DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                 Consumer Complaint No.13 of 2015

                                          Date of institution:  05.01.2015                                                   Date of decision:      24.10.2016

Anil Kumar Mittal son of Sh. Attar Sain, aged 66 years, resident of House No.1608, Sector-69, Mohali, District SAS Nagar(Mohali).

……..Complainant

Versus

M/s Janta Land Promoters Limited having its registered/corporate office at SCO 39-42, Sector-82, SAS Nagar (Mohali) through its Managing Director/Director/Company Secretary.

…..Opposite Party

Complaint under Sections 11 and

12 of Consumer Protection Act.

Quorum

                Shri Ajit Pal Singh Rajput, President

                Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present :           Complainant in person with counsel Shri H.S.Kang.                   Shri Gaurav Jindal, counsel for the OP.

ORDER

By Ajit Pal Singh Rajput, President

               Complainant, Anil Kumar Mittal son of Sh. Attar Sain,  resident of House No.1608, Sector-69, Mohali, District SAS Nagar(Mohali) has filed the present complaint against the Opposite Party (hereinafter referred to as the OP) under Sections 11 & 12 of the Consumer Protection Act. The brief facts of the complaint are as under:

 2            The complainant, after seeing a sample flat, booked a 4 BHK Corner apartment of 3007 Sq. feet facing green @ Rs.3725/- per Sq.feet in the project of the OP, namely; Falcon View Apartments in Sector 66-A, Mohali. The total value the said flat was Rs.1,22,63,332/- towards basic price and other charges. The complainant paid a sum of Rs.11,56,638/- to the OP, vide cheque No.593756 dated 22.09.2012, as booking amount of the said flat and also paid Rs.16,80,161/- on 19.12.2012 as demanded by the OP, vide its letter No.5526 dated 07.12.2012. After payment of the said amounts, the OP entered into an agreement with the complainant on 04.01.2013 and also issued allotment letter No.416-418 dated 16.01.2013. As per Clause 2.2 of the said allotment letter, the construction work was stated to have already been started and demand for 10.44% of Basic Sale Price amounting to Rs.11,68,607/- along with service tax was raised by the OP. Accordingly, the complainant paid Rs.12,04,720/- on 05.02.2013, vide cheque No.712910 dated 05.02.2013. As per the schedule of completion of construction work, given in the allotment letter, the first payment was due on completion of Basement Roof Slab of the tower, tentatively on 15.02.2013 but the OP did not complete the said slab till said date. Thereafter the OP revised the schedule of construction linked schedule of making payment and the same was intimated to the complainant vide letter dated 08.05.2013. The OP could not revise the schedule of construction unilaterally and without assigning any reason, without the consent of the complainant.  The OP completed the casting of basement roof slab after a delay of almost nine months. Faced with the actions of the OP and the reasonable apprehension, the complainant decided to get the refund of the amount paid and requested, vide letter dated 15.11.2013, for refund of the amount paid along with interest @ 12% p.a.  Consequent upon receipt of the said letter the OP, vide its letter dated 17.12.2013, intimated the complainant that an amount of Rs.14,30,030/- will be deducted from the amount of Rs.40,41,519/- and the balance amount of Rs.26,11,489/- will be refunded in installments. This act of the OP is totally against the principles of natural law as the OP cannot hold the complainant as defaulter for its own fault of not completing the construction work as per the time schedule.   Even as per the letter dated 17.12.2013 the amount of Rs.26,11,489/- was to be refunded till 19.02.2014 but the same was refunded on 20.03.2014, which is also a clear cut deficiency in service on the part of the OP.  The complainant so many times requested the OP to refund the balance amount of Rs.14,30,029/- along with interest but  it refused to accept the genuine request of the complainant. The act and conduct of the OPs amounts to deficiency in service and unfair trade practice. Hence, this complaint for giving directions to the OPs to refund the remaining amount of Rs.14,30,029/- along with interest; Rs.1 lakh as compensation for mental agony, harassment, distress suffered by the complainant and Rs.25,000/- as litigation charges.

3.            The complaint is contested by the OP by filing reply, in which it had raised certain preliminary objections, inter alia, that the complainant has suppressed the material facts from this Forum and the complaint is liable to be dismissed on this ground alone and the complainant is not a consumer as defined under the Consumer Protection Act. On merits, the OP stated that as per Clause 2.24 of the allotment letter, it was specifically stated that the construction of the residential apartment is likely to be completed within a period of 30 months from the date of issue of allotment letter subject to the force majeure and circumstances beyond the control of developers and that period shall not be counted towards the said period of 30 months.  It is further stated that during the construction it came to the knowledge of the OP that due to the presence of high Sub Soil water level, which did not dry despite continued dewatering of the soil and in order to do that a delay of 3 months was there, which is beyond the control of the OP.  The OP revised the schedule as per the terms and conditions of the allotment letter.  It is further stated that the complainant was not forced to cancel the allotment of the flat rather he himself asked for the refund of the amount. Accordingly, the OP refunded the amount of the complainant as per condition and 2.9 of the allotment letter and  the complainant has accepted the amount which was refunded to him by way of cheque, therefore, the complaint has become infructuous as no cause of action remains with the complainant. There is no deficiency in service on the part of the OP. After denying the other averments made in the complaint, it prayed for dismissal of the complaint.

