the flat, in question, should be specifically mentioned.The complainant will submit the draft of the Sale Deed to opposite parties No.1 & 2 within 15 days of the receipt of copy of the order, who shall do the needful within 45 days thereafter;

iii) to complete flat/project in question, as per the promised specifications and standards, as per the brochure/agreement and to provide all the promised facilities/amenities in the project';

iv) to provide details of common area, facilities and breakup of the super area and carpet area, in question, to the complainants;

v) to pay compensation at the rate of Rs.5/- sq.ft. per month (Rs.8,800/- per month) for the period of delay in delivery of possession from 30.06.2013 till the issuance of occupation certificate and completion certificate to opposite parties No.1 & 2 by the competent authority after adjusting the already paid amount, if any, towards assured return to the complainants;

vi) to pay Rs.55,000/-, as composite compensation and litigation expenses to the complainant."

Hence the present appeal.

Heard the learned counsel for the parties and perused the record. The learned counsel for the appellant stated that there is some delay in filing the present appeal. The delay has occurred due to the fact that the State Commission has passed similar orders in a bunch of cases and separate appeals have been preferred against those orders. Thus, the time has been taken in collecting all the documents for all the cases and the delay is not intentional. It has been requested to condone the delay on the ground mentioned in the application for condonation of delay.

Learned counsel for the appellant stated that the appellant is mainly aggrieved by the following directions of the State Commission:-

v) "to pay compensation at the rate of Rs.5/- sq.ft. per month(Rs.8,800/- per month) for the period of delay in delivery of possession from 30.06.2013 till the issuance of occupation certificate and completion certificate to opposite parties No.1 & 2 by the competent authority after adjusting the already paid amount, if any, towards assured return to the complainants."

Learned counsel for the appellant further argued that the issue of compensation of Rs.5/- per sq.ft. per month to be paid till the obtaining of occupation certificate is same which was raised in F.A. Nos. 1774/2018 ( M/s. N.H. Matcon vs. Kamal Khetrapal) alonwith other FAs on which the order was reserved after hearing both the parties. The same order will also be applicable in this case.

On the other hand, learned counsel for the respondent stated that there is a delay of 123 days in filing the present appeal and the appeal needs to be dismissed on this ground only. He also agreed that the same decision in respect of the penalty for delayed possession @ Rs.5/- per sq.ft. per month should be taken in this case as in F.A. Nos. 1774/2018 ( M/s. N.H. Matcon vs. Kamal Khetrapal) along with other appeals on which arguments were already heard.

I have carefully considered the arguments advanced by both the sides and have examined the record. First of all, it is seen that there is a delay of 123 days in filing the present appeal. As similar appeals F.A. Nos. 1774/2018 ( M/s. N.H. Matcon vs. Kamal Khetrapal) ,201/2019, 202/2019, 203/2019, 205/2019, 206/2019, 208/2019, 210/2019, 211/2019, 212/2019, 213/2019, 1204/2018, 1205/2018, 1206/2018, 1207/2018, 1208/2018 and 1302/2018, have already been decided on 10.12.2019, the delay in filing the present appeal is condoned as the appeal has been filed on the same grounds and the same decision needs to be made applicable in the present appeal as well.

So far as the issue of compensation of Rs.5/- per sq.ft. per month is concerned, the same has already been considered and decided by this Commission in F.A. Nos. 1774/2018 ( M/s. N.H. Matcon vs. Kamal Khetrapal) alongwith other appeals vide order dated 10.12.2019. The order passed in these appeals is as follows:-

"20. In above complaint case "Vihesh V. Puvadi Vs. M/s. Unitech Ltd." (supra), this Commission has taken a view that delay compensation as per the agreement will extend till the date of getting the occupancy certificate because to pay this compensation is the responsibility of the builder/promoter who has violated the law and has given possession to the allottee without obtaining the occupancy certificate. However, the compensation granted by the consumer forum as interest on the paid amount will only be given upto the date when the physical possession has been actually handed-over to the complainant and he has accepted the physical possession. Actually, the penalty charges @ Rs.5/- per sq.ft. per month are the charges for deficiency on the part of builder/promoter to give possession with delay. The physical possession as per the agreement would only mean legal possession after obtaining the occupancy certificate. So in fact, this deficiency on the part of the builder/promoter extends till obtaining of the occupancy certificates. Relying on the judgment of this Commission in "Vihesh V. Puvadi Vs. M/s. Unitech Ltd." (supra), I am of the view that the order passed by the State Commission is in consonance with view taken by this Commission, therefore, I do not find any error or illegality in the impugned orders passed by the State Commission, so far as it relates to the award of compensation @ Rs.5/- per sq.ft. per month to the complainants from the due date of possession till date of obtaining the occupancy certificate."

Based on the above discussion, the First Appeal No.204 of 2019 is dismissed.