Haryana

Panchkula

cc/229/2014

SURINDER AGGARWAL. - Complainant(s)

Versus

M/S BHOOMI INFRASTRUCTURE COMPANY& ORS. - Opp.Party(s)

MRS.ANJU SURI.

12 Aug 2015

ORDER

BEFORE  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                    

                                                                                   

Consumer Complaint No	:	229 of 2014
Date of Institution	:	19.11.2014
Date of Decision	:	12.08.2015

                                                                                                                 

Surinder Aggarwal aged about 66 years son of Sh. Prem Sagar Aggarwal, resident of MIG 50, Sector 1, Parwanoo, District Solan (HP).

                                                                                                             ….Complainant

Versus

1. M/s Bhoomi Infrastructure Company a partnership firm having its branch office at House No. 1411, Sector 21, Panchkula.
2. Lt. Col. S.S. Deswal (Retired) son of Sh. I.S. Deswal partner of M/s Bhoomi Infrastructure Company.
3. Abhimanyu Deswal son of Lt. Col. (Retd.) S.S. Deswal, partner of M/s Bhoomi Infrastructure Company.

Both residents of House No. 1411, Sector 21, Panchkula.

                                                                                          ….Opposite Parties

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

 

Quorum:                    Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

 

For the Parties:         Ms.Anju Suri, Advocate for the complainant.

Mr.Yash Pal Singh, Advocate for the Ops.

ORDER

(Dharam Pal, President)

 

