Haryana

Panchkula

CC/269/2014

MONIKA GANDHI. - Complainant(s)

Versus

M/S ANSAL HOUSING & CONSTRUCTION LTD. - Opp.Party(s)

PANKAJ CHANDGOTHIA.

27 Apr 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.                                                                            

Consumer Complaint No	:	269 of 2014
Date of Institution	:	24.12.2014
Date of Decision	:	27.04.2015

                                                                                          

Monika Gandhi aged about 38 years D/o Sh.L.C.Gandhi, R/o House No.499, Sector 20-A, Chandigarh.

                                                                                          ….Complainant

Versus

1.       M/s Ansal Housing & Construction Ltd., SCO No.34, Swastik Vihar, MDC, Panchkula, through its Sr. Manager (Marketing).

2.       M/s Ansal Housing & Construction Ltd., 15 UGF, Indra Prakash, 21, Barakhamba Road, New Delhi, through its General Manager (Marketing).

                                                                         ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Quorum:               Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

Mr.Anil Sharma, Member.

 

For the Parties:     Mr.Pankaj Chandgotia, Adv., for the complainant. 

                             Mr.Pardeep Solath, Adv., for the Ops.

 

ORDER

(Anita Kapoor, Member)

 

1. The complaint has been filed by the complainant-Monika Gandhi against the Ops with the averments that the Ops floated a scheme for sale/allotment of flats in its “Ansal Woodbury Apartment Scheme”, Zirakpur, Distt. Mohali on 15.09.2007. Initially, Mr.Om Parkash Verma and his son Hitesh Verma had applied for allotment of a unit/flat in the said scheme and they were allotted a unit No. Pine-103 for Rs.32,60,998.50 vide allotment letter dated 29.11.2007. Later on a settlement deed dated 19.02.2009 was executed between the Ops and the original allottees and on 17.06.2009, the Ops had confirmed that they have received 95% of the amount towards basic cost i.e. Rs.32,05,678.74. After that, the original allottees transferred the abovesaid unit in favour of the complainant after paying the prescribed transfer fee to the Ops and the same was confirmed by the Ops vide letter dated 05.10.2011. The remaining 5% amount of cost of unit/flat was payable at the time of handing over the possession to the allottee/complainant. The structure of the unit has been raised but finishing touches have not been given i.e. fittings/installations in the kitchen and bathrooms have not been provided so the unit was not fit for occupation/living in a proper comfortable manner. It has caused an additional financial burden on the complainant for the last three years as she had to pay Rs.20,000/- pm to her landlord whose house was taken on rent. The complainant has already paid 95% cost of the unit to the Ops and she has become financially very hard. The complainant requested the Ops to handover the possession of the unit after completing its construction fixtures and installations and to accept the remaining 5% amount of cost of the unit but the Ops had refused to hand over the possession by saying that possession should be given to her only after she got the sale deed executed and registered in her favour which was very costly in view of financial hardship being faced by her. There was no legal mandate that possession could not be delivered to the allottee in the absence of a registered sale deed despite receiving major amount of the sale consideration of the unit. The Ops were bound to deliver the possession on receiving 100% cost of the unit but they were avoiding the same. The complainant submitted that non-registration of sale deed should cause, loss, if any, to the complainant and not to the Ops. The complainant undertook to get the sale deed executed and registered at the earliest as and when her financial position improved in future but to no avail. The Ops were habitual of putting undue financial burden on the allottees by imposing illegal compound/penal interest, and other hidden costs like labour cess, security deposit, computer fees and legal expenses. The original allottees had also filed a complaint against the Ops in the District Consumer Forum-I, UT, Chandigarh which was allowed and the Ops were directed to reverse the entries regarding compounding interest and the Ops were also directed to pay Rs.50,000/- for unfair trade practice alongwith litigation cost of Rs.2,000/-. The Ops did not appear to be interested in handing over the possession of the unit to the complainant, which act and conduct of the Ops amounts to deficiency in service on their part. Hence, this complaint.
2. The Ops appeared before this Forum and filed written statement by taking some preliminary objections and submitted that the present complaint is not maintainable as the complainant is a re-allottee and has purchased the flats from one Sh.Om Parkash Verma and not from the Ops. It is further submitted that this Forum has no territorial jurisdiction as the flat is situated at Zirakpur, Distt Mohali in Punjab. It is submitted that the original owner of the flat Sh.Om Parkash Verma had already filed a complaint No.827 of 2008 before the District Consumer Forum-I, U.T., Chandigarh which was allowed vide order dated 23.01.2009 and the learned District Forum, Chandigarh had already adjudicated upon the issues raised in the present complaint, therefore, the present complaint is barred by law of res-judicata. It is submitted that the complainant has purchased the flat on 05.10.2011 after having the knowledge of previous litigation and the status of the flat. It is submitted that the complainant has booked the flat for investment/commercial purpose. It is submitted that the complainant has wrongly assumed that only 5% of the cost of unit/flat was payable at the time of handing over the possession of the flat. It is submitted that there were various other charges as mentioned in the allotment letter dated 29.11.2007 which has to be borne by the complainant before the sale deed could be executed. It is submitted that the unit/flat is not fit for occupation is false and wrong. It is submitted that there were hundreds of allottees who were residing in the other adjacent flats. It is submitted that the complainant has never bothered to pay the outstanding dues and is liable to clear the same before having the possession of flat. It is submitted that the complainant has not appended any evidence of paying rent of Rs.22,000/- per month. Thus, there is no deficiency in service on the part of the Ops and prayed for dismissal of the complaint.  
