Chandigarh

DF-I

CC/26/2016

Sh. Yash Pal Saini - Complainant(s)

Versus

Chandigarh Housing Board - Opp.Party(s)

D.R. Kaith

03 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I

U.T. CHANDIGARH

 

Consumer Complaint No.	:	26 of 2016
Date of Institution	:	11.1.2016
Date of Decision	:	3.8.2016

 

                                                

                                     

 

 

Sh.  Yash Pal Saini S/o Sh. Mam Raj Saini R/o . No.38, First floor Sector 21A, Chandigarh

                                      ...  Complainant.

Versus

 

1.      Chandigarh Housing Board, Sector 9, Chandigarh through its Chairman.

 

2.      The Chairman, Chandigarh Housing Board, Sector-9, Chandigarh.

…. Opposite Parties.  

 

BEFORE:   DR. MANJIT SINGH           PRESIDENT

MRS.SURJEET KAUR         MEMBER

SH. S.K. SARDANA            MEMBER

 

For Complainant	:	Sh. Amit Kaith, Adv.
For Opposite Parties	:	Sh. Vishal Sodhi, Adv.

 

PER Suresh kumar sardana, MEMBER

1.           In brief, the case of the complainant is that the OPs launched a scheme in the year 2008 for allotment of a flat to be constructed in Sector 63, Chandigarh of various categories i..e category ABCD. The date of scheme was 31.3.2008 and closing date was 30.4.2008.  The complainant applied for category ‘A’ for which reserve price was fixed at Rs.39,57,451/- per flat and the complainant also deposited an amount of Rs.3,95,745/- as fixed by the OPs on 25.4.2008.  Thereafter draw of lot was held on 7.4.2010 and the complainant was declared successful vide acceptance-cum-demand letter dated 21.10.2011 wherein the payment schedule as mentioned in para No.3 of the complaint was also described.  The total payable amount of the flat was Rs.43,20,536/-.  As per terms and conditions of acceptance-cum-demand letter, if full payment is not made within 30 days OPs were to  charge interest @12% p.a. therefore, the installments as mentioned in the demand letter  also included a sum of Rs.3,63,055/- as interest amount if entire payment is not made within 30 days from the date of receipt of demand letter.  The complainant made the entire payment of Rs.43,20,536/- to the OPs. Besides this, a sum of Rs.1,48,405/- was also demanded  by the OPs which was also paid by the complainant.  It  has been pleaded that as per the terms and conditions of allotment letter complainant was liable to pay the last installment at the time of delivery of the flat but OPs issued a show cause notice to the complainant to deposit last installment before delivering possession of the flat and also threatened that his allotment would be cancelled. Left with no alternative the complainant under compelling circumstances deposited Rs.11,10,391/- on 9.5.2015 under protest. Thereafter again on 8.6.2015 the OPs asked the complainant to pay Rs.7,05,000/- as interest and penalty of delayed payment of installment though the complainant paid all the installment in time before delivering of possession.  It is alleged that the complainant was entitled for possession in May 2013 but the OPs handed over the same on 1.10.2015 despite making all the payment in time and completing all the formalities that too in incomplete condition. It has been  pleaded that the OPs were bound to deliver possession of the flat in May 2013 complete in all respect as soon as last installment is demanded and paid as per schedule in the demand notice dated 21.10.2011.  Alleging that the aforesaid acts of omission and commission amounts to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint seeking interest on the deposited amount with compensation and litigation costs.
2.           OPs in their joint reply while admitting the factual matrix of the case stated that the price of the flat as demanded from the complainant was tentative and was subject to variation depending upon actual cost of construction, design and specification or any other reason whatsoever.  It has been asserted that there was no promise on the part of the OPs in the acceptance-cum-demand letter that the possession of the flat would be handed over within certain specified period.  However, the terms and conditions of the scheme of allotment provide that whenever the construction of flat would be completed the possession of the flat will be handed over to the complainant/allottee.  Therefore, handing over of the possession of the flat was not the essence of the contract and without privity of any contract to handover the possession within certain time period and the complainant cannot enforce the same.  It has further been asserted that show cause was issued to the complainant to deposit the installment as he failed to deposit the installment in time as per the terms and conditions which very much provides that the possession of the flat is to be offered only when the allottee pay the 100% amount and clear all other dues.  It has been mentioned in allotment letter that in case of default of any installment the flat would be cancelled and therefore, there is no such infirmity in taking the action by the answering OPs to show cause notice to the complainant.  It is denied that there is any delay in handing over the  possession of the flat to the complainant. It is asserted that the construction of the flat was linked with the finance received from the installments of flats and it was only after the receipt of all the installments from all the allottees, the construction work of the flat was to be completed with self finance of each of the allottees.  As such there is no deficiency on the part of the answering OPs. The remaining averments were denied, being false and frivolous. Thus, denying any deficiency in service on its part, prayer for dismissal of the complaint has been made.
3.           The complainant has filed a rejoinder, wherein he has reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties.
4.           Parties were permitted to place their respective evidence on record, in support of their contentions.
5.           We have heard the learned counsel for the parties and have perused the record carefully.
6.           We have gone through the record and the arguements advanced by the parties. In our opinoin the entire complaint of the complainant is misconceived as the complainant has accepted offer of possession of his flat No.2050-A on 19.10.2015 that too without protest and reserving his rights. Therefore, on this ground solely the present complaint is liable to be dismissed.  Our State Commisison has already decided this issue in First appeal No.333 of 2015 titled as Chandigarh Housing Board vs. Jarnail Singh whereby the judgment passed by this Forum granting compensation to the allottee of Sector 63 scheme was set aside vide order dated 18.1.2016.  The operative part of the judgment holding that the OPs/CHB was not deficient in providing service to the allottees in so far as constructing the flats  and further delivering the possession within reasonable time is as under:-

“Admittedly, the respondent was an applicant of General Self Financing Housing Scheme, floated by the appellants. It is also an admitted fact that scheme was floated in the year 2008 and draw of lots was conducted in the year April 2010. No assured date of delivery of possession of the flat was given. The Forum simply by taking date of last payment made i.e. 16.04.2013, has opined that possession was not handed over within reasonable time, but was handed over only on 12.10.2015, during pendency of the consumer complaint, as such, thre was deficiency in providing service. .

