Haryana

Panchkula

CC/126/2015

TUSHAR KALIA. - Complainant(s)

Versus

M/S N.H. MATCON . - Opp.Party(s)

SUMIT NARANG.

21 Mar 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PANCHKULA.

                                                                  

Consumer Complaint No	:	126 of 2015
Date of Institution	:	09.07.2015
Date of Decision	:	21.03.2016

 

1.Tushar Kalia s/o Dr.Yash Paul Sharma R/o H.No.343, Sector-2, Panchkula

2.Dr.Yash Paul Sharma s/o Sh.Dina Nath Sharma, R/o H.No.343, Sector-2, Panchkula.

                                                                                        ….Complainants

Versus

 

1.       M/s N.H.Matcon through its’s Managing Partner/Principal Officer, having its Corporate Office at-SCO-3, Level One, Royale Estate, Chandigarh-Ambala Highway, Zirakpur, Distt. Mohali.

2.       Mr.Nitin Bansal S/o Sh.M.L.Bansal, Managing Partner, M/s N.H.Matcon, R/o H.No.1704, Sector-21, Panchkula, Haryana.

3.       ICICI Bank Ltd. through it’s Manager, SCO No.129-130, Sector 9-C, Chandigarh.

                                                                        ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor, Member.

              Mr.S.P.Attri, Member.

 

For the Parties:     Mr.Sumit Narang, Adv., for the complainants. 

                             Mr.Inderjit Singh, Adv., for the Ops No.1 and 2.

                             Op No.3 exparte.

 

ORDER

(Dharam Pal, Presi­dent)

 

