BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.119 of 2015
Date of institution: 13.03.2015
Date of Decision: 23.09.2015
1. Manpreet Kaur d/o Amrik Singh resident of HIG 736-B, Phase-9, Mohali, Punjab.
2. Gurpreet Singh son of Sardar Darshan Singh resident of House No.3467, Sector 38-D, Chandigarh.
……..Complainants
Versus
1. Mount View High Tech Township Pvt. Ltd., SCO No.3, Shiwali Avenue, Sector 125, SAS Nagar (Mohali) through its Director Mr. Ashok Mittal.
2. Mr. Ashok Mittal, Director, Mount View High Tech Township Pvt. Ltd., SCO No.3, Shiwali Avenue, Sector 125, SAS Nagar (Mohali)
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Chetan Gupta, counsel for the complainants.
Shri Amit Kohar, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following directions to the Opposite Parties (for short ‘the OPs’) to:
(a) refund them the earnest money of Rs.7,20,000/- with interest @ 18% per annum from the date of agreement dated 28.01.2013 till realisation.
(b) pay them Rs.2,00,000/- as compensation for loss, harassment, mental agony and inconvenience.
(c) pay them Rs.50,000/- as litigation expenses.
The OPs entered into an agreement to sell dated 28.01.2013 with the complainant for sale of flat No.202, 3rd Floor, Block-A, Shiwalik Avenue, Sector 125, Mohali. The total cost of the flat was fixed as Rs.36,50,000/- and the booking amount was Rs.7.20,000/-. The complainant paid Rs.2.00 lacs in cash and remaining amount of Rs.5,20,000/- was paid by them through cheques dated 03.01.2013 and 28.01.2013 for Rs.1.00 lac and Rs.4,20,000/- respectively. As per Clause 7 of the agreement the balance payment was to be made to the Ops at the time of handing over possession alongwith stamp duty and any other charges. As per Clause 5 and 6 of the agreement, the OPs were to handover the possession of the flat to the complainant on 25.08.2013, which the OPs have failed to deliver till date. The complainants vide letter dated 13.10.2014 requested the OPs to refund their earnest money but till date the OPs have not refunded the earnest money to the complainants. With these allegations; the complainant has filed the present complaint against the OP.
2. Upon notice the OPs appeared and filed written reply in which they took preliminary objections that this Forum has no jurisdiction to entertain and adjudicate the complaint as the dispute involved is not a consumer dispute which does not fall within the ambit of provisions of Consumer Protection Act. The possession has already been offered to the complainants subject to payment of Rs.29,30,000/- as the balance sale consideration. The Ops had sent registered letters dated 13.02.2015, 11.03.2015 and 23.03.2015 to the complainant No.2 in this regard but the complainants have failed to make the payment within the stipulated time. The complaint involved complicated questions and facts which cannot be adjudicated in summary proceedings.
On merits, /-the OPs have pleaded that as per Clause 7 of the agreement to sell, the complainants had to make payments as per schedule/payment plan but they failed to make payment as per the schedule/payment plan due to which the possession could not be delivered in time. The OPs are still ready and willing to execute their part of the agreement subject to payment of balance sale consideration by the complainants. The photographs which are annexed with the complaint are false, frivolous. Thus, denying any deficiency in service on their part, the OPs have sought dismissal of the complaint.
3. To succeed in the complaint, the complainants proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-7.
4. Evidence of the OPs consists of affidavit of Ashok Kumar Mittal, their Director Ex.OP-1/1 and copies of documents Ex.OP-1/2 to Ex.OP-1/10.