            After looking into documents on record and also contents of an affidavit dated 06.01.2016 (said affidavit was filed in terms of order dated 11.12.2015 passed by this Commission) filed by Sh.Sunil Kumar, Chief Engineer of Chandigarh Housing Board, we are of the considered opinion that there was no inordinate delay in handing over possession of flat to the respondent. It was on account of various reasons, beyond the control of the appellants. Scheme was floated in the year 2008. The respondent paid an amount of Rs.3,95,745/- at that time. Draw of lots was conducted for allotment of flats, in the year 2010, whereafter, in five installments, amount was paid by the respondent, to the appellants, towards price of the flat. In the above said affidavit, it is stated that construction qua 120 flats was started on 01.09.2011. However, possession of entire project land could not be given, as such, possession of site for construction of 80 flats out of above 120 flats, was only given to the contractor, for construction. Qua second lot of 216 flats, construction was started on 11.11.2011. However, at site, possession of land to raise only 120 flats could be given. Qua construction of remaining flats, possession of land could not be given, on account of boundary dispute between the appellants and the Greater Mohali Area Development Authority (GMADA), Mohali. It is necessary to note here that the project is situated adjoining boundary line, between U.T., Chandigarh and Punjab, Mohali. Due to above difficulty, lay out plan of the project land was revised on 14.06.2012. Location of original flats was changed and the land at site was made available to the contractor, in the month of June 2012. Construction of 214 3BR flats was completed in the month of April 2013. Construction qua other flats was completed in December 2013. The appellants then faced difficulty regarding disposal of sewerage and storm water discharge, in the existing location of project land, on account of topography of land, where the project, in question, was situated. The matter was taken up with the GMADA, Mohali, and sewerage connection was given to 984 no. of flats by it, on 31.03.2014, on payment of charges. Qua some of the flats, proposal was vetted on 15.09.2014. Completion of above work took some-time. To award separate contracts of water supply, water boosting system, sewerage system & storm water disposal system, electricity distribution system, street lighting system, roads etc, it also took some time to complete the project. Shortage of sand and bazri (crushed stones) was also one of the reasons for delay, in construction of flats. Process of handing over possession was started on 11.09.2015. Possession of flat was delivered to the respondent on 29.09.2015.

             Sequence of the events mentioned above, clearly indicates that the appellants were not deficient in providing service to the respondent. All out efforts were being made to construct the flats, and deliver possession within reasonable time. It is not an allegation of the respondent that on account of delay, he was made to pay higher price of the unit.  He was given possession of the flat, at the same rate, which was advertised in the year 2008. As per common knowledge, price of the flat, in the meantime has escalated and delay had gone to the benefit of respondent, and as such, he has suffered no loss.”

7. It is further apparent from record that the price of flat of category A 3BR flat in question was Rs.39,57,451/-.  The complainant was required to pay the remaining amount in 3 six monthly installments after the issuance of Acceptance-cum-Demand letter. On perusal of Annexure C-1, we find that the Acceptance-cum-Demand letter for the present flat was issued to the complainant on 21.10.2011. It  is apparent from this letter that there was no stipulation or promise under the scheme of allotment that time is essence for completion of construction of flat and delivery of possession within some specified period. But the scheme provides that before handing over the possession of flat, 100% chargeable price minus price already paid was to be paid by each of allottee.  Thus it is proved on record that there was no privity of contract for the timely delivery of possession of the flat to the allotte.  Under clause XIII of brochure only stipulation had been made that before allotment of flat, the allottee shall pay 100% price of the flat and all dues and furnished /executed all the docuemnts before taking the possession. The said clause is reproduced as under:-

“(XIII)  The allottee shall be entitled to the delivery of the possession of unit only after he/she has completed all the formalities and paid all dues and furnished/executed all the documents as required/rescribed under the scheme and in the allotment letter. Until willl be handed over on ‘as-is-where-is’ basis and the board will not entertain any claim for addition or alteration or any complaint whatsoever, regarding the prie of the unit or its design.”

 

8. Thus it is crystal clear from the abovesaid clause that there was no specific stipulation of time to handover the possession of the flat to complainant and even there is no agreement/promise on record which could show any specific time under which the possession of the flat was to be handed over to the complainant.  Even otherwise the OPs have duly explained the unforeseen circumstances in their written statement owing to which the construction work of the project was delayed. As such in view of the above discussion, in our opinion the OPs are not liable to pay any interst on the deposited amount to the complainant.
9.           Thus the series of the events mentioned above, clearly indicate that the OPs were not deficient in providing service to the respondent. It is not an allegation of the complainant that on account of delay, he was made to pay higher price of the unit. As per common knowledge, price of the flat, in the meantime has escalated and delay had gone to the benefit of respondent, and as such, he has suffered no loss.
10.           For the reasons recorded above, we find no merit in the complaint and the same deserves to be dismissed. Accordingly the same is dismissed with no order as to costs.
11.           Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

3.8.2016                                                                                          sd/-

(DR.MANJIT SINGH)

PRESIDENT

 

Sd/-

 (SURJEET KAUR)

MEMBER

 

Sd/-

(S.K. SARDANA)

MEMBER