DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 310 of 21.12.2015
Decided on: 16.3.2017
K. K. Sachdeva S/o Late Sh.Amar Nath Sachdeva 161/3, Near Shiv Mandir, Sunder Nagar, 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, Advocate, counsel for
complainant.
Sh.Arvind Gupta, Advocate, counsel for
opposite parties.
ORDER
SMT.NEENA SANDHU, PRESIDENT
Sh.K. K. Sachdeva 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 provide complete facilities as per the offer letter
- To make the payment Rs.15000/- per month as rental value from 25.9.2012 onwards till providing of basic required amenities
- To pay Rs. 2,00,000/- as compensation, 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 Ops advertised their scheme namely Vikas Scheme, in the leading newspapers, to be operated from 12.9.2009 to 12.10.2009 and demanded applications from the general public for the allotment of 15 HIG and 30 MIG flats i.e. HIG flats, having 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. Accordingly, the complainant, applied for the flat in MIG category and paid an amount of Rs.1,97,000/-as earnest money. He was the successful allottee in getting the flat. Accordingly he was allotted flat No.14-A at the 5th floor, vide allotment letter No.PIT/10/1501 dated 7.5.2010.In the said allotment letter, the schedule for the payment of the entire amount of Rs.19.30lacs alongwith the 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. He, in pursuance of the said letter deposited a sum of Rs.3,65,200/- with the O.Ps. on 31.5.2010 vide receipt No.41164. As per the allotment letter, he was supposed to deposit the amount of Rs.7,29,750/- in five six monthly installment of Rs.1,44,750/- starting from 25.9.2010 to 25.9.2012 and the remaining installments were to be deposited with 12% interest. The delivery of possession was to be given on 25.9.2012 i.e. within 2.5 years from the date of allotment. He, without any default, after deposing the amount of Rs.3,65,200/- deposited the entire amount within time vide receipts dated 23.9.2010, 21.3.2011, 21.9.2011, 21.3.2012, 18.9.2012, 20.3.2013, 23.9.2013, 20.3.2014, 22.9.2014, and 19.3.2015. After making the payment of five installments, he was not to pay the interest on the remaining installments, as the possession was not delivered but still he made the payment with interest @ 12 p.a. He was surprised on the receipt of letter No.PIT/14/1728 dated 10.6.2014, wherein he was asked to obtain possession at the site on 17.6.2014. After receipt of the 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 took the possession under protest. Under the apprehension that the Trust will provide complete basic amenities within a short time, he applied for the execution of the sale deed vide his letter dated 26.5.2015 and submitted indemnity bond. He also purchased stamp papers in the sum of Rs.1,73,700/- for the said purpose.After receipt of the application from him, the O.Ps. got deposited a sum of Rs.9968/- as enhancement fees vide receipt No.51380 dated 27.7.2015. Theereafter, the O.Ps. executed an agreement in his favour, for the execution and registration of the sale deed. But the O.Ps., on one pretext or the other are not getting the sale deed registered. He, even being an old man, visited the office of the O.Ps time and again but to no effect rather the O.Ps. have arbitrarily started demanding enhanced rate without any right. For the said act and conduct of the O.Ps., he is suffering from financially, mentally and physically. He, visited the office of the O.Ps. a number of times and made number of requests to them but did not yield any result. The O.Ps. are deficient in providing their services and are using his hard earned money .
3. On being put to notice, the O.Ps 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.2 to 5 &7 to 9 of the complaint are matter of record. It is denied that the flats have not been provided with water supply, sewerage facilities so far, but the said facilities shall be available on the availability of electricity to be granted by the P.S.P.C.L and the trust is going to deliver the possession of the flat after providing necessary amenities of the life including electricity. The O.Ps. denied all other averments made in the complaint and have prayed to dismiss the complaint with costs.
4. In support of the complaint, the counsel for the complainant tendered in evidence Ex.CA, sworn affidavit of the complainant alongwith documents Exs.C1 to C20 and closed the evidence.
On the other hand, the O.Ps. tendered in evidence Ex.OPA, sworn affidavit of Lachman Dass, SDO, Patiala Improvement Trust, Patiala alongwith documents, Ex.OP1 to Ex.OP8 and their counsel 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 his 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, 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 submitted that one MIG flat bearing No. 14-A was allotted to the complainant vide allotment letter No.PIT/10/1501 dated 7.5.2010,Ex.C2. As per 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 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 according to which the complainant made the entire payment. On receipt of the dated 10.6.2014, wherein he was asked for taking the possession of the flat, he visited the site and was surprised on seeing that no basic amenities were available at the site. However, the complainant took possession of the flat under protest. Vide letter dated 26.5.2015,Ex.C16, the complainant applied for the execution of the sale deed and submitted indemnity bond and stamp papers in the sum of Rs.1,73,700/-to this effect. An amount of Rs.9968/- as enhancement fees was also got deposited from him by the O.Ps. vide receipt No.51380 dated 27.7.2015 but on one pretext or the other the O.Ps. failed to registered the sale deed.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 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. Accordingly, as per terms and conditions of the letter dated 7.5.2010, Ex.C2, the O.P.s have issued the letter 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 and the complainant has taken the possession. Now the complainant has no locus standi to file the complaint and the same is liable to be dismissed.
9. Admittedly, O.Ps. launched self financing scheme and invited applications from the general public for allotment of semi-finished HIG and MIG flats vide publication, Ex.C1. Under the said scheme a flat No.14-A was allotted to the complainant vide letter dated 7.5.2010, Ex.C2. As per the complainant, he paid the entire consideration amount qua the said flat to 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 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. From the perusal of the letter dated 10.6.2014,Ex.C14, it is evident that the O.Ps.have asked the complainant to take the possession of the flat. From the said letter it is apparent that the O.Ps till 10.6.2014 have not handed over the possession of the flat.However, the complainant has taken the possession on 17.6.2014, under protest, there being lack of basic amenities at the site. 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. Electricity is a basic necessity and the O.Ps have failed to establish that it 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,Ex.C14/OP1 is just a paper possession and the O.Ps. have yet to provide the basic amenities. 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