1.                          The complainants have filed the present complaint against the Ops with the averments that they booked a flat having super area of 1760 Sq. ft. vide application  dated 29.01.2011 (Annexure C-1) for an amount of Rs.35,46,000/- besides Rs.60,000/- membership charges to be paid on the club becoming functional in the Group Housing Residential Society launched by OPs No.1 & 2 by the name of “AERO HOMES”, at Gazipur, Zirakhpur (Mohali), Punjab. He paid Rs.1 lac as booking amount on 29.01.2011 in favour of OP No.1 by way of cheque No.538071 dated 29.01.2011 vide receipt No.15. Thereafter, the complainants further paid an amount of Rs.2,54,600/-  to the Ops No.1 & 2 vide receipt No.41 dated 25.02.2011. Since the complainant had made Rs.3,54,600/- i.e. 10 % therefore as per promise/undertakings of Ops No.1 & 2 they became eligible for availing the bank loan facility. The Ops No.1 & 2 allotted a flat No.404 at 4^th Floor Tower-A in the project Aero Homes at Gazipur, Zirakhpur under pre launch scheme and intimated to complainants vide letter dated 28.02.2011.  On 06.04.2011 the Ops No.1 & 2 demanded Rs.5,31,900/- as second installment of 15 % of the amount despite the fact that they had to arrange bank loan for the complainant after payment of 10 % amount. However, in order to avoid any default the complainants made the payment of Rs.8,28,027/- to the Ops No.1 & 2 through cheque No.796925 dated 21.03.2012 which was duly acknowledged vide receipt No.565 dated 22.03.2012. The complainants wrote many letters to the Ops No.1 & 2 for securing bank loan but they did not pay any heed to the requests of the complainant.  The Ops No.1 & 2 further failed to inform the status of the construction to the complainant being linked payment plan.  The Ops No.1 & 2 issued allotment letter on 21.04.2012 (Annexure C-9) alongwith schedule of payment to the complainant which was governed by the provisions of Greater Mohali Area Development Authority (GMADA) & MC Zirakhpur.  According to Clause 8 of the allotment letter physical possession of the flat was to be delivered by 30.06.2013 and vide Clause 16 it was agreed that in the event of delay in handing over the physical possession of the apartment by Ops No.1 & 2 then they would compensate the complainant with interest @ Rs.5 /- per Sq. ft. per month for the period of delay. Thereafter the complainant again made payments of Rs.2,72,914/- vide cheque No.796928, Rs.5,55,023/- vide cheque No.604875 and Rs.2,65,950/- vide cheque No.604875 duly acknowledged by Ops No.1 & 2 vide receipts No.922 dated 09.08.2012, No.1164 dated 17.11.2012 and No.1518 dated 28.03.2013.  The complainant had purchased the said flat on the assurance that the Ops No.1 & 2 would provide the bank loan facility but nothing constructive was done.  The Ops no.1 & 2 did not inform the status of the construction despite the fact that he had opted for a construction linked payment plan.  The Ops No.1 & 2 kept the complainants in dark regarding various permission and compliance availed for the purpose of its residential project. Vide legal notice dated 07.05.2013 the Ops No.1 & 2 threatened the complainants to deposit balance amount besides service tax of Rs.1,14,330/- failing which the payments made by him would stand forfeited and allotment would be cancelled.  Since the booking and payment for the flat was made conditional to securing/providing of bank loan facility but despite that the Ops No.1 & 2 have illegally and unfair demand.  The complainant was always kept in dark regarding stage/status of construction. After many requests the Ops No.1 & 2 granted NOC/Sanction/Permission in order to avail loan facilities from ICICI Bank Ltd. (OP No.3) vide letter dated 21.08.2013. Op No.3 sanctioned home loan amount to Rs.7,92,832/- in favour of the complainants and it also made said to the Ops No.1 & 2 towards the flat vide instrument No.112060 dated 22.08.2013 from the said loan amount.  The complainant had already made about 86 % of the basic price of Rs.35,46,000/- well before the time and rest of the amount was payable at subsequent stages and at the time of offer of possession.   The Ops No.1 & 2 sent a letter of intimation of possession to the complainant dated 30.11.2014 and demanded Rs.12,60,177.40/- for taking of possession. The complainants inquired from the Ops about the requisite permissions, layout plans, availability of water and electricity connections, completion & occupation certificates, environment clearance etc but he came to know that they have not obtained environmental clearance before starting any construction activity.  They got served a legal notice upon the Ops No.1 & 2 and demanded interest on the amount paid which was illegally held by them on the pretext of installments for the project. The complainants felt astonished when he came to know through information received under RTI that GMADA and Punjab Pollution Control Board have not issued any licence as well as NOC to M/s N.H.Matcon Pvit. Limited for establishing any colony and in the name of AERO HOMES at village Gazipur.  The Ops No.1 & 2 have made false representation to the complainant that all the permissions/approvals/ sanctions for construction of the building has already been obtained. On coming to know the true and actual status of legal permissions they wrote a letter dated 23.05.2015 to Ops No.1 & 2 for unfair trade practice and deficiency in service. The Ops have failed to offer the possession within stipulated period and there is a delay of about 17 months calculated till 3.11.2014 i.e. when paper possession was offered, therefore, the Ops No.1 & 2 are bound to pay the interest/ penalty in accordance with Clause No.4 (a)  (ii).  It is further averred that the actual price of the said flat was lower than the basic value of the flat allotted to the complainant as shown in pre-launch scheme. Now the Ops No.1 & 2 are trying to give possession of the flat to the complainant without completing the construction activity and obtaining necessary approvals/licences from the competent authorities. Without occupation certificate approval of the layout plan/ building plans from the competent authorities the building is technically unfit for occupation.  The Ops No.1 & 2 have also not provided the permanent electricity & water supply and sewerage connection to the flat of the complainant.  The possession offered by the Ops No.1 & 2 vide letter dated 30.11.2014 is fake and symbolic and is a simply paper possession and the same has been made in order to avoid the penalty/interest for delayed possession.  The complainant had availed the expert services whereby the expert has certified that the flat is not ready for possession as the construction work is not complete.  As per agreement to sell/Buyer’s agreement the possession was to be offered by 30.06.2013 by providing all the facilities as per agreement but the same has not been offered within stipulated period, therefore, the Ops are deficient in providing service  and they are also found guilty for unfair trade practice.  The complainants in evidence have tendered affidavit  and documents Annexure CA, Annexure C1 to Annexure C30.

