DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. CC/15/311 of 21.12.2015
Decided on: 16.3.2017
Paramjit Kaur w/o Ved Parkash Batish r/o 1469, Ghumaran Wali Gali, Near B -Tank, Division No.4, Patiala.
…………...Complainant
Versus
1. Improvement Trust, Chottibaradari, Patiala through its Chairman.
2. Executive Officer, Improvement Trust, Chottibaradari, Patiala.
…………….Ops
Complaint under Section 12 of the
Consumer Protection Act.
QUORUM
Smt. Neena Sandhu , President
Smt.Neelam Gupta, Member
ARGUED BY
Sh.Y.R.Mangla,Advocate, counsel for the
complainant.
Sh.Arvind Gupta, Advocate, counsel for opposite
parties.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Smt.Paramjit Kaur has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Parties (hereinafter referred to as the O.Ps.) praying for the following reliefs:-
- To deliver the possession of the flat in question with complete facilities as per the offer letter.
- To pay rental value of Rs.25,000/- per month onwards till the delivery of possession of the flat
- To pay Rs. 2,00,000/- as compensation on account of mental pain, agony and harassment caused to her
- To pay Rs.20,000/- as litigation expenses.
2. In brief , the case of the complainant is that the Ops vide their scheme namely Vikas Scheme, which was advertised in the newspapers, had demanded applications from the general public for the allotment of 15 HIG flats having the measurement of 1978 sq.feet in the sum of Rs.24.45 lacs for first floor, Rs.24.35 lacs for second floor, Rs.24.25 lacs for third floor, Rs. 24.15 lacs for fourth floor and Rs.24.05 lacs for fifth floor and 30 MIG flats having the area of 1600 sq.feet in the sum of Rs.19.60 lac for first floor, Rs.19.60 lac for second floor, Rs.19.50 lac for third floor,Rs.19.50 lac for fourth floor and Rs.19.30lac for fifth floor respectively. He averred that as per said scheme 4% cess was be paid by the allottee at the time of allotment. Flat No.4-C firstly was allotted to one Harkirat Kaur w/o Harbir Singh R/o Patiala vide allotment letter No.PIT/10/1472 dated 7.5.2010 and she purchased the said flat from said Harkirat Kaur. In this regard, the O.Ps. issued a letter No.PIT/14/1312 dated 11.4.2014 in favour of the complainant on the same terms and conditions as per earlier letter of allotment issued to said Harkirat Kaur. She, after the transfer of the flat, in her favour, paid the entire amount to the Ops. The O.Ps were to provide the possession of the flat by 25.9.2012 i.e. within 2.5 years from the date of allotment. The first five installments were to be paid without interest and remaining installments were to be paid with interest @ 12% per annum, but after the delivery of the possession. However, after the transfer of the flat in her favor, she made the entire payment on 4.3.2014.She was surprised that no basic amenities such as water, electricity, sewerage, etc. were provided at the site . regarding which she visited the O.Ps. a number of times and requested for providing the same. As per the offered scheme, the O.Ps. were to provide the possession of the flat by 25.9.2012 and thereafter they were to charge the interest. The O.Ps. have not delivered the possession of the flat and have charged the interest without any right & authority .She visited the office of the O.Ps. a number of times and made number of requests but did not yield any results and rather she was insulted, humiliated and harassed by the O.Ps.The said act of the O.Ps. amounts to deficiency in service.
3. On being put to notice, the Ops appeared and filed their written version taking preliminary objections that the complaint is not maintainable; that the complainant is not a consumer under the Act; that this Forum has no jurisdiction to try the present complaint and the complainant 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 averments made in paras no.1 to 6 of the complaint are matter of record. The O.Ps. denied all other averments made in the complaint, and prayed for dismissal of the complaint .
4. In support of the complaint, the learned counsel for the complainant tendered in evidence, CA sworn affidavit of the complainant, aloangwith documents, Exs.C1 to Ex.C13 and closed the evidence.
On the contrary, the ld. counsel for the O.Ps. tendered in evidence Ex.OPA, sworn affidavit of Lachman Dass, SDO, Patiala Improvement Trust, Patiala, alongwith documents, Exs.OP1 to OP7, copy and closed the evidence.
5. We have heard the learned counsel for the parties, gone through the written arguments filed by the ld. counsel for the opposite parties and have also gone through the record of the case, carefully.
