BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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                                        Complaint Case No : 1111 of 2009

                                        Date of Institution  :    06.08.2009

                                        Date of Decision    :    02.12.2009

Surinder Kumar Jerath son of Sh.Sarvada Nanad Jerath, R/o Flat No.35-B, Sector 44-A, Chandigarh 160047

….…Complainant

                                V E R S U S

1]     Hillview Infrastructure Pvt. Ltd.,

        Registered Office : 2048, Sector 15-C, Chandigarh,

        Branch Office : SCO 2474, Sector 22-C, Chandigarh, through its Directors.

2]     Lalit Jindal, Director, Hillview Infrastructure Pvt. Ltd.,

3]     Ruchit Mahajan, Director, Hillview Infrastructure Pvt. Ltd.

4]     Anil Bansal, Driector, Hillview Infrastructure Pvt. Ltd.

                                        ..…Opposite Parties

CORAM:    SH.JAGROOP SINGH MAHAL       PRESIDENT

                SH.SIDDHESHWAR SHARMA         MEMBER

DR.(MRS) MADHU BEHL              MEMBER

Argued by:            Sh.Krishan Kumar, Auth. Representative of complainant.

Sh.Hari Pal Verma, Adv. for OPs.

PER SHRI JAGROOP SINGH MAHAL, PRESIDENT

                   By this common order, we are disposing of i.e. the present complaint case as well as two other connected complaint cases, as detailed below, as all are having same controversy as well as similar question of facts and law.

2]             The facts are being taken from the present Complaint Case No.1111 of 2009 – Surinder Kumar vs. Hillview  Infrastructure Pvt. Ltd. & Ors.

3]             Concisely put, the complainant after going through the brochure (Annexure C-1) of OP, booked a one-room flat on 5.8.2007 in their Ashray Studio Apartments, Baddi, H.P. costing for total sum of Rs.5.50 lacs out of which he had already paid a total sum of Rs.4,95,750/- from Aug., 2007 to May, 2008 vide Ann.C-2 whereas balance amount of Rs.54,250/- was to be paid at the time of possession of the flat.  The allotment letter was issued on 17.8.2007 (Ann.C-4) and the agreement of sale was executed between the parties on 26.9.2007 (Ann.C-3) vide which the possession of the flat was to be given within 18 months from the date of allotment and as such the possession was to be handed over to the complainant by Feb., 2009 but the OPs failed to deliver the possession of the flat within the promised period and instead vide letter dated 18.3.2009  (Ann.C-5) informed that the construction was stopped due to certain unavoidable circumstances and the construction of the project has since been resumed, the flat would be ready for possession by the end of Sept., 2009. However, when the complainant made a personal visit at the site of construction on 5.5.2009, it was found that no construction activity was going on there and the structures were only half-built.  As such, the complainant vide letter dated 7.5.2009 (Ann.C-6) requested the OPs to cancel his booking and refund his entire amount with interest but to no avail.  Hence, the present complaint has been filed alleging the above act of OPs as gross deficiency in service and unfair trade practice due to which the complainant had to suffer mental & physical harassment as well as monetary loss.

4]             OPs filed joint reply and admitted the allotment of flat; receipt of Rs.4,95,750/- from the complainant; issuance of allotment letter and execution of agreement of sale.  However, it is stated that the complainant was still due with the last installment after payment of which the possession can be handed over to him.  It is also stated that OPs were entitled for reasonable extension of time of delivery of possession of said flat and the period of 18 months was only tentative vide Clause No.7(ii) of the Agreement to Sell.  It is admitted that complainant was informed vide letter dated 18.3.2009 that the construction has been delayed due to some unavoidable circumstances, however, he was given an option to take flat in any block which would be ready for possession by the end of Sept., 2009 but he refused.  It is further stated that OP were already willing to compensate the complainant and also offered flat in blocks which were ready for possession but the complainant refused to accept the offer.  Rest of the allegations have been denied and it is prayed that the complaint be dismissed.        

5]             Parties led evidence in support of their contentions.

6]             We have heard the ld.Counsel for the parties and have perused the record. 

