DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA, PUNJAB.
Consumer Complaint No : 665/2016
Date of Institution : 21.10.2016
Date of Decision : 21.11.2017
Naresh Kumari w/o Naresh Kumar Nanakpura Mohalla Dhanaula, District Barnala.
...Complainant
Versus
Improvement Trust, Barnala, 25 Acre Scheme, Barnala through its Executive Officer.
...Opposite Party
Complaint Under Section 12 of Consumer Protection Act, 1986.
Present: Sh. RK Jain counsel for complainant.
Sh. DR Jindal counsel for opposite party.
Quorum.-
1. Ms. Vandna Sidhu : Member
2. Shri Tejinder Singh Bhangu : Member
ORDER
(BY MS. VANDNA SIDHU PRESIDING MEMBER)
As per the complaint No. 665/2016 the complainant namely Naresh Kumari w/o Naresh Kumar has filed the present complaint against Improvement Trust, Barnala through its Executive Officer.
2. As per complaint opposite party developed a residential colony at Dhanaula Road, Near ITI Chowk, Barnala under the name Maharaja Aggarsain Enclave. In this colony the opposite party floated a scheme for LIG flats which were sold through allotment for which applications were invited up to 30th June 2010. The complainant submitted the application alongwith application money of Rs. 1,07,000/-. The complainant was alloted flat No. 8 on ground floor vide allotment letter No. 1134 dated 9.8.2011 against the price of Rs. 10,70,000/- payable in installments as per schedule mentioned in letter.
3. It is further submitted that the complainant was to pay the cost of flat in installments so the complainant as per terms of allotment paid Rs. 1,60,500/- + Rs. 42,800/- total Rs. 2,03,300/- apart from money already paid to make up 25% of the cost and cess. It was further agreed that the balance amount will be deposited in 10 half yearly installments of Rs. 80,250/- each. The first five installments were interest free and after the delivery of possession the installments were to carry interest @ 12%. The complainant paid Sixth installment of Rs. 80,250/- + Rs. 24,075/- interest = Rs. 1,04,325/-, seventh installment Rs. 80,250/- + Rs. 19,260/- interest = Rs. 99,510/-, Eight installment Rs. 80,250/- + Rs. 14,445/- interest = Rs. 94,695/-, ninth installment Rs. 80,250/- + Rs. 9,630/- interest = Rs. 89,880/- and tenth installment Rs. 80,250/- + Rs. 4,815/- interest = Rs. 85,065/-.
4. The opposite party promised to deliver the possession of the flat within 2 years and 6 months and assured the complainant that at the time of possession the flat will be complete in all respect alongwith all the amenities like roads, sewerage, water and electricity. Till the time of handing over of possession the responsibility of proper upkeep of flat was on the opposite party. The opposite party failed to make construction of above said flat within stipulated time. So, complainant made request to the opposite party to waive of the interest as neither the construction has been completed nor basic amenities have been provided at project side and opposite party did not budge and wrongly got deposited interest with the 6th installment onwards. Possession was also not given so this is deficiency on the part of the opposite party. The opposite party issued a notice bearing No. 245 dated 3.2.2015 which is not concerned with the facts and situation at the site. On receiving the notice complainant visited the site and found that the walls of the flat are not properly plastered, no doors and windows installed and even where these are installed the same are infested with termites, no proper sanitary work has been done, no taps are installed no proper pipes are installed the result is leakage in the pipes. After installation of transformer near the flats electric connection has not been provided to the flats. Complainant approached the opposite party to rectify the defects in the concerned flat before taking possession but all in vain.
Relief.-
The opposite party may be directed to.-
1) Refund the price of flat alongwith interest @ 12% per annum.
Or in the alternative.
2) To refund the sum of Rs. 72,225/- alongwith interest.
3) To deliver the possession of the flat after removing all the shortages and after providing all the amenities.
4) The opposite party be directed to pay rent of accommodation @ Rs. 10,000/- per month for the period of delay in handing over the possession of the flat.
