NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI
 
CONSUMER CASE NO. 346 OF 2014
 
1. Shri RAJEEV NOHWAR & ANR.,
501, Rainbow Plaza, Shivar Chowk, Rathani Road, Pimple Saudagar,
PUNE - 411027. ...........Complainant(s)
Versus  
1. M/s SAHAJANAND HI TECH CONSTRUCTION PVT. LTD.,
Regd. Office: 216, Shah And Nahar Industrial Estate, Dr. E. Moses Road, Worli,
MUMBAI - 400018. ...........Opp.Party(s)

BEFORE:  
  HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER
  HON'BLE DR. B.C. GUPTA, MEMBER

For the Complainant : Mr. Joydeep Sharma, Advocate

Dated : 06 May 2016

        Vide application dated 24.6.2014, signed by the complainants as well as by the Sales Manager of the opposite party, the complainants booked a
residential apartment being Unit No.2001 on the 20th floor, admeasuring 1660 sq. ft. of carpet area in tower 24 of a Project namely Lodha Belmondo,
which the opposite party is developing in Pune.  The total consideration for the aforesaid unit was agreed at Rs.1,68,88,095/-.  The complainant has
already paid 19.9% of total agreed sale consideration to the opposite party.  The opposite party issued an allotment letter dated 15.7.2014 to the
complainants referring to their application dated 24.6.2014 and inter-alia stating that the terms and conditions as stated in the application form shall
continue to be binding in respect of the allotment of the flat.  Vide Email dated 17.7.2014, the opposite party sent the payment schedule to the
complainants.  As per the said schedule, the application money-1, application money-2 and the second instalment were payable by 14.7.2014,
whereas as many as 10 instalments were payable on 04.8.2014.  The second last instalment amounting to Rs.8,44,405/- was payable on external
painting and the last instalment, for the same amount, was payable at the stage of fitouts.  Thus, about 90% of the sale consideration was payable by
04.8.2014.  Vide Email dated 18.7.2014, the complainant Shri Rajeev Nohwar sought copy of his booking form, draft agreement and proof of stage
of construction from the opposite party.  The request for draft agreement was repeated on 18.7.2014.  On 20.7.2014, the opposite party provided a
copy of the agreement to the complainants but the copies of the title documents, approvals etc., were not sent.  Vide Email dated 20.7.2014, the
complainant referring to the brochure issued by the opposite party, sought certain clarifications with respect to the Clause 14.4., 16.1 and 17.1 of the
draft agreement and also stated that the said draft agreement was wholly one-sided.  The opposite party was requested to address his concerns so that
he could perform his obligation to make payment and sign a suitable agreement with the opposite party.  The grievance of the complainants however,
was not addressed.  The opposite party then sent a demand letter dated 21.7.2014, demanding a sum of Rs.1,23,28,426/- from the complainants.  The
complainants sent a cheque of Rs. 1,23,28,426/- to the opposite party on 04.8.2014.  The opposite party sent another demand letter on 5.8.2014,
demanding the aforesaid amount of Rs. 1,23,28,426/-.  On 10.8.2014, the cheque of Rs. 1,23,28,426/- was returned to the complainants on the ground
that the opposite party cannot accept more than 20% of the sale consideration, without registration of the agreement between the parties.  The
opposite party issued yet another demand letter dated 12.8.2014, to the complainants, demanding the aforesaid amount of Rs. 1,23,28,426/-, along
with interest amounting to Rs.48,638/-.  The complainant remitted a sum of Rs. 1,23,28,426/- to the opposite party through RTGS.  The opposite
party also sent a pre-termination notice to the complainants threatening to cancel the booking if a sum of Rs.1,24,68,259/- which included interest
amounting to Rs.1,39,833 was not paid to it within fifteen days.  However, on 30.8.2014, the opposite party sent a cheque of Rs.1,23,,28,426/- to the
complainant towards refund of the amount which they had remitted through RTGS.  Being aggrieved, the complainant is before this Commission,
seeking the following reliefs:

a. Direct the respondent to remove all the illegal clauses from the draft agreement in respect of the Project so that all the common amenities
(including amenities mentioned in the draft Annexure 4) be handed over to the Resident Welfare Association as per law and act in accordance
with law;
b. During pendency of this complaint, the Respondent may be restrained from illegally cancelling the booking of the Flat of the Complainants;
c. In the alternative, direct the Respondent to refund of the entire sum of Rs.1,58,28,221/- paid by the complainant to the Respondent without any
deduction;
d. Direct the Respondent to pay compensation / damages to the complainant a sum of Rs.1,00,00,000/- (Rupees one crore only) on account of loss
of interest, harassment, mental agony and loss of opportunity;
e. Direct the respondent to pay interest on the awarded sum @ 18% per annum with monthly rests.