2.                          The Ops No.1 and 2 appeared before this Forum and filed joint written statement by taking some preliminary objections and submitted that this Forum has no jurisdiction to try the present complaint as the  alleged property is situated within the revenue estate of Zirakhpur. The present dispute is with M/s N.H.Metcon which is a partnership firm and is a legal entity having no capacity to sue and to be sued. The complainants have not come with clean hands and have suppressed the material facts from this Forum as they themselves have committed wrongs/lapses because he did not make the payment as per schedule and even he failed to take the possession despite offer of possession letter dated 30.11.2014.  The present dispute requires voluminous evidence and it cannot be decided in summarily manner.  The present complaint is even not maintainable as per arbitration clause in agreement. The apartment No.404, 4^th floor Tower A in Aero homes was/is ready for the possession in every aspect but the complainants for the reasons best known to them did not take possession. In tower-A construction of 48 flats have completed and more than 25 purchasers have already taken the physical possession. The Ops No.1 & 2 have never assured for securing the bank loan facility to the complainants because they are merely a developer and have not any financial institute.  The obligation of the developer/builder is only to provide the required documents i.e. agreement and allotment letter which have already been provided to the complainants.  The complainants had paid Rs.3069346/- in piecemeal to the Ops No.1 & 2 and even the payment has not been made as per schedule. He is in default of Rs.1350009/- with interest and penalties as on 30.11.2014 and further interest and holding charges are also accruing day by day owing to further delay in taking possession. The Ops No.1 & 2 have never received any letter dated 23.04.2011. As per agreement (Clause 4) the possession of the flat was to be handedover to the complainant by 30.06.2016  provided that all amounts due and payable by the purchaser (s) under the agreement have been paid and possession was to be delivered to the complainant subject to FORCE MAJEURE circumstances beyond the control of developer.  The Ops No.1 & 2 are not liable to make any compensation as Clause 4 is not applicable in this case. The clause 4 (a) (i) and 4 (a) (ii) are not applicable in view of the facts:

* There was no timely payment made by the complainant as per agreement so complainant cannot be allowed to invoke the clause of the agreement.

*  There was FORCE MAJEURE circumstances beyond the control of developer i.e. due to some ban been put by High Courts/ State Governments over sand mining and operation of kilns, there was scarcity of sand, gravel and bricks in the market in the year 2012-2013.

 

The demand of amount on account of external electrification, electricity, water and sewer charges are right and justified as per terms of the agreement.  The area of Aero Homes is located at village Gazipur, Zirakhpur therefore, there is no involvement of GAMADA Mohali.  Other allegations made in the complaint by the complainants have been controverted. The Ops No.1 & 2 have submitted that there is no deficiency in service on their part and prayer for dismissal of the complaint has been made. In evidence the Ops have tendered affidavits and documents Annexure R1/A, Annexure R1/1 to Annexure R1/12.

3.                          Op No.3 did not appear before this Forum despite notice through registered post, therefore, it was proceeded against exparte 21.08.2015.   

4.                          Rejoinder to the written statement of Ops No.1 & 2 has been filed by the counsel for the complainant vide which the version/replies filed by Ops No.1 & 2 were denied as incorrect and reiterated the version given in the complaint.

5.                          We have heard the counsel for the parties and have gone through the evidence, documents and written arguments submitted by learned counsel for the complainants carefully.

6.                          It is admitted case of the parties that the complainant had purchased flat No. 404 measuring 1760 sq. ft. from the opposite parties    No. 1 and 2 in AERO HOMES situated at Zirakpur for an amount of Rs. 35,46,000/-. An amount of Rs. 1 lac was paid on 29.01.2011 when the flat was purchased vide receipt Annexure C-2. The allotment letter has been placed on the case file as Annexure C-9.

7.                          It is also admitted case of the parties that the said flat was mortgaged vide tripartite agreement dated 30.04.2013 between the complainant and the opposite parties as per permission to mortgage given by opposite parties No. 1 & 2 to the complainant, which is Annexure R13/1 on the case file.

8.                          There is also no dispute that opposite parties No. 1 & 2 received 86% of the price of the flat from the complainant as well as from O.P. No. 3 on behalf of the complainant and only 14% of the price of the flat was yet to be paid by the complainant to opposite parties No. 1 & 2.

