BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.  29 of 2015

                                                 Date of institution:          19.01.2015

                                                 Date of Decision:            23.02.2016

Harbhajan Singh Tagarh son of Jagir Singh, resident of Block B-1, Flat No.C-7, Sugandha Apartment, Near Gurdwara Sahib, Saproon, Solan (HP).

                                         ……..Complainant

                                        Versus

1.     Marina Heights, Marketing Office: SCF No.7, Phase-I, Industrial Area, Mohali through its Managing Director Shri Abhishek Saraff Marina.

2.     Marina Heights, Site Office, Opposite Killa Complex, Chandigarh Kharar Highway, Kharar, District SAS Nagar, Mohali through its CMD Shri Subash Chander Saraff.

3.     Marina Heights, Registered Office: A-93, Second Floor, Defence Colony, New Delhi through its Director Shri Rohit Srivastava.

4.     Gemini Builders and Developers, Marketing Office, Gemini Builders and Developers, SCO No.4, Green Enclave, Daun, Kharar, District SAS Nagar, Mohali.

5.     Radiant Builders Private Limited, Office at A-93, Second Floor, Defence Colony, New Delhi through its Director.

                                                             ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Manpreet Singh, counsel for the complainant.

Shri Aksh Chetal, counsel for OP No.1.

OP Nos.2, 3, 4 and 5 exparte.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    refund the deposited amount of Rs.13,90,000/- with interest thereon @ 9% per annum from the date of deposit i.e. 11.08.2012 till realisation.

(b)    to pay him Rs.2,40,000/- as compensation on account of delay in possession.

(c)    to pay him Rs.50,000/- for mental agony and harassment.

(d)    to pay him Rs.15,000/-for costs of litigation.

                The allured by the advertisement in the Hindustan Times Newspapers dated 10.08.2012, the complainant booked with the OPs 3 BHK residential apartment No.301, Tower B-2, with servant room in their project ‘Marina Heights” Opposite Kila Complex, Chandigarh-Kharar Road, Kharar in 2012 by paying Rs.13,90,000/- as earnest money in cash.  The total sale consideration of the apartment was Rs.55,25,000/-. The OPs had also mentioned in the advertisement that facilities of free car parking, free 4 KV power backup, free club and Gym were to be provided by the OPs. It was also assured by the OPs that one AC and one LED for first 10 bookings would be provided and the possession of the apartment was to be provided in 2012.  As per Clause 10 of general terms and conditions on failure of the OPs to handover the possession by stipulated date, the OPs were to pay Rs.5/- per sq. ft. per month beyond the stipulated period.  The complainant visited the site on 13.12.2012 where the apartment was to be constructed but was stunned to see that no construction was going on. On the next day the complainant visited the OP No.1 when he was assured vide Ex.C-6 that the possession would be handed over to the complainant on or before 31.03.2013 but till date the possession has not been delivered to him.  The complainant again visited the site in August, September and October, 2013 but no positive reply was received from the OPs.  The complainant sent legal notice dated 11.11.2013 to the OPs asking for possession of the flat within a period of 15 days or to compensate him to the tune of Rs.40,00,000/- but till date neither the possession has been delivered nor any reply has been received to the legal notice.  Instead of informing about the handing over of possession, the OPs vide letter dated 28.10.2014 asked the complainant to deposit 60% balance amount. Thus, alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present complaint.

2.             OP No.1 in its written statement has pleaded that the complainant has paid only Rs.13,90,000/- which is 25% of the entire sale consideration and did not pay the entire sale consideration as per the prescribed schedule. The complainant himself kept on demanding time for paying balance amount.  Various reminders were issued to the complainant to pay the balance amount.  Due to some unavoidable circumstances the possession was not ready as on December, 2012 but as per mutual settlement it was ready before 31.03.2015. The complainant was issued various demand notice for payments and one such demand notice is of dated 28.10.2014. The complainant had made material interpolation in Ex.C-6 as original of this document was lying with the complainant.  The delay is on the part of the complainant. The possession of the flat is ready. If the complainant is not interested in the project of the OPs, they are ready to refund the money to the complainant after deducting Rs.1,00,000/-. Thus, denying any deficiency in service on its part, the OP No.1 has sought dismissal of the complaint.

3.             As per the report of India post, the registered notice sent to OP Nos.2, 3 and 5 were delivered on 11.02.2015 and 12.02.2015. However, none appeared for them and thus these OPs were proceeded against ex-parte on 04.03.2015. None appeared for OP No.4 despite publication in the newspaper. Thus, OP No.4 was also proceeded against ex-parte vide order dated 12.08.2015.

