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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Ajit Bharihoke, Presiding Member
M/s. Baba Estates and Colonizers
and Anr. —Appellants
versus
Vishal Singh —Respondent
First Appeal No.2502 of 2017
(Against the Order dated 30/10/2017 in Complaint No. 377/2016 of the State Commission Punjab)
Decided on 24.5.2018
Counsel for the Parties:
For the Appellants:Mr. Siddharth Mittal, Advocate
IMPORTANT POINT
Even if any offer of possession was given by builder without obtaining completion certificate it cannot be taken as genuine offer for delivery of possession.
Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Real estate—Allotment of Apartment—Denial of possession despite substantial payment—Complaint allowed by State Commission—Completion certificate in respect of subject project has not been given by Municipal Authorities and they have communicated to appellant builder that completion certificate in respect of single flat which is part of a group housing project cannot be given and builder has to apply for completion certificate of whole project alongwith sanctioned plans according to rules and regulations after providing basic amenities for project—Till date there is no completion certificate issued in respect of project of which subject flat is part—Even if any offer of possession was given by builder without obtaining completion certificate it cannot be taken as genuine offer for delivery of possession—Even after expiry of almost three years from promised date of delivery of possession appellant has failed to deliver possession—Impugned order of State Commission holding appellant to be deficient in service and allowing complaint cannot be faulted—Appeal dismissed in limine.
Held: On bare reading of the above it is clear that completion certificate in respect of the subject project has not been given by the Municipal Authorities and they have communicated to the appellant builder that completion certificate in respect of single flat which is part of a group housing project cannot be given and the builder has to apply for completion certificate of the whole project alongwith the sanctioned plans according to the rules and regulations, after providing basic amenities for the project. From this it is evident that till date there is no completion certificate issued in respect of the project of which the subject flat is the part. Therefore, even if any offer of possession was given by the builder without obtaining completion certificate it cannot be taken as genuine offer for delivery of possession. Thus, it is clear that even after the expiry of almost three years from the promised date of delivery of possession the appellant has failed to deliver the possession, therefore, the impugned order of the State Commission holding the appellant to be deficient in service and allowing the complaint cannot be faulted.
In view of the reasons discussed above, I do not find any merit in the appeal. It is accordingly dismissed in limine with no order as to cost. (Paras 9 and 10)
Result: Appeal dismissed.
This appeal is directed against the order of the State Commission, Punjab dated 30.10.2017 in CC/377/2016.
2. Briefly put, facts relevant for the disposal of the appeal are that the respondent filed consumer complaint in the State Commission alleging that vide allotment letter dated 13.2.2015 he was allotted flat No.137 (2nd Floor) having super area 1050 sq. ft. in the development project “Shivjot Apartment” undertaken by the opposite party. As per the terms and conditions of allotment total consideration payable was Rs.23 lakhs to paid in instalments as per payment plan on demand of instalment due by the opposite party. The opposite party had agreed to deliver possession of the subject flat to the complainant on or before May, 2015. It is the case of the complainant that he had been paying instalments regularly and in all he had paid a sum of Rs.21,05,114/- in instalments against the agreed consideration. The said payments were paid by availing housing loan of Rs.18,40,000/- from HDFC Bank @10.15% per annum on variable rate basis. It is alleged that despite having received substantial amount against the agreed sale consideration the opposite party has failed to deliver possession within the stipulated period although the grace period of two months has long expired. Being aggrieved the complainant raised the consumer dispute in the State Commission.
3. The opposite parties upon notice filed joint replies taking a stand that actually the consideration price of the flat was Rs.26 lakhs and Rs.3 lakhs discount was given if the entire amount was paid within four months without any default. The opposite parties have admitted payment of Rs.21,05,114/- inclusive of service tax to the tune of Rs.45,114/-. According to the opposite parties the consideration amount was payable in instalments as per the payment plan. The complainant defaulted in the payment of respective instalments. Therefore, he is liable to pay interest @ 24% p.a. for the period of default in payment of the instalments. According to the opposite parties the complainant is still required to pay Rs.2,40,000/- against balance consideration amount besides the interest on the delayed payment and also the balance service tax. As the complainant failed to make payment in time the opposite parties had no option but to cancel the allotment of the flat of the complainant. It is further alleged that the construction is at full swing and the complainant with mala-fide intention to harass the opposite parties has approached the State Commission.
4. The State Commission on consideration of pleadings and the evidence of the parties came to the conclusion that the opposite party has committed deficiency in service by failing to deliver possession of the subject flat to complainant within a reasonable period. The State Commission accordingly allowed the complaint and directed the appellant/opposite party as under: -
“In view of the above discussion, the complaint is allowed and the following directions are issued to the opposite parties: -
1. to refund the amount of Rs.21,05,114/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment.
2. to pay Rs.1,00,000/- as compensation for the harassment and mental agony suffered by him; and
3. to pay Rs.22,000/- as cost of litigation.”
5. Learned counsel for the appellant has assailed the impugned order on the ground that the State Commission has failed to appreciate that there was no deficiency in service on the part of the opposite parties. On the contrary the complainant himself is a defaulter as he has failed to pay the instalments against the consideration amount as per the payment plan as also the interest for the delayed payments.
6. The application form submitted by the complainant is OPI-2/A. Alongwith the application form the payment plant is annex