2.     The complaint has been resisted by the opposite party.  A preliminary objection has been taken that the complainants are not consumers but
rather speculators / investors since they already own residences and had booked flat with the opposite party for commercial purpose. Another
objection taken by the opposite party is that since the complainants are seeking modification of the terms and conditions agreed between the parties, a
consumer complaint in terms of the provisions of the Consumer Protection Act is not maintainable.  It is also alleged that the complainants did not
make payment as per policy schedule agreed by them and therefore, the opposite party was constrained to terminate the allotment by way of a notice
dated 11.9.2014.  According to the opposite party, as per the terms and conditions of the application form, they are entitled to forfeit 10% of the sale
consideration from the amount paid to them by the complainants.

3.     On merits, the opposite party had admitted the booking of the flat by the complainant as well as exchange of mails and correspondences
between the parties.  The opposite party has sought to justify the draft agreement sent to the complainants and has denied the allegations that the said
agreement is contrary to the provisions of MOFA.
4.     The pleadings of the parties and mails exchanged between them show that the complainants were unwilling to execute the Agreement to Sell
with the opposite party for the following reasons:

a.     No date by which the possession of the flat was to be handed over was stated in the draft agreement.

b.     The draft agreement envisaged payment of maintenance charges with effect from the date of offer for fitouts.

c.     The draft agreement stipulated payment of property tax commencing from the date of offer for fitouts.

d.     The encumbrances if any to the title and the approved layout of the building were not shown to him despite being statutorily required under
MOFA.  Rather, under the draft agreement he was being asked to declare that he had satisfied himself with relation to all approvals and
encumbrances on the property, prior to execution of the said agreement.

e.     The perpetual lease deed between the OP and the Loda Ideal Buildcon Private Limited (LIBPL) in respect of Golf Club, Gym etc.  was not
shown to him.

f.      The Club House, Gym, Yoga and Meditation Room, Restaurant etc., were not included in the list of common amenities, which is Annexure-4 to
the draft agreement, though they are ‘common areas and facilities’, as per Maharashtra Apartment Ownership Act, 1970 (MAOA). 

5.     Hence, the main question which arises for our consideration in this case is as to whether the complainants were justified in refusing to execute
the sale agreement in the format sent to them by the opposite party and were entitled to seek modification of the some of the terms of the said draft
agreement on the ground that the said terms were contrary to the provisions of the MOFA /MAOA.

6.     Section 3, 4 & 6 of MOFA, to the extent they are relevant read as under:

        3.     General liabilities of promoter

        (1)    …

        (2)    A promoter, who constructs or intends to construct such block of building of flats shall –

        a      ….   

        b      make full and true disclosure of all encumbrances on such land, including any right, interest or claim of any party in or over
such land;

        c       give inspection on seven day’s notice or demand, of the plans and specifications of the building built or to be built on the
land; such plans and specifications, having been approved by the local authority which he is required so to do under any law for the
time being in force;

        d      …
         e      …

        f       Specify in writing the date by which possession of the flat is to be handed over (and he shall hand over such possession
accordingly);

        g      …

        h      …

        i       not allow persons to enter into possession until a completion certificate where such certificate is required to be given under
any law, is duly given by the local authority (and no person shall take possession of a flat until such completion certificate has been
duly given by the local authority);

        j       ..

        k      make a full and true disclosure of such other information and documents in such manner as may be prescribed; and give on
demand true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed at a reasonable
charge therefor;

4.     …

        (1)    Notwithstanding anything contained in any other law, a promoter who intends to construct or constructs a block or building of flats
all or some of which are to be taken or are taken on ownership basis, shall, before, he accepts any sum of money as advance payment or
deposit, which shall not be more than 20 per cent of the sale price enter into a written agreement for sale with each of such persons who are
to take or have taken such flats, and the agreement shall be registered under the Registration Act, 1908 (hereinafter in this section referred to
as “the Registration Act, 1908) and such agreement shall be in the prescribed form.

