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Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH Consumer Complaint No.282 of 2017 Date of Institution : 26.04.2017 Order Reserved on : 09.03.2018 Date of Decision : 13.03.2018 1.
Gurcharan Singh Virdi son of Sh. Amarjit Singh Virdi
2. Mrs. Damanjyot Virdi w/o Col. Gurcharan Singh Virdi Both r/o Flat No. 1021, ATS Golf Meadows Prelude, Barwala Road, Dera Bassi, SAS Nagar, Punjab 140507 ....Complainants Versus
1. M/s ATS Infrastructure Ltd., ATS Golf Meadows, Chandigarh Ambala Highway, opposite Sadashiv Complex, Near Derabassi-Barwala Chowk, Dera Bassi District SAS Nagar (Mohali) Punjab-140507.
2. M/s ATS Maintenance Services Pvt. Ltd., Basement, Tower No. 6, ATS Golf Meadows Prelude, Barwala Road, Dera Bassi, District SAS Nagar (Mohali), Punjab 140507 Opposite parties Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainants : Sh.Gurcharan Singh Virdi, Complainant no.1 in person For opposite parties : Sh. Sukhandeep Singh & Sh.Updip Singh, Advocates .................................................................................................
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Originally, complaint was filed before District Consumer Disputes Redressed Forum Mohali and vide order dated 08.03.2017, it was returned for presenting it before the appropriate Forum, which is this Commission. The complaint has, thus, come up for before this Commission in this complaint titled as above.
2. The brief facts of the case of the complainants, as pleaded are that induced by the assurances of OPs for provision of modern facilities in the brochure of ATS Golf Meadows Prelude, the complainants applied for purchase of flat bearing no. 1021 Type B in Tower 10 on 2nd Floor in the project under the name and style of "ATS Golf Meadows Prelude" situated at Village Madhopur for basic sale price of Rs.40,50,000/-. Buyers agreement was executed between the parties on 05.01.2011. The possession was to be delivered by OPs to complainants with modern facilities. OPs handed over the physical possession of the flat to complainants on 21.10.2011, vide certificate of possession. OPs assured to provide five star hotel with banquet halls, hospital, shopping mall, retail, park, school, golf facilities and sports club in the project and claimed on the website of OPs in that manner. The layout plan was sanctioned of this area to OPs bearing reference no. 830 dated 12.05.2006 by Municipal Council Derabassi. Clause 8 of the buyer's agreement stated that possession of the flat would be delivered to alltotee between December 2008 and March 2009 and there was provision in the event of completion of said flat being delayed 8 to 10 months from the date of buyer's agreement with a grace period of three months i.e. February 2012 for the reasons directly attributable to OP no.1. As per clause 5 of buyers agreement the OPs could raise funds by levying suitable maintenance charges on a monthly basis for maintenance of common areas, outer walls of the building, parking spaces, security of the complex, power back up, lifts and common areas. OPs delayed 8 to 10 months in delivery of possession to complainants. OPs are liable to pay interest @ 6% for the period of delayed possession beyond February 2012. The allottee shall pay charges @ 0.2% of the total costs of the flat per month, in case he has not taken the possession of the flat within six months from the date of issue of possession letter. OPs got conveyance deed drastically twisted in their favour by incorporating their suitable terms therein, which is reflective of unfair trade practice on their part. No rights have been given to the allottees in the conveyance deed by OPs. OPs have been extracting maintenance charges, transfer fee in violation of buyer's agreement. OPs have not complied with fire safety norms to the requirement of Ministry of Environment Forest & Climate Change. OPs gave possession to allottees without necessary approval from PSPCL for electricity connection. OPs delivered the physical possession to complainant without occupancy certificate. OPs violated the provisions of PAPRA Act 1995. OPs only obtained partial completion of the project, which is not completion certificate, as is evident from the instances formulated in the complaint. OPs changed the sanctioned layout plan without consent of the flat owners and thereby violated Section 11 of PAPRA Act. OPs have not delivered the possession of the basement for storage space, as promised by them to complainants. The complainants have sought following directions to OPs :-
i) OP no.1 to pay Rs.10,73,250/- with interest @ 6% on Rs.40,50,000/- as per clause 8 of buyers agreement for the period of delay beyond February 2012 to date till date of delivery of legal possession.
