DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 236 of 6.10.2015 Decided on: 16.3.2017
Usha Sood aged 64 years w/o Vinod Kumar Sood r/o 5281/1, Arorrian Street, 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
Smt.Usha Sood 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 flat with complete facilities as per the offer letter
- To make the payment of Rs.25000/- per month as rental value from 25.9.2012 onwards till the delivery of the possession of the flat
- To pay Rs. 2,00,000/- as compensation, on account of mental pain, agony and physical harassment
- To pay Rs.20,000/- 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 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 was also be paid by the allottee in case of allotment. Accordingly, she applied for a flat in the category of HIG and deposited an amount of Rs.2,44,500/-as earnest money.In the draw, she was successful in getting the flat and accordingly she was allotted flat bearing No.07-C at 3rd floor. The O.Ps issued the allotment letter no.1489 dated 7.5.2010 .In the said allotment letter, the schedule for the payment of the entire amount of Rs.24.45lacs alongwith payment of cess was mentioned after adjusting the amount of Rs.2,44,500/-(already paid).She was directed to make the payment of Rs.4,61,250/- within 30 days from the issuance of the allotment letter. In pursuance of the allotment letter, she deposited a sum of Rs.4,61,250/- with the O.Ps. on 7.6.2010 vide receipt No.41221.According to the allotment letter, she was supposed to deposit the amount of Rs.9,09,375/- in five six monthly installment of Rs.1,81,875/- starting from 25.9.2010 to 25.9.2012 and as per clause 5 (sub clause-3), the remaining installments were to be deposited with 12% interest. As per clause-11 of the scheme, possession of the flat was to be given 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, after the delivery of the possession. It is averred that she, without any default after depositing Rs.4,61,250/-made the payment of five installments within time i.e. on 21.9.2010, 24.3.2011, 22.9.2011, 21.3.2012 and 21.9.2012.After making the payment of these five installments ,she was supposed not to make the payment of interest on the remaining installments, as the possession was not delivered. But seeing no alternative, she thereafter made the payment with interest, thereby having deposited the first installments to the tune of Rs.2,36,438/- on 22.3.2013, 2,25,525/- on 23.9.2013, Rs.2,14,612/- on 21.3.2014, Rs.2,03,699/- on 26.9.2014 and Rs.1,92,788/- on 24.3.2015.It is averred that she has applied for the applied for the purpose of living there. She, after making the payment of installments and after making request to the O.Ps. got renovated the flat, by spending an amount to the extent of Rs.20,00,000/-. It was in her mind that the O.Ps. would shortly provide all the basic amenities such as water, electricity, sewerage etc., but to her surprise no such basic amenities were provided there. It is further averred that as per the scheme, the O.Ps. were to deliver the possession of the flat till 25.9.2012 and thereafter they could charge the interest .But till date possession was not delivered and the O.Ps. have charged the interest without any right and authority. She also wrote letter to the O.Ps. for the delivery of the possession of the flat, in response to which she received a letter that the possession shall be delivered by 31.1.2014 but till date no possession is provided. She visited the office of the O.Ps. a number of times and made number of requests to them but did not yield any result and rather she was insulted , humiliated and harassed by the official of the O.Ps. A legal notice dated 24.6.2015 was also got served upon the O.Ps but without any result and are using her hard earned money. The act and conduct of the O.Ps. amount to deficiency in service.
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 7 of the complaint are matter of record. It is stated that the payments were made as per schedule and the matter is pending before the Higher Authorities for early resolving the matter. It is admitted that the possession of the flat has not been delivered so far due to non availability of the electricity to be provided by P.S.P.C.L. and the work for getting the supply is being done by the Trust on urgent basis. It is further stated that the trust is going to deliver the possession of the flat after providing necessary amenities of the life including electricity. Other allegation made in the complaint have been denied and it is 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,Ex.C1 to C17 and closed the evidence.
On the contrary, the learned counsel for the O.Ps. tendered in evidence Ex.OPA, sworn affidavit of Lachman Dass, SDO, Patiala Improvement Trust, Patiala, 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 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 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 ld. counsel for the complainant has submitted that the complainant applied for allotment of flat in the category of HIG having cost of Rs.24.45 lac and paid an amount of Rs.2,44,500/- as earnest money. Vide letter dated 7.5.2010, a flat bearing No.7-C (HIG) was allotted to her. As per the schedule of the payment, she paid the entire amount. As per the 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 according to which the complainant made the entire payment. However the possession of the flat was not delivered till today, which amounts to deficiency in service on the part of the O.Ps.
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 but due to non availability of electricity at the site, the possession of the flat could not be delivered so far and the work for getting the electricity is being done by the
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 HIG flat bearing No.7C was allotted to the complainant vide allotment No.1489 dated 7.5.2010,Ex.C2. From the receipts ,Ex.C3 to C13, it is evident that the complainant had paid the entire consideration amount qua the said flat to the O.Ps., which has fairly been admitted by the O.Ps. From clause 11 of the 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 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. 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 produced on record by the O.Ps.This fact has also been proved from the affidavit of Sh.Lachaman Dass, SDO, Patiala Improvement, Patiala, wherein he deposed that the possession of the flat has not been delivered so far due to non-availability of the electricity to be provided by P.S.P.C.L. Thus, 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 , the O.Ps have yet to handover the possession with complete basic amenities at the site, 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
