Chandigarh

DF-I

CC/585/2014

Mrs. Mamata Paul - Complainant(s)

Versus

M/s Ansal Properties & Infrastructure Ltd. - Opp.Party(s)

Varinder Arora

14 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Consumer Complaint  No	:	CC/585/2014
Date  of  Institution	:	02/09/2014
Date   of   Decision	:	14/09/2015

 

 

 

 

 

Mamta Paul wife of Sh. Jatinder Paul, resident of House No. 1162, 2^nd Floor, Sector 42-B, Chandigarh, through her General Power of Attorney Holder Mr. Sandeep Kumar son of Sh. Harbans Lal, Resident of House No.1168, Sector 42-B, Chandigarh.

….Complainant

Vs.

 

1.   M/s Ansal Properties & Infrastructure Limited, 1202-04, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi – 110001, through its Authorized Signatory/ Manager.

 

2.   M/s Ansal Properties & Infrastructure Limited, SCO 183-184, Sector 9-C, Madhya Marg, above British Library, Chandigarh, through its Authorized Signatory/ Manager.

 

…… Opposite Parties

 

BEFORE:   SH. P.L. AHUJA               PRESIDENT

MRS.SURJEET KAUR             MEMBER

          SH. SURESH KUMAR SARDANA     MEMBER

 

For Complainant	:	Sh. Varinder Arora, Advocate.
For Opposite Parties	:	Sh. Rajiv Bhatia, Advocate. (OP No.1 already ex-parte).

 

PER SURESH KUMAR SARDANA, MEMBER

 

 

 

          Tersely, the facts and material, culminating in the commencement, relevant for the disposal of the instant Consumer Complaint and emanating from the record is that, the Complainant had purchased an independent floor No.767, Ground Floor, measuring 144.45 Sq. Mts. (1555 Sq. ft.). in Luxury Floors at Golf Links at Mohali. Initially, the said Floor was booked in the year 2009 by one Manoj Verma and Navneet Kaur, resident of House No. 1528, Sector 70, Mohali. Later, on the said flat was re-purchased from the said previous owners and the transfer of plot/flat/shop House No. 767, Ground Floor with reference of transfer application dated 27.2.2013 was endorsed and a letter of transfer and letter for change of right to purchasers was also issued by the Opposite Parties on 7.3.2013 in the name of Complainant. The copy of the said allotment letter along with the transfer of the said floor and change of right to purchaser are attached as Annexure C-3 to C-5 respectively. It has been averred that initially when the allotment letter dated 17.11.2009 was issued, the area measuring the said floor was 1555 Sq. ft. and when the construction was started for the said floors, the area was increased from 1555 sq. ft. to 1557.89 sq. ft. and accordingly the amount was charged from the Complainant by the Opposite Parties. By purchasing the said floor from the previous owner and the transfer of the said floor in the name of the Complainant from the previous owner, the Complainant had stepped into the shoes of the previous owner and the terms and conditions which were executed between the parties were applicable to the Seller and the Purchaser and according to the said allotment letter dated 16.11.2009 it has been agreed between the parties that the possession would be handed over by the Opposite Parties to the Complainant within 24/30 months. The entire payment of the said floor was already paid, except the last installment, which was to be paid at the time of offering of possession. Clause-22 of the said allotment letter stipulates that the allottee shall takeover possession of his floor within one month of the offer of possession. The company shall charge holding charges @ Rs.5/- per sq. ft. of the saleable area per month, if the allottee fails to take possession of the said floor within 30 days from the date of intimation in writing by the company. It has been alleged that the company had delayed the possession of the said floor by more than 25 months. The floor was booked on 17.11.2009 and according to the contract, the Opposite Parties should have offered possession to the Complainant on or before June, 2012, but they have failed to do so. The subsequent purchaser (the Complainant) had purchased the said floor in the month of March, 2013 and since then it has been more than 17 months that the Opposite Parties have failed to offer the possession of the floor. Further, the development work is not under progress, rather it is stand still. However with a view to cover up their negligence and deficiency in service, Opposite Parties had issued a letter dated 1.7.2014 offering possession of the said floor and also demanded the balance amount. The Opposite Parties had only given a time period of 15 days to make the balance payment which was contradictory to Clause 22 of the allotment letter which clearly provided that the allottees shall have a period of 30 days to take possession of their floor. It has been averred that the letter dated 01.07.2014 was issued as a counter blast to the legal notice dated 9.5.2014 which was issued by the Complainant demanding damages for not offering the possession within the prescribed period. The copy of the letter for offer of possession along with copy of legal notice and various photographs of the floor showing that the floor was not ready for possession are annexed as Annexure C-6 to C-11. In pursuance to the letter dated 1.7.2014, the Complainant had duly replied the said letter which was never replied by the Opposite Parties (Annexure C-12 colly). It has been alleged that the Complainant had invested a huge sum of Rs.36,06,216/- with the Opposite Parties, but till date, she is not able to enjoy the said property and is paying interest on the said amount @6% for the last 17 months. When all the frantic efforts made by the Complainant, failed to fructify, as a measure of last resort, alleging that the aforesaid acts of the Opposite Parties tantamount to deficiency in service and unfair trade practice, the Complainant has filed the instant Complaint u/s 12 of the Consumer Protection Act, 1986, seeking various reliefs. 

