Punjab

Ludhiana

CC/16/244

Paramjit Kaur - Complainant(s)

Versus

Malhotra Land Dev. - Opp.Party(s)

Tarlochan singh Adv.

28 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 244 of 29.03.2016

Date of Decision          :   28.12.2016

 

Paramjit Kaur Sethi w/o S.Tarlochan Singh Sethi, Advocate r/o House No.80, Ward-4, Nand Lal Street, Doraha.

….. Complainant

Versus 

Malhotra Land Developers & Colonisers (P) Ltd., SCF 12, Urban Estate, Phase-I, Dugri, Ludhiana (Punjab) 141013, through its Director.

..…Opposite party

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :       Sh.Tarlochan Singh Sethi, Advocate

For OP                           :       Sh.H.P.S.Gill, Advocate

 

PER G.K DHIR, PRESIDENT

 

1.                          Complainant Smt.Paramjit Kaur Sethi filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’) by claiming that she booked a flat on floor No.A-67 (Ground Floor) in     residential colony known as ‘Golden Leaf’ situate on G.T.Road, Ludhiana with OP on 08.02.2014 and an agreement in that respect was executed on that date. Complainant paid cheque No.037501 dated 08.02.2014 for Rs.2,89,735/- drawn on Axis Bank Limited, Miller Ganj, Ludhiana. Complainant received offer of possession of the said flat only on 25.01.2016 i.e. after delay of 170 days and as such, in view of clause no.7 of the agreement, it is claimed that complainant entitled to interest amount of Rs.1,37,644/-. Complainant sent registered letter dated 09.02.2016 for refund of interest amount of Rs.1,37,644/-, but OP vide registered letter dated 20.02.2016 refused to allow the said interest in an arbitrary manner.

2.                OP filed the written statement by claiming interalia as if complaint is not maintainable, being filed with malafide intention for avoiding obligation under the contract. It is claimed that complainant still to pay Rs.4,34,605/-, the balance amount towards the construction of the first floor. Besides, Rs.34,848/- as service tax along with interest @18% per annum also payable by the complainant. Complainant has no means to pay and that is why, he has filed this present complaint. Admittedly, the complainant booked the flat in question on payment of Rs.2,89,735/-. Admittedly, clause no.7 in the agreement exist and OP sent letter   to complainant to take possession of the property in question. However, it is denied that there is delay of 170 days in offer of possession as alleged. In fact, there is no delay in submitting the offer of possession. As per clause no.7 of the agreement, construction of the floor in question likely to be completed within 18 months from the commencement of the work, but after completing the        required formalities and subject to timely payment by the complainant as per agreement. That completion was also subject to availability of building material etc. It is claimed that in the recent past, the sand was not available, but despite that OP managed the same and completed the construction of the floor in time. Thereafter, the complainant was informed to get the possession many times verbally by OP, but complainant postponed the matter on one pretext or the other and as such, complainant not entitled to any interest at all. Admittedly, OP sent reply through letter dated 20.2.2016 declining the interest and that refusal alleged to be quite proper and in accordance with clause 7 of the agreement.

3                 Complainant to prove her case tendered in evidence her affidavit Ex.CA along with documents Ex.C1 to Ex.C4 and Ex.C4A and thereafter, her counsel closed the evidence.

4.                On the other hand, counsel for OP tendered in evidence affidavit Ex.RA of Sh.Deepak Kumar Ratra, General Manager/Authorized Signatory of OP along with documents Ex.R1 to Ex.R3 and then closed the evidence.

5.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                 Both the parties has relied upon agreement Ex.C1=Ex.R2 qua terms and conditions for providing of flat in question to the complainant on payment of Rs.28,97,351/- as price. Further, as per schedule of payment appended as Annexure-1 to Ex.C1=Ex.R2, 10% of the basic sale price payable at the time of booking, but 10% at the time of start of the construction; 15% at the time of casting of ground floor roof; 10% at the time of casting of first floor roof; 10% at the time of casting of second floor roof; 10% at the time of completion of internal plaster; 10% at the time of completion of external plaster; 10% at the time of commencement of flooring; 10% at the time of commencement of paint work     and 5% on offer of possession. Offer of possession was given to the complainant through letter Ex.C2 of date 25.1.2016 is a fact admitted by both the parties. Bone of contention remains as to whether on account of delay of 170 days in offering of possession, complainant entitled to interest @12% per annum or not?

7.                Relevant clause 7 of agreement Ex.C1=Ex.R2 reads as under:-

“The construction of the said independent floor is likely to be completed within 18 months of commencement of work, which shall be tentatively the date of receipt of all requisite sanctions/approvals/permissions/clearances subject however to force majeure circumstances, regular and timely payments by Party No.II, availability of building materials etc, change of policy by Government/Local Authorities etc. In case due to any reason whatsoever, if the party First fails to construct the said floor, then party First will be responsible to refund the amount paid by Party Second along with interest @12% interest only.”

