BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.484 of 2014
Date of institution: 30.07.2014
Date of Decision: 17.03.2015
1. Sangeeta Sharma w/o Sachin Sharma.
2. Sachin Sharma s/o Suresh Sharma
Both residents of House No.104, Bedock Road, Singapore.
Alternative/Correspondence Address: H.No.1136, Sector 15, Panchkula (Haryana).
……..Complainants
Versus
Barnala Builders, SCO 1, Zirakpur Patiala Road, Opp. Yes Bank, Zirakpur, Punjab through its Director.
2nd Address: SCO 73, Second Floor, Sector 46-B, Chandigarh.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. Sonia Bansal, Member.
Present: S/Shri Puneet Sharma and R.K. Bhatti, counsel for the complainants.
Shri Ambrish Sharma, counsel for the OPs.
(MRS. MADHU P. SINGH, PRESIDENT)
ORDER
The complainants applied with the Opposite Party (for short ‘the OP’) for purchase of 3 BHK Flat in Maya Garden by paying Rs.1.00 lacs vide draft dated 30.05.2011. The complainants were allotted Flat No.B-1, 101, Ground Floor facing park and north east facing. The OPs assured to provide various facilities as per the catalogue Ex.C-1. The area of the flat was 1530 sq. ft. consisting of three bed rooms. The payment schedule was as annexed with the allotment letter. The complainants paid Rs.5,15,000/-; Rs.4,00,000/- and Rs.6,25,000/- on 03.07.2012, 04.07.2012 and 11.09.2012 as per payment schedule. After that the complainants sought from the OP the approval letter received by it from the competent authority in respect of the project in question. However, instead of supplying a copy of the approval, only its number was given to the complainants. The OP continued to made demands for payment of installments by giving wrong number of the flat as can be seen from demand letter dated 26.11.2011 Ex.C-5 in which the project has been mentioned as Maya Garden Apartment, VIP Road, Zirakpur rather than Maya Garden City. All the communications to the complainants were being made at their Panchkula Address whereas they have informed the OP their Singapore Address. As there was no development taking place in the complex where the complainants were allotted the flat, they vide letter dated 29.09.2012 Ex.C-6 requested the OP to allot them 3 BHK flat measuring 1734 sq. ft. in Phase-III of Maya Garden City. Accordingly the complainants filled up application form Ex.C-7 for flat No.302, Block-III, measuring 1734 sq. ft. The OPs assured that Phase-III project would be completed by December, 2012. Accordingly, the complainants deposited Rs.1,46,300/- and Rs.16,98,700/- on 09.10.2012. Thereafter, the complainants paid Rs.21,40,000/- towards the sale consideration of the flat to the OP on 24.11.2012 vide receipt Ex.C-8. Even though the flat was not ready for possession, still the OP demanded from the complainant balance 5% amount alongwith additional charges like club house and parking etc. which were to be paid at the time of possession. However, the complainants paid these amounts as per detail mentioned in Ex.C-9. Inspite of payment of entire consideration, the OP did not hand over the possession due to which the complainant filed a complaint before NRI Police and NRI Commission. The OP for the first time vide e-mail dated 01.09.2013 Ex.C-10 stated that the flat is ready for possession but the swimming pool was still not ready. The complainants sought clarification from the OP regarding number of pending works in the project but the OP could not give any satisfactory answer. Till date the project is not complete and the OP has not yet handed over the possession.
With these allegations, the complainants have sought directions to the OP to pay them compensation to the tune of Rs.3.00 lacs for delay in possession and lack of amenities; Rs.88,000/-as interest on Rs.4,40,000/- paid in June, 2013; Rs.75,000/- as legal fee; Rs.30,000/- on account of telephone calls made by the complainant from Singapore and Rs.10,00,000/- on account of mental agony and inconvenience etc.
2. The OP in the written statement has pleaded in the preliminary objections that the complainant indulged in Supresso Veri and Sugestio Falsi and has not approached this Forum with clean hands. The present complaint has been filed with malafide intention. In the affidavit filed with the complaint, there are many false facts which amount to criminal act for which the complainant is liable to be prosecuted under relevant provisions of IPC and Cr.P.C. On merits, it is pleaded that Ex.C-3 is only brochure of Maya Garden Phase-3 and does not reflect any payment schedule. The project has been approved by the Govt. and the complainants never demanded any approval letter from the OP. The complainants are very much aware about all the approvals in relates to the project as one brother of the complainant namely Gautam Sharma was working in the sales team of the OP. The flat in question was sold by Gautam Sharma and all the documents were also signed by him. The complaint has been filed the present complaint against the OP to take revenge from it as it has discharged the services of said Gautam Sharma due to his dishonest act. The complaint filed before the Punjab police was thoroughly investigated and all the allegations were found baseless and these complaints were closed. The complainants also withdrew the complaint filed by them before the NRI Commission on 11.09.2014. The complainants had not given their Singapore address and have only provided their Panchkula address to the OP. As the complainants were interested for a big flat, aforesaid Gautam Sharma applied for change of flat on 29.09.2012 by upgrading the flat from 1530 sq.ft. to 1734 sq. ft. The application form for this flat was also signed by Gautam Sharma. The flat of the complainant was ready for possession. Despite many requests by the OP, the complainants did not come forward to take possession. A proper swimming pool in Maya Garden Phase III is fully operation and all the residents of Maya Garden Phase III are enjoying this facility. Ex.C-11 and C-12 produced by the complainants are fake documents. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainants consists of their affidavit Ex.CW1/1 and copies of documents Ex C-1 to C-14.
