BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.191 of 2015
Date of institution: 28.04.2015
Date of Decision: 17.07.2015
Manbir Singh son of Apar Singh, resident of House No.49, Phase-II, SAS Nagar, Mohali.
……..Complainant
Versus
1. M/s. Gillco Developers and Builders through its Managing Director Ranjit Singh Gill having office at Gillco Valley, Sector 127, SAS Nagar, Mohali.
2. Ranjit Singh Gill, Managing Director at Gillco Valley, Sector 127, SAS Nagar, Mohali.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh, Member
Mrs. R.K. Aulakh, Member.
Present: Shri P.S. Bhangu counsel for the complainant.
Opposite Parties ex-parte.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) pay him compensation of Rs.1,10,100/- for delay in possession from 21.09.2012 to 08.05.2014 for a period of 20 months with interest @ 15% per annum.
(b) to refund Rs.1,49,862/- extracted illegally by the OP from the complainant.
(c) pay him Rs.1,00,000/- for deficiency in service and unfair trade practice.
The case of the complainant is that vide application dated 24.02.2011 Ex.C-1 he applied for allotment of flat No.R-906, Building R, 9th Floor having super area of 1101 sq. Ft. and gave cheque of Rs.1,00,000/- Ex.C-2 as booking amount. After acceptance of the application, the complainant was made allotment of the aforesaid flat vide allotment letter dated 17.03.2011 Ex.C-3. Thereafter, apartment buyer’s agreement Ex.C-4 was also signed by the parties on 21.03.2011. The total value of the flat was Rs.28,82,030/- which was to be paid as per the schedule of payment in Clause-6 of the agreement Ex.C-4. As per Clause-10 of the agreement in case of delay in payment of the installment by the OPs were to charge penal interest @ 15% per annum on all overdue amounts/arrears. The OPs were to complete the construction within 12 months from the date of signing of allotment letter by the allottee or within an extended period of six months. The complainant made the entire payment in time. The complainant paid a total amount of Rs.30,31,892/- to the OPs against Rs.28,82,030/- the value of the flat. Thus, the OPs have charged an excess amount of Rs.1,49,862/- from the complainant. Despite this, the OPs did not complete the construction within stipulated period of 18 months and kept on delaying the matter. As per Clause-39 of the Buyers agreement the OPs were liable to pay compensation @ Rs.5/- per sq. ft. for every month delay beyond 18 months. The possession of the flat was given to the complainant on 08.05.2014 Ex.C-7 after a delay of more than 1 ½ years from the promised date of possession. Thus, the complainant has filed the present complaint alleging deficiency in service on the part of the OPs.
2. After admission of the complaint, notice was sent to the OPs. As per report of India Post, the notices were delivered to the OPs on 19.05.2015 but none appeared for them and thus they were proceeded against exparte on 05.06.2015.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-7.
4. We have heard learned counsel for the complainant and have also carefully gone through the case file and written arguments.
5. The complainant is a consumer who has agreed to pay a total sum of Rs.27,83,030/- being the basic price plus other charges for purchase of 2BHK flat having super area of 1101 sq. ft. on the 9th floor of the project of the OPs. As per the complainant he has paid full amount by 10.04.2014 starting from 24.02.2011 Ex.C-5 to C-6. The OPs have charged an excess amount of Rs.1,49,682/- which has not been refunded to him. Secondly, the OPs have agreed to handover the possession within one year from the date of signing the agreement which they have defaulted and have actually handed over the possession to the complainant on 08.05.2014 Ex.C-7 after a delay of 1 ½ years and have not paid him the amount due to him on account of penalty clause for delay in possession as per terms of buyers agreement and therefore, on both the counts he has alleged deficiency in service and unfair trade practice.
6. We have perused the buyers agreement and found that the agreed basic price of the flat in question is Rs.27,49,000/-, car parking Rs.50,000/-, club membership Rs.50,000/-, IFMS Rs.33030/- total Rs.28,82,030/-. The said total amount as per terms of agreement was to be paid by the complainant to the OPs as per payment Plan-B i.e. construction linked plan. The perusal of Ex.C-7 i.e. possession of the flat in question clearly shows that the possession has been given to the complainant on 08.05.2014. Therefore, it can be safely inferred that the payment as per payment plan has been made by the complainant and there is no default on his part. In order to show the total amount paid against the agreed amount, the complainant has produced the receipts issued by the OPs Ex.C-6 (colly) and the amount disbursed directly by the bankers of the complainant to the OPs Ex.C-5. A conjoint reading of Ex.C-5 and C-6 clearly shows that the complainant has paid a total sum of Rs.30,31,892/- against the agreed price of Rs.28,82,030/-. Thus it is ample clear that the complainant has paid an excess amount of Rs. 1,49,862/- to the OPs against the sale consideration. The charging of excess amount by the OPs is clear cut act of unfair trade practice indulged by the OPs.
7. The perusal of record shows i.e. buyers agreement Clause-38 the possession of the flat is agreed to be delivered upon the clearance of all dues and demands payable upto the date of such possession. There is no specific cut off date or time frame mentioned or agreed in the buyers agreement. The perusal of the record shows that the last payment was made by the complainant to the OPs on 08.05.2014 and on the same day possession has been granted by the Ops to the complainant. Therefore, we do not find any delay in the part of the Ops to handover the possession as it was handed over on 08.05.2014 after he has cleared the outstanding dues as per clause 38 of the buyers agreement. The claim of the complainant on account of invoking penalty clause for delayed possession is not maintainable.
8. The complainant has been able to prove only one act unfair trade practice i.e. charging of excess amount than the agreed sale consideration. Therefore, on this account the complaint is hereby allowed and the complainant deserves to be compensated for the loss and mental agony, and harassment.
9. The complaint is allowed with the following directions to the OPs to:
(a) to refund to the complainant a sum of Rs.1,49,682/- (Rs.One lac forty nine thousand six hundred eighty two only) with interest thereon @ 9% from 08.05.2014 till actual payment.
(b) to pay a lump sum compensation of Rs.10,000/- (Rs. Ten 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.
July 17, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh)
Member
(Mrs. R.K. Aulakh)
Member