5) To pay Rs. 1,00,000/- as compensation towards mental agony and harassment.
6) To pay Rs. 11,000/- as litigation expenses.
5. Upon notice of this complaint, the opposite party filed written version taking preliminary objections interalia on the grounds of locus standi, not come to this Forum with clean hands, jurisdiction, non joinder and mis joinder of necessary parties and present complaint is wholly misconceived, groundless and unsustainable in law which is liable to be dismissed.
6. On merits, it is submitted by the opposite party that had completed the said flat within time and had been informed to the complainant that the said flat had been completed and is ready for possession of the complainant but the complainant never came to get the possession of the flat. It is also denied by the opposite party that they exploited the dominant position to extract interest while delaying the construction of flat. It is also submitted on merits that construction of flat was already completed in time alongwith all basic amenities. Further, it is also submitted that regarding electricity connection the complainant did not approach the Electricity Department and opposite party had already informed the complainant regarding completion of flat alongwith all basic amenities. Lastly it is prayed for the dismissal of the present complaint.
7. In order to prove her case, the complainant tendered into evidence her affidavit Ex.C-1, copy of letter dated 3.3.2015 Ex.C-2, copy of allotment letter dated 9.8.2011 Ex.C-3, copy of receipt No. 56 Ex.C-4, copy of receipt No. 16 Ex.C-5, copy of receipt No. 33 Ex.C-6, copy of receipt No. 40 Ex.C-7, copy of receipt No. 45 Ex.C-8, copy of receipt No. 83 Ex.C-9, copy of receipt No. 98 Ex.C-10, copy of receipt No. 51 Ex.C-11, copy of receipt No. 52 Ex.C-12, copy of receipt No. 70 Ex.C-13, copy of receipt No. 95 Ex.C-14, copy of receipt No. 874 Ex.C-15, copy of brochure of scheme Ex.C-16, copy of supply code of PSPCL Ex.C-17, copy of certificate of sweet home Architects Ex.C-18, affidavit of Kinshuk Jindal Ex.C-19 and closed the evidence.
8. In order to rebut the case of the complainant, the opposite party tendered into evidence affidavit of Ravinder Kumar Executive Officer Ex.OP-1 and evidence of the opposite party was closed by order of this Forum dated 3.7.2017.
9. We have heard the Ld. Counsel for the parties and have gone through the record.
10. Following issues are framed in the above said complaint.-
1) Whether the possession is provided to complainant on stipulated period ?
2) Whether all the basic facilities were provided to the complainant at the time of hand over possession of the alleged flat ?
3) Whether the expert opinion which was brought on record by complainant i.e. Ex.C-18 rebutted by the opposite party or not ?
4) Whether the Ex.C-18 i.e. report of Surveyor has significance importance as per law or not in the present complaint ?
5) Whether the construction of the above mentioned flat was completed within stipulated period alongwith all basic facilities ?
6) Whether the complainant is a consumer of above said opposite party or not ?
7) Whether the above said complaint falls under the Consumer Protection Act 1986 ?
8) Whether the opposite party wrongly got deposited interest with the 6th installment onwards before giving possession ?
9) Whether there is deficiency in service on the part of the opposite party as alleged ?
10) Whether the opposite party has constructed the alleged flat as per standards and the basic amenities which were assured to provide were given or not at the time of giving possession ?
11) Whether the opposite party has offered possession to the complainant with incomplete infrastructure of flat ?
12) Whether the alleged flat is not fit for inhabitants due to termites, defective drainage system, without doors and windows etc. ?
13) Whether this fact is as per law that once an allottee accepts the possession of flat he looses his right to point out defects/deficiency in construction of flat ?
