DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No.252 of 28.10.2015
Decided on: 5.4.2017
Gurmail Kaur w/o S.Ravinder Singh R/o Guru Gobind Singh Nagar, New Court Road, St.No.4,Mansa, Punjab .
…………...Complainant
Versus
1. Improvement Trust, Chotti Baradari, Patiala through its Chairman.
…………Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.J.S.Aujla, Advocate. counsel for the complainant.
Sh.Arvind Gupta,Adv. counsel for
Opposite party.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Smt.Gurmail Kaur has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) praying for the following reliefs:-
- To handover the possession of the flat in question or in the alternative to pay Rs.20,000/- per month as penalty till the delivery of possession of the flat
- To pay Rs. 50,000/- as damages for causing mental agony and physical harassment
- Or to grant any other relief, which this Forum may deem fit.
2. In brief, the case of the complainant is that flat No.MIG-12, 2nd Floor, 3-B,measuring 1435.09 Sq.Yds Opposite Khalsa College, Patiala, was earlier allotted to one Sh.Sanjiv Kumar S/o Sh.Gurdev R/o H.No.253, St. No.3, Balmiki Chowk, Lahori Gate, Patiala, vide allotment letter bearing memo No. PIT/12/1736 dated 18.6.2012.The price of the above said flat was Rs.35,90,000/-. He purchased the aforesaid flat from said Sh.Sanjiv Kumar. Vide letter No.PIT/15/891 dated 13.4.2015, the O.P. transferred the ownership rights in her favor. She paid all the dues of the O.P. before 27.10.2014. But inspite of the payment , the O.P. failed to handover the possession of the flat. As per the agreement, the possession of the flat was to be delivered within 2 ½ years from the date of allotment i.e. upto 18.12.2014 but till today, the O.P. failed to handover the possession of the flat. A mandatory notice dated 20.7.2015 was also got served upon the O.P. but to no effect.She also visited the site where the flat has to be constructed, but no work regarding electricity , main gate, parking or any road etc., was completed there. She wrote so many letters to the O.P but it did not bother to accede to his request. Thus, there is deficiency of service on its part.
3. On being put to notice, the O.P appeared and filed its written version taking preliminary objections that the complainant is not a consumer under the Act, that this Forum has no jurisdiction to try the present complaint and the complainant, if has any grievance, in respect of the self financed scheme, can approach to Principal Secretary, Local Bodies, Punjab CHD, who is competent to hear the matter in question. On merits, it is stated that the allotment of flat was done by the Trust and the documents regarding the allotment were also issued by it. It is further stated that it has always been and is still ready and willing to give the possession of the flat. It is averred that possession of the flat was delayed due to non-availability of the electricity, which was to be provided by the PSPCL .It is stated that the work to get the supply has been done by the Trust and it is going to deliver the possession of the flat very shortly. There is no deficiency of service on its part. After denouncing all other allegations made in the complaint, it is prayed to dismiss the complaint with costs.
4. On being called to do so, the ld. counsel for the complainant has tendered in evidence Ex.CA, sworn affidavit of the complainant alongwith documents, Exs.C1 to C5 and closed the evidence.
On the contrary, the ld. counsel for the O.P. tendered in evidence Ex.OPA, sworn affidavit of Dharampal Sr.Assistant, Patiala Improvement Trust, Patiala, alongwith documents Exs.OP1 & OP9 and closed the evidence.
5. We have heard the ld. counsel for the parties and have also gone through the record of the case,carefully.
6. At the out set, the learned counsel for the O.P. vehemently argued that this Forum has no jurisdiction to adjudicate the present complaint. The complainant for redressal of his grievance should have approached the Principal Secretary, Local Bodies Punjab, Chandigarh, who is the competent authority to adjudicate the matter. On the contrary, the learned counsel for the complainant submitted that being a consumer he has rightly filed this complaint before this Forum. We find force in the contention of the complainant because Section 3 of the Act, provides an alternative remedy, even if, any remedy is available under some other Act.
7. On merits, the learned counsel for the complainant has submitted that originally the flat in question was allotted to one Sh.Sanjiv Kumar, vide allotment letter No.PIT/12/1736 dated 18.6.2012,Ex.C2.The complainant had purchased the said flat from said Sh.Sanjiv Kumar and the plot was, accordingly, transferred in her name, by the Op vide letter No.PIT/15/891 dated 13.4.2015,Ex.C4. As per the said letter all terms and conditions would remain the same, as per letter No. PIT/12/1736 dated 18.6.2012,Ex.C2.After the transfer of the said flat in her favour, she paid the entire amount to the O.P. As per term No.11 of the brochure/scheme , the copy of which is placed on record, the possession of the flat was to be given within 2 ½ years from the date of allotment and the first five installments were to be paid without interest and remaining installments were to be paid with interest after the delivery of the possession, which was to be delivered on 18.12.2014. After the delivery of the possession, the allottee would have to make the payment of interest @ 12% per annum. The payment of schedule was mentioned in the allotment letter itself. It is pertinent to mention that at the time of transfer of the said flat in her name, she paid entire payment before 27.10.2014. However, the possession has not been delivered by the O.P even till today, which amounts to deficiency in service.
