Punjab

StateCommission

FA/12/672

Janta Land Promoters Ltd. - Complainant(s)

Versus

Jaswant Singh Brar - Opp.Party(s)

Gaurav Jindal

07 Oct 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.672 of 2012

 

                                                Date of Institution: 28.05.2012

                                                Date of Decision:  07.10.2015

 

Janta Land Promoter Limited, Head Office, SCO 522-23-24, Sector 70, Mohali, through its General Manager.

 

                                                          …..Appellant/Opposite party       

                                      Versus

 

Jaswant Singh Brar, resident of Street No.5, Model Town, Amritsar Road, Moga through Sh. Kuldip Singh, Special Power of Attorney, r/O 49, Sector 69, Mohali.

 

                                                          … Respondent/Complainant

 

First Appeal against order dated 02.05.2012 passed by the District Consumer Disputes Redressal Forum,  (SAS Nagar) Mohali

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

                    Shri. Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant                   :         Sh.Gaurav Jindal, Advocate

          For the respondent      :         Ms. Surekha Thukral Advocate &   Sh. Rajansh Thukral, Advocate

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 02.05.2012 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing OP to pay the amount of Rs.2,23,876/- (Rs.3,82,876/- minus Rs.1,59,000/- already paid), in case  this amount is not paid within one month, then it would carry interest @ 10% per annum from the date of institution of the complaint i.e. 12.03.2012 till the date of actual payment, besides Rs.5,000/- as costs of litigation. The OP now appellant has carried this appeal against the same.

2.      The complainant Jaswant Singh Brar has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he being an NRI and resident of Moga appointed Kuldip Singh s/o Kirpal Singh his special power of attorney holder to file the complaint on his behalf. It is further alleged in the complaint that the OP was developing a residential colony Regency Heights in Sector 90-91 Mohali on land measuring 12597.75 sq. yards for 144 Residential Apartments out of which 91 residential apartments were put to sale through advertisement dated 21.11.2007.  OP was allotted a residential apartment no.B-1203, 12TH Floor Regency Heights Sector 90 Mohali having covered area of 1900 SFT, vide letter of allotment no.JLP/Regency Heights/Allotment (RRH-053)/2008/1488-89 dated 01.03.2008 for a total consideration of Rs.44,00,000/- and as per policy,  a discount of Rs.1,10,000/- was given and net sale consideration was Rs.42,90,000/- . The possession of the residential apartment was to be delivered within 24 months from the date of allotment of residential apartment i.e. 01.03.2008 in terms of clause 14 of the agreement and last date of allotment was 28.02.2010. The time was essence of the agreement between the parties. Only symbolic possession was given to the complainant on 19.01.2011 i.e. after a delay of 11 months by obtaining the signatures of the complainant on the possession letter. The complainant found many shortcomings and defects in the apartment thereof and found that it was not ready for occupation. The OP had not delivered the keys to the complainant and kept them for rectification of the defects. On 16.01.2012, the complainant inspected the apartment and found that the same defects still existed there. The complainant delivered a letter dated 16.01.2012 to the effect that defects are yet to be removed and the keys of the apartment are yet with the OP. The complainant was not able to occupy the residential apartment till date. The complainant paid huge amount of Rs.42,90,000/- to OP, but OP did not give the actual possession in time. As per clause 6 of the agreement dated 25.02.2008 read with clauses 10 and 25 of the agreement and clause 3 of the letter of allotment the OP stipulated levy of interest @ 15% in case of delay in payments and also described the timely payments as essence of the terms of the booking/allotment in terms of clause 6 of the agreement. Such a stipulation has to be on reciprocal basis. The complainant paid Rs.44,75,000/- to OP, the detail of the same is reproduced as under :-

Sr.No.	Date	Description	Amount	Interest Paid
1	06.02.2008	Down Payment	300000
2.	31.05.2008	Installment 1	600000
3	16.09.2008	Installment 2	600000
4.	09.12.2008	Installment 3	600000
5.	16.03.2009	Installment 4	600000
6.	29.05.2009	Installment 5	600000
7.	11.09.2009	Installment 6	400000
8.	04.12.2009	Installment 6	200000
9.	04.12.2009	Installment 6	400000
10.	04.12.2009	Interest paid		13897
11.	17.01.2011	Compulsory Parking	100000
12.	17.01.2011	Compulsory Maintenance	50000
13.	17.01.2011	Compulsory Gym.Club.	25000
		Interest Credited		-789
	Total		4475000	13108

