STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                         U.T., CHANDIGARH 

                                            (Additional Bench)

The Punjab State Federation of Cooperative House Building Society Ltd.,(Housefed Punjab) through its Managing Director.

                                                                                                            …Appellant

                                         V e r s u s

1. Sh.Amardeep Singh S/o Sh.Baldev Singh, resident of Plot No.132, Phase-2, Industrial Area, Chandigarh.
2. Smt. Inderjeet Kaur W/o Late Sh.Baldev Singh, resident of Plot No.132, Phase-2, Industrial Area, Chandigarh.

                                                                                                     ..Respondents

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 25.09.2023 passed by          District Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.555/2020.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                        MR.PREETINDER SINGH,MEMBER

 For the appellant     : Sh.Naginder Singh Vashisht, Advocate.

For the respondent  : Sh.Munish Goel, Advocate

  PER PREETINDER SINGH, MEMBER

             This appeal is directed against the order dated 25.09.2023, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/555/2020 partly  by directing the Opposite Parties No. 1 & 2/appellant  as under ;

1. to refund the deposited amount of  Rs.12,21,500/- to the complainants alongwith  interest @7% per annum from the respective date(s) of deposit till onwards. 
2. to pay Rs.15,000/- to the complainants as compensation on account of  mental agony and physical harassment ;
3. to pay Rs.10,000/- to the complainants as costs of litigation.

                        This order be complied with by the Ops No.1 & 2 within 30 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 9% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

2.      Before the Ld. Lower Commission, it was case of the complainants/respondents that  they (complainants) allured by the scheme  floated by the OPs/appellant  for allotment of residential flat under the project to be developed at Cooperative Housing Complex Banur, SAS Nagar, Mohali, submitted application alongwith draft of Rs.1,01,000/-. The OPs vide allotment letter Annexure-C/2  allotted flat under   category-I in the above project of the OPs.  As per allotment, the price of the flat was Rs.20,18,000/-. The complainants paid a total amount of Rs.12,16,500/- towards the part payment of the flat in question from 2009 to 13.5.2015 vide receipts Annexures C/4 to C/14.. As per allotment letter, the complainants were having option to pay the remaining amount without any interest within 30 days from the date of offer of possession of the flat. As per allotment letter, the  possession of the flat in question, was required to be delivered within 2 years from the date of issuance of allotment letter dated 22.6.2009.  The complainants requested the OPs several times for delivery of possession but they failed to deliver the same rather the OPs vide letter dated 30.10.2014 demanded the balance payment  by 15.2.2015 and unilaterally raised the price of the flat in question from Rs.20,18,000/- to Rs.33,10,000/-. Thus, the enhancement in price was approximately 60.96%.  The complainants protested the increase of price with the OPs and informed that they are not financially capable  of making the enhanced payment.  It was averred that the complainants continuously contacted the Opposite Parties for refund of the deposited amount  but the same was never refunded. The complainants alongwith other allottees filed Consumer Complaint  No.1815 of 2018 before the Hon’ble NCDRC, New Delhi, which was held not maintainable being a joint complaint and liberty was granted to seek redressal from the appropriate forum. Thereafter Civil Appeal No.002641 of 2020 was filed before the Hon’ble Supreme Court but the same was dismissed vide order dated 19.6.2020. The complainants then got served  legal notice dated 24.9.2020 upon  the OPs asking for refund of the deposited amount but to no avail.  It was further  alleged that the physical possession of the allotted flat was to given by 30.06.2011 after obtaining occupation and completion certificate but the  complainants while  visiting  the site  found  that  the flats were still not completed  and the OPs were not in a position to handover the possession of the flat in question. Hence, alleging deficiency in service and unfair trade practice on the part of the opposite Parties, a consumer complaint was filed before the Ld. Lower Commission

3.                 Pursuant to issuance of notice, the Opposite Parties appeared before the Ld. Lower Commission and filed reply inter-alia stating therein that the   scheme in question was a self financing  in which initial amount was to be paid by the allottees in quarterly installments and as per the brochure and opening lines of the allotment letter dated 22.06.2009   the cost of the flat in question was tentative. Even as per clause 3 of the allotment letter, balance if any, towards difference of final cost  and tentative cost of the flat was to be paid at the time of handing over the possession of the flat, which shows that the final cost was to be paid later on, which was to be calculated after the completion of the project. Thereafter,  the 40% amount spent by the housefed from its own resources was to be paid in 120 equated monthly installments spread over a period of 10 years with interest @15% per annum. The complainants themselves defaulted in making  payment of the installments in time. It was averred that vide letter dated 30.10.2014 the OPs demanded a sum of Rs.20,99,397/- from the complainants towards the balance cost of the flat after applying the formula of difference =final cost-tentative cost as mentioned in the brochure and allotment letter. It was further averred that vide letter dated 11.03.2015 of Superintending Engineer, the complainants were asked to deposit the balance of Rs.20,99,397/- by 15.3.2015. It was further alleged that as per clause  4 of the allotment letter, no refund shall be made after the offer of possession of the flat. The complaint was termed barred by limitation as the same was not filed within two years from the date of accruing cause of action. The delay in offering possession of the flats was on account the reasons which were beyond the control of the opposite parties.   Denying all other allegations made in the complaint a prayer was made for dismissal of the complaint. 

