PRESENT: Sh.Shashi Shankar, Adv. for the Complainant.

           OP No.1 Ex-parte.

           Sh.Dinesh Chaudhary, Adv. for OP No.2

           Sh.Deepak Aggarwal, Adv. for OP No.3.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, allured by the various advertisements published by the OPs for the purchase of Flats at Kharar, the Complainant booked on Flat in January, 2006, by paying a sum of Rs.1,50,000/- vide DD No. 96515167, dated 4.1.2006 (Annexure-C), against which the OP No.2 issued Receipt bearing No.001, dated 5.1.2006 in favour of the Complainant (Annexure-D). Thereafter, on demand, the Complainant paid Rs.10,000/- vide Cheque bearing No. 325583 to OP No.1, who in turn issued receipt bearing No. 607, dated 9.1.2006 (Annexure-E). Another sum of Rs.1,000/- was also charged by OP No.1 and the same was paid by the Complainant vide Cheque bearing No. 325584. It was alleged that on the demand of OPs, he also paid a sum of Rs.2,00,000/-, but despite requests, no receipt thereof was issued by the OPs. Further, in pursuance to the demand letter dated 18.3.2006 of OP No. 1, the Complainant deposited a sum of Rs.1,50,000/- vide DD No. 302915, against which OP No. 2 issued receipt bearing No.070, dated 11.4.2006 (Annexure-H). Thereafter, an Apartment Buyers Agreement dated 30.3.2006  (Annexure-I) was also executed and the Complainant was allotted Apartment No. 3 on 2^nd Floor, measuring 25.6’ x 47.3’ and 25.5’ x 47.6’ i.e. total covered area 1258 sq.ft. for a total consideration of Rs.10,50,000/-, payable as per the Schedule of payment annexed with the agreement, which was a construction linked plan. It was averred that the possession was assured to be given within a period of 1 ½ to 2 years from the date of 1^st installment paid to the OPs. It was alleged that on visiting the site of construction, the Complainant found that no construction was there and there was no chance of completion of the construction as per the assurance given by the OPs. In the meantime, OP No. 2 demanded Rs.1,50,000/- vide letter dated 17.5.2006 (Annexure-J). As the OPs failed to adhere to the construction schedule, the Complainant registered his protest for not complying the construction plan as per their assurance, but the OPs pressurized him to deposit the 3^rd installment else he would be liable to pay interest @24% p.a. Ultimately, the Complainant deposited a sum of Rs.1,50,000/- vide DD No. 96517069, dated 21.6.2006 with the OP No. 2. After some, he noticed that there was absolutely no construction at the site of allotted apartment and the same caused immense mental tension, pain and agony to him and, therefore, he visited the office of the OPs and registered his protest, but the same did not fetch any result and the construction was not progressing as per the Schedule. However, the OP No. 2 vide letter dated 11.4.2007, demanded Rs.1,50,000/- towards 5^th installment. Against the above said demand, the Complainant wrote another letter dated 21.4.2007, demanding status of the construction, copy of site plan, along with sanctioned plan, license allowing OP No. 2 to construct & develop the Site, copy of receipt of the amount paid to the Punjab Town Planning Department towards the fee deposited by the OPs for the development of the site, but when the OPs failed to reply, the Complainant went to the office of the OPs and learnt that one of the Directors of the OP was stated to be absconding and the construction was not progressing in any manner. There was no development or even demarcation of the essential services like septic tanks, sewage, boundary walls, roads, street light etc.  The above said conduct of the OPs left the Complainant in a very traumatic situation since he had deposited a huge amount of money to the tune of Rs.6,61,000/- and even after lapse of more than two years, no possession was given to the Complainant and all his future plans shattered. Hence, this complaint, alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. In the end, the Complainant has prayed for the following reliefs:-

i)  Pass an order thereby directing the OPs to hand over the peaceful and vacant possession of the allotted apartment to the Complainant.

ii) Direct the OPs to pay a sum of Rs.5,00,000/- as compensation for causing mental tension, pain and agony to the Complainant during all these days due to the misconduct and deficiency in service on the part of the OPs.

 iii)  Restrain the OPs not to create any third party interest in the allotted apartment, in any manner, whatsoever.

iv) Direct the OPs to pay a sum of Rs.1,00,000/- for the loss suffered by the Complainant for the delay in handing over the possession.

v)  Direct the OPs to issue receipts for a sum of Rs.2,00,000/- as paid by the Complainant.

vi) Direct the OPs to pay the litigation expenses to the tune of Rs.50,000/- in favour of the Complainant and against the OPs.

vii) Any other/further relief which this Hon’ble Court deems fit and proper under the facts and circumstances be also granted in favour of the Complainant and against the OPs.

