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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
V.K. Jain, Presiding Member
M/s. Ansal Housing &
Construction Ltd. and Anr. —Appellants
versus
Mahipal Singh Mann and Ors. —Respondents
First Appeal No.186 of 2013
(Against the Order dated 21/12/2012 in Complaint No. 51/2011 of the State Commission Punjab)
Decided on 13.2.2019
For the Appellants:Mr. Rajesh Ranjan, Ms. Kridika Sachdeva and Mr. Tapas Tyagi, Advocates
For the Respondent Nos.1 and 2:Mr. Himanshu Gupta and For the Respondent:Ms. Shweta Kapoor, Advocates
IMPORTANT POINT
Even if no specific time period was fixed in terms and conditions of allotment for offering possession of allotted flat to complainant, possession ought to have been offered within a period of three years from allotment.
Headnote:Consumer Protection Act, 1986—Sections 17, 19 and 21—Punjab Apartments and Property Regulation Act, 1995—Section 14—Real estate—Booking of residential Flat—Denial of possession despite substantial payment—Complaint allowed by State Commission—95% of sale consideration had been paid by complainant to appellants and balance 5% was payable at the time of possession—Though, no specific time period was fixed in terms and conditions of allotment for offering possession of allotted flat to complainant, possession ought to have been offered within a period of three years from allotment, after completing construction in all respects and obtaining requisite occupancy certificate—Appellants were deficient in rendering services to complainant since they failed to obtain the requisite occupancy certificate before offering possession of allotted flat to complainant—Appellants shall obtain requisite occupancy certificate in respect of flat allotted to complainant at their own cost and responsibility within three months from today and then offer possession of flat to complainant, within next one month, annexing a copy of occupancy certificate to the offer—Possession of flat complete in all respects shall be delivered to complainant within four weeks of his paying balance amount—Appellants shall pay sum of Rs.25,000/- as cost of litigation to complainant.
Held: It is not in dispute that 95% of the sale consideration had been paid by the complainant to the appellants and the balance 5% was payable at the time of possession. Though, no specific time period was fixed in the terms and conditions of allotment for offering possession of the allotted flat to the complainant, considering all the facts and circumstances of the case, including the scale of the project in which allotment was made to the complainant, I am of the considered view that the possession ought to have been offered within a period of three years from the allotment, after completing the construction in all respects and obtaining the requisite occupancy certificate.
Though, the appellants claims to have applied for the issuance of the requisite occupancy certificate, they have not produced any evidence to prove that the delay in issuance of the occupancy certificate is attributable solely to the concerned authority and the appellants are not in any manner, responsible for the said delay. The appellants have not even placed on record the correspondence exchanged between them and the concerned Municipal Authority in respect of their application for issuance of the occupancy certificate. In my view, the onus was upon the appellants to prove that they had applied for the issuance of the requisite occupancy certificate with all the prescribed documents and that the construction, subject matter of their application for issuance of the occupancy certificate, was complete in all respects and free from any defect, deviation, unauthorized construction etc. Bye-law 3.12 and 3.13 of the Zirakpur Municipal Building Bye-law, 2010 as extracted in the order of the State Commission
The possession of the flat complete in all respects shall be delivered to the complainant within four weeks of his paying the balance amount in terms of direction (ii) hereinabove.
(Paras 5, 8 and 9)
Result: Appeal disposed of with directions.
V.K. Jain, Presiding Member—The complainant / respondent booked a residential flat with the appellants in Woodbury Apartment, Zirakpur for a total consideration of Rs.32,84,541/-. Vide allotment letter dated 22.10.2008, residential flat No. 402 in the said project was allotted to him on the terms and conditions annexed to the said letter. As per Clause-22 of the terms and conditions, the appellants was to endeavour to give possession within a reasonable time from the date of the allotment letter, subject to the force majeure circumstances, including delay in the grant of part / full occupancy certificate. The following was the payment plan, agreed between the parties:
1. Down Payment Plan.
At the time of application/allotment of plot
15%
Within 45 days of allotment
80%
At the time of offer of possession along with other charges
05%
2. The complainant also took a loan from Dewan Housing Finance Corporation Limited for making payment to the appellants and mortgaged the allotted flat to the said company. Since the possession of the flat was not offered to him, the complainant approached the concerned State Commission by way of a consumer complaint, seeking the following reliefs:
“(i) To deliver the possession of the flat immediately after issuing the completion certificate and the occupation certificate.
(ii) To pay the interest @ 24% per annum on the amount deposited by the complainant from the date of payment till the delivery of possession.
(iii) To pay the Pre-EMI amount paid by the complainant to opposite party No.3 due to non-handing of the possession in time from the date of payment till the actual handing over the possession of the flat;
(iv) To pay compensation of Rs.2,00,000/- for mental agony and harassment.”
3. The complaint was resisted by the appellants, which inter-alia stated in its reply that the possession was offered to the complainant on 25.4.2011 but he was not coming forward to pay the balance amount and take possession. As regards the allegations of the complainant that the flat was not ready for occupation, it was stated in the written version filed by the appellants that painting of the flat, along with electrical fittings are not completed, prior to receipt of payment as the fittings generally get stolen.
4. The State Commission vide impugned order dated 21.12.2012 directed as under:
“(i) The opposite parties No. 1 and 2 are directed to pay entire interest to O.P. No.3 from 09.10.2010 i.e. after two years from the date of purchase of the flat by the complainant till the delivery of the possession of the flat and if already paid by the complainant then the same be refunded by the opposite parties No. 1 and 2 to the complainant.
(ii) Pay interest @ 12% per annum on Rs.1 lac which was deposited by the complainant with opposite parties No. 1 and 2 on 8.10.2008; from 9.10.2010 till the delivery of the possession of the flat within one month from the receipt of the copy of the order.
(iii) To deliver the possession of the flat within six months from the receipt of the copy of the order after completing all the formalities as per the law as well as completing the construction of the building on all aspects as well as to provide basic amenities to the complainant.
(iv) to pay Rs.2 lacs as compensation due to harassment, mental agony suffered by the complainant due to non-delivery of the flat for such a long period as well as Rs.20,000/- as litigation expenses within one month from the receipt of copy of the order.
(v) O.P. No.3 is directed to pay Rs.50,000/- to the complainant for its unfair trade practice by obtaining the signature of the complainant on the tripartite agreement without filling the columns of the agreement and to use the same as per its own sweet will and to cheat and extort money from the complainant, within one month from the receipt of the copy of the o
