Delhi District Commission (South) Holds M/s Adinath Properties Pvt. Ltd. Liable For Unfair Trade Practices For Making Offer Of Possession Without OC/CC
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The District Consumer Disputes Redressal Commission-II (South) held M/s Adinath Properties Pvt. Ltd. liable for unfair trade practices and deficiency in service for making an offer of possession without providing the Occupancy Certificate and Completion Certificate to the Complainants. The Bench presided by Mrs. Monica A. Srivastava (President) and Kiran Kaushal (Member) held that absence of an Occupancy Certificate and the failure to abide by the contractual obligations amounted to deficiency in service.
Background
The first Complainant(wife) paid an amount of Rs.1,60,500 while booking a unit with the Builder/Opposite Party in their project “Terra City” at Tijara, District Bhiwadi, Alwar for residential use. The project was supposed to be completed on or before 29.03.2016 as was promised by the builder, M/s Adinath Properties Pvt. Ltd.
On 29.03.2013, the first Complainant entered into a Builder Buyer Agreement and a flat measuring 850 Sq. Ft. super area No.U-403, Fourth Floor, Tower Carnation was allotted. Subsequently, on 22.05.2015, the Unit was transferred to the co-ownership of both the complainants (first complainant and her husband) from the sole ownership of the husband (second complainant). The Builder approved the transfer on 06.06.2015. On 15.06.2015, the complainants, Builder and HDFC Ltd entered into a tripartite agreement and later the Bank sanctioned a loan of Rs.10,81,000.
The Complainants stated that they were promised possession on 29.03.2016 as per Clause 14 of the BBA as per which the unit was to be completed within 36 months after the date of agreement. The Complainants claimed to have made all the due payments in time and having met all the demands of the Builder. As per the Complainants, even after four years of the promised date of delivery, the construction of the Unit was yet to be completed and they were being asked to pay more money for the clubhouse facility that was also yet to be completed. Despite several Emails to the Builder requesting Occupancy Certificate and Completion Certificate and for valid offer of possession, the Builder denied the production of the same to be mandatory.
Hence, the Complainants sent a legal notice to the Builder on 08.12.2017, 08.10.2018 and 26.08.2020.
Relying on Pioneer Urban Land and Infrastructure Ltd. Vs. Govindan Raghavan CA 12238/2018, the Complainants claimed that on 05.08.2020, the Opposite Party sent a reminder for possession of residential unit and demanded the pending Rs.4,89,948 from the Complainants without having provided them the Occupancy certificate and the Completion Certificate which amounted for an unfair trade practice on part of the Builder
Moreover, as per the Complainants, the Builder did not provide any reasonable justification as to why there was an inordinate delay in completing the construction of the project and how the circumstances were beyond the control of Builder. To justify the contention, the Complainants also referred to the decision in Lucknow Development Authority Vs. M.K. Gupta AIR 1984 SC 787 and Fortune Infrastructure Vs. Trevor D'Lima CA No.3533-3534/2017.
Ultimately, the Complainants sought a refund of Rs.16,74,798 from the Opposite Party by sending a legal notice following by approaching the Commission.
On the other hand, the Opposite party/builder challenged the territorial jurisdiction of the District Commission while referring to Clause 49 of the Builder Buyer Agreement.
The Complainants cited Clause 50 of the Builder Buyer Agreement stating that in case of delay in handing over possession, the Opposite Party was required to pay compensation at Rs.5 per sq. ft. per month of the super area till the date of offering the possession. A Transfer Form, endorsement by the Opposite Party and the tripartite agreement dated 11.06.2015 was also produced the Complainants. Furthermore, the Complainants also produced pictures of the project showing incomplete development. The documents placed on record indicated that the Complainants had made a payment of 95% of the flat and the emails sent by the Opposite Party did not make it clear whether the Occupancy Certificate and the Completion Certificate was received by the Complainants.
Observations of the Commission:
Citing judgments of the Supreme Court including Samruddhi Co-operative Housing Society Ltd. Versus Mumbai Mahalaxmi Construction Pvt. Ltd., Wing Commander Arifur Rahman Khan v. DLF Southern Homes Private Limited & Others and Pioneer Urban Land Infrastructure Limited v. Govindan Raghavan, the Commission held that the Opposite Party was deficient in services considering their failure to avail the Complainants an Occupancy Certificate and not having complied with the contractual obligations.
Moreover, the Opposite Party made an offer of possession quite late compared to what was stated in the Builder Buyer Agreement without providing the Occupancy Certificate and the Completion Certificate while making the offer of possession.
Therefore, considering the evidence and relying on the legal precedents, the Commission ruled in favour of the Complainant holding the Opposite Party guilty of unfair trade practice and deficiency in services. Accordingly, the Opposite Party was directed to refund an amount of Rs. 16,74,698/-with interest at 9% per annum within three months of issuance of the order, failing which, the Opposite Party would be liable to pay interest at 10% per annum. Additionally, the Opposite Party was also directed to pay a sum of Rs.50,000/- for offering possession without any Occupancy Certificate and the Completion Certificate.
The Complainants were represented by Adv. Anshul Gupta and the Opposite Party was represented by Adv.Rajnish Ranjan.
Case Title: Kamini Kapoor & Anr versus M/s Adinath Properties Pvt. Ltd.
Case No:181/2020