 

The complainant could have invested his money in some profitable ventures and thereby could have earned substantial profits, but it was utilized by the OP without delivery of any possession to complainant in time. As per clause 27 of the agreement, it was compulsory for the allottees to pay Rs.1 lac towards car parking space arbitrarily and illegally and hence was left with no option but to pay this amount. The OP was not entitled to  charge any price for the parking space and action of OP in charging Rs. 1 lac from the complainant towards parking charges is illegal and arbitrary. The OP also recovered Rs.50,000/- from the complainant towards maintenance charges and another Rs.25,000/- towards gymnasium club membership fee in terms of clause 28 of the agreement read with letter /memo JLPL/Regency Heights/RRH-053/2011/051-053 dated 05.01.2011. The OP paid paltry amount of Rs.15,000/- per month for 10 months and Rs.9,000/- for 11 months towards holding charges up to the date of symbolic delivery on 19.01.2011. The amount of holding charges in terms of clause 26 of the agreement @ Rs.10/- per sq. feet of the super area comes to Rs.19,000/- per month i.e. Rs.2,02,000/- for holding up to 19.01.2011 and not Rs.1,59,000/-. The complainant has, thus, filed the complaint against OP directing them to rectify the defects in the residential apartment and then to deliver the effective possession of ready to occupy apartment to complainant and further prayed for direction to OP to pay interest @ 15% per annum on Rs.42,90,000/- from the date of delivery i.e. 28.02.2010 to the actual and effective date of delivery with quarterly compounding interest thereupon. The amount of holding charges paid by OP of Rs.1,59,000/- be adjusted. The complainant further prayed the OP be directed to refund of Rs.10,000/- recovered by OP in excess from the complainant along with interest @ 15% from the date of payment up to the date of realization. The complainant further prayed for refund of Rs.1 lac recovered by OP from complainant in the name of parking place along with interest @ 15% from the date of payment up to the date of realization. The complainant prayed for compensation of Rs.1 lac for mental harassment and Rs.55,000/- as costs of litigation.

3.      Upon notice, OP appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in written reply by the OPs that suitable compensation for the delay in delivery of possession of the apartment to complainant has been awarded to him, as per terms and conditions of the agreement entered into between the parties. The complainant has not specified any defects in the apartment and only made general and vague allegations in the complaint about them. The complaint is alleged to be barred by time, as cause of action accrued to the complainant on 28.02.2010, since when he has been asking for the payment of interest. It was further alleged in the written reply that the complainant pleaded that possession of the apartment was to be delivered within a period of two years, as per terms and conditions of the agreement and if it was not delivered then complainant was to be compensated. On the other hand, complainant's stand is that he is not ready to accept the compensation given to him. The complaint was also contested even on merits by the OP. It was admitted that residential apartment no.1203 at 12th floor was allotted to the complainant with covered area of the flat. The covered area of the flat was not 1900 sq. feet, rather it was actually the super area, which was mentioned in the allotment letter. The built up area of the apartment was 1492 sq. feet. Amended payment schedule with difference of Rs.10,000/- only, which has to be paid on the basis of correction, vide letter dated 15.03.2008. It was admitted by OP that the possession was to be delivered within a period of 24 months from the date of allotment letter, in case, same could not be delivered to the complainant due to circumstances beyond the control of OP, the complainant has to be compensated by paying Rs.1,59,000/- therefor, as per terms of the agreement. It was further averred in the written reply by OP  that complainant has not received the possession under protest, but he received the possession without any demur thereto. It was further averred in the written reply that defects mentioned in letter dated 16.01.2012 are minor one and general in nature, which can be rectified by the complainant himself. It was denied that keys of the apartment are with the OP. It was further pleaded that once possession of the apartment has been delivered to complainant to his satisfaction and handed over the same to the complainant on 19.01.2011, hence complainant has filed the complaint with sole aim of abusing the process of law.  The OP has paid compensation for delayed delivery of the possession to the complainant, as per terms and conditions of the agreement entered into between the parties. The amount of Rs.1,59,000/- has been paid as compensation to the complainant and not of holding charges as alleged by the complainant. The OP controverted the other averments of the complainant regarding his entitlement and prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit Ex.CW-1/1 of complainant along with copies of documents Ex.C-1 to Ex.C-12. As against it, the opposite party tendered in evidence affidavit of Sh.H.B Garg General Manager Janta Land Promoters/OP Ex.RW-1/1 along with copy of document Ex. R-1.  On conclusion of evidence and arguments, the District Forum, Mohali, accepted the complaint of the complainant by directing the OP to pay the amount of Rs.2,23,876/- (Rs.3,82,876/- minus Rs.1,59,000/- already paid) to complainant. In case this amount is not paid within a one month, it would carry interest @ 10% interest per annum from the date of institution of the complaint till the date of actual payment. The District Forum declined any relief to the complainant regarding compulsory gymnasium club membership fee of Rs.25,000/-. The District Forum also declined the request of the complainant regarding rectification of defects and also declined the request of complainant regarding compensation for mental harassment. Aggrieved by the order of the District Forum Mohali dated 02.05.2012, the OP now appellant carried this appeal to challenge the order of the District Forum, granting relief to the complainant for recovery of Rs.2,23,876/-  from OP within a period of 30 days, failing which OP to pay further interest @ 10% p.a thereupon from the date of institution of the complaint till its actual payment, besides Rs.5,000/- as costs of litigation.