ii) OP no.1 to refund an amount of Rs.2,16,399/- collected under the head of 'Monthly Maintenance Charges" by OP no.2 since 01.05.2011 up to July 2016 with interest.
iii) OPs no.1 and 2 be directed to execute the Tripartite Maintenance Agreement with the complainants and OP 1 be directed to obtain occupancy certificate.
iv) OP no.1 directed to execute conveyance deed, as per terms and conditions of the buyers agreement of the allotment.
v) OP no.1 directed to give the possession of basement as promised by it, as storage space being part of the sanctioned layout plan of Municipal Council Derabassi.
vi) OP no.1 directed to pay a sum of Rs.5,00,000/- as compensation for mental harassment.
vii) OP no.1 directed to pay a sum of Rs.50,000/- as cost of litigation.
3. Upon notice, OPs filed written reply before District Forum, wherefrom this complaint was returned for presenting to this Commission. OPs averred that complainants filed this complaint for having taken the physical possession of the flat in the year 2012 and they have been enjoying all the facilities since then provided by OPs. OPs are running ATS Valley School Derabassi at ATS Golf Medows Township. Complainant no.2 applied for Teacher job in ATS Valley School and she was appointed teacher w.e.f. 01.07.2014. She remained absent unauthorizedly several times despite giving her warnings. Primarily due to this reason, her services were terminated by the Management, vide letter dated 01.10.2014 w.e.f. 01.11.2014. The complainants since are bearing grudge against OPs and this behaviour of complainants culminated into the filing of this complaint. The construction of the project started with grant of construction permission on 12.05.2006. Towers no. 3 to 11 and 14 were constructed and granted completion certificate dated 23.05.2011 by the office of Municipal Council Derabassi. The final completion certificate was issued, vide letter dated 11.09.2014 by Executive Officer Municipal Council Derabassi. Rules 3.12 and 3.13 of building byelaws 2007 of Municipal Council deal with certification regarding completion of project and permission for occupation of the building. These byelaws provide the Form D, E and F for application for permission to occupy, certificate of completion of building, as per sanctioned plan by registered architect and notice of completion of building respectively. These byelaws are to be issued by Municipal Council. There is no special compliance required for occupation of building and promoter/builder has to only give notice of completion of building with supporting documents as required by the byelaws. Therefore, certification of Municipal Council regarding completion of a particular building also amounts to permission to occupy that building. Section 14 of PAPRA Act provide for obligation of builder/promoter to obtain occupation certificate. After due compliances of all types, the OPs offered possession, vide certificate of possession dated 21.10.2011 to OPs. OPs obtained fire safety certificate from Fire Station Derabassi SAS Nagar, which was renewed annually without any complaint. The technical permission regarding site plan was granted by Chief Town Planner Local Government Department Punjab to Executive Officer Municipal Council Derabassi. The Municipal Council Derabassi issued permission of construction, vide letter dated 21.07.2010 and granted certificate of passing of site plan of ATS Prelude project, vide letter dated 23.05.2011. OPs obtained environment impact assessment clearance, vide letter no. 205-A/SEIAA(P)/2010.III dated 23.08.2010 for ATS Gold Meadows Prelude Project from Northern Regional Office of Ministry of Environment Forest and Climate Change. OPs also obtained consent to operate under the Air Prevention and Control Pollution Act 1981 and Water Prevention and Control of Pollution Act 1974 at the time of start of the project and also at the time of offering of possession of project after completion thereof. The conveyance deed has been duly executed, as per terms of the allotment and buyer's agreement only. The complainants are under obligation to pay interest free maintenance security deposit and recurring monthly charges for maintenance services for better maintenance. OPs denied any deficiency in service on their part. The complainants never demurred the terms of the agreement which were incorporated in the conveyance deed even after five years of execution of the same. The conveyance deed can be challenged only in the civil court and not before this Commission, which is invested with summary jurisdiction only. The OPs pleaded that the complaint is barred by time, as it has been filed after five years from the date of conveyance deed and delivery of possession of the flat. OPs prayed for dismissal of the complaint.