1. The complaint has been filed by the complainant-Surinder Aggarwal against the Ops with the averments that OP no. 1 was a partnership firm and Ops no. 2 & 3 are its partners.  The opposite party constructing a project named as “AMAZON THE DEFENCE COUNTY, SECTOR 30, PANCHKULA”.  The Opposite parties had invited applications for allotment of a residential apartment in its project and the complainant had given an application for allotment of residential apartment.  It was agreed between the parties that the area of flat would be 1915 sq. feet and the category was Type-A. The flat allotted was 904 and is fully described as A1/904 comprising of 3 bed rooms, one servant room, one living room, kitchen and alongwith attached toilets.  The basic sale price of the flat was Rs. 2,400/- square feet besides this the complainant had to pay a sum of Rs. 75,000/- as club charges, Rs. 1,50,000/-  for parking space, other taxes were Rs. 4,30,875/- and the total price fixed was Rs. 52,51,875/-.  The complainant paid a sum of Rs. 6,89,400/- vide cheque no. 326913 dated 18.11.2009 (Annexure C-1).  The Ops had issued photocopy of the receipt (Annexure C-2) and photocopy of provisional allotment letter (Annexure C-3) to the complainant.  The opposite party could not construct the flat in question and again raised a demand of Rs. 5,67,318/- on 30.04.2010 (Annexure C-4).  On 20.05.2011 the agreement (Annexure C-5) was executed between the complainant and the opposite party.  The basic price of the flat as well as the size of the flat was changed by the opposite party unilaterally without involving the complainant and the complainant had no other option except to sign the agreement.  The complainant also made the payment of another sum of Rs. 7,41,069/- on 18.05.2011 (Annexure C-6).  The size of the flat was 1915 sq. feet but while executing the agreement the area of the flat was stated to be 2085 sq. feet and the basic price of the flat was increased to Rs. 2,863/- per square feet.  The flat which was allotted to the complainant was described as Type A-1 Unit No. 904 and the basic price was also increased.  The agreement was signed by the complainant as well as opposite party and which was duly notarized at Panchkula.  As per terms and conditions of the agreement between the parties the construction was to be completed within 36 months from the date of execution of agreement.  The complainant is a senior citizen and is suffering from many ailments and had purchased the flat with the sole object that he would spend his life in Panchkula as there are better medical facilities available here as the complainant was undergoing treatment from various private doctors at Chandigarh and Panchkula.   The only child of the complainant is staying abroad and there is no one to look after the old couple who had booked the same as per the assurance of the opposite party that it would be constructed very soon but the said dream of the complainant has been shattered by the act and conduct of the opposite party.  Ops had failed to construct the flat within the stipulated period as agreed between the parties as it evident from letter issued on 06.06.2014 (Annexure C-7).  The letter dated 06.06.2014 clearly shows that the project had not been completed inspite of the fact that the complainant had paid a sum of Rs. 14,30,000/- to the opposite party.  The complainant visited the office of the opposite party to enquire about the progress of the flat but every time he was assured that it would be completed very shortly.  Lastly the complainant  visited the office of the opposite party on 30.10.2014  when the request was made to him but to no avail. This                                                                                                                  act of the opposite parties amounts to deficiency in service on their part. Hence, this complaint.
2. Upon notice, the Ops appeared before this Forum and filed written statement by taking some preliminary objections & submitted that the development work being carried out by the opposite party in accordance with the provisions of the Haryana Development and Regulation of Urban Area Rules, 1976 as also the terms of license granted by the Director, Town and Country Planning Haryana.  It is submitted that the complainant applied for a unit in Type A-1 in the residential apartment in AMAZON-The Defence County, Sector-30, Panchkula and  deposited a sum of Rs. 14,30,469/- with the OP no. 1 from 18.11.2009 to 18.05.2011 and the complainant was allotted a flat No. 904, Type A1 with approximate/provisional area of 1915 sq. feet but finally allotted 2085 sq. feet for a total sale consideration of Rs. 59,46,875/- which included the club membership charges and EDC charges.  It is submitted that the flat buyer agreement was executed and signed by the complainant & OP no. 2 on 20.05.2011.  Prior to the agreement, the complainant read over the contents of the agreement, sheet of total consideration and schedule of the payment.  It is submitted at the time of initial payments, the complainant was told that the possession would be offered within 36 months from the date of flat buyer agreement with an extension of 12 months subject to payment.  It is submitted that as per the schedule, the amount of Rs. 6,89,400/- was only booking amount and the construction was started in 2010.  As per schedule, second amount was demanded but the complainant paid the amount prior to the flat buyer agreement.  It is submitted that as per the clause 26 of the agreement, Ops promised to complete construction of the unit within a period of 36 months from the date of execution of the said agreement with an extension of additional 12 months subject to fulfilling of conditions duly mentioned in the agreement.  It is further submitted that if Ops would fail in handling over the possession then they would pay to allottee a compensation at the rate of Rs. 5/- per month  per square feet of the super built up area of the unit.  It is submitted that some dispute arose between the Ops and the construction work was stopped.  After the receipt of the abovesaid amount,  the Ops did not demand any further amount from the complainant till 30.01.2015.  In the meantime the OP no. 2 settled the dispute and started the construction work of Tower Type-A and till date 10 slabs have already been laid down by the Ops and the Ops demanded the further amount as per the schedule from the complainant.  It is submitted that despite many demands, the complainant did not pay the amount.  Thus there is no deficiency in service on the part of the Ops and prayed for dismissal of the  complaint with costs.
