NCDRC Holds Hamilton Heights Liable For Deficiency In Service Over Possession Without Occupation Certificate
Pranav B Prem
The National Consumer Disputes Redressal Commission (NCDRC) bench of Justice Sudip Ahluwalia (Presiding Member) and Justice Saroj Yadav (Member) has held Hamilton Heights Pvt. Ltd. liable for deficiency in service and unfair trade practice for offering possession of a flat without obtaining the requisite occupation certificate. The Commission emphasized that possession without statutory clearances is inherently illegal and that any such offer made without the necessary documentation is not legally valid.
Brief Facts
The Complainants, Vaibhav Garg and Anju Garg, booked a flat in the project 'Hamilton Heights' located at Faridabad, Haryana, developed by Hamilton Heights Pvt. Ltd. They paid an initial booking amount of Rs. 5,00,000/- on 14th October 2007. Despite paying further instalments, the Developer delayed executing the Buyer's Agreement by nearly 13 months, which was finally executed on 17.11.2008. As per the agreement, the possession was to be delivered within 36 months, i.e., by December 2011.
The agreement itself contained multiple clauses that the Complainants contended were arbitrary and one-sided, such as forfeiture of earlier instalments in case of non-acceptance of possession. By December 2011, the Complainants had paid Rs. 46,70,000/- and later, by 1st February 2013, had paid a total of Rs. 69,94,488/- under the construction-linked payment plan.
On 3rd April 2013, the Developer allegedly offered possession. However, during inspection, the Complainants found several construction defects, deficiencies, and incomplete amenities. Despite repeated reminders, the Developer neither rectified the defects nor obtained the occupation certificate. Instead, further payments were demanded.
Eventually, the Complainants discovered that no occupation certificate had been issued by the time of the possession offer. Consequently, they filed an FIR against the Developer on 24.05.2014 and also approached the Punjab and Haryana High Court on 28.08.2013, where matters remained pending. Subsequently, they filed a consumer complaint before the NCDRC seeking relief.
Developer’s Contentions
The Developer argued that the occupation certificate was issued in 2015, two years after offering possession. It was submitted that the Complainants refused to accept possession despite reminders and that the complaint was barred by limitation as it was filed after four years of the offer without any cogent explanation for the delay. It also claimed that area revisions were done as per directions from competent authorities and that the Buyer’s Agreement was willingly signed by the Complainants after full review. Defects cited were termed minor and capable of rectification.
Observations by the NCDRC
The NCDRC rejected the Developer’s arguments. It observed that an offer of possession made without obtaining the occupation certificate is legally invalid. Citing the Supreme Court judgments in Debashis Sinha and Ors. v. M/s R.N.R. Enterprise [2023] and Samruddhi Co-operative Housing Society Ltd. v. Mumbai Mahalaxmi Construction Pvt. Ltd., the Commission reaffirmed that offering possession without an occupation certificate amounts to deficiency in service and unfair trade practice.
Further, the NCDRC observed that although the Developer asserted that the occupation certificate was obtained in 2015, it failed to place a revised offer letter along with the occupation certificate on record during the proceedings. The Commission highlighted that the Developer’s plea regarding the offer surfaced only when the case was reserved for final orders, suggesting an afterthought aimed at avoiding liability. No authentic communication regarding a valid offer was presented.
The NCDRC emphasized that a valid offer of possession must be clearly documented, properly communicated to the buyer, and accompanied by all required statutory clearances, including the occupation certificate. In the absence of these, the offer is non-est and cannot be enforced against the consumer.
The Commission also referred to the Supreme Court's judgment in Experion Developers Pvt. Ltd. v. Sushma Ashok Shiroor [(2022) 15 SCC 286], wherein it was held that the interest on the refund amount should be computed from the respective dates of deposits and not from the date of the last deposit. Applying this principle, the NCDRC found that an interest rate of 9% per annum was just and fair.
Final Reliefs
Accordingly, the NCDRC directed Hamilton Heights Pvt. Ltd. to:
Refund Rs. 68,94,488/- to the Complainants along with 9% per annum interest from the respective dates of deposit till the actual date of realization.
Pay Rs. 40,000/- as litigation costs.
The Commission further ordered that in case of failure to refund the amount within six weeks, the Developer would be liable to pay enhanced interest at 12% per annum on the outstanding sum until full realization.
Appearance
Complainant: Mr Pranjal Mishra, Advocate
Opposite Party: Mr Brijesh Chaudary, Mr Prins Kumar, Advocates
Cause Title: Vaibhav Garg and Anr. V. Hamilton Heights Pvt. Ltd. and Anr.
Case No: Consumer Complaint No. NC/CC/496/2019
Coram: Hon'ble Justice Sudip Ahluwalia [Presiding Member], Hon'ble Justice Saroj Yadav [Member]
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