11. As per Ex.C-3 allotment letter bearing No. 1134 dated 9.8.2011 issued by the opposite party in regard of flat No. 8 and as per Ex.OP-1 i.e. affidavit of Sh. Ravinder Kumar Executive Officer deposed in his affidavit that said flat was completed by the opposite party within stipulated time which was agreed alongwith all the basic amenities and it was duly informed to the complainant to take possession of the flat. As per written version on merits it is also submitted by the opposite party that they had completed the said flat within time and had been informed to the complainant in regard of completion of flat and opposite party is ready for hand over the possession to the complainant. As per facts of the opposite party complainant never came to get the possession of the flat. So after considering Ex.OP-1 and facts it is not a clear picture about informing to the complainant within stipulated period. Ex.C-2 itself proves that on 3.3.2015 opposite party issued a letter No. 245 dated 3.3.2015 about taking possession of flat No. 8. So the conclusion of this record shows that the alleged flat is not constructed within the stipulated period and here is a long time delay.
12. About issue No. 5 and 6 the view of this Forum is that Ex.C-18 which is Surveyor report also proves about many major defects in the alleged flat and it is pertinent to mention here that this report is not rebutted by the opposite party by way of evidence or during the impleading of the case before this Forum by way of arguments. During arguments opposite party kept mum to himself about report of Surveyor so this issue is also goes against the opposite party and in favour of complainant. Moreover, report of Surveyor is duly signed. So report of expert i.e. Surveyor is reasonable in the present complaint.
13. Issue No. 6 regarding complainant is consumer or not. In present complaint complainant bought the above said flat for residential purpose. In Kapil Kumar Khosla Versus DLF Homes, Panchkula Pvt. Ltd. Page-8/389 September 2017 Part-9 Vol. III the Hon'ble Chandigarh State Consumer Disputes Redressal Commission held as under.-
“Purchase of flat-Residential purpose-Complainant consumer. Consumer Protection Act, 1986 Section 2 (1) (d) (ii)-Consumer- Purchase of flat-Residential purpose- Complainant consumer.”
14. About the conclusion of issue No. 7 The Consumer Protection Act came into existence in the year 1986 and it is one of the benevolent piece of legislation to India to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not be frustrated. But in the present complaint the above said complainant faced frustration because the flat in question is incomplete. Moreover, inspite of Ex.C-16 i.e. brochure of scheme in para No. 12 which describes about completion of infrastructure of flats within 2 years 6 months but Ex.C-2 issued to complainant on 3.3.2015 which is beyond stipulated period. Moreover, brochure placed on record i.e. Ex.C-16, it is mentioned in it about facilities of water, electricity etc. But as per Ex.C-18 in column No. 1 to 15 gave report about not completion or incomplete work or providing basic facilities for residence in th above said colony or enclave as mentioned in Ex.C-3.
15. It is pertinent to mention here that to reinstate her claim the complainant has produced on record her affidavit alongwith various documents which were not rebutted by the opposite party. It is also pertinent to mention here that various amounts have been paid, vide different receipts Ex.C-4 to Ex.C-15 to the opposite party. The amounts of Rs. 2,03,300/-, five half yearly installments of Rs. 80,250/- each, sixth installment of Rs. 80,250/- + 24,075/- interest = Rs. 1,04,325/-, seventh installment of Rs. 80,250/- + 19,260/- interest = Rs. 99,510/-, eighth installment of Rs. 80,250/- + 14,445 interest = Rs. 94,695/-, ninth installment of Rs. 80,250/- + 9,630/- interest = Rs. 89,880/- and tenth installment of Rs. 80,250/- + 4,815/- interest = Rs. 85,065/- were paid by the complainant. The evidence brought on record by the complainant clearly established unfair trade practice carried out by the opposite parties.
16. In Yogesh Ramling Warad Versus Teirth Developers and Suyojit Infrastructure Ltd. And others reported in III (2017) CPJ-130 (NC) the Hon'ble National Commission held as under.-
“Consumer Protection Act, 1986-Sections 2 (1) (g), 21 (a) (ii)-Housing-Purchase of flats-Delay in delivery of possession-Building plan changed without consent-Defects and lacunae in construction-Deficiency in service-State Commission allowed complaints-Hence appeal-Complainant paid substantial amounts to OP builders in compliance of flat-booking agreements, after raising loan from banks-There was inordinate delay on part of Ops to hand over the possession of flats to complainants-OPs have not been able to bring any evidence on record which may corroborate their version that there was non-availability of building material, steel and cement and water or electric supply-There is no evidence of any delay having occurred due to war, civil commotion, act of God, etc.-There is no evidence of delay on account of any order or notification issued by Government- Compensation awarded-Impugned order upheld.”