2]      Notice of the complaint was sent to OPs seeking their version of the case. OP No.1 did not turn up despite due service of notice by way of publication in the newspaper “Desh Sewak”, therefore, it was proceeded against exparte. 

3]      OP No. 2 in its written statement (OP No.1 being exparte), while admitting the factual matrix of the case, pleaded that an agreement dated 30.3.2006 was executed between the Complainant and the OP No.1. It was admitted that the OP No. 2 was engaged in the business of construction of flats. It was asserted that the OPs never demanded a sum of Rs.2.00 lacs and the Complainant never paid Rs.2.00 lacs to the OPs, as alleged. Furthermore, as per the Schedule of Payment, no payment of Rs.2.00 lacs was to be paid by the Complainant to the OPs. The OPs had issued all receipt in respect of all the payments made by the Complainant. It was pleaded that OPs never assured to hand over the possession of the Apartment in question within a period of 1 and 1½ years from the date of first installment, as alleged. Due to non-payment of installments by the allottees, including the Complainant, the construction work was stopped for some time. The Complainant never visited the office of OP No. 1 & 2, as alleged. The construction work of all the flats had since been handed over to Smt.Satinder Kaur with the consent of all the allottees and as such, Memorandum of Understanding dated 07.04.2008 was executed. The construction was progressing as per the schedule and the construction work of flats was completed upto three storeys. The Complainant was liable to pay another two due installments of Rs.1.5 lacs each,  but he did not pay the same in time. All other material contentions of the Complainants were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with exemplary costs.

4]      OP No.3 in her written statement, while admitting the factual matrix of the case/reply, pleaded that there was no privity of contract between the Complainant and OP No.3 and the same was between the Complainant and OPs No. 1 & 2; no consideration has been directly paid to the OP No.3 by the Complainant, but it was made to OPs No.1 & 2. As per the Apartment Buyers Agreement, all the payments were to be made by the Complainant through cheque/draft favouring M/s Mehta Build Con. Pvt. Ltd. against proper receipt. It was admitted that the agreement was a construction linked plan and the possession would be handed over to the Complainant after full payment subject to stage of construction. It was pleaded that the Complainant was a willful and habitual defaulter and had not deposited installments regularly in the payment plan linked with construction. Despite the same, OP No. 3 along with other allottees got the flat of the Complainant constructed by raising various loans and liquidated amounts. All other material contentions of the Complainants were controverted. Pleading that there was no deficiency in service on her part, a prayer has been made for dismissal of the complaint with exemplary costs.

5]      Parties led evidence in support of their contentions.

6]      We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs. We also heard the arguments put forth by the learned counsel for the Complainant and OPs No.2 & 3 (OP No.1 being ex-parte). As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]  The basic facts of the case in respect of the Complainant having booked a flat with the OPs by paying a sum of Rs.1.50 lacs on 4.1.2006 and thereafter, paying another sum of Rs.10,000/- on 9.1.2006 and that the possession of the flat has not been delivered to the Complainant till date, have all been admitted. It is also a fact that the Complainant further made payments to the OPs to the tune of Rs.1.50 lacs on 11.4.2006 and Rs.1.50 lacs on 21.6.2006 and also Rs.1,000/- earlier. Thus, a total of Rs.4,61,000/- have been paid by the Complainant to the OPs for obtaining possession of the flat. The Complainant further claims that on demand of the OPs, he had also paid another sum of Rs.2.00 lacs, after 18.3.2006, but despite requests, no receipt thereof was issued by the OPs. Therefore, he claims to have paid a sum of Rs.6,61,000/- to the OPs and saying that even after a lapse of more than 02 years, no possession of the flat was given to the Complainant, nor the requisite information in respect of the progress of construction, copy of the site plan, as well as sanctioned plan, license allowing the OP No. 2 to construct and develop the site and also the amounts deposited with the Punjab Town Planning Department etc. were supplied to him. On these grounds, the Complainant has alleged deficiency in service and unfair trade practice on the part of the OPs.