9.                          The version of the complainant is that he purchased the flat from opposite parties No. 1 & 2 on 29.01.2011 and the possession of the same was to be delivered by 30.06.2013. The complainant is paying the Pre-EMI interest only on the assurance of opposite parties No. 1 & 2 regarding the period of delivery of possession of the flat but the possession of the same is not delivered till the filing of the complaint.

10.                        We have perused the allotment letter and as per Clause 8 of the allotment letter the physical possession of the flat was to be handed over upto 30.06.2013 subject to FORCE MAJEURE clause. The version of opposite parties No. 1 & 2 is that there was no deficiency or fault on the part of opposite parties No. 1 and 2 for non delivery of the possession and they are not liable to pay any compensation due to delay in delivery of possession because on receipt of the registered notice from the complainant, opposite parties No. Consumer Complaint No. 51 of 2011 91 & 2 vide letter dated 30.11.2014 (Annexure C-19) offered the possession to the complainants subject to the payment of remaining outstanding dues but the complainant has not paid the remaining dues and has also not come forward to take the possession of the flat.

11.                        The Ops No.1 & 2 have taken the plea that this Forum has no pecuniary or territorial jurisdiction to decide and entertain the present complaint. The plea taken by the Ops No.1 & 2 is devoid of merit as the relief claimed by the complainant is less than the pecuniary limit of this Forum.  Moreover the OP No.2 (Nitin Bansal ) is residing at Panchkula,  which is evident from Affidavit of OP No.2 Annexure R1-A, therefore, this Forum has pecuniary as well as territorial jurisdiction to entertain and decide the present complaint.  

12.                        The another plea taken by the counsel for the Ops No.1 & 2 that the matter should have been referred to the Arbitrator for redressal has not enough force to satisfy this Forum. The Ops No.1 & 2 cannot take the shelter of this by saying that the matter should have been sent to the arbitrator for redressal. On this point reliance can be taken from case laws titled as  Bhairathan Vs. HCL Infosystems Limited and others  2007 (1) CPJ 319  and National Seeds Corporation Limited Vs. PV Krishna Reddy, 2009 (1) CPJ 99 wherein Hon’ble National Commission has held that Section 8-Additional  remedy- Arbitrator Clause-Existence of Arbitration Clause in agreement is no bar to the entertainment of complaint by the Consumer Forum, which is an additional remedy under CP Act.

13.                        The complainant in para No.2 (xx) of his complaint has specifically mentioned that when he questioned the Ops No.1 & 2 regarding how could they offer possession without completing the construction activity and obtaining mandatory approvals, they threatened to cancel the allotment of the complainant. In their reply the Ops No.1 & 2 have submitted that for completion certificate entire plans and other relevant documents have been submitted with the concerned authorities and the approval is in progress  which shall be issued by the Government Authorities very soon after completion of legal formalities as adopting due process of law.  In para 2 (xix) of the reply the Ops No.1 & 2 have mentioned that the complainant was not explained/shown each and every minute details but copy of every permission/approval such as layout plan, proof of availability of water and electricity connection, environment clearance, local body municipal corporation permission etc. were given to the complainant. They admitted that a criminal case under Section 15/16 of Environment Protection Act, 1986 for violations of provisions of EIA notification order dated 14.09.2006 is pending against Ops No.1 & 2 in the court of Sub Divisional Judicial Magistrate, Derrabassi. It has been further mentioned that the Ops are having all environment clearance documents but they failed to produce the same on the record to authenticate the version taken by them. In para 2 (xxi) of the complaint it has been mentioned that he sought information under Right to Information Act from Greater Mohali Area Development Authority (GMADA), SAS Nagar vide application dated 24.03.2015 and from Punjab Pollution Control Board vide letter dated 24.03.2015. The reply received from the above said authorities were annexed by the complainant as Annexure C23 and Annexure C24.   On perusal of above said documents it reveals that the Ops No.1 & 2 have not obtained the permission before launching the above said project, it was  therefore, an unfair trade  practice on the part of Ops to have collected the amount from the complainant before obtaining all the necessary permission from the concerned authorities permitting it to raise constructions.  It is also an unfair trade practice in misleading the complainant on having taken the necessary permission when they had not taken till then.   The Hon’ble National Commission in case titled as Kamal Sood  Vs. DLF Universal Limited, III (2007) CPJ 7 (NC)  has held as follows:

20.In our view, before obtaining statutory clearances, such as, sanction for construction and approval of Site plan and other relevant documents, if the builder issues tempting advertisement or promises to deliver the possession of the constructed flat within 2 to 3 years, then the fault lies with the builder.