        (1A)  The agreement to be prescribed under sub-section (1) shall contain inter alia the particulars as specified in clause (a); and to such
agreement there shall be attached the copies of the documents specified in clause (b) –

        a      ..

        (i)      ….

        (ii)     the date by which the possession of the flat is to be handed over to the purchaser;

        (iii)    ….

        (iv)    …

        (v)     …
         (vi)    the nature, extent and description of common areas and facilities;

        (vii)   the nature, extent and description of limited common areas and facilities, if any;

        (viii)  …

        (ix)    …

        (x)     ….

        (b)     Copies of documents –

        (i)      the certificate by an Attorney-at-law or Advocate under clause (a) of sub-section (2) of Section 3;

        (ii)     Property Card or extract of Village Forms VI or VII and XII or any other relevant revenue record showing the nature of the title of
the promoter to the land on which the flats are constructed or are to be constructed;

        (iii)    the plans and specifications of the flat as approved by the concerned local authority.

6.     Responsibility for payment of outgoings till property is transferred

        A promoter shall, while he is in possession, and where he collects from persons who have taken over flats or are to take over flats sums
for the payment of outgoings even thereafter, pay all outgoings (including ground rent, municipal or other local taxes, takes on income, water
charges, electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any), until he transfers the property to
the persons taking over the flats, or to the organisation of any such persons, [where any promoter fails to pay all or any of the outgoings
collected by him from the persons who have taken over flats or are to take over flats, before transferring the property to the persons taking
over the flats or to the organisation of any such persons, the promoter shall continue to be liable, even after the transfer of the property, to
pay such outgoings and penal charges (if any) to the authority or person to whom they are payable and to be responsible for any, legal
proceedings which may be taken therefor by such authority or person.]”

7.     Section 3 (2) of MOFA thus requires the promoter to make a true and full disclosure of his title to the land on which the building of flats is to be
constructed and give inspection of the plans and specifications of the said building to the buyer.  The plans and specifications should have been
approved by the concerned local authority.  He is also required by law to give, if so demanded by the buyer, true copies of the documents referred to
in various clauses of the sub-section (2) of Section-3 of MOFA.  Admittedly, the copies of the duly approved plans of the entire building of flats
which the opposite party is constructing, was not provided to the complainants nor were they given inspection of the said plans.  It appears from the
exchange of mails between the parties that the opposite party was seeking to give inspection of only that part of the approved plans wherein the flat
sold to the complainants was to be located.  However, in terms of Section 3(2)(1) of the MOFA, the opposite party was required to give inspection of
the plans and specifications of the whole building consisting of flats, which it was seeking to construct and such inspection, in our opinion, could not
have been restricted to only that part of the plans, which pertained to the unit sold to the complainants.  Moreover, the opposite party was also
required to supply true copies of the said documents to the complainants though it could ask for a reasonable charge therefor.
8.     The complainants wanted inspection of the encumbrances on the property in which the flat booked by them was to be situated, but such
inspection was not given to them despite Section 3(2)(b) of MOFA requiring the opposite party to make full and true disclosure of all encumbrances
on the  land, including any right, title, interest or claim of any party in or over the land  on which the building is to be constructed and clause-k of the
aforesaid sub-section mandating him to give true copies of such documents to the flat buyer.  The encumbrances, if any, on the land would have been
recorded on the title deed and therefore, the copy of the title deed ought to have been supplied to the complainants, in terms of clause-K above.
Moreover, as per Clause-4 of the draft agreement, the complainants were required to declare that they had satisfied themselves with relation to all
approvals and encumbrances on the property.  Without getting a copy of the aforesaid documents, they could not be expected to record the aforesaid
satisfaction.

9.Section-3(f)of MOFA requires the builder to specify in writing the date by which possession of the flat is to be handed over. As per Section-4(1A)
(a) (iii), the agreement between the promoter and the buyer is to contain the date by which the possession of the flat is to be handed over to the
purchaser. However, the draft agreement sent to the complainants did not specify the date by which possession was to be delivered to them, though it
was stated in Clause 11.1 of the draft agreement that the company (promoter) shall endeavour to provide the unit to the purchaser, for fitouts, on or
before the date set out in Annexure-2.  The date of providing the flat for fitouts cannot be said to be the date of possession since neither the promoter
is under an obligation to complete the building in all respects before the said date nor can the purchaser occupy the building, unless a Occupancy
Certificate is obtained by the promoter.  Even the promotor cannot allow him to occupy the flat, before obtaining the completion certificate.