5. We have heard learned counsel for the parties and have also gone through written arguments filed by them.
6. The booking and allotment of flat No.202-D 3rd Floor Block-A, Shivalik Avenue, Sector 125, SAS Nagar (Mohali) by the OPs in favour of the complainants is not disputed. The deposit of Rs.7.20 lacs as earnest money by the complainants, as is evident from the receipts Ex.C-1 to C-4 further corroborated by the statement of account Ex.C-5, as per agreement to sell dated 28.01.2013 is not disputed. As per the buyers agreement the possession of the flat was to be delivered on or before 25.08.2013. As per the payment plan against the agreed sale price of Rs.36,50,000/-, the complainants were to make payment of Rs.10,30,000/- at the time of possession. Except making the initial payment of Rs.7,20,000/- the complainants have not made any other payment due to 27.02.2013, 27.04.2013 and 28.06.2013 as per payment plan Ex.OP-1/2, as the OPs have failed to provide them tripartite agreement to make arrangements for the finances from the financial institution which the complainants intended to arrange for making balance payments. Therefore, the complainants vide request letter dated 13.10.2014 Ex.C-7 duly acknowledged by the OPs sought refund of the deposited amount as the OPs have failed to provide them the tripartite agreement. The said letter remained unanswered in the hands of the OPs. As per the complainants the OPs have failed to complete the construction of the flat as per agreed time frame i.e. by 25.08.2013 and instead issued them defective offer of possession vide letters dated 08.03.2015 Ex.OP-1/4 which the complainants have acknowledged and responded to the OPs reiterating their request letter dated 13.10.2014 for refund of the amount which till date has not been refunded by the OPs.
7. The limited issue of dispute in the present complaint is whether the OPs have failed to adhere to the agreed terms and conditions of buyers agreement. We have gone through the buyers agreement Ex.C-1 and found that there is no such clause which binds the OPs to provide tripartite agreement to the complainants. For the agreed sale consideration, the payment thereto has been agreed to be as per the convenience of the purchasers. Certainly for their convenience, the complainants required the assistance of the Ops to provide tripartite agreement for arranging loan from the banks which the Ops have failed. Therefore, the complainants could not make arrangement for making the payment of the balance sale consideration as per their convenience. Due to the acts of the Ops for not providing them the tripartite agreement, the complainants cannot be held liable for not making payment of the balance agreed price. The payment plan as relied upon by the OPs vide Ex.OP-1/2 is no where finds mention in the duly signed buyers agreement between the parties. The document Ex.OP-1/2 is not signed by the complainants and is, therefore, no binding on them. Thus, it is amply evident that the OPs have not cooperated with the complainants to make the payment as per their conveniences as per agreed terms of buyers agreement and on this account the act of OPs as a seller and service provider is an act of deficiency in service and unfair trade practice.
8. The next question regarding delivery of possession, as agreed by the parties as per buyers agreement Ex.C-1 was 25.08.2013. From the perusal of offer of possession letters dated 12.02.2015, 08.03.2015, 22.03.2015 sent by the OPs through registered post to the complainants per se shows that the flat was not ready by 25.08.2013 and the offer of possession was never made by the OPs to the complainants on or before 25.08.2013. The delay in offer of possession is amply proved from the documents of the OPs itself.
9. Before seeking refund, the complainants visited the site and found the flat incomplete as they have taken certain photographs of the flat on 12.10.2014 and attached the same with the present complaint as Ex.C-6. The Ops have never disputed the receipt of letter dated 13.10.2014 Ex.C-7 vide which the complainants have sought refund of the deposited amount. Instead of taking appropriate steps to complete the flat and handover the possession to the complainants the OPs have kept on sending vague demand letters with false assurances that the work of the flat is complete. In order to show that the work of the flat is complete the Ops have relied on photographs Ex.OP-1/7. It is evident from the photographs that the work of the flat is still incomplete as on the date of issuing of the final reminder/call of handing over possession on dated 22.03.2015. Thus, from the documents and evidence produced by the parties and as appreciated by this Forum, the complainants have proved their case of delay in offer of possession by 18 months and that too defective offer of possession as till date the flat is not ready for use and occupation. The act of the Ops thus on both the accounts is an act of deficiency in service and the complainant deserves compensation.
10. In view of above discussion, the complaint is allowed against the OPs. Both the OPs are jointly and severally directed to:
(a) to refund to the complainants Rs.7,20,000/- (Rs. Seven Lacs Twenty thousand only) with interest thereon @12% per annum from the dates of respective deposits till actual refund.
(b) to pay to the complainants Rs.25,000/- (Rs. Twenty five thousand only) as lump sum compensation 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.
September 23, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