8. On the other hand, the learned counsel for the O.P. submitted that the flats were to be allotted under the self financing scheme. Due to non payment of the installments by the respective allottees, the flats could not be constructed within the stipulated time. So far as the possession of the flat is concerned, it is stated that the same was delayed due to non availability of the electricity which was to be provided by the P.S.P.C.L and now the Trust is going to deliver the possession of the flat, including all amenities, very shortly. There is no deficiency of service on the part of the O.P. and the complaint is liable to be dismissed.
9. Admittedly, under a self financed scheme, the O.P. allotted flat No.MIG 12 Second Floor 3-B, vide allotment letter No.PIT/12/1736 dated 18.2.2012,Ex.C2 to one Sh.Sanjeev Kumar.The complainant purchased the said flat from said Sh.Sanjiv Kumar and the O.P. vide letter dated 13.4.2015, Ex.C4, transferred the said flat in favour of the complainant, under the same terms and conditions of the initial offer letter. The complainant has contended that the entire consideration amount qua the said flat has been paid by her and as per term No.11 of the brochure, the OP was to handover the possession of the flat in question within 2 ½ years from the date of allotment i.e. on 18.12.2014, but the Ops have failed to handover the possession of the flat till date. It is admitted by the OP in the written version that due to non availability of electricity, the possession of the flat could not be delivered. This fact is further got fortified from the duly sworn affidavit of Sh. Dharampal, Sr.Assistant, Patiala Improvement Trust, Patiala, Ex.OPA. In addition to the prayer made in the complaint for delivery of the possession of the flat in question with complete facilities, the complainant has also prayed for issuance of directions to the O.P. to pay Rs.20,000/- per month, as penalty till the possession of the flat , to pay compensation for causing mental agony and physical harassment.. It may be stated that in the case of H.P.Housing Board Vs. Janak Gupta 2009 INSC 627 ( 26 March 2009) ( Civil Appeal No.6346 of 2002), it was clearly held by the Hon’ble Supreme Court of India, that in the case of delay, in delivery of possession, award of interest @12% per annum on the deposited amount, for the period of delay, would meet ends of justice. Further in the case of Capt.Gurtaj Singh Sahni and Anr. Vs. Manager Unitech Limited and anr. Consumer complaint No.603/2014 decided on 2.5.2016, the Hon ‘ble National Commission, New Delhi, directed the O.P/builder to pay interest@ 12% P.A. from the expected date of possession till the date on which the possession is actually offered to the complainant after completing the construction in all respects and obtaining the requisite completion certificate. It was further held that no separate compensation would be payable to the complainant/s either towards the rent paid by them or for the mental agony and harassment, which they have suffered on account of failure of the O.Ps to perform its contractual obligations.
10. Taking note of above said proposition of law, in the present case also, end of justice would meet, if interest is granted for delayed period. As per the contention of the complainant she had paid the entire consideration amount of the flat in question. This fact has not been rebutted by the O.P.As such she is entitled to get interest on the amount deposited by her . It may be stated that the complainant is entitled to get interest on the amount deposited before 18.12.2014 i.e. expected date of handing over the possession of the flat @ 12% per annum w.e.f. 18.12.2014 and is entitled to get the interest on the amount deposited after 18.12.2014 @ 12% per annum from the respective dates of deposits.
For the reasons recorded above, the complaint is partly accepted with costs. The OP is directed as under:
- To hand over physical possession of the flat in question, complete in all respects to the complainant , as per the scheme/brochure in question
- To pay interest @ 12% per annum on the amount deposited by the complainant before 18.12.2014 w.e.f. 18.12.2014 till payment is made
- To pay interest @12% per annum on the amount deposited by the complainant after 18.12.2014 from the respective dates of deposit till payment is made.
- To pay Rs.20,000/- as cost of litigation
The O.P. is further directed to comply the aforesaid order within a period of 45 days from date of the receipt of the certified copy of this order. Certified copies of this order be sent to the parties free of cost under the rules. Thereafter file be indexed and consigned to the record room.
Dated:5.4.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