4. The complainant no.1 tendered in evidence his affidavit Ex.C-A and complainant no.2 tendered her affidavit Ex.C-B along with copies of documents Ex.C-1 to Ex.C-41. As against it; OPS tendered in evidence affidavit of Sh.Shubham Gaur Authorized Representative Ex.OP-A Sh. Rajnish Sharma authorized signatory of OP Ex.OP-A along with copies of documents Ex.OP-1 to Ex.OP-24 and closed the evidence.
5. We have heard Sh. Gurcharan Singh Virdi complainant in person in extenso and Sh. Sukhandeep Singh Advocate counsel for OPs at length and also examined the pleadings and evidence on the record of the parties in this case. The forceful submission of OPs during arguments is that complaint is barred by time and merits dismissal on this score. On the other hand, the submission of complainant in person is that complaint is within time, as there is continuous cause of action and this complaint was admitted by this Commission, which is reflective of this fact that it is within time. The complainant in person urged that there is continuous cause of action and hence the complaint is not barred by time. Section 24 A of Consumer Protection Act 1986 is mandatory in nature and it lays down as under :-
Section 24A in the Consumer Protection Act, 1986 [24A. Limitation period.--
(1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub- section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period: Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.] It is, thus, plain from perusal of Section 24-A of Consumer Protection Act 1986 that complaint must be filed within a period of two years from the date of commencement of cause of action. A complaint, which is barred by time merits outright dismissal. However, there is a provision of condonation of delay and complainant is required to apply for condonation of delay by moving an application with the complaint at the time of its institution. There is no such application for condonation of delay moved by the complainants in this case. This point has to be adjudicated by us in this case on the basis of evidence of parties, as to whether complaint is within time or not.
6. The grievance of the complainants is that OPs have not completed the project and as such they have delivered incomplete possession of the flat to them and hence they have continuous cause of action against OPs in this case. On the other hand, the forceful submission of counsel for OPs is that flat bearing no. 1021 with super area of 2200 sq. ft in Tower no. 10 primarily on the second floor thereof and basic sale price of flat is Rs.40,50,000/-, as per agreement for allotment Ex.C-1 dated 05.01.2011. Admittedly, complainants were allotted flat in second floor of Tower no. 10 in this project. As per clause 8 of buyer's agreement, the possession of the flat was to be delivered to allottee in 8-10 months from the date of agreement with a further grace period of three months. At the most, stipulation period for delivery of possession was one year and one month from the date of this agreement dated 05.01.2011. The date of delivery of the possession in this case was at the most till 05.02.2012. OPs delivered the physical possession to complainants of this flat, as admitted by the complainants in their version in the year 2012. The complainants have been put in possession by OPs in the year 2012 of this flat. The complainants instituted this complaint for the first time in the year 2016 before District Forum SAS Nagar Mohali, which was transferred to this Commission, as per order of District Forum Mohali. The original date of institution of this complaint is of the year 2016 only. The complainants received possession of the flat from OPs in the year 2012. The conveyance deed was executed by OPs in favour of the complainants for this flat in the year 2012 and this fact is not disputed before us by either of the parties. The grievance of the complainants is that OPs delivered the possession of the flat in incomplete manner to them without completion of the project. Vide letter no. 2787 dated 11.09.2014 Executive Officer Municipal Council Derabassi intimated to OPs that their project is complete. The Executive Officer Municipal Office Derabassi intimated to OPs by virtue of order dated 23.05.2014 Ex.C-7 that Towers no. 3 to 11 and 14 have been completed. OPs completed the construction of this tower and delivered the possession to complainants in the year 2012. The complainants have not raised any protest, when they received the physical possession of the flat from OPs in the year 2012 that it is not complete or at the time of execution of the conveyance deed in his favour in the year 2012. The complainants relied upon various complaints of other persons filed against OPs on the record to instantiate this fact that OPs have not completed this project. Our attention has also been drawn by counsel for OPs to clause 3.12 of Municipal Building Byelaws to the effect that no person shall occupy or allow other person to occupy any new building or part of a new building for any purpose whatsoever until such building or part thereof has been certified by the local authority or of any person authorized by it in this behalf to be in every respect completed according to the sanctioned plan and fit for the use. No format for this purpose has been prescribed for it. The completion certificate by MC Derabassi for the towers has been brought on record. The complainants received the possession after their due satisfaction as complainant no. 1 is Army Officer and knew about status of completion. The layout plan is duly sanctioned by the authorities in the year 2006 and permission for land user was granted by the authorities, vide Ex.OP-7 dated 03.02.2006. Fire safety certificate has been issued on 17.04.06, vide Ex.OP-8. Building Structure Design of ATS Green Group Housing at Derabassi, vide Ex.OP-9. The permission for disposal of garbage and treated sewerage water is dated 08.10.2008, vide Ex.OP-10. Similarly, permission by Executive Officer Nagar Council Derabassi for sewerage and water, vide Ex.OP-12 on the record. Similarly, we have also examined other documents Ex.OP-13 to Ex.OP-24 on the record.