10.   As per Clause 11.1 of the draft agreement, the company was to make endeavour to make all necessary submissions to obtain the Occupancy
Certificate within one year from the date of offer for fitouts and the said date is to be treated as final possession of the unit.  The aforesaid clause is
wholly contrary to the mandate of MOFA which requires the promoter to give a specific date by which it has to give possession of the flat to him
after obtaining the requisite Occupancy Certificate/Completion Certificate.  In fact, as per Clause 11.2 of the draft agreement, the promoter is entitled
to a grace period of one year even from the date mentioned in Clause 11.1.

11.   As per clause 11.1 of the draft agreement, “the company (Builder) shall endeavour to provide the Unit to the purchaser for fitouts on or before
the date as set out in Annexure-2”.  It however provides that “the company shall endeavour to make all necessary submissions to obtain the
occupation certificate within one year from the date of offer of possession for fitouts as set out in Annexure-2” and this shall be deemed to be the
final possession of the unit.  Clause 11.2 entitles the opposite party to a grace period of one year beyond the aforesaid dates mentioned in the clause
11.1.  It however stipulates that the date on which the occupancy certificate is issued or deemed to be issued shall be the date of offer of possession. 
Thus, no specific date for delivery of possession of the flat to the complainants was sought to be given in the agreement which the opposite party was
asking the complainants to execute with him.  As noted earlier Sections 3 (2) (f) and 4 (1) (1A) of MOFA mandate the opposite party to specify the
date by which the possession was to be handed over. The date by which the flat was to be offered for the purpose of fitouts cannot be said to be the
date for handing over the possession to the purchaser since neither the builder is under an obligation to complete the construction in all respect by
that date nor can the purchaser occupy the flat at the stage of offer of fitouts.  Section (2) (i) of MOFA mandates the promotor not to allow any
persons to enter into possession until a completion certificate is duly given by the authorities.  It also mandates the purchaser not to take possession
of a flat until such completion certificate has been duly given.  Therefore, the date on which the flat is made available for fitouts cannot be said to be
the date for delivery of possession of the flat.  Such a date, by law, cannot be a date earlier than the date on which the completion
certificate/occupancy certificate is issued by the concerned authority.  In fact, the agreement does not even give a firm date for offering the flat to the
purchaser for fitouts since the Builder is only to make endeavour to provide the flat to the purchaser for fitouts on or before the date as set out in
Annexure-2 to the agreement.  Making endeavour to provide a flat even for the purposes of fitouts cannot be said to be a firm date for providing the
flat to the purchaser for fitouts.  Under clause 11.1 of the draft agreement, the opposite party is not even under a firm obligation to obtain the
occupancy certificate within one year from the date on which the flat is provided to the purchaser for fitouts.   It only requires him to make endeavour
to obtain such a certificate within one year from the date of offer for fitouts.  As noted earlier, under clause 11.2 of the draft agreement, the opposite
party also gets grace period of one year over and above the one year period from the date of offer for fitouts, for the purpose of making endeavour to
obtain the occupancy certificate.  Since the law requires the promotor to obtain the completion certificate before giving possession to the purchaser
and it also requires him to give a firm date for delivery of the possession of the flat, the promotor while executing the agreement has to stipulate a
specific date for the delivery of the possession and such date cannot be said a date before the date on which the occupancy certification/completion
certificate is actually issued to him.  Merely making endeavour to deliver possession by a particular date will also not meet the requirement of law
and the promotor is under a legal mandate to stipulate a specific date for delivery of possession of the flat in the agreement which he executes with
the flat buyer.  Had the opposite party given a firm date for offering the flat to the purchaser for fitouts and then stipulated a firm time frame for
obtaining the requisite occupancy certificate, it could say that the date of possession can be deduced from the aforesaid stipulation by adding the
period within which occupancy certificate is to be obtained, to the firm date by which the flat is to be offered for fitouts.  However, instead of giving
a firm date, the opposite was by binding himself only to make endeavour to offer the flat for fitouts and then to obtain the requisite occupancy
certificate/completion certificate.  For this reason alone, the complainants were justified in refusing to execute the agreement as per the draft sent to
them by the opposite party.

