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Judgment
The present Consumer Complaint has been filed under Section 21 of the Consumer Protect Shalimar City Samajik Kalyan Samiti, a Voluntary Consumer Association registered under t Act, 1860 (hereinafter referred to as the “Complainant Society”), on behalf of its 27 Member Proview Real Tech Pvt. Ltd. (hereinafter referred to as “the Developer”) alleging deficiency over the possession of the allotted Apartments to its Members, in terms of Agreement.
The facts leading upto the present Complaint are that in October, 2010 the Members of Apartments in the Group Housing Complex, namely “Shalimar City” proposed to be develo Delhi - Wazirabad Road, Ghaziabad, U.P. (hereinafter referred to as “ the Project ”). Iden favour of the Members of Complainant Society in April - July, 2011. It is averred in the Comp Society had already paid 90% to 95% of the total Sale Consideration of the Apartments to th Payment Schedule. The possession of the booked Apartments was to be delivered to the Mem dates specified in the respective Allotment Letters with a grace period of six months. The Al the Apartment allotted to them as per the respective Allotment Letters, however, the Opposi deliver the possession of the Apartments, even after an inordinate delay of 5 years from the Clauses of the Allotment Letters are wholly arbitrary, one-sided and unjust and in favour of Allotment Letter authorises the Developer to charge interest @ 18%p.a. for delayed payment o to cancel the allotment automatically if the arrears continue for three consecutive instalments. Party Developer is only liable to pay compensation @ 5/- per Sq. Ft per month of the Super over possession.
In February, 2015, the Allottees received a Pre–Possession-cum- Demand Letters from the De pay remaining dues with respect to Service Tax, Interest Free Maintenance Security (IFMS According to the Complainant Society, the Service Tax has been enhanced by the Compete had the possession been handed over on the committed date, the Members of the Society wou of Service Tax. It is further stated that the demand of IFMS in advance for two years by the O in terms of Section 14 of the U.P. Apartment (Promotion of Construction, Ownership an referred to as “UP Apartment Act”). As per the provisions contained in the U.P. Apartment the Apartment Owners, the management of the apartments regarding their common areas transferred from the Opposite Party Developer to the Association and in turn they have to m not entitled to demand the Electricity Installation Charges as the same are part and parcel of th that the Allottees have been threatened for cancellation of the booking in case of non-payment.
Upon receiving the Pre–Possession-cum-Demand Letters, the Allottes visited the Constru Project was far from completion and it was not in habitable condition at all and Developer als Certificate as well as the NOC received from the Competent Authorities. According to the C constructed 11 stories as against the sanctioned ground plus 9 Stories and sold the apartments averred that the Developer has converted the public parks and other public utilities into saleab made representation before the Ghaziabad Development Authority highlighting the illegal Project in violation of the Sanctioned Plan. However, neither any reply nor any action had b Authority. The Opposite Party Developer has also not constructed the Club and parking sp been charged.
The Complainant Society vide RTI reply, came to know that the total land of Housing Comp The Developer has excluded certain portions of the land from the Project Complex by raising benefit. That the Opposite Party Developer had even reduced area of Apartments without allottees. It is further alleged that the Opposite Party Developer does not have the requisite N Water Harvesting, Earthquake Resistance, Wastage disposals, etc.
As stated in the Complaint, the Opposite Party Developer had sold certain Apartments under “ exorbitant price and had agreed to pay the interest of EMIs to the Bank till actual physical p Opposite Party has stopped paying the interest to the Bank, after which the Allottees are be interest amount.
Aggrieved by deficient service on the part of the Opposite Party, the Complainant Society iss seeking possession along with compensation @18% p.a., however, the Developer did not resp.
Complainant Society had earlier filed Consumer Complaint No. 717 of 2015 against the O same was dismissed as withdrawn vide Order dated 11.01.2018 with liberty to file a fre objectives of the Complainant Society.