7. The construction of the project was completed in the year 2012 and OPs delivered the physical possession of flat to complainants. The complainants received physical possession of the flat in the year 2012 and have been residing therein since then. The complainants have not raised any protest anywhere about incomplete status or lack of completion of this flat since then. The conveyance deed was executed in favour of the complainants in the year 2012 for this project. National Commission has held in "Agra Development Authority through its Vice Chairman versus Army Welfare Housing Organization" reported in 2014(2) CPJ 44 that limitation before admitting complaint under the Act, it is incumbent upon Consumer Forum to examine whether complaint has been filed within a period of two years from date on which cause of action had arisen, regardless of fact whether such objection has been raised by opposite party or not. If complaint is filed beyond period of limitation, Forum must record its satisfaction that complainant had sufficient cause for not filing complaint within time. Failure to do so would vitiate its decision on merits of complaint. Though, State Commission has held that there has been no delay in filing complaint. It has not dealt with the question of limitation in its correct perspective. Complainant has failed to show sufficient cause for condonation of inordinate delay of over five years in filing this complaint nor it filed any such application for condonation of delay in this case. Complaint is miserably barred by limitation and is liable to be dismissed on that ground alone. Impugned order set aside and complaint dismissed on ground of limitation. The National Commission has emphasized over this point in the cited authority that it is incumbent upon Consumer Forum to examine whether complaint has been filed within a period of two years from date on which cause of action had arisen, regardless of fact whether such objection has been raised by opposite party or not. If complaint is filed beyond period of limitation, Forum must record its satisfaction that complainant had sufficient cause for not filing complaint within time. National Commission has also held in "Nilesh Kotecha and another versus Ramdas Bavise and others" reported in 2016 SCC NCDRC 2650 that when construction of the flat was completed by June 1993 and sale deed was executed in favour of respondent no.1, hence, complaint is barred by time by taking commencement of cause of action from the time when the construction was completed and possession was delivered and sale deed was executed. Limitation is to commence from that date and hence complaint is barred by limitation. In the instant case, the construction was completed by OPs in the year 2012 and physical possession of the flat was delivered to complainants in the year 2012 and conveyance deed was executed by OPs in favour of the complainants in the year 2012 and complaint has been filed by complainants in the year 2016 and obviously it is barred by time. The submission of complainant that it was admitted for hearing is no sustainable ground on this point. It has to be ascertained only after hearing the parties and evidence on this point, as to whether complaint is within time or not. We, thus, hold that the cause of action commenced in this case in the year 2012, as referred to above and it is not a case of continuous cause of action and hence complaint is ex facie barred by limitation and is hit by Section 24-A of Consumer Protection Act 1986.
8. Once, we have come to this conclusion that complaint is barred by time, hence we do not find any necessity to touch other aspects of the matter, because the complaint is obviously time barred and merits dismissal on that score. It is the primary duty of the Forum to consider this point, as to whether complaint is within time or not. It is immaterial whether the defendant/OP raises any such defence of time barred complaint because it is enjoined upon the Court to decide this point under Section 3 of Limitation Act 1963, as to whether the complaint is within time or not.
9. For the reasons recorded above, we hold that complaint is barred by time hence same is dismissed as time barred.
10. Arguments in this complaint were heard on 09.03.2018 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
11. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 13, 2018 (ravi)