Haryana

Panchkula

CC/260/2014

DEEP CHAND GUPTA. - Complainant(s)

Versus

AASTHA ASSOCIATES. - Opp.Party(s)

Abhineet Taneja.

01 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                                                                            

Consumer Complaint No	:	260 of 2014
Date of Institution	:	10.12.2014
Date of Decision	:	01.04.2015

                                                                                          

Deep Chand Gupta S/o Sh.Kashmiri Lal Gupta, R/o House No.548/1, Milk Colony, Dhanas, Chandigarh.

                                                                                          ….Complainant

Versus

Aastha Associates, through its proprietor Sh.Sanjeev Garg, SCO 192, Sector-16, Panchkula.

                                                                         ….Opposite Party

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:     Mr.Abhineet Taneja, Adv., for the complainant. 

                             Mr.Apoorv Sangwan, Adv., for the Op.

 

ORDER

(Dharam Pal, President)

 

1. The complaint has been filed by the complainant-Deep Chand Gupta against the Op with the averments that the Op floated a scheme for the development of Group Housing Project to be constructed and developed in the revenue estates under the name & style of “Aastha Associates”. The Op also assured that the possession would be offered within 15 months from the date of allotment to those who would pay all the installments/payment well within time. On the assurance of the Op, in the year 2011, the complainant purchased a 3 BHK flat No.81, first floor in Block E in “Aastha Royal Homez” (Annexure C-1) for Rs.20,00,000/-. After the allotment, an agreement to sell dated 28.10.2011 (Annexure C-2) was executed between the parties. The complainant made the payment of Rs.18,50,000/- as booking amount at the time of application and the remaining amount of Rs.1,50,000/- was to be paid at the time of possession. As per terms and conditions of the agreement, the possession was to be offered within 15 months i.e. 27.01.2013 but the Op has failed to start the construction for a long period of time and also has no necessary sanctions from the competent authorities for the construction of building. The Op was alluring the general public by making false and misleading advertisement of handing over the possession within 15 months from the date of booking and in the month of November, 2013, the Op has applied for regularization of unauthorized colony (Annexure C-3) which was issued by Punjab Govt. dated 18.11.2013. After 28.01.2013 i.e. after lapse of 15 months from the date of allotment/agreement to sell dated 28.10.2011, the complainant approached the OP to get the physical possession of the flat but to no avail. The complainant visited many times and asked about the development works being carried out by the Op but in vain. The complainant deposited Rs.1,50,000/- (Annexure C-4) alongwith Rs.61,800/- (Annexure C-5) as service tax on 11.03.2013. After lapse of another 15 months, the Op issued a letter dated 08.03.2014 (Annexure C-6) intimating the complainant that it would start the process of possession by 15.03.2014 and a sum of Rs.1,50,000/- as basic price, Rs.25,000/- as maintenance fund and Rs.15,000/- as external electrification charges were due against the complainant. The complainant vide his letter dated 15.03.2014(Annexure C-7) replied the letter dated 08.03.2014 and also intimated the Op that the amount of Rs.1,50,000/- has already been paid. Thereafter, the complainant enclosed the cheque of Rs.25,000/- as maintenance fund & cheque of Rs.15,000/- as external electrification charges and the complainant took over the physical possession of flat vide letter dated 14.04.2014 (Annexure C-8). On 15.04.2014, the Op also issued the confirmation letter (Annexure C-9). However, there was no electricity connection has been installed in whole of the colony. As per terms & conditions of the agreement to sell dated 28.10.2011, the Op agreed that if it fails to offer the physical possession of the flat within 15 months, it would pay the sum of Rs.5,000/- per month to all the allottees who made all the payments well in time and the condition No.14 of the agreement to sell is as under:

“14.  The promoters are liable to pay a penalty of Rs.5000/- per month if they fail to deliver the possession of house under normal circumstances within 15 months of booking to those allottees who will pay all the payments well in time similarly allottee would be liable to pay holding charges of Rs.5000/- p.m., if he/she fails to take possession within 30 days from the issue of letter of possession.”

After getting the possession, the complainant requested many times to Op to pay Rs.5000/- per month w.e.f. 27.01.2013 (date of possession) till 14.04.2014 (date of handing over the possession) and the Op assured that the same would be paid soon but no amount has been paid by the Op. The complainant sent many mails to the Op but no response was received from the Op which act and conduct of the Op amounts to deficiency in service on its part. Hence, this complaint.