14.              We have perused the letter Annexure C-19 vide which the possession of the flat, which was purchased by the complainant from opposite parties No. 1 & 2 was offered. Relevant para of the same is reproduced:-

"To Tushar Kalia s/o Dr.Yash Paul Sharam & Dr.Yash Paul Sharma s/o Sh.Dina Nath Sharma Sub: Offer of Possession of Flat at “Aero Homes Vill.Gazipur, Zirakpur, Punjab Sir/Madam, We are pleased to inform you that the above said unit is complete and is ready for offer of possession hence your goodself is requested to Kindly settle your accounts at the earliest and takeover possession of your flat within 15 days of dispatch of the instant letter, failing which you shall be liable to pay the penal interest and penalties as per builder buyers agreement”.

15.                        Consumer Complaint No. 51 of 2011 10  The Opposite parties No. 1 & 2 have nowhere mentioned in the reply of the complaint as well as in the letter vide which the possession is offered that opposite parties No. 1 & 2 have completed the flat with basic amenities which are needed daily to reside i.e. electricity, sewerage, roads etc. It is also not the version of opposite parties No. 1 & 2 that they have received the occupation and completion certificate from the competent authorities.

16.                        It is mandatory on the part of opposite parties No. 1 & 2 to obtain completion certificate from the competent authority that all the development works have been completed. But in the present case, opposite parties No. 1 & 2 have not even pleaded that they have applied to the competent authority to obtain the completion certificate neither in reply of the complaint nor in the possession offer letter.

17.                        The opposite parties No. 1 & 2 have also not obtained the completion certificate from the Municipal Council, Zirakpur for the colony of opposite parties No. 1 & 2 which falls in the jurisdiction of the Municipal Council, Zirakpur and has got sanctioned the site plan from the said Municipal Council, that building or part of a new building is completed in every respect according to the sanctioned plan and fit for use for which it is erected. Even no partial occupation certificate regarding the Unit in dispute is obtained by opposite parties No. 1 & 2 as per the bye-laws of the Municipal Council, Zirakpur that the said Unit is completed in every respect as per the sanctioned plan by the Municipal Council, Zirakpur.

18.                        As per Clause 4 (a) of the agreement The possession of the flat was proposed to be delivered by the developer to purchaser by 30.06.2013. The Hon'ble Supreme Court in the case of "Bangalore Development Authority Vs. Syndicate Bank", II (2007) CPJ 17 (SC) settled the law and held in para No. 16(relevant part) as follows:-

"......Even if the reasonable period for construction is taken as two years, BDA had to explain the 'delay' only from 15.5.1991 and not from 1985 as assumed by the Commission. BDA delivered four houses in time, that is in 1989 and 1990. It did not deliver the remaining 11 houses, as its contractor delayed execution of the work."

19.                        So as per the judgment of the Hon'ble Supreme Court in the present dispute the flat was purchased by the complainant from opposite parties No. 1 & 2 on 29.01.2011 and the possession of the same was to be delivered on 30.06.2013 i.e. within two years but till date the possession of the flat is not ready as per the above discussion, as such, it is proved beyond any doubt that opposite parties No. 1 & 2 are at fault and their act falls within the definition of "unfair trade practice" and that is deficiency in service of opposite parties No. 1 & 2.  Though the Ops No.1 & 2 have pleaded that many other families are residing and in the Tower where the flat of the complainant is situated but they have not produced any evidence on file to show that as to who are the persons and in which flats numbers they are residing. It appears that it was only paper possession of flat No.404 in Aero Homes offer whereof was made to the complainant. No shelter, under this document, can be taken by the Ops No.1 & 2 that they actually offered possession of flat in question.  