4.               The parties led evidence, in support of their cases, before the Ld. District Commission.

5.             On appraisal of the pleadings and the evidence adduced on record, Ld. District Commission allowed the Complaint of the Respondents/ Complainants partly vide order dated 25.09.2023,as noticed in the opening para of this order.    
6.             Aggrieved against the aforesaid order passed by the Ld. District Commission, the instant Appeal has been filed by the Appellant/Opposite Parties.
7.             We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care and circumspection.
8.             It is the case of the Appellant/Opposite Parties that the Ld. District Commission while passing the impugned order has failed to appreciate the documentary evidence available on record, which resulted into perverse finding. Also, the impugned order was passed without taking into consideration the facts of the case and without appreciating the correct legal position, which resulted into gross miscarriage of justice and thus deserves to be set aside. The learned counsel further  prayed for acceptance of the present appeal.
9.              Counsel for the Appellant/ Opposite Parties vehemently contended that  the complaint filed by the complainants before the Ld. Lower Commission in the year 2020 was  time barred and could not have been adjudicated upon by the District Commission. It is contended that possession of the flat in  question had been offered to the respondents-complainants vide letter dated 30.10.2014 on making payment of the balance outstanding amount due towards the said flat.    It was further contended that as the possession had  been offered vide letter dated 30.10.2014, the complainants  would have filed consumer complaint, within two years from the date of accruing cause of action  as per the statutory provisions of the Consumer Protection Act, 2019. However, the learned District Commission did not give any finding regarding delay in filing the complaint.  Further   the Welfare Association of the Allottees, Banur, Punjab, where the respondents were also one of the allottees, had  filed   CWP No.25740 of 2014 titled “Housefed Banur Allottees Welfare Association Vs The Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) Punjab and others related to the same project of the appellant before the Hon’ble High Court which was decided vide order dated 6.10.2016.  It was further contended on behalf of the appellant that  in Clause No.6 of the Brochure, it was clearly mentioned that Rs.20.18 Lakhs was the tentative cost and final price of the flat was to be determined at the time of handing over of the possession of the flat, as such, cost of the flat was  rightly worked out and demand notice dated 30.10.2014 was issued.   It was also contended that the possession of the flat was delayed due to unavoidable circumstances, which otherwise were not in the hands of the appellant.  Further it was a ‘self financing project’ where allottees were to contribute equally as per the schedule but in the project more than  60% allottees failed to pay their instalments as per schedule of Brochure and allotment letter which also caused delay. It was further contended that the Ld. District Commission has ignored the law laid down by the Hon’ble Supreme Court of India as followed by the Hon’ble NCDRC, New Delhi that the question of pricing cannot be gone into by the Consumer Forums since price of the flat is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there was deficiency in service on the part of the opposite party. Further the Ld. District Commission has also not appreciated that as per terms and conditions of the brochure and allotment letter no refund shall be made after offer of possession of the flat. 
10.                Conversely, it has been contended on behalf of the Respondents/Complainants that the complaint filed before the Learned Lower Commission was well within limitation as there was recurring cause of action. The detailed finding of facts has already been recorded by the District Commission while rejecting the stand of the Appellant/Opposite Parties and the order passed by the Learned Lower Commission allowing refund of the amount deposited is quite just and reasonable and does not call for any interference.

