Haryana

Karnal

401/2012

Surender Kumar Sharma S/o Mangal Sain Sharma - Complainant(s)

Versus

CHD Developers Ltd - Opp.Party(s)

Sh. Rahul Mohan

26 Oct 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                              Complaint no.401 of 2012

                                                             Date of instt.: 24.08.2012

                                                               Date of Decision 26.10.2016

 

Surender Kumar Sharma son of Mangal Sain Sharma resident of D-9 CSSRI Campus Kachhwa Road, Karnal.

                                                                             …………..Complainant.      

                                                Versus

1. CHD Developers Ltd. (through its Chairman), Sh. R.K. Mittal, SF 16-17, 1^st floor, Madame Bhikaji Cama Bhawan, 11 Bhikaji Cama Place, New Delhi-110066.

2. CHD Developers Ltd. (through its Manager) CHD City Secteor-45, G.T. Road, Karnal-132001.

                                                   

…………Opposite parties.

 

                     Complaint u/s 12 of the Consumer Protection Act.

 

Before                     Sh.K.C.Sharma……….President.

 Sh.Anil Sharma…….Member.

 

Present:-        Sh. Rajnish Kumar Advocate for complainant.

 Sh. Amit Gupta Advocate for opposite parties.

 

ORDER:

 

                   This complaint has been filed by the complainant under section 12 of the Consumer Protection Act 1986, on the averments that on 6.7.2009 he got booked one flat in CHD City Karnal through Honda Properties, who was authorized dealer of opposite parties and signed  “Flat buyer agreement” with the opposite parties on 12.09.2009. As per clause 21 of the Agreement if the company failed to deliver the possession of the said floor within 18 months from the date of booking (Plus three months grace period, thereafter), but subject to force majeure, then the company shall pay to the purchaser compensation @ Rs.5 per sq. ft per month for the period of such delay. The opposite parties had given the possession of floor no.85 Block-O Type-B Area 1145 Sq. Ft, as per the agreement signed by both the parties on 1.2.2012 i.e. after 9 months deducting the grace period. In this way, the opposite parties had violated the clause 21 of the agreement and as such liable to pay the amount at Rs.5 per sq. ft. per month. After getting the possession, he requested the opposite parties to pay the amount as per agreement but all vain. He sent letters dated 1.12.2012  and 19.06.2012 to  the opposite parties in this regard, but the same also did not yield any result.

                It has further been pleaded that he booked two flats one by himself and another through his wife and after not getting the possession in time, he wrote letters to Sh. R.K. Mittal Chairman, CHD Developers Ltd., New Delhi on 20.05.2011 & 7.12.2011, wherein he requested to pay back the late possession/penalty charges alongwith interest or adjust the balance installments to be paid at the final payment on possession, but the opposite parties neither adjusted the amount nor paid back possession charges alongwith interest. In this way, opposite parties were deficient and adopted unfair trade practice. The complainant has sought the refund of Rs.51525/- alongwith interest, compensation of Rs.20,000/- and litigation expenses.

2.                Notice of the complaint was given to the opposite parties, who put into appearance and filed written statement disputing the claim of the complainant. Objections have been raised that this forum has no jurisdiction to entertain and try the complaint; that the complainant is estopped by his own acts and conduct from filing the complaint; that the complaint is not maintainable in the present form and that the complainant has no cause of action to file and maintain the complaint.

