MRS. NEENA SANDHU, PRESIDING MEMBER

1.       Briefly stated, the facts of the case are, that due to the false and misleading promises made by the OPs, the complainant had purchased a apartment for Rs.19,81,000/- in the hope that he would shift from a rented accommodation i.e. Panchkula to his own accommodation at Baddi. The complainant was assured that he would get the rental value approximately Rs.8400/- to Rs.10,000/- per month for his apartment B1 504 after full and final payment. The complainant planned that he would get the rental from his own accommodation and the same would be adjusted to his rented accommodation at Panchkula. The e-mails from OPs annexed as Annexure  C-2 and C-3. The complainant availed a bank loan from ICICI Bank, Chandigarh and paid a sum of Rs.9445/- as processing fee. The complainant is also paying the interest on the loan amount. The complainant had paid a sum of Rs.1 lac at the time of booking the apartment, Rs.1,98,000/- on 16.2.2007, Rs.93,336/- on 8.9.2008 and the bank had paid a sum of Rs.15,90,450/-. Thus the complainant had paid a sum of Rs.19,81,786/- as full and final payment on 8.9.2008 against the committed amount of Rs.19,81,000/-. It is submitted that the OPs wrongly charged Rs.786/- in excess against the settled amount, which the OPs under obligation to refund the same. In the month of October, 2008 the complainant paid a personal visit for the first time and he was shocked to watch the status of his apartment. The master bedroom was incomplete, the tilling on the floor yet to be completed, the wooden work was not of the standard as claimed by OPs, moisture in the wood, plaster on the wall was uprooted, sanitary materials in the bathroom & toilet were of the lowest quality and the materials used in the kitchen were too defective and of the lowest quality. The complainant rang up the OP No.3 from the spot, who assured to complete the tilling for the master bedroom within a week. It is further submitted that the same was done by the OPs after a month but the color for the tiles could not be matched with the already fitted tiles. The flooring of the bedroom is different from the rest of the accommodation in the apartment. These averments could be proved by photographs of the flat. The representative of the OPs assured the complainant that their company would pay the rental after full and final payment qua the apartment but OPs failed to pay even the rental for the apartment as per their own commitment. The complainant received the rental for the period of January, February and March, 2009 of Rs.8,000/- per month against committed rent of Rs.8400/- per month whereas OPs were under obligation to pay a rental w.e.f. September, 2008 @ Rs.8400/- per month as per their own commitment. The complainant sent a legal notice to the OPs through registered AD (Annexure C-12), postal receipts (Annexure C-13 to 16) and OPs replied the said legal notice (Annexure C-17). It is submitted that the OPs flatly refused on the query of paying the rental against the purchased flat. The OPs kept the complainant in dark that his flat is vacant and nobody is residing in the flat. As per the version of the person, who resides in the flat of the complainant that the flat has been rented out by the OPs and he is paying the security amount along with rent to the OPs (Annexure C-18). It is submitted that due to stressful relation between the complainant and the OPs and because of present litigation, it is not possible for the complainant to live in such a flat. Due to the act and conduct of the OPs in rejecting the claim of the complainant not to refund the price against the flat with due rental is gross deficiency in service and unfair trade practice. Hence, it is prayed that OPs be directed to refund the entire amount of Rs.19,81,786/- with rental from the date of full and final payment till the refund of the amount minus the rental for the period of January, February and March, 2009 which has already been paid by the OPs to the complainant. Further OPs be burdened with the processing fee of the bank i.e. Rs.9445/- and interest as paid to ICICI Bank and as accured till the date of actual refund to the complainant, compensation of Rs.2 lacs for mental agony and physical harassment and Rs.21,000/- as costs of litigation.

2.       Reply filed by the OPs in which they took preliminary objections that the complainant cannot invoke the territorial jurisdiction of this Commission as no cause of action has taken place in the jurisdiction of this Commission. It is further pleaded that the complainant has concealed the fact that vide communication dated 8.9.2008 sent by the OPs, possession was offered to the complainant and he was asked to inspect the premises so as to deliver the physical possession of the flat in question.  It is further pleaded that the complainant took the possession of the flat bearing No.504, Block B1, Hill View Apartments, Bhatoli Kalan, Baddi (HP) and he was accepted the description as well as he already seen the flat fitted with finishing and fixture items as agreed between the parties at the time of agreement of sell. The complainant was fully satisfied with the quality and quantity of the same. The OPs had no concern with the renting out the flat of the complainant and the complainant himself had been in touch with some other dealer so as to let out his flat.