Therefore, the present Complaint has been filed by the Complainant Society with the followin
i. Direction to the Respondent to handover possession of Apartments, to respective consu conformity with the Allotment letter and for the consideration mentioned therein (in case ar after reducing the consideration of the respective apartment accordingly), with all promi parking space) and as per quality standards promised, and execute all the necessary an appropriate completion certificate and other permissions/approvals from relevant authoritie of the respective consumers within such timeline as fixed by this Hon’ble Commission;
i. Direction to the Respondent to pay interest @12% per annum on the amount deposited Respondent, with effect from the respective date of possession, till the date actual physica handed over by the Respondent.
i. Direction to the Respondent Company to withdraw the demand for advance maintenance monthly basis until the formation of the association of apartment owners;
i. Direction to the Respondent to bear the increase in service tax increased from 1st June, 2015;
i. Direction to the Respondent to pay the interest portion of the Bank EMI to the allottees who Possession Scheme”;
i. Direction to the Respondent to withdraw the demand for Electricity meter.
i. Direction to the Respondent Company to pay 3,00,000/- (Rupees Three Lakh) each, as arrangements, mental torture, agony and harassment caused to the concerned consumer practices of the Respondent;
i. Direct the Respondent to pay a sum of 50,000/- (Rupees Fifty Thousand only) to each co towards litigation costs.
i. Pass any other and further relief which the Hon’ble Commission thinks fit and proper in the favour of the Complaint and against the Respondent.”
Upon notice, the Complaint has been resisted by the Opposite Party Developer by filing inter-alia, that; Members of the Complainant Society had purchased the Units for commercia not the recognised association, the Opposite Party Developer is absolute owner of a piece of has the requisite sanctioned plans for basement plus ground plus 11(eleven) floors; the Me signed the Allotment Letters with their own wish and whim; since the Allottees defaul instalments, the offer of possession was not made despite the fact that the Completion Cert May, 2018 in respect of certain Towers; Service Tax has to be charged with each instalm Government; the Interest Free Maintenance Security (IFMS) is included in the total Sale Cons only when the total Sales Consideration is paid by the Allottees; the question of free mainten Maintenance Charges are payable as per the terms of the Allotment Letter and in fact a sepa executed between the Allottees and the Maintenance Agency; dual electricity meters have b the point of extraction is also done free of costs, however, charges as per independent contra Authorities, would be paid by them; the Completion Certificate has been applied and the delay entire Layout Plan as approved by Ghaziabad Development Authority has not been disturb service lift for carrying goods ups and down; the temporary wall was constructed for the safet I as the development work was continuing in the vast Project and the same would be disma Allottees have been provided with Super Area more than as promised and a Local Commissi details; that there has been no change in the area of the Apartments as alleged; the Opposite requisite Certificates for Rain Water Harvesting, Wasting Disposal, etc.; the requisite EMIs offer of possession; there was no deficiency in service on the part of the Opposite Party deserves to be dismissed.
It is imperative to mention here that Vide Order, dated 23.07.2018 passed by this Commissio contentions of the parties, the Opposite Party Developer was directed to deliver the posses respect of which Completion Certificate had been obtained by them subject to depositing the this Commission and paying the admitted amount to the Developer. In terms of the said direc of the Allottees after payment of admitted balance amount, however, it was submitted that the
We have heard the learned Counsel for the Parties and also gone through the material available
The contention of the Learned Counsel for the Opposite Party Developer that the Members ‘Consumers’ and that they had booked the flats/apartments for commercial purpose and earning pro light of the judgement of this Commission in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, in w onus of establishing that the Allottee was dealing in real estate i.e. in the purchase and sale of plots/ earn profits, shifts to the Opposite Party, which in the instant case they had failed to discharge b establish their case. Therefore, we are of the considered view that the Allottees are the “Consumers” Act.
So far as, the plea that since the Allottees had defaulted in making timely payment as per Pay not made to them despite the fact that the Completion Certificate was expected to be obtained v considered view that the Opposite Party Developer was entitled either to cancel the Agreement or ch payment, as per terms and conditions of the Agreement while offering the possession and demanding Developer cannot take shelter under this lame excuse for the delay in completing the Project and o Accordingly, the said plea is rejected.
Vide Order, dated 27.01.2022, the Commission has directed the parties to furnish the following d evidence and to arrive at a reasonable and just conclusion:-
(i) Proposed date of delivery of the possession of the booked Apartment;
(ii) Admitted amount, if any, payable by the Complainant to the Opposite Party Developer; (iii) Date on which Completion Certificate has been obtained;
(iv) Actual date on which possession has been taken;
(v) Disputed amount and its details;
(vi) As to whether the disputed amount has been deposited with this Commission or not in terms of t 01.11.2019.
In compliance of the said Order, the Complainant Society has furnished the necessary details in a under:-
S.
No.
Name of the Applicant Member
Date of Agreement
Total amount payable
as per agreement (In INR)
Balance Amount payable to t h e Builder (Inc. ser.