11.                  It is admitted case of the parties that the respondents were allotted Category-I flat vide allotment letter dated 22.06.2009 for a total sale consideration of Rs.20.18 Lakhs. The possession of the flat was to be delivered within a reasonable period of 2-3 years but the appellant offered possession vide letter 30.10.2014 and asked the respondents to take possession by 15.2.2015 on depositing the balance outstanding amount of Rs.20,99,397/- .  The respondents showed their inability to pay the inflated price and requested for refund of the deposited amount through personal visits, oral requests and legal notice dated 24.9.2020. During the interregnum, Civil Writ Petition No. 25740 of 2014 was also filed before the Hon’ble Punjab & Haryana High Court  by the Housefed Banur Allottees Welfare Association against the Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) Punjab and Others. The said writ was filed challenging the enhancement in the price of the flat, which was disposed of vide order dated 6.10.2016. The respondents alongwith other allottees also went to the Hon’ble NCDRC, New Delhi by filing a joint complaint bearing No.CC/1815/2018  on 9.8.2018 which was dismissed vide order dated 18.07.2019 being not maintainable as a joint complaint with the liberty to seek relief from appropriate forum. Against the said order, Civil Appeal No.002641 was filed before the Hon’ble Supreme court of India which was dismissed vide order dated 19.06.2020.   Thus, liberty was granted by the Hon’ble NCDRC to seek relief from the appropriate Forum. Consumer complaint in the Ld. District Commission was filed on 01.12.2020. The impact of Corona virus (COVID 19) and other variants also started in Feb/March,2020.   All this goes to show that there was recurring cause of action and the complaint filed before the Ld. Lower Commission was not barred by limitation. Further, in the Civil Writ Petition, the residents’ Association has challenged the hike in price of the flats whereas in the consumer complaint the respondents have requested for cancellation of allotment due to exorbitant hike in price of the flat and  sought refund of the amount paid.  Thus, the complaint filed before the Ld. Lower Commission seeking refund of the amount deposited was maintainable.

12.                    The respondents sought refund of the amount paid to the appellant because the cost of the flat was increased inordinately by about 61% and the possession was also not offered within the reasonable time.  It is true that in the allotment letter, only the tentative price of the flat was mentioned. It is expected that the final price would be somewhere near the tentative price and even may increase by 10-20%,  but the price has increased by 61%. Every customer has his capacity to pay and in this case the complainant had given offer to purchase a flat with tentative price of Rs.20.18 lakhs. He might be arranging this amount, but if he is told that the final price is 61% more than the original price, then, his capacity to pay is definitely affected. As the possession was also not given in time, the appellant was  clearly deficient in terms of not offering the possession in time. Condition No. 11 of  the terms and conditions of allotment letter states that if the possession is not  taken by the last date of offer, holding charges will be levied and finally allotment will be cancelled after forfeiting the money deposited.  This clause would be applicable when  the possession is handed over in time which is not the case in the present matter. The appellant  has itself admitted that there was  delay in  the implementation of the project due to several reasons which were beyond its control.  The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a similar case of the same project  titled as Satish Kumar Vs Managing Director, Housefed, Chandigarh First Appeal No.999 of 2015 (decided on 14.11.2017) held as under;

“It is true that the tentative price was given in the allotment letter and final price was to be given at the time of offer of possession. Considering from the point of view of consumer, if the final price is told to be 62% higher than the tentative price, then what a consumer can do except to withdraw from the project if it is beyond his means to pay the increased price and pursue for the refund.  In my opinion, it is appropriate to allow the refund of the deposited amount with OP.  Moreover, the Consumer Protection Act, 1986 states that it is an Act to provide for better protection of the interests of the consumers. Thus, if the arguments of the OP are accepted, then the complainant is neither entitled to refund nor he will be able to get the possession of the flat as he will not be able to pay for the increased price of  the flat  because the price of the flat has increased to a level which is beyond his capacity to pay. Obviously, interest of the consumer  is to be protected under the Consumer Protection Act, 1986.

                     Based on the above discussion, the appeal is allowed and the order dated 4.11.2015 of the State Commission is set aside.  The respondent/OP is directed to refund the amount deposited by the complainant with interest @ 9% per annum from the date of deposit till actual payment. The OP should also pay Rs.10,000/- as cost of litigation to the complainant/appellant. The order to be complied with within a period of 45 days, failing which the OP will be liable to pay additional interest of 5% per annum from the date of this order till the actual payment.”                      

                       The Hon’ble NCDRC also held that Clause 11 of the allotment letter regarding levying of charges and forfeiting of deposited amount after cancellation of the flat would be applicable if the appellant had offered possession in time but it was admittedly delayed due to the reasons beyond  its control. Thus,  refund of the deposited amount was ordered alongwith interest and costs.  However, the Hon’ble National Commission allowed interest @ 9% p.a.  only and did not allow any compensation.

13.                In view of the foregoing discussion, we are of the view  that the order passed by the Ld. District Commission is based on correct appreciation of   evidence and law on the point.   However, it warrants interference of this Commission only towards grant of compensation of Rs.15,000/-  as we feel that grant of interest @ 7% p.a. on the deposited amount ordered to be refunded would take care of the compensation part on account of mental agony and harassment  and no separate compensation is required to be paid on that count. Thus,  the  order of the Learned Lower Commission   is  modified to that extent. Rest of the order passed by the Ld. Lower Commission shall remain intact.                  

14.                   For the reasons recorded above, the appeal is partly accepted and the impugned order is modified to the extent as stated in para-13 of this order.  

15.                  Pending application(s),if any,   also stands disposed off accordingly

16.                 Certified copies of this order be sent to the parties free of charge.

17.                  The file be consigned to Record Room, after completion.