12.   As per clause 1.8 of the draft agreement “CAM Commencement Date” shall be 30 days after the date of offer of possession for fitouts regardless
of whether the purchaser takes the unit or not.  The aforesaid clause would require the purchaser to pay the maintenance charges w.e.f. 30 days from
the date on which the flat is offered for fitouts.  Clause 17.2.7 expressly requires the purchaser to pay the aforesaid charges from CAM
Commencement Date.  As per clause 17.3.2 the property tax shall be collected on the basis of applicability from CAM commencement date.  This
would mean that the draft agreement requires the purchaser to pay not only the maintenance charges but also the property tax w.e.f. 30 days after the
date on which the flat is offered for fitouts.

        Section 6 of MOFA expressly mandates that a promotor shall pay all outgoings (including ground rent, municipal or other taxes), until he
transfers the property to the persons taking over the flats, or to the organisation of any such persons.  The term outgoings used in Section 6 of the Act
is inclusive and not exhaustive as is evident from the use of expression ‘including’ before payment of ground rent, tax etc.  Therefore, all outgoings
irrespective of their nature, till the date the promotor transfers the property to the persons taking over the flats or to the organisation of any such
persons have to be borne by him.  The said outgoings, in our opinion, shall include not only the property tax but also the maintenance charges.  Even
otherwise, it is wholly unfair for the purchaser to pay the tax or maintenance charges before he obtains the title to the property or takes the possession
of the property after issuance of the completion certificate.   Therefore the complainants were not under an obligation to execute the agreement in the
format which required them to pay the property tax and maintenance charges w.e.f. 30 days from the date on which the flat is offered for fitouts.

13.   Section 3 (2) (c) of MOFA requires the promotor to give inspection of the plans and specifications of the building built or to be built on the
land.  Such plans and specifications have to be duly approved before giving inspection to the purchaser.  Clause 3 (2) (K) of the said Act requires the
promotor to give, on demand, true copies of the documents referred in any of the clauses of sub-section (2) of Section 3 of MOFA.  Sub-section (1A)
(b) (ii) of MOFA requires the promotor to attach to the agreement, relevant record showing the nature of the title of the title of the promotor to the
land on which the flats are constructed or are to be constructed, whereas (iii) requires him to attach the plans and specifications of the flat as
approved by the concerned local authority. Clause (b) of sub-section (2) of Section 3 of MOFA requires the promotor to make full and true disclosure
of all encumbrances on such land, including any right, title, interest or claim of any party in or over such land.  Unless the title deeds are made
available to the purchaser for inspection, it will not be possible for him to satisfy himself that the promotor has made a full and true disclosure of all
encumbrances on the land, to him.  He is also required to give copies of all the relevant documents in this regard to the purchaser if so desired by
him, though he can ask the purchaser to pay reasonable charges for providing such copies.  The correspondence exchanged between the parties
indicates that inspection of the title document was not given to the complainants nor did the opposite party attach the copies of the plans and
specifications of the flat and copies of title to the land, on which the building consisting of flats was to be constructed, to the draft agreement.

14.   This is the case of the opposite party that it had executed a perpetual lease deed with respect to Golf Course, Club and SPA etc. in favour of
another entity namely LIBPL.  By entering into such perpetual lease deed, the opposite party created right/interest/claim of LIBPL over the land on
which Golf Course, Club and SPA are to come up.  Therefore, it was under an obligation to provide the copies of the said perpetual lease deed to the
complainants and also attach a copy of the said lease deed to the draft agreement, which the complainants were being asked to execute.  For this
reason also, the complainants were not obliged to execute the agreement as per the format sent to them by the opposite party.

15.   The complainants have taken a plea that the opposite party cannot create perpetual lease in respect of Golf Course, Club, SPA etc., the same
being common amenities.         Though the term “common areas and facilities” has been defined in Section 3 (f) of the Maharashtra Apartment
Ownership Act, 1970, it transpired during the course of hearing that the provisions of the said Act do not apply to this apartment, as no declaration in
terms of Section 2 of the said Act was made by the builder.