Tax) At
the time o f possession (in INR)
Amount paid to the respondent builder
before possession in (INR)
Balance demanded by the Respondent Builder as per final demand letter (in INR)
Amou disputed respect maintenan charges submitted before t Hon’ble NCDRC INR)
1
Amit Jain
22.05.2011
3.441.079
200,344
3,328,576
601,149
400,805
2
Amit Kumar Sharma (Co-APP- MEENU
Sharma)
27.10.2012
3,979,647
235,089
3,860,265
488,010
252,921
3
GauravSinghal
(Co-APP.N K. Singhal )
28.07.2012
2,565,108
159,913
2,478,491
641,094
481,181
4
Jay Shankar Roy
14.09.2012
2,420,800
141,829
2,349,512
265,930
124,101
5
KavitaChauhan (W/o Manoj Chauhan)
18.08.2011
3,921,372
227,193
3,671,480
682,756
455,563
6
Nand Kumar Singhal (CO.APP.SachinSinghal)
28.07.2012
3,486,876
215,304
3,371,226
538,055
322,751
7
Nitesh Kumar
22.06.2011
3,780,504
220,151
3,660,717
675,899
455,748
8
Santosh Kumar
28.11.2012
4,785,646
281,023
4,644,071
490,006
208,983
9
Anurag Chandra Srivastava
30.04.2012
2,578,420
Nil
2,787,487
Nil
10,503
10
Rojer John
16.06.2012
4,426,797
NIL
4,589,596
NIL
Nil
11
Usha Devi (Co-APP. Rameshwar Dass Khoba)
13.05.2011
3,240,064
190,299
3,135,737
548,738
351,002
12
Mohd Rizwan (Co-APP. Mohd.Razaullah)
09.04.2012
2,909,088
71,227
2,816,996
432,301
361,074
13
Sachin Singhal
(Co-APP. Krishan Singhal)
19.06.2011
3,345,000
166,143
3,269,139
795,332
629,189
14
Anjiv Kumar (CO-APP-Garima)
03.11.2012
3,702,174
221,132
3,588,513
548,738
327,606
15
Ms Urmila Sinha
25.06.2011
3,233,384
185,743
5,142,472
339,696
153,953
16
Mr.Sudhir Kumar
25.06.2011
3,233,384
189,133
3,134,211
319,477
130,344
17
Vinod Kapoor
22.02.2013
5,284,135
304,705
5,133,295
703,733
398,983
18
Jagat Singh (Co-APP. Kalpana Chaudhary)
08.08.2011
2,611,200
149,291
2,537,981
370,117
220,826
19
Vipin Kumar (Co-APP.- Vijayta Rana)
22.02.2013
4,858,607
285,368
4,714,553
783,001
497,633
20
Dr.Ajai Kumar Gupta
27.07.2012
3,833,942
185,940
3,178,342
413,747
227,807
21
Pankaj Kumar Jain (Co. APP.-Garima Jain)
30.01.2012
2,433,245
142,330
2,290,915
319,447
430,943
22
Prabhat Kumar Tyagi (Co-APP. KalpanaTyagi)
26.03.2012
3,369,366
190,805
3,178,561
463,452
272,647
23
Amit Pal Kaur (Co.-APP.-Manvinder Singh)
09.04.2011
2,700,000
135,000
2,565,000
341,605
206,605
24
Mr.BaljitWalia entered into a settlement with the Respondent bui 09.02.2019. Disputed amount of INR 7,65,220/- deposited to NCD
25
Mr.PradeepChoudhary entered into settlement with the builder 03.01.2020. Disputed amount of INR 2,22,123/- deposited to NCD
26
Mr. N.C. Birla entered into settlement with the Respondent Builde No disputed amount submitted to NCDRC
27
Mr.Raghuvinder Singh Khushwah has withdrawn his name from possession of his respective unit in March, 2019. No disputed amo
: Please note that certain facilities which were promised at the time of entering into Build club house, and Swimming Pool, are not
delivered to the resident till date.
: The Occupancy Certificate has not been obtained by the Builder till date.
: Mr.Vinod Kumar had opted for” No cost – EMI till possession scheme however, the Buil from March, 2015 until the date of actual
possession of the respective unit, i.e. 24.09.2018.
: Mr.Vipin Kumar had opted for “No cost – EMI till possession scheme however, the Buil from March, 2015 until the date of actual
possession of the respective unit, i.e. 20.10.2018.
: Mr.Santosh Kumar had opted for” No cost – EMI till possession scheme however, the Buil from March, 2015 until the date of actual
possession of the respective unit, i.e. 28.01.2020.