  

2.     Notice of the complaint was sent to Opposite Party, seeking its version of the case. However, nobody appeared on behalf of Opposite Party No.1 despite service, therefore, it was proceeded ex-parte on 22.10.2014.  

3.     Opposite Party No.2 in its written statement while admitting the factual aspects of the case, has pleaded that the Complainant was a subsequent buyer without any intervention of the Opposite Parties. She had purchased the flat in question from the original allottees from open market and thereafter applied for transfer the same in her name vide application dated 27.02.2013 and accordingly Opposite Party issued a transfer confirmation letter on 7.3.2013 (C-4), upon the undertaking of the Complainant to pay the balance sale consideration and dues which were payable by the original allottees. The Complainant also submitted an Affidavit (R-2) in the office of Opposite Parties to pay the balance sale consideration and other applicable charges as per demands of company at the time of offer of possession. It has been denied that the entire payments of said floor had been paid and that there was any agreement with the Complainant that the possession would be handed over by the Opposite Parties to the Complainant within 24/30 months. In fact the Complainant had made payments to original allottees by virtue of Agreement to Sell and the payments made by the original allottees had been adjusted by the Opposite Parties towards transfer of the said flat in favour of the Complainant. The Complainant was intentionally avoiding paying the balance amount and neglecting to take possession. It has been urged that the Complainant had no locus standi to claim compensation on account of delay and based on the terms of Allotment letter/ agreement dated 17.11.2009, wherein the Complainant was never a party. The Complainant had got title and interest in the said flat in March 2013 only after considering and satisfying herself to all aspect of delay with original allottee. It has been admitted that the offer of possession was made to the Complainant vide letter dated 01.07.2014, but she herself failed to come forward for taking possession. It has been denied that letter dated 1.7.2014 for offer of possession was a counter blast to the legal notice dated 9.5.2014. The letter of offer of possession was mailed to Complainant after completion of the flat in question in all respect. The photographs annexed by the Complainant do not belong to the flat in question, as the flat is ready to move and in habitable condition (Photographs Ex.R-5 to R-20). The families are residing there in the adjacent building/ flats and enjoying all the amenities provided by the Opposite Parties. Denying all other allegations and stating that there is no deficiency in service on their part, answering Opposite Parties have prayed for dismissal of the complaint.

 

4.     The complainant has filed a rejoinder, wherein she has reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Party No.2.

 

5.     Parties were permitted to place their respective evidence on record in support of their contentions.

 

6.     We have heard the learned Counsel for the parties and have perused the record along with the written arguments filed on behalf of both the sides.

 

7.     We have given our anxious consideration to the various contentions raised by the learned Counsel for the parties. It is observed that the Complainant had purchased the said flat from the previous owner/ allottee vide Agreement to Sell dated 08.01.2013; whereas, the allotment of the said flat was made to the original allottee on 17.11.2009 i.e. after 38 months from the allotment. The Complainant was very well aware of the ground reality/ the status of the construction of the flat in question. Hence, the claim of the Complainant regarding delay in offering possession under Clause 12 of the allotment letter (Annexure C-3) cannot be dealt with at this stage. We have also gone through the letter dated 19.9.2014 (Annexure R-4) which is a permission letter for occupancy or use of the building in question issued by the competent authority i.e. Greater Mohali Area Development Authority to M/s Ansal Properties and Infrastructure Limited (OP No.2). Since the said permission was given only on 19.9.2014, therefore, the question of offering the physical possession of the said premises on 1.7.2014 to the Complainant does not even remotely arise before 19.9.2014 and the logic of issuing offer of possession by the OPs to the Complainant on 1.7.2014 is not understood. Hence, we are of the concerted view that the Opposite Parties cannot be held deficient for any delay in handing over of the possession to the Complainant. However, the Opposite Parties are found to be indulged in unfair trade practice by issuing offer of possession letter for the said premises to the Complainant before the date of grant of permission for occupancy by the competent authority i.e. Greater Mohali Area Development Authority, Mohali. 

 

8.     For the reasons recorded above, we find merit in the Complaint and the same is partly allowed. The Opposite Parties are directed, jointly and severally, as under:-

[a]  To pay an amount of Rs.1,00,000/- as compensation to the Complainant on account of mental agony & harassment caused and unfair trade practice on the part of the Opposite Parties;

 

[b]  To pay Rs.10,000/- as costs of litigation.

 

9.     The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @9% p.a. on the amount mentioned in sub-para [a] above from the date of institution of this complaint, till it is paid, besides complying with the directions as in sub-para [b]. 

 

10.     The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

14^th September, 2015                                

Sd/-

(P.L. AHUJA)

PRESIDENT

 

Sd/-

(SURJEET KAUR)

MEMBER

 

Sd/-

(SURESH KUMAR SARDANA)

                                                                                            MEMBER