3. Replication to the written statement of Ops has been filed by the counsel for the complainant.
4. Counsel for complainant has tendered the evidence by way of affidavit Annexure C-A & C-B alongwith documents Annexure C-1 to C-8 and closed his evidence.   On the other hand, learned counsel for Ops has tendered the evidence by way of affidavit Annexure RA alongwith document Annexure R-1 and closed his evidence. 
5. We have heard learned counsel for the parties  and have also perused the record & also considered the written arguments filed by counsel for OP no. 1 & 2.
6. Admittedly, the complainant applied for the allotment of residential apartment with the Ops vide application dated 19.11.2009 (Annexure C-1). The complainant paid Rs.6,89,400/- vide receipt No.000251 dated 04.12.2009 (Annexure C-2) alongwith application. The Ops allotted the flat Type-A (1995 per sq. ft.), 9^th floor, A1/904 vide allotment letter dated 05.12.2009 (Annexure C-3). The basic price of the residential unit was Rs.2750/- per sq. ft and total basic cost was Rs.52,66,250/-. Apart from the above, the Ops alos charged club membership Rs.75,000/-, car parking Rs.1,50,000/-, Government dues (IDU) Rs.4,30,875/- and gross total for the residential unit was fixed for Rs.59,22,125/-. The discount of Rs.6,70,250/- was also granted. The complainant was to pay Rs.52,51,875/- for the abovesaid residential unit.
7. Before executing the apartment’s buyers agreement, the Ops demanded Rs.5,67,318/- from the complainant vide letter dated 30.04.2010 (Annexure C-4). The buyers agreement was executed on 20.05.2011 (Annexure C-5). As per agreement, the size of flat was 2085 per sq. ft and the basic price of the flat was increased from Rs.2400/- to Rs.2863 per sq. ft. and flat was described as type A, unit No.904. The complainant also paid a sum of Rs.7,41,069/- on 18.05.2011 (Annexure C-6) before executing the abovesaid agreement.
8. In their written arguments, the Ops raised objections regarding maintainability of the complaint on the ground that complaint has been filed is absolutely false and most of the contents other than the facts based on the documents are erroneous, misconceived, malafied, motivated and have been raised with ulterior motive & as such are unsustainable in the eyes of law and urged that the complainant has not only suppressed and misstated the facts but also sought to misapply the provisions of law. The Ops have failed to place on record any document to show that construction on site is under progress and would be completed except the affidavit (Annexure R-A).
9. As per the condition No.26 of the agreement, the construction was to be completed within 36 months from the date of execution of the agreement with an extension of additional 12 months subject to timely payment by the allottee of the basic sale price. The Ops vide their letter dated 06.06.2014 (Annexure C-7) stated that the construction work at the complainant project commenced in the last week of April, 2014. The Ops also admitted that the project had entered rough water (weather) and was intimated to the complainant vide a mail in March, 2014. The Ops also informed the complainant that all management related issues stands dissolved and the new construction company with all its expertise and wherewithal will assist them in completing the project as per the revised schedule. The Ops also informed the complainant vide their letter dated 19.03.2015 (Annexure C-8) about the progress of the project and stated that the construction of tower A1 roof slab of 9^th floor has been cast. As per the agreement, the construction of the unit was to be completed upto 20.05.2014 but till date the Ops have not handed over the possession of the abovesaid unit to the complainant. The Ops have also not placed any document that the extension of 12 months time has been conveyed to the complainant at any time. The Ops have also not demanded any amount from the complainant till the filing of the present complaint.
10. Though the adjudication of this complaint has come about on the basis of the appreciation of facts and circumstances of this case, we cannot help observing that the instances of derelictions arising out of contractual obligations are on the increase in so far as builders are concerned. This observation, the factual basis whereof has been culled out from the various cases of the like nature we have tried, deserves the focused attention of the official quarters charged with the responsibility of granting licence for construction etc. Formulation of enforceable guidelines to guarantee the safeguard of interest of builders as also applicants for plot, is the need of the day to avoid the dockets in the Forums getting heavier lest we are misunderstood, we reiterate that our consideration in this case is restricted to the material obtaining on this file.
11. In view of the above discussion, we are of the opinion that the present complaint deserves to be allowed and the same is accordingly allowed. The Ops are directed as under:-

1. To refund the amount of Rs.14,30,469/- to the complainant alongwith interest @ 9% per annum from the receipt till realization.
2. To pay an amount of Rs.50,000/- as compensation for mental agony, harassment and deficiency in service.
3. To pay Rs.10,000/- as cost of litigation.

 

Let the order be complied with within the period of 30 days from the receipt of certified copy of this order.  A copy of this order be sent to the parties free of costs and file be consigned to the record room after due compliance.

 

Announced

12.08.2015                            ANITA KAPOOR                             DHARAM PAL

                                                MEMBER                                          PRESIDENT

 

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

 

 

                                   

                                                                        DHARAM PAL

                                                            PRESIDENT