2. The Op appeared before this Forum and filed written statement by taking some preliminary objections submitted that the complainant expressed his willing to obtain the house in Aastha Royal Homez, Sadashiv Enclave, Baltana, Zirakpur and also signed the agreement dated 28.10.2011 with Aastha Associates. It is submitted that as per agreement, basic sale price of the flat was Rs.20,00,000/- in which the complainant deposited Rs.18,50,000/- as booking amount and the balance price of Rs.1,50,000/- should be payable at the time of possession. It is submitted that after delay of more than 1 month from the date of delivery i.e. 27.01.2013, the OP informed the complainant that he could take structure possession after clearing the dues. The complainant approached the OP with a cheque vide bearing No.831137 dated 11.03.2013 of Rs.1,50,000/- (Annexure R-1) and requested that he was not having money so, on behalf of the cheque, sale deed might be executed in his name. The Op in good faith accepted the cheque and executed sale deed dated 11.03.2013 (Annexure R-2) in the name of the complainant. It is submitted that the complainant submitted another cheque dated 14.03.2014 vide bearing No.894144 of Rs.1,50,000/- in lieu of cheque No.831137 dated 11.03.2013 as the same was expired and the complainant himself admitted vide letter dated 15.03.2014 that Rs.1,50,000/- were pending including maintenance fund of Rs.25,000/- & external electricity charges of Rs.15,000/- and requested to present the cheque dated 14.03.2014 in the bank. It is submitted that the complainant failed to pay the balance amount on due date but the Op co-operated with the complainant. It is submitted that letter dated 14.04.2014 regarding physical possession was issued by OP in the name of complainant and an undertaking dated 14.04.2014 through an affidavit was also given by the complainant that he was fully satisfied with the OP and the Op had fully complied with terms and conditions of the sale of property. It is submitted that NOC has been given in the name of the complainant by Municipal Corporation, Zirakpur vide letter dated 06.01.2015 which proved that the construction was being approved by M.C.,Zirakpur but the complainant has failed to comply with the terms and conditions of the agreement. Thus, there is no deficiency in service on the part of the Op and prayed for dismissal of the complaint.  
3. In his rejoinder, the complainant has controverted the stand of the OP and reiterated his contention it has been averred that the possession was to be offered by the OP on 27.01.2013 which was admittedly not offered. In order to avoid any delay in making the payment, the complainant himself approached the Op and issued the cheque No.831138 dated 11.03.2014 for the sum of 1,50,000/- on account of remaining payment and cheque No.831137 dated 11.03.2013 for a sum of Rs.61,800/-on account of service tax. In lieu of these two cheques the receipts were also issued by the OP on 11.03.2014 (Annexure C-4 and C-5). Out of these two cheques the OP presented the cheque for the sum of Rs.61,800/- which was duly cleared. It has been further averred that the complainant never approached the Op for getting the physical possession of the flat rather, to the contrary, it was the Op who approached the complainant after one year vide letter dated 08.03.2014 (Annexure C-6) and stated that they are in position to start the process of possession at Aastha Royal Homez by 15.03.2014 and accordingly requested to make the payment of pending dues. The abovesaid letter was issued in terms of clause No.17 of agreement to sell. The Op requested for the validity of cheque No.831137 dated 11.03.2013 which was expired by 08.03.2014. The complainant immediately issued another cheque No.894144 dated 14.03.2014. Subsequently the complainant requested the Op to return the cheque No.831137 dated 11.03.2013. However, the Op vide their letter dated 11.03.2014 informed the complainant that the same has been mis-placed by it (Annexure C-12). It has been further averred that the Op are in the position to start the process of possession by 15.03.2014 (Annexure C-6). If the flat has been ready for possession on 11.03.2013, there was no necessity for the Op to start the process of possession by 15.03.2014. Not only this, the Op would have also demanded the holding charges @ Rs.5,000/- from the complainant in terms of clause No in agreement to sell.
4. The complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-12 and closed the evidence. On the other hand, counsel for the Op has tendered into evidence by way of affidavit Annexure R-A alongwith documents Annexure R-1 to R-8 and closed the evidence.
5. We have heard the learned counsel for the parties and have perused the record carefully and minutely.
6. It is admitted case of the OP that the complainant paid the booking amount of Rs.18,50,000/- and entered into an agreement to sell dated 28.11.2011 (Annexure C-2) with regard to the flat No.81, first floor in Block E, Aastha Royal Homez (Annexure C-1). As per the case of the complainant, he paid Rs.18,50,000/- as booking amount at the time of application and the remaining amount of Rs.1,50,000/- was to be paid at the time to possession. Though, the OP has accepted that the complainant was informed after a delay of more than one month from the date of delivery of possession i.e. 27.01.2013 that the complainant can take structure possession after clearing his dues. The complainant approached the OP with a cheque bearing No.831137 dated 11.03.2013 amounting to Rs.1,50,000/- and further requested to OP that at present, he is not having money so on behalf of the aforesaid cheque sale deed may been executed in his name. The Op in good faith accepted the cheque and executed the sale deed dated 11.03.2013 in the name of the complainant (Annexure R-2). It has been further averred that the whenever Op asked the complainant all the time the complainant requested for some more time. However, at the last, the complainant gave another cheque dated 14.03.2014 bearing No.894144 against the abovesaid remaining amount of Rs.1,50,000/- which was duly cleared. The above assertion of the Op are quite wage because as per clause 10 of the agreement to sell (Annexure C-2) upon completion of the house and receipt of the whole of consideration money and other dues, the promoters shall affect the transfer of the house to the second party in such manner as may be permissible in loss. All costs, charges and expenses in connection with the stamp duty, registration/documentation charges etc. for sale deed or any other document to be accepted as well as the entire professional cost of the promoters in preparing and approving all said documents shall be borne by the allottee. From the above, it is clear that the Op should have accepted the sale deed upon completion of the house and receipt of the whole of the consideration money whereas the Op has executed the sale deed (Annexure R-2) on 11.03.2013. After completion of the abovesaid flat, the Op offered the possession vide their letter dated 08.03.2014 (Annexure C-6). Meaning thereby, the Op has executed the sale deed prior of the completion of the flat in question. The Op has not produced even a single letter which could show that they have demanded the remaining payment of Rs.1,50,000/- prior to 08.03.2014. The Op only intimated the complainant vide their letter dated 08.03.2014 that they are in a position to start the process of possession at Aastha Royal Homez by 15.03.2014 and requested the complainant to deposit the following amount:-