          On merits, the OPs admitted the factual matrix of the case. It is denied that the OP made false and misleading promises. It is pleaded that the plea that the complainant invested his hard earned money to save his rent is his personal decision for which the OPs nothing to comment about it. It is pleaded that a tentative study of the vicinity shows that the rental value of the flats which the complainant possessing is still ranging between Rs.8,000/- to Rs.9,000/- despite being recession in the global market. The complainant raised loan from the bank is of no relevance for the answering OPs. Against the payment, a flat as agreed between the parties handed over to the complainant and there was no complaint about quality and quantity of the said flat. It is admitted that complainant had made full and final payment of the flat but denied that the OPs wrongly charged Rs.786/- in excess against the settled amount. The allegation about quality of construction and the material/fixtures is an afterthought to harass the OPs. It is admitted that legal notice issued to the OPs and the OPs strongly refuted the contents of the aforesaid legal notice. The legal notice was not based on facts and rat her was an attempt to distort the true picture. It is further pleaded that once the possession given to the complainant, he (complainant) is master of the flat and it is for him to decide to rent out or not to rent out and to whom rent out. Hence, it is submitted that there was no deficiency in service or unfair trade practice on their part. In fact the complainant harassed the OPs to file the frivolous complaint against the OPs and pleaded that this Commission has no territorial jurisdiction to entertain the complaint and is only the jurisdiction of the courts situated in Himachal Pradesh. Hence, it is prayed that the complaint may kindly be dismissed with exemplary costs.

3.          Sh.Parveen Singhal, complainant has filed an evidence by way of affidavit along with Annexures C-1 to C-18 whereas on behalf of OPs Sh.Anil Bansal, Director of Hillview Infrastructure Pvt. Ltd. has filed an evidence by way of affidavit along with Annexures O-1 and O-2.

 4.      We have heard the learned counsel for the parties and perused the record.

5.       It is an admitted fact that the complainant had taken the possession of the flat on 8.9.2008. The complainant had taken the possession of the apartment after making the inspection and fully satisfying himself. It is pertinent to mention here that the allegations made by the complainant for the quality of the construction of the material/fixtures are not supported with any corroborated evidence. From the photographs placed on record by the complainant it could not be make out that these photographs are of the same building as alleged by the complainant particularly when the OPs are denying this fact that all these photographs are not of the said building in which the possession of the apartment was given to the complainant. In rebuttal, the complainant has failed to convince this commission regarding the allegations made about the quality of the construction and material/fixtures. Moreover, the complainant while taking the possession of the said flat, himself has given an undertaking that “I/We have seen flat fitted with finishing and fixture items as agreed upon at the time of sale and satisfied with quality and quantity of the same.” in the possession letter dated 8.9.2008 which was duly signed by the complainant. Therefore, in the absence of any corroborated evidence, we do not find any merit in the allegations made by the complainant and the complaint filed by the complainant on this ground is liable to be dismissed.

6.       As regards to the other allegations made by the complainant that the OPs have made a promise to the complainant that after making full and final payment, the OPs will pay the rent for an amount of Rs.8400/- and to support his contention, the complainant had placed on record the e-mail sent by OPs Annexure C-2 and C-3 that the OPs will pay rental value for the premises after the full and final payment. From the perusal of Annexures C-2 and C-3 it is evident that the documents Annexures C-2 and C-3 does not relate to the complainant and therefore the complainant cannot drive any benefit against the OPs. Moreover, contents of Annexures C-2 and C-3 merely reflects that these were letters inviting offers from the interesting persons. The letter dated 24.7.2009 placed on record by the complainant Annexure C-18 written by Sh.Sunil Jain to Mr.Parveen Singhal in which he himself claims to be the tenant of the apartment, which was owned by the complainant is not furnished with an affidavit. Hence, in the absence of an affidavit, this document cannot be treated as evidence. The perusal of file shows that there is no agreement between the parties regarding the rental out of the said flat. Thus, in the absence of any agreement between the parties, we do not find any force in the contention made by the complainant.  Hence, this complaint is liable to be dismissed on this ground also.

7.       With the foregoing discussion, we have come to the conclusion that the complaint filed by the complainant is liable to be dismissed in toto. Therefore, we dismiss the complaint without any order as to costs.

8.          Copies of this order be sent to the parties, free of charge.

Pronounced.                                                                                      

22^nd February, 2011