4.             In order to prove his case the complainant tendered in evidence his affidavit Ex. CW1/1, copies of application form Ex. C-1, receipt dated 24.09.2012 Ex. C-2, receipt dated 19.12.2012 Ex.C-3, agreement dated 04.01.2013 Ex. C-4, allotment letter dated 16.01.2013 Ex. C-5, receipt dated 05.02.2013 Ex. C-6, letter dated 08.05.2013 Ex. C-7, letter dated 07.11.2013 Ex. C-8, request for refund dated 15.11.2013 Ex. C-9, letter dated 17.12.2013 Ex. C-10, letter dated 24.12.2013 Ex. C-11, letter dated 18.02.2014 Ex. C-12, letter dated 20.03.2014 Ex. C-13, legal notice dated 28.10.2014 Ex. C-14, reply to legal notice dated 17.11.2014 Ex. C-15 and closed the evidence. In rebuttal the OP tendered in evidence affidavit of Sh. H.B.Garg, General Manager Ex. OP1/1, copy of letter dated 17.11.2014 along with cheque of Rs.31,967/- Ex. OP-1 and closed the evidence.

5.             The learned counsel for the complainant stated that As per the schedule of completion of construction work, given in the allotment letter dated 16.01.2013 (Ex.C-5), the first payment was due on completion of Basement Roof Slab of the tower, tentatively on 15.02.2013 but the OP did not complete the said slab till the promised date. He submitted that OP revised the construction linked schedule of making payment and intimated the complainant vide letter dated 08.05.2013(Ex. C-7). The learned counsel pleaded that the OP could not revise the schedule of construction unilaterally and without assigning any reason and without the consent of the complainant. He further pleaded that it is established from the material placed on record that the OP completed the casting of basement roof slab after a delay of almost nine months. Learned counsel argued that the act of the OP was totally against the principles of natural law as the OP cannot hold the complainant as defaulter for its own fault of not completing the construction work as per the time schedule and thereby illegally deducted a sum of Rs.14,30,030/- as due to non completion of construction work by the OP, the complainant was compelled to surrender and seek refund due to the default on the part of the OP.

6.             On the other hand, the learned counsel for the OP has objected to the submissions made by the learned counsel for the complainant. He submitted that the OP refunded the amount of the complainant as per condition No. 2.9 of the allotment letter and the complainant had accepted the amount which was refunded to him by way of cheque. Learned counsel pleaded that the delay occurred due to force majeure and circumstances as the presence of high Sub Soil water level, which did not dry despite continued dewatering of the soil and in order to do that a delay of 3 months was there, which was beyond the control of the OP. He argued that the complaint has become infructuous as no cause of action remains with the complainant and no deficiency in service has been committed by OP.

7.             After hearing the learned counsel for the parties and going through the pleadings, evidence, written arguments as well as oral submissions, we are of the view that the delay has been admitted by the OP. It is established from the revised construction linked schedule of payment and intimation letter dated 08.05.2013(Ex.C-7) that no reason of delay has been mentioned in the said letter and the reason had only been pleaded before this Forum. It is also established from the material placed on record that the complainant had only opted for surrendering /cancellation of apartment due to the unexplained delay on the part of the OP. In case the circumstances were beyond the control of the OP, then it was the obligatory duty of the OP to intimate the reason for delay. It is well established that the OP breached the terms and conditions of the allotment first, thereby compelled the complainant to take a step for cancellation. In our opinion, due the negligent act of the OP the complainant was made to unnecessary go through mental as well as physical harassment.

8.             Accordingly, in view of our aforesaid discussion, we find that the OP had committed deficiency of service by not intimating the reasons of delay and change of the schedule due to which the complainant had to surrender/cancel the allotment. Hence we direct the OP to refund a sum of Rs.14,30,029/-  (Rs.Fourteen lacs thirty thousand twenty nine only) alongwith interest @ 12% per annum w.e.f. 17.12.2013 till actual payment.  We also find that the complainant is entitled to a sum of Rs.25,000/- (Rs.Twenty five thousand only) on account of mental agony caused due to negligent act of the OP and litigation cost of Rs.5,000/- (Rs.Five thousand only).   The present complaint allowed accordingly.            

                The OP is further directed to comply with the order of this Forum within 45 days from the date of receipt of this order.                     The arguments on the complaint were heard on 10.10.2016 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 25.10.2016    

                                              (A.P.S.Rajput)                                                  President

        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member