4.            The complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence copies of documents Ex.C-1 to C-10.

5.             Evidence of OP No.1 consists of affidavit of Rohit Srivastava Ex.OP-1/1 and documents Ex.OP-1/2 to Ex.OP-1/4.

6.             We have heard learned counsel for the parties and have also gone through the written arguments filed by them.

7.             The factum of booking and allotment of 3 BHK residential apartment is not disputed as the complainant has proved application form for booking of flat Ex.C-2 and payment of Rs.13,90,000/- vide receipt dated 11.08.2012 Ex.C-3. Further as per Ex.C-4 duly signed by the parties the specifications of the structure with fixture and other attachments etc. is also not a matter of dispute as it is evident from Ex.C-4 showing the details of the specifications. The general terms and conditions duly signed by the parties as Ex.C-5 is again an admitted document. The factum of total agreed sale consideration of the apartment and part payment thereof as earnest money of Rs.13,90,000/- in cash paid by the complainant and accepted by the OPs not a matter of dispute in the present complaint.  As per the complainant while issuing Ex.C-6 the OPs have promised to handover the possession of the flat in question by 31.03.2013 positively and further allowed the complainant to make balance payment by way of second installment of Rs.16,10,000/- when the possession of one bed room will be granted by the OPs and the remaining amount of Rs.25.50 lacs to be paid at the time of the possession of built up flat. The said receipt and other recitals thereon have been duly signed by OP No.1, OP No.5 and the complainant. The complainant approached the OPs number of times to know the status of the flat and development of construction but no positive response has been received by the complainant despite having issued the legal notice Ex.C-7 duly delivered upon the OPs as per the postal receipts attached Ex.C-8 and C-9. Instead of responding to the legal notice or other queries raised by the complainant, without disclosing the status of the property, the complainant received pending payment reminder Ex.C-10 and issuance of such a letter is again not matter of dispute being an admitted fact. The grievance of the complainant is that the OPs have failed to abide by time frame line for completion of the flat and handover the possession by 31.03.2013 as per Ex.C-6 and, therefore, the complainant sought refund of the deposited amount by alleging deficiency in service and unfair trade practice on their part.

8.             The OPs have failed to show on record the completion of the flat by the promised stipulated date i.e. 31.03.2013 as per Ex.C-6. Rather the OPs have raised an objection to the veracity of this document on the ground that there are some interpolations in the document as no such date of possession was agreed by the OPs. The mere allegation of interpolations without any evidence is of no help to the OPs. The OPs cannot come out from their own document Ex.C-3 i.e. the receipt dated 11.08.2012 issued in response to payment of Rs.13,90,000/- made by the complainant. Since there is nothing on record to show development and progress at the site and steps taken by the OPs to raise the construction of the flat in question which as per Ex.C-10 pending payment reminder, finds some mention of the undertaking of the pending work of the flat by the OPs. The issuance of such letter in our opinion is only an afterthought by the OPs once they have not responded to the duly served legal notice Ex.C-7.

9.             Therefore, we are of the opinion that once the complainant has deposited the earnest money against the agreed sale consideration, the onus was on the OPs to ensure timely construction and delivery of the possession as per the agreed time line vide Ex.C-6. In the present complaint the OPs have failed to discharge their obligation by the stipulated timeline as there is nothing on record to show the steps taken by the OPs to discharge such obligation. The complainant, therefore, is entitled to refund of the deposited amount alongwith interest as during the pendency of the amount lying with the OPs, they have failed to render any service and, therefore, the amount remained with the OPs also attracts interest to be paid to the complainant.

10.           The complainant has failed to institute and prove any grievance against the OP No.4 as its role is evident from the details of the brochure Ex.C-1 as Marketing and Sale office of OP No.5 which is the builder and developer of the project ‘Marina Heights’ in which the complainant has booked 3 BHK apartment and the said BHK apartment has not been booked through OP No.4 and no payment has been made to it by the complainant as is evident from the booking form Ex.C-2 and payment receipt Ex.C-3.  Therefore, the complaint against OP No.4 deserves to be dismissed.

11.           In view of above discussion, the complaint is allowed against OP Nos.1, 2, 3 and 5. These OPs are jointly and severally liable as under:

(a)    to refund to the complainant Rs.13,90,000/- (Rs. Thirteen lacs ninety thousand only) with interest thereon @ 12% per annum from the date of deposit i.e.  11.08.2012 till actual payment.

(b)    to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.

                Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

February 23, 2016.     

                             (Mrs. Madhu P. Singh)

                                                                        President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                 Member