20.                        Opposite parties No. 1 & 2 have also not disclosed that any electrical connection, water connection and sewerage connection has been obtained for the flat, which was purchased by the complainant till date. Even no date is mentioned that opposite parties No. 1 & 2 have applied for the completion certificate for taking the same. Consumer Complaint No. 51 of 2011 15  

21.                        The present complaint has been filed against Ops No.1 & 2 through its Partner/Principal Officer, but the reply was filed on behalf of the Ops No.1 & 2 by Sh.Nitin Bansal, Managing Director as well as affidavit of said Nitin Bansal was also filed in support of reply and evidence. Though he has been arrayed as Op No. 2 in the present complaint but there is no document on the case file to show that he was authorized by M/s N.H.Matcon  (OP No.1) to appear on its behalf. Even no copy of the minutes of the meeting/resolution was produced by said Nitin Bansal vide which he was authorized to pursue/file reply and affidavit on behalf of Ops No.1 & 2 as such reply as well as affidavit filed by him on behalf of Ops No.1 & 2 cannot be read into evidence.

22.                        As such, the question of non-payment of the remaining amount does not arise as the same was to be paid by the complainant at the time of completion of the Unit. The version of opposite parties No. 1 & 2 is that they are ready to deliver the possession but the complainant has not paid the remaining full and final amount. But as per the above discussion, the version of opposite parties No. 1 & 2 is not correct that the flat is ready from every aspect for the delivery of the possession without obtaining the occupation certificate from Municipal Council, Zirakpur as per the Punjab Apartment Laws and Bye-laws of Municipal Council, Zirakpur.

23.                        Non-delivery of the flat after receipt of 86% of the total price of the flat is a gross negligence on the part of opposite parties No. 1 & 2 and unfair trade practice on their part. According to clause 4 (ii) of the agreement the Ops No.1 & 2 were liable to pay to the complainant penalty/ compensation in the sum of Rs.5/- per sq.yard for the period of delay. In the present case it is admitted fact that the possession of the flat was not delivered to the complainant within stipulated period or even by the time the complaint was filed only the paper possession was allotted without completing the formalities as discussed in above said paras of this order. The complainant has fully proved on the case file that the Ops had violated the provisions of CP Act by not leading cogent and reliable evidence, therefore, the complaint deserves acceptance. It has been held by the Hon’ble National Commission in Sahil Indian Commercial Corporation Ltd. vs. C.Madhu Babu- II (2011) CPJ 3 (NC) that Consumer Fora have to consider relief in the light of the written agreement and it is not open to them to add or subtract any condition or words. In the instant case, there is a specific clause that in case the offer of possession by company is not made by due date, due to any reason not beyond the control of the company then the company shall be liable to pay to the allottee as compensation Rs.5/- per sq. ft. of the super area of the flat per month for the period of delay till the date of possession. We feel that the complainant is also entitled to compensation for resultant mental and physical harassment and cost of litigation.  

24.                        In fact, there is cognizable multiplicity in the number of cases where the builders refrain from delivery of the possession of the flats for the purchase whereof the applicants have paid through their nose. That is a factually accurate statement, though the adjudication herein is based upon the facts and circumstances of this case. The Ops have already overshot the timing by which the possession of the flats had to be delivered. Though the documented terms and conditions of a consensual agreement cannot be varied to the advantage of either party, it is controvertible that the delay in the delivery of possession of the flats has caused ordeal to the complainant and it is adequate exemplification of the deficiency of service on the part of the Ops qua the complainant. 

25.                        For the reasons recorded above, we find merit in the complaint and the same is hereby allowed.  The Ops are directed as under:-

(i)      To make the payment of Rs.8800/- (1760x5) per month from 01.07.2013 till the date of physical possession of the flat.

(ii)     To make payment of an amount of Rs.1 lac to the complainants as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iii)    To make the payment of Rs.10,000/- for litigation expenses.

This order shall be complied with by the ops within one month from the date of receipt of the certified copy, thereafter, the Ops shall pay the amount at serial No.1 alongwith the interest @ 9 % per annum from the date of this order. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced

21.03.2016  S.P.ATTRI                   ANITA KAPOOR                   DHARAM PAL

                      MEMBER           MEMBER                      PRESIDENT

 

Note: Each and every page of this order has been duly signed by me.

 

    

                                            

                                                DHARAM PAL                                                                                         PRESIDENT