DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

                   Complaint Case No.:1392 of 2009

 Date of Inst:16.10.2009

                              Date of Decision:18.03.2010

1.      Neelam w/o Sh.Ajay Kumar r/o H.No.124, Sector 42-A, Chandigarh (UT).

2.      Ajay Kumar s/o Sh.Bahadur Singh r/o H.No.124, Sector 42-A, Chandigarh (UT).

                                                          ---Complainants

V E R S U S

1.      M/s Hillview Infrastructure Pvt. Ltd., through its authorized Signatory,

Regd. Office: 2048, Sector 15-C, Chandigarh.

          Branch Office: SCO 2474, Sector 22-C, Chandigarh.

2.      Sh.Lalit Jindal, Director, Hillview Infrastructure Pvt. Ltd., Regd. Office: 2048, Sector 15-C, Chandigarh.

3.      Sh.Ruchit Mahajan, Director, Hillview Infrastructure Pvt. Ltd., Regd. Office: 2048, Sector 15-C, Chandigarh.

4.      Sh.Anil Bansal, Director, Hillview Infrastructure Pvt. Ltd., Regd. Office: 2048, Sector 15-C, Chandigarh.

---Opposite Parties

QUORUM         

                        SHRI LAKSHMAN SHARMA        PRESIDENT

                        SHRI ASHOK RAJ BHANDARI     MEMBER                          SMT.MADHU MUTNEJA             MEMBER

PRESENT:           Sh.Ajay Kumar, one of the Complainants

Sh.Raghav Gupta, Adv. for OPs.

                                                          ---

PER LAKSHMAN SHARMA, PRESIDENT

                   Smt.Neelam and Sh.Ajay Kumar have filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed  to :-

i)                   To refund Rs.4,95,365/- with interest @ 18% p.a. from the date of payments.

ii)                 To pay a sum of Rs.10,000/- as litigation expenses.

iii)              To pay a sum of Rs.1 lac as compensation for mental agony and harassment etc.

2.                In brief, the case of the complainants is that on 19.09.2007 they booked a one room flat in Ashray Studio Apartments, Baddi, H.P.   with OPs at the total cost of Rs.5,42,660/-.  According to the complainants, they have paid Rs.1,10,000/ in cash and Rs.4 lacs by raising loan from HDFC Bank, Chandigarh to OPs. The remaining amount of Rs.26,883/- was to be deposited at the time of taking the possession of the flat.  It has further been pleaded that they inadvertently deposited lump sum amount of Rs.5,10,000/- instead of Rs.4,95,365/-.  Therefore, a sum of Rs.14,635/-was returned by OPs.   Thereafter, the complainant was issued allotment letter dated 19.09.2007 (Annexure C-7).  As per the clause (ii) of the sale agreement dated 04.10.2007 (Annexure C-5), the possession of the flat was to be delivered within 18 months from the date of allotment letter i.e. on 19.03.2009.   According to the complainants, no construction activity is going on the site. OPs vide their letter dated 18.03.2009 (Annexure C-7) extended the period of delivery of possession upto the end of September 2009.  It has further been pleaded that the construction has not been completed so far. Therefore, the complainants vide letter dated 23.07.09 requested OPs for cancellation of the flat and to refund of the amount along with interest @ 18% p.a. but OPs have failed to do so. According to the complainants, it amounts to deficiency in service.  In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.                In the reply filed by OPs, it has been admitted that the complainant had booked a one room flat in Ashray Studio Apartments, Baddi, H.P.   with OPs. It has further been admitted that the complainant had paid Rs.4,95,365/- towards the cost of the flat. It has been pleaded that the construction of the flat has been delayed due to some unforeseen circumstances.  According to OPs, there is some litigation pending before the Civil Court at Nalagarh, due to which the construction of the flats could not be raised.   In order to compensate the EMI loss, the complainants were paid Rs.3000/- per month for the months of March to August (6 months) which were accepted by the complainant without any protest. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal.

4.                We have heard the complainant in person and learned counsel for the OPs and have gone through the entire record including documents, Annexures, affidavits etc. 

5.                Admittedly, the complainant has paid the total cost of the flat except a sum of Rs.26,883/- which was to be paid at the time of delivery of the possession of the flat. As per the clause (ii) of the sale agreement dated 04.10.2007, the possession of the apartment was to be handed over to the complainant within 18 months (tentative) of the allotment letter i.e. on or before 19.03.2009.  Despite it, the possession of the flat has not been delivered to him so far. The OPs have further failed to deliver the possession of the flat even in the month of September, 2009, as promised by them in their letter (Annexure C-7). According to the complainant, he has paid the amount of the flat after raising loan from HDFC Bank and is paying interest on the said amount. In these circumstances, he can not be forced to wait for an unlimited period for taking physical possession of the flat in dispute. According to the complainant, non-delivery of physical possession after expiry of the date i.e. 19.03.2009 on the part of OPs amounts to deficiency in service and unfair trade practice.

6.                Admittedly, the construction of the flat has not been completed and possession of the flat has not been delivered to the complainant so far. Complainant has raised loan for making the payment of the flat. The complainant cannot be forced to wait for the delivery of possession for an unlimited period. So, there is deficiency in service and unfair trade practice on the part of OPs.

7.                In view of the above findings, this complaint is allowed with a direction to OPs to refund  a sum of Rs.4,95,365/-  with interest @ 9% p.a. from the respective dates of its deposits till its realization. The OPs are also directed to pay Rs.5000/- as costs of litigation. 

8.                This order be complied with by OPs within 45 days from the date of receipt of its certified copy, failing which OPs shall be liable to refund the Rs.4,95,365/- to the complainant along with penal interest @ 18% p.a. from the dates of respective deposits till its realization, besides costs of litigation.

9.                Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

18.03.2010

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

cm

sd/-

(ASHOK RAJ BHANDARI)

MEMBER

Sd/-

(MADHU MUTNEJA)

MEMBER