16.   Section 3(2)(m)(iii) of MOFA requires the promoter who constructs or intends to construct a block or building or flats to disclose in the
advertisement, the nature, extent and description of the common areas and facilities, when the flats are advertised for sale. Therefore, the opposite
party was under a statutory obligation to make the aforesaid disclosure in every advertisement for sale of the flats in the project in which booking
was made by the complainant. The complainant has placed on record the Brochure whereby the sale of flats in the aforesaid project was advertised.
The aforesaid Brochure/advertisement to the extent it is relevant, reads as under:

LEGEND:-

A –   Main Entrance Plaza

B –   Club House

C –   Club House Entrance & Drop Off

D –   Swimming Pool

E –   Kids’ Pool

F –   Outdoor Kids’ Play Area

G –   Party Lawn

H –   Ganesha Temple & Meditation Hall

I  –   Cricket Playground

J –    1 Km Long Riverside Promenade With Viewing Decks

L –    Golf Rest Area

M – Helipad

N –   Organic Farms with Natural Produce

O –   Outdoor Sports Area

        (Tennis, Basketball, Volleyball)

P –   Convenience Center

        Pre-Primary School

        Medical Clinic

        ATM

Q –   Golf Practice Area

        Chipping Green

        Putting Green

R –   Services

S –   Water Holding Ponds

T –   Meditation Pavilions Along Riverside

U –   Macchan

V –   Reflexology Path

The contention of the learned counsel for the complainant was that the above mentioned facilities and amenities are the common areas and facilities,
which the opposite party had disclosed in compliance of its statutory obligation under Section 3(2)(m)(iii) of MOFA. The learned counsel for the
opposite party however, controverted the said contention and submitted that the aforesaid facilities, though proposed to be made available in the
project, are commercial amenities, not meant to be common areas and facilities for the apartment owners. When this contention was advanced, we
asked the learned counsel for the opposite party to point out, in the aforesaid Brochure, the nature, extent and description of the common areas and
facilities which the said opposite party was under legal obligation to disclose, in compliance of its statutory obligation under Section 3(2)(m)(iii) of
MOFA. The learned counsel for the opposite party however, could not point out the common areas and facilities in any other part of the said
Brochure. In our opinion, considering the nature of the facilities and amenities mentioned against the heading ‘Legend’ in the brochure, coupled with
the fact that the Brochure did not indicate any other amenities and facilities to be the common areas and facilities they could be reasonably believed
by the complainants, who were aware of the statutory obligation of the opposite party under Section 3(2)(m)(iii) of MoFA to be the amenities and
facilities meant for the use and enjoyment of all the flat owners, though it can hardly be disputed that the promoter are entitled to charge from the
cost of providing the  said facilities from the apartment owners.  In fact the contention of the complainant was that the cost of the said facilities and
amenities was in-built in the price on which the flats were sold by the opposite party, though it was disputed by the opposite party. Therefore, the
complainants could reasonably insist upon the opposite party including all the aforesaid facilities and amenities as common areas and amenities, in
the draft agreement which it had sent to the complainants. It is quite possible that had the opposite party declared only the facilities mentioned in
Annexure-III to the draft agreement, in the said Brochure, the complainants might not have booked an apartment in this project. In these facts and
circumstances, the complainants were justified in refusing to execute the agreement which restricted the common areas and amenities to only those
which are indicated in Annexure-III, to the draft agreement sent to them.

17.   As noted earlier, the opposite party has granted perpetual lease in respect of the Golf Club, gym etc. to Lodha Ideal Buildcon Private Limited
(LIBPL). If the aforesaid facilities and amenities were meant for the common use only of the apartment owners in this project, to the exclusion of all
others, as is contended by the complainants, the opposite party was not entitled to create a perpetual lease of the said amenities in favour of LIBPL,
though it could have loaded the cost of providing these facilities in the cost of the apartments. Once a perpetual lease in favour of LIBPL is executed,
the apartment owners would be at the mercy of the said agency which may, in its discretion, even refuse to allow the use of the said facilities by one
or more apartment owners or which may levy such exorbitant charges for the use of the facilities which every apartment owner may not be in a
position to pay. Since the primary objective of LIBPL would be to earn profit by running the said facilities, it is likely that the services offered by it
may not necessarily be affordable and economical. On the other hand, if such services are run by the Association of Apartment Owners, they would
be charged at a reasonable rate since no element of profit would be involved in that case.  Of course such a right would be available to the opposite
party, if the said facilities were not intended and declared to be for the exclusive use and enjoyment of the flat owners in this particular project.