However, for the reasons best known to them, the Opposite Party Developer has not furnished th despite a specific direction in this regard.
A bare perusal of the afore-extracted Table would reveal that the Members of the Comp flats/Apartments in the Project of the Opposite Party Developer during the period from 09.04.2011 Complainant Society had paid substantial amount, i.e almost 90% to 95% of the total Sale Conside The committed date of delivery of the possession of the booked Flats/Apartments, complete in all re the Allotment Letters issued to the Members of the Complainant Society, was latest by December, 2 Sl. Nos. 5 and 18 whereby the possession was to be delivered latest by December, 2014. According Certificate and that too partial only, has been obtained on 08.02.2016 in respect of 15 Member Complainant Society and the partial Completion Certificate in respect to the remaining Members obtained on 14.06.2019 only. Mr. Raghuvinder Singh Khushwaha has withdrawn his name from t matter with the Opposite Party Developer. Undoubtedly, all the Members of the Complainant Soci Flats during the period from 10.09.2018 to 05.04.2021. Hence, there is delay of about 4 to 5 years Opposite Party Developer to the Members of the Complainant Society from the promised date of del Allotment Letters for which they are certainly entitled for compensation. In this regard, attention is Supreme Court in the case of Wg. Cdr. Arifur Rahman Khan v. DLF Southern Homes Pvt. L 24.08.2020 wherein the Apex Court has held as under:-
“ A failure of the Developer to comply with the contractual obligation to provid contractually stipulated period amounts to a deficiency. There is a fault, shortcom manner of performance which has been undertaken to be performed in pursuance of The expression service in Section 2 (1) (o) means a service of any description whic including the provision of facilities in connection with (among other things) housing the jurisdiction of the consumer forum extends to directing the opposite party inte service in question. Intrinsic to the jurisdiction which has been conferred to direct th the provision of compensation as a measure of restitution to a flat buyer for the de developer beyond the period within which possession was to be handed over to the pu and harassment, as a result of the default of the developer. Flat purchasers make l future course of their lives based on the flat which has been purchased being ava legitimate expectations are belied when the developer as in the present case is guilty a contractual obligation.
For the above reasons, we have come to the conclusion that the dismissal erroneous. The flat buyers are entitled to compensation for delayed handing over o developer to fulfil the representations made to flat buyers in regard to the provision o.
Now, the next question which arises for our consideration is the rate of interes Complainant Society for the delayed possession. It is the Complainant’s case that if th interest from the Flat Purchasers @ 18% p.a. (as per Clause A.1 of the Allotment Lett the instalments, the Complainants ought to be awarded the same interest for delaye considered view that having regard to the fact that Banks have lowered the interest rate Court has been awarding interest keeping in view the current market situation espec considering the recent decline in real estate business, the interest @ 9% p.a. would mee of 50,000/-.
A further perusal of the afore-extracted Table would show that the only dispute between demand of Maintenance Charges by the Opposite Party and in terms of the Orders dated 23.0 Commission, the disputed amount towards Maintenance Charges had already been deposited with Allottees at Sl. Nos. 9 and 10 (Anurag Chandra Srivastava and Rojer John). The said Members of th the amounts of 2,18,086/- and 1,90,533/- respectively towards Maintenance Charges to the Oppo learned Counsel appearing for the Complainant Society, the demand of Maintenance Charges for Party Developer is wholly illegal and arbitrary inasmuch as in terms of Section 14 of the UP Apartm Apartment Owners, the management of Apartments regarding their common areas and facilities sha Promoter, i.e., the Opposite Party Developer to the Association, which shall thereupon maintain the for the Opposite Party Developer submitted that since the Project has been completed and the Occup Allottees are bound to pay the Maintenance Charges in terms of Clause C of the Allotment Agreements have also been executed by the Flat Owners for payment of Maintenance Charges.
The question with regard to payment of Maintenance Charges by the Allottees to the Developer h this Commission in the case of in Kamal Kishore & Anr. Versus M/s. Supertech Limited, - II (2017) wherein it was inter-alia, held as under:-
“ The next demand raised by the Opposite Party towards maintenance charges. Clause 10 of the allo maintenance expenses, to the extent it is relevant, reads as under:-
" THAT an Interest Free Maintenance Security (IFMS) towards the maintenance and upkeep of the c Allottee/s to the Company as mentioned in the payment plan on page No. 2/3. The date of commence the complex for which monthly maintenance charges to be paid by the allottee based on super area o date of issue of "Letter of Offer of Possession."