8.                From perusal of clause 7 of agreement Ex.C1=Ex.R2, it is made out that the construction of the independent floor likely to be completed within 18 months from the commencement of the work and said date will be tentative because requisite sanctions/approvals/permissions/clearances has to be obtained from the concerned department. Besides, this tentative date of completion of 18 months was subject to force majeure circumstances and regular and timely payments by the complainant. The time limit of 18 months was also subject to availability of building material etc., and change of policy by the Government and Local Authorities etc. It is the case of OP that Sand was not available, but despite that the same was arranged and construction work completed in time. Agreement in question was arrived at on 8.2.2014 is an admitted case of the parties and as such, in case, period of 18 months of completion of work to be computed there-from, then possession should have been offered by 18.8.2015. However, offer of possession given on 25.01.2016 through letter Ex.C2 and as such, certainly delay of 170 days is there, if the time computed exclusively from the date of agreement Ex.C1=Ex.R2. However, time of 18 months of completion of construction was tentative and also subject to the regular and timely payments by the complainant. Those regular payments not proved to be made by the complainant as per Annexure-I appended to Ex.C1=Ex.R2 because the dates of start of construction; casting of ground floor roof; casting of first floor roof; casting of second floor roof; completion of internal plaster; casting of external plaster; commencement of flooring, commencement of paint work not disclosed by any of the parties. As the amounts of 10% and 15% mentioned in Annexure-I were payable by the complainant on happening of the events of start of construction etc., but dates of those events not disclosed and as such, it cannot be made out as to whether the payments have been regularly made by the complainant as per schedule stipulated in Annexure-I appended to Ex.C1=Ex.R2 or not? If regular and timely payments not proved to be made by the complainant, then how OP can be held liable for breach of clause 7 of the agreement in question for rendering him liable for interest @12% p.a. The interest is payable with refund amount, in case, OP failed to construct the said floor. The present is not a case, in which, altogether failure to construct the said floor took place, but it is a case, in which, offer of possession made late as per allegations. Even the complainant not seeking the refund of the paid amount and as such, delay alone in offering the possession cannot be considered as deficiency in service on the part of OP, particularly when complainant even failed to prove that she has abided by the conditions of regular and timely payment of the installments as per Annexure-I appended to Ex.C1=Ex.R2.

9.                In the written statement as well as through letter Ex.C3, it is admitted that an amount of Rs.24,62,745/- has already been paid by the complainant to OP and that is why balance of 15% amount of Rs.4,34,605/-( as mentioned in Ex.C3) is payable as on 9.2.2016. Date of offer of possession was 25.1.2016 and as such, in case, really the complainant would have adhered to the schedule of payments stipulated through Annexure-I appended with Ex.C1=Ex.R2, then she would have been liable to pay 5% of the basis sale price amount only as on 25.1.2016. However, contents of Ex.C3 dated 9.2.2016 itself establishes along with corresponding admission in the written statement that amount of Rs.4,34,605/- i.e. 15% of the basic sale price amount still payable by the complainant to OP. In view of this outstanding 15% of the amount of basis sale price, fault also lay with the complainant in not paying the installments regularly as per annexure-I appended with Ex.C1=Ex.R2. Being so, benefit from ratio of case titled as Bhatia Sehgal Construction Corporation and another vs. M/s.A.S.Films-III(1993)CPJ-360(N.C.) cannot be availed by the complainant because in the reported case, there was delay of more than five years in completion of the construction and offer of delivery of possession. After going through para no.2 of the cited case, it is made out that complainants demanded in the years 1983-84 to 1987-88 money towards the electric charges, fire fighting charges, MCD charges, registration charges etc, despite the fact that application for allotment was submitted on 19.1.1979. However, building was completed in 1989 and as such, virtually there was long delay in making offer of delivery of possession and that is why, appellants were not interested in taking possession of the purchased space. This is borne from the contents of para no.3 of the cited case. In these circumstances, refund of the interest was ordered in the reported case. However, present is not a case, in which, complainant seeking refund, but virtually she is seeking adjustment of the interest amount on alleged delay in submission of offer of possession. Non compliance of the clause 7 of the agreement on the part of complainant is also there for want of proof of payments, being made in time and as such, complainant not entitled to equitable relief of seeking interest. If really the complainant would have been paying the installments regularly as per stipulated schedule, then she would have  brought on record the material with respect to the dates of events of commencement of the works referred in Annexure-I appended in Ex.C1=Ex.R2, but the same has not been done and as such, complainant seeking relief without proof of compliance of terms and conditions of clause 7 of Ex.C1 by her with respect to the regular and timely payments. In such circumstances, deficiency in service on the part of OP cannot be inferred and complainant on equitable ground not entitled to any relief.

10.              As per case titled as S.Mohamad Ali vs. Shri Baba Theatre Pvt. Ltd.-IV(2015)CPJ-5A(Tamil Nadu State Consumer Disputes Redressal Commission), in case complainant suppressed the material facts qua getting of compensation of stolen vehicle, then he is not entitled for further compensation, particularly when proof of deficiency in service or of adoption of unfair trade practice by OP not adduced. Same is the position in the case before us because here proof regarding deficiency in service or adoption of unfair trade practice not adduced, particularly when the complainant herself not paid the due installments in time as stipulated through agreement and nor even adduced the proof qua the dates on which regular installments were required to be paid by her or were paid by her to OP.

11.              Therefore, as a sequel of the above discussion, complaint dismissed but in view of the peculiar circumstances of the case, no order as to costs is passed. Copies of order be supplied to the parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:28.12.2016

Gurpreet Sharma.