18.   The learned counsel for the opposite party has relied upon the decision of the Hon’ble Supreme Court in DLF Ltd. Vs. Manmohan Lowe &
Ors. (2014) 12 SCC 231.  However, on going through the said judgment, we find that the said judgment does not apply to the primary issue involved
in this complaint.  In the above referred decision, the Hon’ble Supreme Court inter-alia held that the Apartment Owners are not entitled to an un-
divided interest or possession over the community and commercial facilities referred to in Section 3(3)(a)(iv) of the Development Act. Section 3(3)
(a)(iv) refers to schools, hospitals, community centres and other community buildings on the land set apart for this purpose.  It was further held that
the said facilities have to be provided by the colonizer in discharge of its legal obligations under the Development Act, which has recognized its legal
ownership over the area set apart for those facilities.  It was also held that the right to enjoy those facilities cannot be restricted or curtailed and the
apartment owners have no right, except to the right of user and the community centres, nursery schools, shops etc., being part of the approved layout
part can be used by the Apartment owners and are intended for independent use of the apartment owners having direct exit to common areas, to the
public street, road etc.  The Hon’ble Supreme Court held that two nursery schools, three shops and one community centre which had been
constructed inside the gated colony could be treated as common areas and facilities within the meaning of Section 3 (f) of Haryana Apartment
Ownership Act.  The Apex Court held that the said nursery schools, shops etc. are not meant for exclusive use of the flat owners but the position
would have been different had they been integral part of the facilities which are essential for enjoyment of the flats. Some of the examples of
common areas and facilities given by the Hon’ble Supreme Court were common passage, staircase, lifts and stilt parking.  The nursery school shops
and community centres were held to be meant for development of the entire colony and not confined only to Silver Oak Apartment.  It was also noted
that the developer had been given right to transfer those community, building and community centres.  It was noted that even the shops had opening
from outside to enable the shopkeepers to cater to the customers not only from the apartment but outsiders as well.  The Apex Court held that
ownership of the facilities referred in Section 3(3)(a)(iv) of the Development Act vests with the colonizer who cannot recover the cost of the land or
the amount spent by him for providing those facilities from the  Apartment Owners.   It was observed that Section 3(f) of the Apartment Act had not
made it obligatory on the part of the colonizer to include community and commercial facilities in the declaration and if he does include them in the
declaration, the Apartment Owners would be entitled to undivided interest in respect of the community and commercial facilities provided therein
without bearing the cost incurred by the colonizer in purchasing the land the cost of construction.  The Hon’ble apex Court held that since the Statute
had given a discretion to the colonizer to provide or not to provide the facilities referred to in Section 3(3)(a)(iv) of the Development Act, no
objection could be raised by the Apartment Owners and they cannot claim any undivided interest over those facilities, except the right of user. 
However in the present complaint, the issue before us is not whether the opposite party was under a legal obligation to include all the facilities
mentioned under the heading ‘Legend’ in the Brochure, while sending draft agreement to the complainants or not.  The issue here is that the opposite
party ought to have disclosed the common areas and facilities which it was seeking to provide to the flat owners in every advertisement including the
above referred Brochure.  In case, it did not intend to provide all those facilities to the Apartment Owners, it ought to have indicated, in the Brochure,
as to which common areas and facilities would be available to them.  In case, the intention was to provide all those facilities mentioned in the
brochure to all the apartment owners, the same ought to have been included in Annexure-III to the draft agreement.  By highlighting these facilities in
the Brochure, without indicating that they were not common areas and facilities for all the apartment owners and simultaneously not disclosing the
common areas and facilities it intended to provide to the apartment owners, the opposite party induced the complainants to believe that the said
facilities were intended to be the common areas and facilities, meant only for the apartment owners.

