DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 154 of 18.4.2016
Decided on: 16.3.2017
Sudesh Kumar Duggal S/o Sh.Bihari Lal R/o H.No.112-A, Adarsh Colony,Patiala.
…………...Complainant
Versus
1. Improvement Trust, Chotti Baradari, Patiala through its Chairman.
2. Executive Officer Improvement Trust, Chotti Baradari, Patiala.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Smt. Neena Sandhu, President
Smt. Neelam Gupta, Member
ARGUED BY:
Sh.Y.R.Mangla,Adv.counsel for the complainant.
Sh.Arvind Gupta,Adv. counsel for
Opposite parties
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh. Sudesh Kumar 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 with complete facilities as per the offer letter of the O.Ps.
- To make the payment of rental value of Rs.15000/- per month from 25.9.2012
- To pay Rs. 2,00,000/- as costs for causing mental pain, agony and physical harassment
- To pay Rs.2,00,000/- as litigation expenses.
2. In brief, the case of the complainant is that the O.ps. vide their scheme namely Vikas Scheme, in order to allot HIG and MIG flats, demanded the applications from the general public by giving advertisement in the leading newspapers. The scheme was to be operated from 12.9.2009 to 12.10.2009. Vide the above said scheme, the O.Ps. made the offer for the allotment of 15 HIG and 30 MIG flats i.e. 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. As per the above said scheme 4% cess shall also be paid by the allottee, at the time of allotment. After perusal of the scheme, the complainant applied for the flat, in the category of MIG and deposited an amount of Rs.1,97,000/-as earnest money. After the draw, he was successful in getting the flat . Accordingly, he was allotted flat No.15-A at 5tht floor vide allotment letter No.1498 dated 7.5.2010. In the said letter, the schedule for the payment of the entire amount of Rs.19.30 lacs alongwith payment of cess, after adjusting the payment of Rs.1,97,000/-(already paid by him) was mentioned. He was directed to make the payment of Rs.3,65,200/- within 30 days from the issuance of the allotment letter. In pursuance of the said allotment letter, he deposited Rs.3,65,200/- with the O.Ps. on 4.6.2010 vide receipt No.41207. As per the allotment letter dated 7.5.2010, he was supposed to deposit Rs.7,23,750/- in five six monthly installment of Rs.1,44,750/- starting from 25.9.2010 to 25.9.2012 and as per clause-5, the remaining five installments were to be deposited with 12% interest. The possession of the flat was to be given on 25.9.2012 i.e. within 2.5 years from the date of allotment. He without making any default, after depositing the amount of Rs.3,65,200/- deposited five installments within time vide receipts No.41770 dated 21.9.2010, receipt No.42639 dated 24.3.2011, receipt No.43898 dated 19.9.2011, receipt No.44872 dated 20.3.2012 and receipt No.46053 dated 21.9.2012. After making the above said payments, he was not to make the payment of interest on the remaining installments, as the possession was not delivered. But still he made the payment to the O.Ps. alongwith interest @ 12% p.a., thereby deposited the first installment of Rs.1,88,175/- on 19.3.2013 vide receipt No.47146. He deposited the remaining installments of Rs.1,79,490/- vide receipt No.48201 dated 19.9.2013., Rs.1,70,805-vide receipt No.49073 dated 21.3.2014, Rs.1,62,120/- vide receipt No.49864 dated 8.9.2014 and Rs.1,53,435/- vide receipt No.50801 dated 10.3.2015.He was surprised on receipt of letter No.PIT/14/1722 dated 10.6.2014 issued by the O.Ps., wherein he was asked for taking the possession at the site on 17.6.2014. After receipt of the said letter, he went to the site and was shocked to see that flats were totally incomplete i.e. no amenities such as water, electricity, sewerage, gate parking etc. were provided there. He immediately, wrote a letter to the O.Ps. that as the work is not complete, the possession has been taken under protest. The O.Ps. failed to respond the said letter. It is averred that as per the scheme , the possession was to be delivered by the O.Ps. upto 25.9.2012 and thereafter they were entitled to charge the interest but the O.P.s without providing the basic amenities such as water, electricity, sewerage, gate, parking etc. have charged interest without any right and authority. In this regard, he requested the O.Ps. for a number of times but did not yield any result. To his utter surprise, he received another letter bearing No.PIT/16/1052 dated 5.4.2016, for the payment of the enhanced amount but the same has not been mentioned in the letter. Even the work has not been completed by the O.Ps. at the site. The act and conduct of the O.Ps. shows deficient in service on their part for which he has been suffering from mental agony, physical harassment and financial loss.