ii] All the allegations made by the Complainant against the OPs have been flatly denied by OPs No. 2 & 3 (OP No. 1 ex-parte), saying that an agreement dated 30.3.2006, was executed between the Complainant and OP No. 1. It is also admitted that OP No. 2 was engaged in the business of construction of flats. OPs have denied having ever demanded a sum of Rs.2.00 lacs and therefore, there was no question of the Complainant paying that amount to them. At the same time, there is no document on record showing that the OPs had ever demanded the amount of Rs.2.00 lacs from the Complainant or that he had paid this amount against any valid receipt issued by the OPs. Therefore, the allegation of the Complainant that he had paid a sum of Rs.2.00 lacs to the OPs sometime in March, 2006, is without basis substance and, therefore, untenable.

iii] So far as the allegation of the Complainant against the OPs that they have not given the possession of the flat to him, even after the lapse of more than 02 years, is concerned, the OPs in support of their case have enclosed the copy of the Apartment Buyer(s) Agreement (Annexure-I) signed by the Complainant, as well as OP No. 1. Page 6 of the said Agreement contains Schedule ‘A’, giving the complete installment plan. The same is reproduced hereinbelow: -

SCHEDULE “A”

INSTALMENT PLAN

iv]    The above Schedule clearly shows that before taking possession, the Complainant was required to make the full payment of Rs.10,50,000/-, apart from the booking amount of Rs.10,000/ (total Rs.10,60,000/-). Clause 5 of the Buyer(s) Agreement at page 2 clearly states that the Seller shall give possession of the apartment to the Buyer only after full payment is made by him/her, subject to the stage of construction, as already agreed and informed. The relevant clause is quoted below:-

“5. That the Seller shall give the possession of apartment to buyer after full payment is made by him/her subject to the stage of construction as already agreed and informed. The possession will be given with all facilities e.g. WS, Sewerage, internal writing of Cable, Telephone and Electricity full functional and Septic tank and water supply i.e. submersible pumps and water reservoir of 500 Ltrs. for each Apartment. The Seller immediately on receipt of full payment from the buyer shall get the apartment registered in his/her name from the competent registration authority i.e. Sub-Registrar of assurance, Kharar and al charges shall be borne by the Buyer.”

v] By reading together Clause 5, as well as Schedule “A” of the Buyer(s) Agreement, it is quite clear that there was no question of giving possession of the flat to the Complainant unless he had cleared all the outstanding dues to the OPs. In any case, if after making full payment for the flat, the OPs had refused to give the possession to the Complainant, only then the question of any deficiency of service or unfair trade practice on their part would have arisen. That is not so in the present case.

vi] Both OPs No. 2 & 3 have stated that the construction of flats has already been completed and a large number of allottees have obtained the possession after making full payment of the dues. Contrary to the allegations of the Complainant that no construction has taken place at the site of the flats, the OPs state that the work of flats was completed upto three storeys. In support of their contention, the OPs have placed on record a coloured photograph, showing that three storeys of the flats have already been built-up. It has been further admitted by OPs No. 2 & 3 that a Deed of Mutual Settlement was executed (Annexure R-2) on 7.4.2008, between J.S. Dwellers Pvt. Ltd. (OP No.1), M/s Mehta Buildcon Pvt. Ltd. (OP No.2) – both as 1^st Party and Smt. Satinder Kaur (OP No. 3) – the 2^nd Party, through which the 1^st Party relinquished their right to the property situated at Kharar, as per details mentioned in the Deed. After the execution of this Deed, the entire responsibility for the construction of the flats and for further developing, charges, taxes, etc. had fallen upon Smt. Satinder Kaur (OP No.3), but the Complainant has never approached either OP No. 2 or OP No.3 for taking possession of the flat after making full payment to the OPs. He has also not made payment of the remaining amounts due towards him and, therefore, as per the OPs, he is not entitled to have the possession of the flat, as he continues to be a defaulter, having made only the partial payment of Rs.4,61,000/- against Rs.10,60,000/-. As a matter of fact, the OPs are even now quite willing and ready to offer possession of the flat to the Complainant, provided he cleared all outstanding dues, overdue interest and penalties, as per Rules and Bylaws of the Society. But the Complainant is not willing to accept such an offer.

7]      Keeping in view the detailed analysis of the entire case, in our considered opinion, the Complainant has no case at all. His complaint is totally baseless, devoid of any merit and substance, as he himself has not been able to establish his case and has been a constant defaulter in making payment to the OPs. Moreover, he has got no right to seek possession of the flat, without making full payment for the same, as per the Apartment Buyer(s) Agreement and the Society is not duty bound or liable to handover the possession to him in such circumstances.

8]      In view of above, the present complaint deserves rejection. We, therefore, dismiss the same. However, the respective parties shall bear their own costs.

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