4. Evidence of the OP consists of affidavit of Sandeep Bansal, its Manager Ex.OP-1/1 and copies of documents Ex.OP-1 to OP-10.
5. We have heard learned counsel for the parties and gone through the written arguments filed by the complainants.
6. The dispute in present complaint is regarding delay in handing over the flat in question. As per the complainants they have made all the agreed payments well in time whereas the OP has failed to deliver the possession by March, 2013 as promised in the brochure as well as application form Ex.C-7 Clause-14 and further there is lack of basic amenities like absence of club house and swimming pool. Further upon inspection it was found that the flat was incomplete with the dampness on the wall and air conditioner not provided. Therefore, there is deficiency in service on the part of the OP.
7. Admittedly the payment in lieu of the agreed consideration is not disputed by the OP. Admittedly the possession of the flat in question as agreed by March, 2013 not provided. Admittedly as per Ex.OP-3/A i.e. e-mail dated 01.09.2013 the offer of possession was given by the OP to the complainants and the complainant was asked by the OP to take the possession and further get the electrical accessories fitted as per their own choice. In the same e-mail the OP has informed about the status of jogging park as ready and the swimming pool which is under construction. Thus, Ex.OP-3/A being vital document throws light on two aspects i.e. one offer of possession of flat on September 01, 2013 and the status of amenities i.e. jogging park and swimming pool. Thus, admittedly there is delay in offer of possession by 5 months.
8. Since the complainants have not entered into any buyer agreement, therefore, the general terms and conditions annexed with the application form duly signed by the complainants are binding on them. So far compensation for delay in offer of possession is concerned, Clause 15 of the general terms and conditions of Ex.C-7 stipulates that in case of default by the OP to deliver the unit, the complainant is entitled to refund of the amount without any interest or compensation. Since the complainant has not opted to seek refund of the deposited amount and rather deposited the further amount on 02.06.2013, therefore, there is no question of granting any interest on the said deposit as per agreed clause 15 of the application.
9. So far delay in offer of possession is concerned, as stated above admittedly there is delay of 5 months but that too cannot be attributed to the OP as the complainant themselves have failed to make the full payment as per agreed payment schedule and further the complainant themselves have shifted from booked Flat No.B-1-101 in Maya City to Flat No.302 Block-3I Category C-1734 sq. ft. vide their own request dated 29.09.2012 and thereafter paid the balance amount upto 02.06.2013. Rightly after receiving the payment, OP has offered the possession to the complainants on 01.09.2013. Therefore, this delay cannot be attributed to the OP.
10. So far the bonafides of the OP are concerned, the same cannot be denied as the OP himself has offered vide Ex.OP-3/A/Ex.C-10 where the OP has fairly asked the complainants to take the possession and get the electrical accessories fitted as per their own choice.
11. So far as completion of the project is concerned, the photographs attached by the OP Ex.OP-8 (colly) clearly show that the building complex is complete and it is occupied by the allottees of various flats. As far as the photographs of the flat in question of the complainants are concerned, they do not reveal anything amiss or deficient as alleged by the complainant. Lifts and swimming pool are in place as is evident from the photographs Ex.OP-8 Page-35. So far as the provision of lift in the complex is concerned, the OP has relied upon Ex.OP-9 i.e. the purchase details of the Kone Care Lift of May, 2014. Even so much so the OP has fire safety certificate duly issued in its favour by the office of Fire Station Dera Bassi Ex.OP-10. Thus, the revelation of these documents clearly show that all the basis amenities are in place and the flat in question is in state of readiness for delivery of possession to the complainants. It is for the complainants to fulfill all the requisites and take over possession of the flat in question from the OPs. We do not find anything amiss on the part of the OPs.
12. Therefore, the complaint being devoid of any merit is hereby dismissed with no order as to costs. Certified copies of orders be sent to the parties free of costs and thereafter the file be consigned to the record room.
Pronounced.
March 17, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. Sonia Bansal)
Member