                   On merits, it has been submitted that opposite parties were not liable to pay any amount as compensation to an allottee for delay caused in delivery of possession of the property allotted, in case such delay was on account of the reasons beyond the control of the opposite parties. A major chunk of land over which “CHD Lifestyle,” independent floors, have been constructed is comprised of khewat no.240, village Uchana Tehsil and District Karnal and in respect of this Khewat one Kadam Singh son of Tugal resident of village Uchana filed a suit for permanent injunction against the opposite parties and certain other persons, seeking an injunction restraining the opposite parties from raising any sort of construction or to develop a colony etc. on any part of the land comprised in  Khewat no.240. The suit filed by Kadam Singh remained pending in the court of Civil Judge (Junior Division), Karnal from 27.7.2007 to 3.2.2010. The suit filed by Kadam Singh was contested by the opposite parties company. Ultimately, the suit filed by Kadam Singh was dismissed, vide judgment and decree dated 3.2.2010 passed by the then learned Civil Judge (Junior Division), Karnal. Being dissatisfied by the judgment and decree passed by the learned trial court, Kadam Singh filed an appeal before the learned District Judge. The appeal filed by Kadam Singh remained pending for a period of almost two years and was dismissed, vide judgment dated 24.7.2012 passed by the then learned Additional District Judge, Karnal. The construction work had to be suspended from time to time because of the ad-interim injunction order granted by the trial court/appellate court. The opposite parties were as such under a legal disability to regularly continue the construction work, which caused the alleged delay. Hence, there was no deficiency in service on the part of the opposite parties in delaying the possession of the flat. The other allegations made in the complaint have been denied.

3.                In evidence of the complainant, his affidavit Ex.C1 and documents Ex.C2 to Ex.C9 have been tendered.

4.                On the other hand, in evidence of the opposite parties, affidavit of Swatantra Sexena (A.M. Legal) Ex.R1 and documents Ex.R2 to Ex.R17 have been tendered.

5.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

6.                Admittedly, the complainant got booked flat in CHD City Karnal on 6.7.2009 and agreement in that regard was executed on 12.09.2009. Possession was delivered on 1.2.2012. As per the case of the complainant the possession was to be delivered within 18 months from the date of booking (plus three months grace period), thereafter, but subject to Force Measure. However, the possession was delivered after 9 months despite deducting the grace period, therefore, the opposite parties were liable to pay compensation at the rate of Rs.5 per sq.ft. per month for the period of the delay, according to clause 21 of the Agreement. The opposite parties have submitted that one Kadam Singh filed suit for Permanent Injunction which remained pending from 27.7.2007 to 3.2.2010 and even thereafter Kadam Singh filed appeal which remained pending for a period of almost two years and was dismissed on 24.7.2012. Due to interim injunction order granted by the court the construction work had to be suspended from time to time, therefore, there was no deficiency in service on the part of the opposite parties in delaying the possession of the flat.

7.                It is important to point out that the agreement between the parties was executed on 12.09.2009, while the Civil Suit filed by Kadam Singh was pending. The said civil suit was dismissed on 3.2.2010, as is evident from the copy of the judgment Ex.R16. Temporary Injunction was granted in the said civil suit, vide order dated 24.10.2007. After dismissal of the suit, there was no interim injunction. The opposite parties have not produced any document which may show that there were restrained from raising any construction over the disputed land by any court after dismissal of suit of Kadam Singh on 3.2.2010. Thus, it is emphatically clear that the opposite parties could not raise construction due to the injunction by Civil Court during the period of 12.09.2009 to 3.2.2010 only. Therefore, the period of 18 months is to be counted w.e.f.3.2.2010. In this way, the period of 18 months plus grace period of three months came to an end on 2.11.2011. Thus, there was delay of three months on the part of the opposite parties in delivering possession of the flat as per clause 21 of the Agreement. Consequently, the opposite parties were deficient in service and as such liable to pay compensation to the complainant as per clause 21 of the Agreement @ 5 per sq. feet per month. The total area of the flat is admittedly 1145 sq. feet. Therefore, compensation of calculation comes to Rs.17,175/-

8.                As a sequel to the foregoing discussion, we accept the present complaint and direct the opposite parties to make the payment of Rs.17175/- to the complainant with interest @ 9% per annum from the date of filing the complaint till its realization. We further direct the opposite parties to pay Rs.11,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 26.10.2016

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

                             (Anil Sharma)

                               Member