3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A alongwith documents Annexure C-1 to C-6 and closed the evidence. On the other hand, counsel for the Ops has tendered into evidence by way of affidavit Annexure R-A and closed the evidence.
4. We have heard the learned counsel for the parties and have perused the record carefully and minutely.
5. The Ld. Counsel appearing on behalf of the OPs argued that the complaint is not maintainable as “The Ld. District Forum Chandigarh had already adjudicated upon the issues raised in the present complaint”. In the preceding paras, it was averred that the predecessor in interest of the complainant had filed a complaint No.827 of 2008 which had been allowed by the DCF-I, Chandigarh vide order dated 23.01.2009. The further averment was that “In the said complaint, the original allottee had already made same prayer”. The OPs thereby made a plea that this complaint is barred by res-judicata.
6. Though the OPs did not file a copy of the Judgment dated 23.01.2009 on record, the cue to the controversy is available in the complaint itself wherein the complainant has made a precise averment that the original allottees had filed a complaint which was allowed by DCF-I, Chandigarh vide order dated 23.01.2009 and the OPs therein were thereby directed to reverse the entries “regarding compound interest” and that the OPs were directed to pay a sum of Rs.50,000/- for adopting unfair trade practices, alongwith a litigation cost of Rs.2,000/-.
7. We have no hesitation in negating the plea made by OPs, particularly because the precise averment made by the complainant about the nature of the grievance in the earlier complaint has not been controverted. Even otherwise, the grievance made by the complainant herein just could not have been available to the original allottee in the year 2009.
8. Yet another grievance raised by the OPs is qua the jurisdiction of DCF, Panchkula to entertain the complaint because the flat under reference is situated at Zirakpur and the complainant and the OPs are based out of Panchkula.
9. The plea just requires to be indicated to be negatived, for the simple reason that the OPs do have a Marketing office at Panchkula and that, by itself, vests the Forum at Panchkula to adjudicate upon the controversy in the complaint.
10. It is admitted case of the parties that Om Parkash Verma and his son Hitesh Verma had applied for allotment of unit/flat with the Ops. The unit/flat No.Pine-103 was allotted to them vide allotment letter dated 29.11.2007 for sale consideration of Rs.32,60,998.50. The terms and conditions of allotment were settled and signed by the parties on 19.02.2009. The Ops intimated the allottee and confirmed that they had received 95% of the amount basic cost i.e. Rs.32,05,678.74. There is no amount due except the remaining 5% payment of account of allied and statuary charges as stipulated under the settlement deed/allotment letter. The complainant purchased unit/flat in question from the original allottee and the same was transferred in the name of the complainant as intimated by the Ops vide letter dated 05.10.2011. The possession of unit/flat was offered to the complainant vide letter dated 09.05.2014.
11. It is borne on record that the complainant vide letter dated 01.05.2013 (Annexure C-4) requested for the possession of the flat. In the above said letter, the complainant clearly mentioned that she be no compelled to get it sale deed registered presently as she is in acute financial hardship. The sale deed would be registered as and when her financial position became better. Even otherwise, there is no legal requirement holding that possession cannot be handed over to an allottee in the absence of a registered sale deed. Non-registration of sale deed shall cause loss if any to the allottee and not to the builder.
12. As against it, the Ops accepted that as per clause 22, the terms and condition of allotment, the developer on completion of the development/construction shall issue final call notice (offer of possession) to the allottee who shall within time period mentioned in such offer of possession, remit all dues and take possession of unit after registration of sale deed. The date mentioned on the final call notice shall be deemed to be the date o offer of possession.
13. The conjoint reading of the aforesaid clause alongwith the letter dated 09.05.2014 makes it clear that the contention of the complainant is that there is no legal requirement holding that the possession cannot be handed over to the allottee in the absence of a registered sale deed. The Ops have failed to rebut the aforesaid contention made by the complainant by way of bringing on record any document that the registration is legally required before hand over the possession. As such, the contention of the complainant on this score goes unrebutted. We see no reason why possession of flat be not handed over to the complainant. Moreover, the complainant has not signed the terms and conditions of the allotment and agreement to sell which has been executed between the previous allottee and the Ops.
14. In the light of the above observations, we are of the opinion that on receipt of the 95% amount, the OPs are bound to hand over the possession of unit/flat after depositing of 5% remaining amount by the complainant. They cannot insist the complainant to get the sale deed registered before handing over the possession. Hence, the present complainant of the complainant deserves to be succeeded against the Ops and the same is allowed. The Ops are directed as under:-

1. To hand over the possession of flat/unit to the complainant within one month and the complainant is bound to get the sale deed registered within 2 months from the date of issue of this order.
2. To pay Rs.5000/- as compensation for mental agony and harassment.

15. OPs shall comply with this order within a period of one month from the date its communication to it comes about. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 

 

 

Announced      (Anil Sharma)                     (Anita Kapoor)    (Dharam Pal)

27.04.2015      Member                     Member                  President

 

Note: Each and every page of this order has been duly signed by me.

                                          

                                            

                                                          Anita Kapoor                                                                                             Member