3. On being put to notice, the O.Ps appeared and filed their written version taking preliminary objections interalia that the complaint is not maintainable, 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 dispute. On merits, it is stated that paras no. 1 to 5 & 7 to 9 are matter of record. It is denied that flat has not been provided with water, electricity, sewerage, gate, parking etc. and stated that the said facilities shall be available on the availability of electricity to be granted by the PSPCL. After denouncing all other allegations made in the complaint, it is prayed to dismiss the complaint with costs.
4. In support of the case, the counsel for the complainant tendered in evidence Ex.CA, sworn affidavit of the complainant, alongwith documents Exs.C1 to C16, and closed the evidence.
On the contrary, the ld. counsel for the O.Ps. tendered in evidence Ex.OPA, sworn affidavit of Narinder Singh, Junior Engineer, Improvement Trust, Patiala, alongwith documents Ex.OP1 to Ex.OP7, 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 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 the complainant applied for the allotment of flat in the category of MIG and paid an amount of Rs.1,97,000/- as earnest money. Vide letter dated 7.5.2010, Ex.C2, flat bearing No.15-A(MIG) was allotted to him. As per the term No.11 of the scheme Ex.C1, the possession of the flat was to be given within 2 ½ 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 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, according to which the complainant made the entire payment. However, the possession has been delivered without there being providing the basic amenities. Thus, they have committed 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 finance 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.Ps. have issued the letter dated 10.6.2014, Ex.OP5 to the allottee/complainant to take the possession and he has taken the possession of his respective flat on 17.6.2014. Now he has no locus standi to file the complaint and the same is liable to be dismissed.
9. Admittedly, O.Ps. launched a scheme and invited applications from the general public for allotment of HIG and MIG flats. Under the said scheme flat No.15-A was allotted to the complainant vide letter dated 7.5.2010, Ex.C2.From the copies of receipts,Exs.C3 to C13, it is evident that he paid the entire consideration qua the said flat to the O.Ps, which has fairly been admitted by the O.Ps. From clause 11 of brochure,Ex.C1, the O.Ps. were to handover the possession of the flat in question within 2 ½ years from the date of start of construction. The Ld. Counsel for the complainant contended that the O.Ps were to handover the possession of the flat 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 is the actual 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 the considered view that O.Ps. were to deliver the possession of the flat within 2 ½ years from the date of allotment i.e. 7.5.2010, which comes out to be 6.11.2012 and not 25.9.2012 as alleged by the complainant. From the perusal of the letter dated 10.6.2014,Ex.C14/ Ex.OP5, it is evident that the O.Ps. asked the complainant to take the possession of the flat. Accordingly, the complainant has taken the possession of the flat on 17.6.2014, vide document,Ex.C15, but without providing the basic amenities there. From the said document, it is apparent that the O.Ps till 17.6.2014 have not handed over the possession of the flat, complete in all respects. From the perusal of the affidavit of Sh.Narinder Singh, JE, tendered by the O.Ps. on 16.12.2016, he deposed that facilities of water, electricity, sewerage, gate, parking etc. shall be available on the availability of electricity to be granted by the P.S.P.C.L 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 pertaining to 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 established 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 the possession letter dated 10.6.2014 is just a paper possession and the O.Ps. have yet to provide atleast all the basic amenities , 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.C3 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