“Balance of basic price: Rs.1,50,000.00 (Rupees One Lac Fifty Thousand Only)

Maintenance Fund: Rs.25,000.00 (Rupees Twenty Five Thousand Only)

External Electrification Charges: Rs.15,000.00 (Rupees Fifteen Thousand Only)

7. In response to the above said letter, the complainant has deposited the same vide his letter dated 15.03.2014 (Annexure C-7) and thereafter, the Op has handed over the possession to the complainant on 14.04.2014 and confirmed the payment of Rs.20,81,800/- to the complainant vide certificate of confirmation of payment dated 15.04.2014 (Annexure C-9).
8. The copy of the agreement to sell (Annexure C-2) shows that as per clause 14, the OP undertook to hand over the possession of the said flat to the allottee within 15 months of booking to those allottees who will pay all the payments well in time. However, the possession of the flat has not been handed over to the complainant till 15.03.2014. Hence, we are unable to agree with the contention of the learned counsel for the Op that the complainant failed to pay the balance on the due date but the Op cooperated with the complainant for a very long period regarding clearance of remaining dues as complainant requested the Op to give him time to pay the same. However, strangely enough, the Op has not produced any documentary evidence regarding request made by the complainant in this regard.
9. Now the question that survives for determination is as to what amount the complainant is entitled to as per his prayer clause. Consequently in the agreement (Annexure C-2), there is specific mention of the payment of amount to the allottee in case the offer of possession is not made by due date. Clause 14 of the agreement to sell reads as under:-

“The Promoters are liable to pay a penalty of Rs.5000/- p.m. if they fail to deliver the possession of House under normal circumstances within 15 months of booking to those Allottees who will pay all the payments well in time similarly Alloottee would be liable to pay holding charges of Rs.5000/- p.m. if he/she fails to take possession within 30 days from the issue of letter of possession.

It has been held in Sahara India Commercial Corporation Ltd. and another versus C. Madhu Babu 11 (2011) CPJ 3 NC, that consumer fora had to consider relief in light to written agreement and it is not open to them to add are or subtract any condition are words. In the instant case, there is a specific clause that in case the offer of possession by Op is not made by due time/date. Then the Op shall be liable to pay the allottee a penalty of Rs.5000/- per month till the offer of possession. In view of this specific clause, we feel that the complainant is certainly entitled to get the payment till 15.03.2014 the date of offer of possession. We feel that the complainant is also entitled to compensation for resultant mental, physical harassment and cost of litigation.

10. For the reasons recorded above, we find merit in the complaint and same is partly allowed. The Op is directed as under:-

1. To make the payment @ Rs.5000/- per month to the complainant from 27.01.2013 to 15.03.2014 alongwith 9% interest till realization.
2. To make the payment of Rs.20,000/- to the complainant as compensation towards harassment and deficiency in service.
3. To make the payment of Rs.10,000/- towards cost of litigation.

 

This order be comply with within a period of one month from the date its communication to it comes about. A copy of this order be sent to the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced                     (Anita Kapoor)                       (Dharam Pal)

01.04.2015                     Member                                  President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Dharam Pal                                                                                                President