BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No. 05 of 2013
Date of institution: 02.01.2013
17.11.2015
Date of Decision: 09.03.2016
Pawan Kumar Gupta resident of House No.3418, Sector 32-D, Chandigarh.
……..Complainant
Versus
1. The Bishanpura Co-op. Housing Building Society Ltd. Vasant Vihar-II, Himmatgarh, NAC, Zirakpur (District SAS Nagar, Mohali, Punjab w.e.f. 1.9.2009) through its Director P.C. Singla.
2nd Address: House No.232, Sector 12-A, Panchkula (Haryana)
2. Secretary, the Bishanpura Co-op. Housing Building Society Ltd. Vasant Vihar-II, Himmatgarh, NAC, Zirakpur (District SAS Nagar, Mohali, Punjab w.e.f. 1.9.2009).
………. Opposite parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Sh. Atul Malhotra, counsel for the complainant.
None for the OPs.
(Mrs. Madhu. P.Singh, President)
ORDER
This complaint was earlier decided by this Forum vide order dated 10.09.2013. Against the order of this Forum, the complainant preferred appeal before the Hon’ble State Commission and the Hon’ble State Commission vide order dated 06.10.2015 remanded back the complaint to this Forum for deciding the same on merits. The parties were directed to appear before this Forum on 16.11.2015. However, none appeared for the OPs on 16.11.2015 and thereafter also.
The complainant’s case is that he became member of the opposite parties (for short ‘the OPs’) by paying a sum of Rs.510/- vide receipt dated 02.04.2005 Ex.C-1. The OPs are engaged in construction of Multi Storey Apartments and sell these flats/apartments to general public on free hold basis. The OP allured the complainant through advertisements Exs.C-2 and C-3 in the newspapers for sale of flats by creating a rosy picture and declared the flats as Dream Land Apartments. It was agreed between the parties that approximately 60% of the total cost of Rs.5,15,000/- was to be paid to the OPs initially at the time of signing of the agreement and the balance amount at the time of handing over of physical vacant possession of the flat complete in all respects. The complainant paid Rs.2,50,000/- to the OPs receipt dated 29.04.2005 was issued by the OPs. The complainant subsequently paid Rs.50,000/- vide cheque dated 05.08.2005 receipt dated 08.08.2005 Ex.C-6 whereof was issued by the OPs. As per clause 5 of the agreement dated 05.05.2005 the physical vacant possession was to be handed over to the complainant on full and final payment. The complainant was always ready and willing to perform his part of the contract. The OPs assured the complainant that construction will be completed within one year of complainant becoming member of the OPs. As per clause 6 of the agreement dated 05.05.2005 if the OP backs out from the bargain then they will pay double the earnest money received by them and the member had the option either to get the plot transferred/executed through share certificate through court of law. Even after completion of flats the offer of possession was made and the complainant was unable to get the possession of the flat despite the fact that he was ready and willing to perform his part of the contract. The complainant met the OPs many a times to take the possession but his demand fell on the deaf ear of the OPs. He went into depression and suffered major heart attack. The complainant sent representations dated 01.10.2007, 18.12.2007 and 25.02.2008 to the OPs but no response has been received by him. The complainant came to know that the flat booked by him had been sold by the OPs to one Kapil Kumar for a sum of Rs.8.5 lacs in April/May, 2008, who had already taken possession and is living therein alongwith his family. The complainant had earlier filed the before District Consumer Forum, Panchkula which was allowed ex-parte vide order dated 03.03.2010. The OPs filed appeal before the Hon’ble State Consumer Commission, Haryana who allowed the appeal vide order dated 23.2.2012 by holding that District Forum, Panchkula lacked the territorial jurisdiction and liberty was granted to file the same before the appropriate Forum having jurisdiction. The complainant preferred Revision petition before the National Commission which was dismissed as withdrawn vide order dated 16.10.2012. Non allotment of possession by the OPs amounts to deficiency in service on their part.
With these allegations, the complainant has sought direction to the OPs to handover him the possession of the flat; to pay him Rs.10.00 lacs as compensation for deficiency in service, mental agony and harassment and costs of litigation to the tune of Rs.33,000/-.
2. OP No.2 in its written statement has taken the preliminary objections that the complaint is barred by limitation. The cause of action accrued to the complainant on 02.09.2005 after one year from the date of membership i.e. 03.09.2004 while he filed the complaint from District Forum, Panchkula on 10.10.2008. Secondly cause of action arose to the complainant when the flat was allotted to one Kapil Pahuja on 24.1.2008. The complaint has been filed after more than 7 years of date when cause of action firstly arose to him. It has disputed the genuineness of receipts of Rs.2,50,000/- and Rs.50,000/-. Since disputed facts are involved, therefore, remedy was to file a civil suit for adjudication of controversy. Shri P.C.Singla is not Director of the OPs. On merits it is pleaded that deposit vide receipt dated 03.09.2004 was for membership fee and not against booking of flat. The complainant is misrepresenting regarding allurement through advertisements. Receipt of Rs.2,50,000/- dated 29.4.2005 is a false and manipulated documents because as per record receipt No.112 was issued to one Rajesh Kumar Malik for Rs.12,000/- on 11.10.2004 and receipt No.164 was issued to Surinder Bindra for Rs.10,000/- on 21.10.2005. None of receipts Ex.C-4 to C-6 pertain to complainant. The cause of action was complete on 24.1.2008. The complainant is not entitled to allotment of flat after almost 5 ½ years. Thus denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. Evidence of the complainant consists of his affidavit Ex.CW1/1 and documents Ex C-1 to Ex C-20.
