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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
Siddhant Singh Chauhan and Anr. —Complainants
versus
Vatika Ltd. and Ors. —Opp. Parties
Consumer Case Nos.1176 to 1181 of 2016
Decided on 15.3.2018
For the Complainants:Mr. Ramnish Khanna and Mr. Sahil Dagar, Advocates
For the Opp. Parties:Mr. S.K. Sahni, Advocate
IMPORTANT POINT
Law does not permit OP to give possession of flat without obtaining occupancy certificate.
Headnote:Consumer Protection Act, 1986—Section 21—Real estate—Apartment Buyers Agreements—Denial of Occupancy Certificate—Law does not permit OP to give possession of flat without obtaining occupancy certificate—As for refund of parking charges, opposite party is seeking to charge only such amount as cost of parking as was agreed between parties—Complainants are required to pay said amount to opposite party—Though, opposite party was entitled to recover interest for delayed payment, it has in its wisdom chosen to waive interest—Complainants, on other hand have not waived or relinquished their legal right to claim compensation for deficiency in services offered to them—They are entitled to appropriate compensation for period possession has been delayed—Opposite should pay compensation in form of 8% simple interest with effect from three years from the date of execution of apartment buyers agreement till the date on which possession is offered—Opposite party shall pay Rs.25,000/- as cost of litigation in each complaint. (Paras 6 to 9)
Result: Complaints allowed.
V.K. Jain, Presiding Member—The complainants booked residential flats with the opposite party in a project namely “The Seven Lamps”, which the opposite party was to develop in Sector 82 of Gurgaon. The complainants then executed individual Apartment Buyers agreements with the opposite party on different dates, incorporating the respective obligations of the parties in respect of the said transactions. In terms of the schedule for possession contained in the said Apartment Buyers agreements, the possession was to be delivered within a period of three years from the execution of the said agreements. Computed from the date of the execution of the said agreements, the possession ought to have been delivered by 26.6.2015 in Consumer Complaint No. 1176 of 2016, by 29.11.2014 in Consumer Complaint No. 1177 of 2016, by 21.11.2015 in Consumer Complaint No. 1178 of 2016, by 24.8.2014 in Consumer Complaint No. 1179 of 2016, by 06.12.2014 in Consumer Complaint No. 1180 of 2016 and by 12.10.2014 in Consumer Complaint No. 1181 of 2016. The opposite party offered possession of the said flats to the allottees on different dates. Admittedly, no occupancy certificate had been obtained by it, by the date on which the possession was offered. The complainants are therefore before this Commission, seeking possession of the flats allotted to them, along with compensation. They are also seeking refund of the parking charges paid by them to the opposite party, on the ground that the parking area being part of the common areas and facilities, were required to be provided free of cost alongwith the apartment.
2. The complaints have been resisted by the opposite party which has taken a preliminary objection that this Commission lack pecuniary jurisdiction to entertain the complaints. On merits it is alleged that there was some delay in offering possession but it occurred on account of the reasons beyond the control of the opposite party. It is also the case of the opposite party that they have since obtained the requisite occupancy certificate on 17.10.2017 in the name of one of its subsidiary namely Shiv Ganesh Buildtech Pvt. Ltd.
3. As far as the pecuniary jurisdiction is concerned, though the compensation claimed by the complainants is much more, even if the compensation for the delayed possession with effect from the committed date of possession till the date of filing of the consumer complaints is computed @ 12% per annum and the amount of parking charges is added to, the aggregate comes to more than Rupees one crore. Therefore, in view of the decision rendered by a Three-Members of the Commission in CC No.97 of 2016 - Ambrish Kumar Shukla & Ors. Vs. Ferrous infrastructure Pvt. Ltd. decided on 07.10.2016, this Commission would have pecuniary jurisdiction to entertain these complaints.
4. As far as the delay in offering possession of the flats is concerned, one plea taken by the opposite party is that part of the land on which the project was to come up was notified by GAIL for laying down its gas pipeline. The learned counsel for the complainants has however, pointed out that the Notification in this regard was issued by GAIL way back in the year 2009 whereas the Apartment Buyers Agreements with the complainants were executed much later. Having promised to give possession of the flats within three years from the execution of the apartment buyers agreement, despite the aforesaid Notification issued by GAIL, the opposite party cannot be heard to say that the completion of the project was delayed on account of the aforesaid issue.
5. It is also submitted by the learned counsel for the opposite party that Government of Haryana had issued an order stopping the use of the ground water for construction purposes and that delayed the completion of the project. The learned counsel for the complainants however, has pointed out that prohibition contained in the order issue by Deputy Commissioner Gurgaon was applicable to only those cases where groun