17. Regarding issue No. 5, 10, 11 and 12 as per evidence and other documents which are brought on record i.e. Ex.C-16, Ex.C-18 and affidavit of complainant himself proved that flat in question was not completed and hand over to the complainant within stipulated period. Ex.C-3 issued on 9.8.2011 and Ex.C-2 issued on 3.3.2015 so allotment letter was issued on 9.8.2011 and letter of taking possession of flat No. 8 was issued on 3.3.2015 so here is a huge difference among two dates which proves that possession is not hand over and infrastructure of flat was not completed within stipulated period. Moreover, Ex.C-18 i.e. report of Surveyor alongwith pictures of alleged flat gave a solid opinion to this Forum that alleged flat is not fit for human inhabitants due to defective drainage system, non supply of electricity facility, without doors and windows alongwith other basic facilities which are necessary for residence.
18. In regard of issue No. 13 after receiving letter Ex.C-2 complainant brought on record Ex.C-18 which proves defects/deficiency in construction of flat. So, as per the view of this Forum it is deficiency of service of opposite party under Section 2 (g) and unfair trade practice under Section 2 (r) of the Consumer Protection Act.
19. In Chhattisgarh Grih Nirman Project Versus Rakesh Kumar Borkar and others reported in III (2017) CPJ-137 (NC) it was held by Hon'ble National Commission as under.-
“Consumer Protection Act, 1986- Section 2 (1) (g), 2 (1) (r), 14 (1) (d), 21 (b)- Housing- Allotment of House-Delay and non completion of basic facilities and development works- Mental agony and harassment-Deficiency in service-Unfair trade practice-District Forum partly allowed complaint-State Commission partly allowed appeals-Hence revision-There is clear direction that Service Tax will not be charged to allottee and that if it was indeed charged to allottees and has not been submitted by Board then it should be refunded- Housing Board did not complete basic facilities like Swimming pool, Guest House, Community Hall, Open Land development (Land Scaping), Solar Geyser in every house, sewerage treatment plant boundary wall etc. which are included in price of house-Housing Board has issued revised prices on account of delay which has been paid by complainants under protest- Complainants were never defaulters-They were able to establish it by way of documentary evidence, namely, CAG report that there has been negligence, irregularities and inadequacy on part of developing authority in performance of their functions, on account of which complainant has suffered mental agony- Merely saying that time is no specified in agreement and Housing Board can take whatever time period is convenient for them to complete promised amenities, without giving any substantial reasons is ultra vires of law laid down in Syndicate Bank's case-Deficiency proved-Compensation awarded.”
20. In the present case there is inordinate delay in the delivery of possession and in the light of facts of present complaint it is maintainable and falls under the Consumer Protection Act.
21. It is pertinent to mention here that the complainant paid installments with interest from 6th installment to 10th installment before completion and getting possession of flat in question within stipulated period.
22. In view of the above discussion present complaint is allowed and opposite party is directed to deliver the possession of the flat No. 8 after removing all the shortages and after providing all the amenities and opposite party is also directed to refund the amount of interest charged by the opposite party from the complainant of Rs. 72,225/- vide receipts Ex.C-10 to Ex.C-14 in regard of installments from 6th to 10th. The opposite party is also directed to pay Rs. 3,000/- as compensation on account of mental tension and harassment and Rs. 2,000/- on account of litigation expenses. Compliance of order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records.
ANNOUNCED IN THE OPEN FORUM:
21st Day of November 2017
(Vandna Sidhu)
Presiding Member
(Tejinder Singh Bhangu)
Member