19.   The case of the opposite party is that the facilities and amenities shown under the heading ‘Legend’ in the Brochure issued by it, were not meant
to be common areas and facilities for all the apartment owners.  As noted earlier, the opposite party was under a statutory obligation to disclose the
common areas and facilities in every advertisement issued by it for sale of the flats.  Therefore, if the facilities and amenities shown below the
heading ‘Legend’ were not meant to be common areas and facilities for all the apartment owners, the opposite party should clearly have stated so in
the Brochure, besides specifying the areas and amenities which it intended to make common to all the flat owners.  By not disclosing the common
areas and facilities meant for all the apartment owners, despite a statutory mandate and mentioning a large number of amenities and facilities under
the heading ‘Legend’, without intending them to be the common areas and facilities for all the apartment owners, the opposite party induced the
buyers, such as the complainants, to believe that the said facilities and amenities were in fact common areas and facilities meant for all the apartment
owners.  Such an act, in our opinion, amounts to unfair trade practice adopted for the purpose of sale of the flats to the prospective buyers.  It would
be pertinent to note here that the practices enumerated in Section 2(1)(r) of the Consumer Protection Act, are illustrative and not exhaustive, meaning
thereby that there can be unfair methods or unfair or deceptive practices other than those specifically enumerated in the said Clause.

20.   The next question which arises for our consideration is as to what relief should be granted to the complainants in the facts and circumstances of
the case.  One possible relief can be to direct the opposite party to execute an agreement after giving inspection and supplying copies of (i) the plans
and specifications of the whole building consisting of flats which the opposite party was seeking to construct, (ii) the encumbrances, if any, on the
property in which the flat was booked by the complainants to them, (iii) copies of the title deed as well as the copy of the perpetual lease deed
executed in favour of LIBPL, after obtaining the requisite occupancy certificate / completion certificate, specifying in the Agreement, the date by
which possession of the flat will be handed over to them, restricting the liability of the complainants to pay the outgoings, including the property tax
and maintenance charges only with effect from the date on which possession of the flat is delivered or its title is transferred to them and including all
the facilities shown in the Brochure under the heading ‘Legend’ as part of the common areas and facilities, available only to the apartment owners,
with liberty to charge the cost from them, unless already charged. The other possible relief can be to direct the opposite party to give an option to the
complainants to take full refund of the entire amount it has received by it from the complainant, and pay appropriate compensation for the deficiency
in the services render to them.  During the course of arguments, it was informed by the counsel for the opposite party that all other apartment
purchasers have executed agreement in the format in which it was sent to the complainants, without raising objection as regards the extent of the
common areas and facilities included in Annexure-III to the said agreements or any other objection taken by the complainants before this
Commission.  If this is so, a direction to execute agreement with the complainants, including all the facilities shown under the heading ‘Legend’ in
the Brochure will lead to an anomalous situation, since unless already collected from them, the other apartment owners may not be willing to pay the
cost of providing these services only to them.  Such a situation, in our opinion, will not be appropriate since by their very nature, the common areas
and facilities should be available to all the apartment owners.  No other apartment owners have approached this Commission and even this complaint
has not been instituted on behalf or for the benefit of all the apartment owners in this project.  Therefore, in our opinion, it would only be appropriate
to direct the opposite party to give an option to the complainants to take refund of the entire amount received from the complainant and also pay
suitable compensation to them.  The complaint is therefore, disposed of with the following directions:

(i)     In case, the complainants are willing to execute the agreement in the format sent to them by opposite party, they shall be entitled
to do so within four weeks from today.  In that case, the opposite party will pay a sum of Rs.10,00,000/- (ten lacs) as compensation to
the complainants, for the deficiency in the services rendered to him and will not charge any interest for the delay in making balance
payment, if any, provided that the overdue payment, if any, is made within four weeks of the opposite party conveying the same to the
complainants. ;

(ii)    If the complainants are not willing to execute the agreement in the format sent to them, the opposite party shall refund the entire
amount of Rs.1,58,28,221/- received from them along with simple interest @ 12% per annum form the date of receipt of each payment
till the date on which the said amount is refunded, along with compensation quantified at Rs.10,00,000/- (ten lacs);

 (iii)  The opposite party shall also pay a sum of Rs.25,000/- to the complainants towards the cost of litigation;

(iv)   The opposite party will convey this order to all the apartment owners and upload it on its website, if any, within four weeks.

 
 
......................J
V.K. JAIN
PRESIDING MEMBER
......................
DR. B.C. GUPTA
MEMBER