5        We have heard Ld. Counsel for the parties at considerable length and have also examined the record of the case. No cross appeal has been filed by the complainant against the findings of the District Forum. In the absence of any cross appeal by the complainant, who is respondent in this appeal, we need not go into other aspects of the case. The only point agitated in this appeal before us by counsel for OP now appellant is that the order of the District Forum in awarding the amount of Rs.2,23,876/- to complainant within 30 days, in default to pay interest @ 10% from the date of institution of the complaint till the date  of actual payment is alleged to be illegal and unsustainable in this appeal by OP now appellant. The District Forum has not granted any relief to complainant regarding delivery of the actual possession or rectification of defects in the plot. Since no counter appeal has been carried by the complainant against findings of the District Forum, hence we cannot look into these matters in the appeal. The District Forum has also not granted any relief to the complainant regarding amount of Rs.10,000/-. The District Forum only awarded the amount of Rs.2,23,876/- to complainant for late delivery of possession in this case. It was submitted before us by counsel for the appellant that the terms and conditions of the agreement are applicable  sensu stricto between the parties in this case. Whatever compensation has to be awarded in accordance with terms and conditions of the agreement entered into between the parties in this case only, the District Forum observed that actually possession was delivered to the complainant on 19.01.2011. The emphatic submission of counsel for the appellant is on the terms and conditions of the agreement of sale. We have examined the apartment buyer's agreement between the parties on the record in this case, vide Ex.C-2 dated 25.02.2008 it is clear from perusal of Clause 26 of the buyers agreement, that in case possession of the apartment is not offered to the buyer within a period of 24 months or extended period as stated above, the buyer shall be entitled to receive the compensation @ Rs.10- per sq. ft of the area of the apartment per month and to no other compensation of any kind. We are not like a civil court, as we are vested with summary powers only under the Act and  we cannot determine the legality or illegality of this provisions of the contract. We have to interpret the contract between the parties as it is. Even Apex Court has held in Rajasthan State Industrial Development and Investment Corporation and another versus Diamond & GEM Development Corporation limited and another, reported in (2013) 5 Supreme Court Case Page 470-71 that it is not permissible for the court to make a new contract, howsoever reasonable, if the parties have not made it themselves. As per clause, 26 of the buyer's agreement on the record, the buyer shall be entitled to receive compensation @ Rs.10/- per sq. ft of the area of the apartment per month and to no other compensation of any kind. We are unable to affirm the order of the District Forum passed in disregard to clause 26 of the buyer's agreement Ex.C-3 on the record. The OP now appellant have already offered the amount of Rs.1,59,000/- to complainant as compensation at the above rate for late delivery of the possession, as contractually agreed with the parties. The finding of the District Forum holding the complainant to be entitled to another amount of Rs. 2,23,876/- on this account cannot be sustained in this appeal, as it violates the spirit of clause 26 of the buyers agreement Ex.C-3 on the record.

6.      In view of our above discussion, we accept the appeal of the appellant and by setting aside, the order of the District Forum Mohali dated 02.05.2012 and resultantly dismiss the complaint of the complainant.

7.      The appellant had deposited an amount of Rs.25,000/-, vide receipt dated 28.05.2012 in this commission at the time of filing the appeal and it deposited another amount of Rs.42,645/- vide receipt dated 15.06.2012. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant/OP by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.

8.      Arguments in this appeal were heard on 29.09.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

9.      The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                         (J.S GILL)

                                                                         MEMBER

 

October 7,   2015.                                                               

(ravi)