6. At the out set, the learned counsel for the O.Ps. vehemently argued that this Forum has no jurisdiction to adjudicate upon the present complaint. The complainant, for redressal of her grievance, should have approached the Principal Secretary, Local Bodies Punjab, Chandigarh, who is the competent authority to adjudicate upon the matter. On the contrary, the learned counsel for the complainant submitted that being a consumer, she 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 submitted that originally the flat in question was allotted to one Smt. Harkirat Kaur vide allotment letter No.PIT/10/1472 dated 7.5.2010,Ex.C2.The complainant had purchased the said flat from said Smt.Harkirat Kaur and the plot was, accordingly, transferred in her name, by the Op vide letter No.PIT/14/1312 dated 11.4.2014,Ex.C3. As per the said letter all terms and conditions would remain the same as per letter No. PIT/10/1472 dated 7.5.2010.After the transfer of the said flat in her favour, she paid the entire amount to the O.Ps. as per their initial offer letter. As per term No.11 of the brochure/scheme Ex.C1, 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 25.9.2012. 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 on 4.3.2014. However, the possession has not been delivered by the O.Ps even till today, which amounts to deficiency in service.
8. On the other hand, the learned counsel for the O.Ps. 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. Since there was increase in the cost of construction, therefore, the escalated cost of the construction has to be borne by all the allottees. The O.P.s have issued the letter dated 5.4.2016, Ex.OP1, to all the allottees vide which, allottees were requested to take the possession of their respective flats after giving undertaking to pay the escalated cost of construction. But the complainant did not turn up to take the possession of the flat. Thus, the complainant has no locus standi to file the complaint and the same is liable to be dismissed.
9. Admittedly, O.Ps. launched a self financing scheme,Ex.C1 and invited applications from the general public for allotment of HIG and MIG flats. Under the said scheme a flat No.4-C was allotted to one Smt. Harkirat Kaur wife of Hardeep Singh vide allotment letter No.PIT/10/1472 dated 7.5.2010,Ex.C2.The complainant purchased the said flat from said Smt.Harkirat Kaur and the O.Ps. vide letter dated 11.4.2014, Ex.C3, transferred the same in her favour as per the terms and conditions of the initial offer letter. From the receipts, Exs.C4 to C13, it is evident, that the entire consideration amount qua the said flat has been paid, which has fairly been admitted by the O.Ps. From clause No. 11 of the brochure,Ex.C1, it is very clear that the O.Ps. were to handover the possession of the flat in question on 25.9.2012, i.e. within 2 ½ years from the date of allotment. This contention of the complainant has not been rebutted by the O.Ps. The O.Ps. neither in the written version have disclosed the date of start of construction nor have produced any document to show what was the actual date of commencement of construction. Since neither the O.Ps. have disclosed the date of start of construction nor it was anywhere made clear in the scheme in question as to when the construction would be started, therefore, we are of considered view that O.Ps. were to deliver the possession of the flat within 2 ½ years from the date of allotment. Since the allotment was made on 7.5.2010, therefore the possession was to be delivered uptill 7.11.2012 and not 25.9.2012, as alleged by the complainant. Only vide letter dated 5.4.2016, the O.Ps. asked the complainant to take the possession of the flat in question. From the said letter, it is apparent that the O.Ps till 5.4.2016 have not handed over the possession of the flat. On filing of application dated 13.10.2016, by the O.Ps for spot inspection of the site, this Forum vide order dated 7.11.2016 directed the O.Ps. to place on record, documents regarding providing of basic amenities at the site . The O.Ps., on 12.1.2017 placed on record, the copies of the documents regarding providing of water supply and sewerage connection. However, no document with regard to supply of electricity at the site has been provided by the O.Ps. In the absence of the document with respect to supply of electricity at the site, it cannot be ascertained that as to whether the electricity has been provided at the site or not. Electricity is a basic necessity and the O.Ps have failed to establish that they had supplied the electricity at the site. It may be stated that without electricity, which is a basic necessity, the possession cannot be handed over. Therefore, we do not hesitate to hold that possession letter dated 5.4.2016 is just a paper possession and the O.Ps have yet to hand over the physical possession of the flat in question , complete in all respects to the complainant, as per the scheme launched by them. 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 direction to the O.Ps. to pay the rent @ Rs.25,000/-per month and also to pay compensation on account of mental agony and physical harassment alongwith litigation expenses.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. From the perusal of copies of receipts Exs.C4 to C13,it is evident that the complainant has paid some amount before 7.11.2012 ( the expected date of delivery of possession ) and some amount after the said date. Therefore, complainant is entitled to get interest on the amount deposited before 7.11.2012 @ 12% per annum w.e.f.7.11.2012 and is entitled to get the interest on the amount deposited after 7.11.2012 @ 12% per annum from the respective dates of deposits.
For the reasons recorded above, the complaint is partly accepted with costs. The OPs are 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 7.11.2012 w.e.f. 7.11.2012 till payment is made
- To pay interest @12% per annum on the amount deposited by the complainant after 7.11.2012 from the respective dates of deposit till payment is made.
- To pay Rs.20,000/- as cost of litigation
The O.Ps. are further directed to comply the aforesaid order within a period of 45 days from 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:16.3.2017
NEENA SANDHU
PRESIDENT
NEELAM GUPTA
MEMBER