4. Evidence of OP No.2 consists of affidavit of Gian Chand, its Secretary Ex.OP-2/1 and documents Ex.OP-1 to OP-7.
5. We have heard learned counsel for the complainant and gone through the pleadings and evidence of the parties.
6. The issue involved in the present complaint is non delivery of possession of the flat in the Multi Storey Apartment of the OPs. As per the complainant, he became member of the society and booked on the promise and projection of the OPs a flat with the agreed sale consideration of Rs.5,15,000/-. 60% of the total sale consideration was to be paid in advance and 40% at the time of handing over the possession. As per settled terms, the complainant paid a sum of Rs.2,50,000/- which was acknowledged by the OPs vide receipt No.112 dated 29.04.2005 Ex.C-4. Thereafter the agreement dated 05.05.2005 was executed between the parties Ex.C-5. Then subsequently the complainant deposited another sum of Rs.50,000/- vide cheque No.197092 dated 05.08.2005 drawn on Punjab Cooperative Sector 32-D, Chandigarh. The OPs have issued receipt dated 08.08.2005 Ex.C-6 acknowledging receipt of said cheque.
7. As per Clause No.5 of the agreement, the OPs were to handover the physical vacant possession on full and final payment of built up flat alongwith documents. The physical possession was promised to be given upon completion of construction within a period of one year on becoming the member of the society. As per the complainant the OPs society has not given any intimation as to when they completed the construction nor was any letter of offer of possession was sent by the OPs to the complainant. The complainant visited the society office number of times and even issued request letters dated 01.10.2007, 18.12.2007 and 22.05.2008 but the OP society failed to handover the possession. Therefore, non offer of possession/non delivery of possession amounted to unfair trade practice and deficiency in service on the part of the OPs.
8. The OPs while denying the allegations have refuted the receipts showing payment of amount of Rs.2,50,000/- and Rs.50,000/- as false and fabricated. The factum of membership of the complainant with the society and payment of membership of Rs.510/- is not a matter of dispute between the parties. Further the execution of agreement of allotment of flat Ex.C-5 is not disputed. The perusal of Ex.C-5 clearly shows that the total agreed sale consideration of the flat was Rs.5,15,000/- and at Page No.2 of the agreement it has been mentioned that a sum of Rs.2,50,000/- has been received. Therefore, the contention of the OPs regarding false and fabricated receipt of Rs.2,50,000/- is belied as the agreement per se admits the receipt of payment of Rs.2,50,000/-. Moreover, the counsel for the OPs have not placed on record ledger or cash booking showing that this amount was not deposited in their account. Further the complainant has proved payment of Rs.50,000/- as the same was deposited against cheque No.197092 dated 05.08.2005. The OPs have failed to produce on record whether the cheque in question was cleared in their favour or it was returned. Mere taking a plea that the receipts are forged and fabricated is not sufficient when otherwise the evidence of the OPs does not corroborate the same. Thus, the complainant has clearly proved the payment of Rs.2,50,000/- plus Rs.50,000/-.
9. The OPs have failed to produce on record any document showing the completion of construction and offer of possession, if any, issued in favour of the complainant. Since the complainant has never received any offer of possession, therefore, there was no question of making payment of remaining 40% which was payable, as per terms of agreement, at the time of handing over the physical possession.
10. The plea of the complainant that instead of giving him the possession of the flat, as per his knowledge the OPs have sold the flat to one Shri Kapil Pahuja for a total sum of Rs.8.5 lacs in the month of April/May, 2008 and Shri Kapil Pahuja is in the possession of the flat No.205, IInd Floor i.e. the original flat number allotted to the complainant vide receipt dated 29.04.2005 Ex.C-4. Such a bald plea without any supporting evidence, is of no help to the complainant as the OPs have denied the allotment of flat No.205, IInd Floor to Shri Kapil Pahuja.
11. Thus, it emerges from the pleadings and evidence on record that against the agreed sale price of Rs.5,15,000/- for Flat No.205, IInd Floor measuring 85 sq. yards in Dream Land Apartment, Vasant Vihar-II Village Himmatgarh, NAC Zirakpur, a project developed the OPs, the complainant has paid a sum of Rs.3,00,000/- as on 08.08.2005 being 60% of the total sale consideration in advance as per terms of agreement. The remaining amount was to be paid upon completion of construction within one year i.e. upto 02.04.2006 within one year from the date of membership i.e. 02.04.2005 and further upon issuance of offer of possession. Since the OPs have failed to show the completion of construction within the agreed stipulated period and further issuance of offer of possession to the complainant, it clearly emerges that the OPs have not completed the project within stipulated period nor offered possession of the flat to the complainant. Therefore, the complainant in no manner is in defaulter in making payment of remaining 40% of the agreed sale consideration. The OPs have thus clearly adopted the unfair trade practice and rendered deficient services to the complainant against the agreed terms and conditions of the agreement. The complainant is entitled to possession of the flat on the agreed sale consideration after making the balance payment of 40% upon receipt of offer of possession of Flat No.205, IInd Floor measuring 85 sq. yards in Dream Land Apartment, Vasant Vihar-II Village Himmatgarh, NAC Zirakpur. The act of the OPs of unfair trade practice and deficiency in service has certainly caused mental agony, financial loss and harassment to the complainant as he has been deprived of the use and benefit of deposited amount as well as promised property which he would have enjoyed had the OPs fulfilled their contractual obligations. Thus, the complaint deserves to be allowed and the complainant deserves to be compensated.
12. In view of above discussion, the complaint is allowed with the following direction to the OPs to:
(a) offer to the complainant physical possession of Flat No.205, IInd Floor measuring 85 sq. yards in Dream Land Apartment, Vasant Vihar-II Village Himmatgarh, NAC Zirakpur.
(b) pay to the complainant a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
March 09, 2016.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