It would thus be seen that maintenance charges are required to be paid by the allo offer of possession. As stated earlier, the possession in my view could not have completing the construction of the villa in all respects and obtaining the requ possession without obtaining the occupancy certificate is meaningless since the allo the house which does not have the requisite occupancy certificate. Therefore, the would be payable only from the date on which the possession is offered to the comp occupancy certificate and provided the construction of the villa complete in all respect.t
Recently, a Co-ordinate Bench of this Commission in the case of Madhusudhan Reddy R. And O Pvt. Ltd. & Ors. – Consumer Complaint No. 763 OF 2020 – decided on 25.01.2022, has taken the decision in Kamal Kishore’s case (supra). While dealing with the justification of the demand on acco Developer, the Co-ordinate Bench of the Commission observed as under:-
“ Regarding the issue of maintenance charges, it is fact that, the Complainants have taken physical p would be logical that, there would be expense on the maintenance of certain common services. It is a Certificate has not been obtained yet. It means that the project is not yet fully complete and that not a provided. As per the Order of this Commission in Kamal Kishore & Anr. Versus M/s. Supertech Lim should be levied before obtaining the Occupancy Certificate. In this case, even of some of the allotte taken possession of their respective Units, it would be considered as paper possession only. So, the q charge is in our considered view not proper and therefore should not have been collected and should Occupancy Certificate. The Complainants will be liable to pay maintenance charge only after the Oc.
In the present Complaint, it is the case of the Complainant Society that only the partial Occup the Opposite Party Developer as the Project is still not complete even after a lapse of period of 5 to 6 delivery as mentioned in the Allotment Letters. The Opposite Party Developer has also failed to prov However, on the contrary, the defence of the Opposite Party Developer is that the Occupancy Certifi Project and the possession of the allotted Flats/Apartments have been taken by the Members of the C obtaining the Occupancy Certificate by the Developer in respect of their respective Flat/Apartment.
On scrutiny of the record, it is found that the Occupancy Certificate dated 14.06.2019 file 7.08.2019 is only a partial Occupancy Certificate. Moreover, despite the opportunity having been the Opposite Party Developer did not opt to furnish the information pertaining to date on which C respect of the Members of the Complainant Society and the disputed amount between the parties. T this Commission in the cases of Kamal Kapoor (Supra) and Madhusudhan Reddy R (Supra), Developer is not entitled to charge any amount on account of Maintenance Charges from the All issued to them with respect of the Project by the Competent Authorities.
With regard to the defects in the allotted Flats/Apartments pointed out by the Members of taking the possession, we direct the Opposite Party Developer to cure the same, if already not done, date of passing of this order failing which the Complainant Society shall get repaired the defects in Developer.
It has been submitted on behalf of the Complainant Society that its Members placed at Sl. N Chart (Santosh Kumar, Vinod Kumar and Vipin Kumar) has opted for “No Cost-EMI-Till Po Members of the Complainant Society had taken the actual possession of the allotted Apartm 20.10.2018, however, the Developer had defaulted in making the EMI Payment to the Bank/Finan case of Santoh Kumar and from March 2015 in respect of the other two Members. We are of the vie establish by adducing any documentary evidence that the delay in completion of the Project is du reasons beyond their control, they are liable to pay the EMI payments till handing over the actual po.
For the aforesaid reasons, the Complaint is partly allowed with the following directions to the
(i) Remove the defects in the Apartments pointed out by the Members of the C taking the possession, within a period of six months from today failing which the sa their costs;
(ii) Duly obtain the requisite Occupancy Certificate at its own cost if not alread legal documents.
(iii) Pay delay Compensation to the Members of the Society @ 9 % per annum fr would include grace period as per their respective Allotment Letters on the amount possession, within a period of six weeks from today failing which the delay compe the same period.
(iv) To collect the Maintenance Charges, if any payable by the Members of Occupancy Certificate;
(v) If any amount is collected on account of Maintenance Charges from the Me of Occupancy Certificate, the same shall be adjusted against the payable maintena with interest @9% p.a. from the respective date of deposit till the receipt of Occupan
(vi) To calculate the amount of EMI payment payable under the Subvention Pay date of actual possession and adjust the same against any amount payable by the M same with interest @9% p.a. from the due date till actual payment.
We further direct the Registry to release the disputed amount deposited by the terms of the orders dated 23.07.2018 and 01.11.2019 to them along with interest accru
The Consumer Complaint is disposed of in above terms. The application, if any pending, shal.