7)               The Learned Counsel for the OPs has argued that in view of the clause 53 of the agreement annexure C-3, the dispute between the parties is to be settled through Arbitration and therefore the Consumer Fora has no jurisdiction to entertain and try this complaint.  We do not find any merit in this contention.  The Consumer Fora has been established to give a remedy to the consumers in addition to the remedies available to them under the general law, as mentioned in section 3 of the Act.  It is now settled law that even in the cases were there is a provision of settlement of dispute by Arbitration, the Consumer Fora has the jurisdiction to try the complaint.  Reference may be made to authorities in the cases of National Seeds Corpn. Ltd. Vs. PV Krishna Reddy-I (2009) CPJ 99 (NC), S. Kumars Com Ltd. Vs. Amarendra Raiguru-II (2008) CPJ 177 (NC) and Associated Road Carriers Ltd. Vs. Kamlender Kashyap & Ors.-I (2008) CPJ 404 (NC).

8)                It is also argued by the Learned Counsel for the OPs that this Forum has no territorial jurisdiction to try this complaint because the apartments which are subject matter of this complaint are to be constructed at Baddi, which is in Himachal Pradesh, whereas no cause of action accrued to the complainants within the jurisdiction of this Forum. It is however not disputed by them that the Head Office of OP-1 is in Chandigarh, the payment was received by the OPs through the receipts annexure C-2 at Chandigarh and the agreement annexure C-3 was also executed at Chandigarh.  This Forum therefore has the jurisdiction to try this complaint.

9)                The OP has admitted that the price of the flat was assessed at Rs. 5,50,000/- out of which a total of Rs. 4,95,750/- has been paid by the complainant. The remaining amount is to be paid at the time of possession. There is therefore no default on the part of the complainants to pay the price of the flat due from him. 

10)              As per the agreement annexure C-3 the OPs undertook to deliver the possession of the apartments within 18 months(tentative) of the allotment.  The allotment was made on 26.09.07 and therefore the possession was to be delivered by 25.03.09.  It is also admitted that the possession has not so far been delivered, because the construction has not been completed by the OP.  The Learned Counsel for the OPs has argued that this period of 18 months (tentative) could be extended further and therefore they were not bound to deliver possession within 18 months, as mentioned therein.  The OPs in Para 5 of the written reply have taken a ground that the construction was delayed due to “some unavoidable circumstances”.  This unavoidable circumstances have not been explained any where, either in the reply or the affidavit of Anil Bansal or in any correspondence which took place between the parties.  It was necessary for the OPs to mention the reasons for delay, so that the same may be considered whether there is any justification for the OPs to delay construction or not.  The Learned Counsel for the OPs referred to the case of Somasundara Vs The Mysore Urban Development Authority, Volume III(1994) CPJ 19 (NC). This authority is not at all applicable in the present case because in that case OPs had proved that the construction was delayed due to non-availability of building material and non supply of electricity by the Karnataka State Electricity Board.  Moreover in that case the possession had already been delivered to the complainant.  Further the redeeming feature was that the OPs had demanded the cost of the building much less than the figure mentioned in the original notification, none of these grounds exist in the present case and therefore the OPs cannot take shelter behind this authority.

11)              Since there were no reasons for delaying the construction, we cannot say that the period of 18 months would remain tentative or could be extended.  The OPs were therefore liable to complete construction by 25.03.09 and they have failed to complete the same without any reasons.  On the other hand they are retaining the hard earned money of the complainants and are not compensating them for the loss suffered by them.

12)              The Learned Counsel for the OPs has also argued that the OPs are paying Rs.3,000/- per month to the complainants on account of the delay. This fact is disputed by the complainants. Otherwise also the amount of Rs.3,000/- per month comes to hardly 3% of the amount received by the OPs. For the OPs it is a very good bargain for withholding the money with such a low interest which is quite beneficial to them but harmful to the financial interests of the complainants.  Clause 56 of the agreement annexure C-3 says that OP would be entitled to charge interest @ 15% per annum for the delay upto 1 month and @ 21% penal interest per annum upto 3 months in the event of late payments in respect of amounts due.  In the present case the delay in handing over the possession to the complainants has been more than 3 months and therefore if both the parties are to be treated equally, then the OPs would be liable to pay @ 21% per annum on the amount retained by them.  We however take a lenient view against the OPs and direct that they shall pay compensation to the complainant by way of interest @ 12% per annum on the amount retained by them.  The compensation shall be w.e.f. 1.04.09, till the last day of the month in which the possession is delivered to the complainants.  If the possession is not delivered within 6 months from the date of the receipt of the copy of this order, the OPs would refund the entire amount received by them along with the compensation referred to above.  The complainants would also be entitled to litigation costs of Rs.5,000/- in each case.  If any amount has been paid by the OPs as compensation the same shall be adjusted towards the amount to be paid by them.

                Certified copies of this order be sent to the parties free of charge.  The file be consigned.