STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH.     

1.            Rajesh Sharma son of J.P. Sharma r/o 3414, Sector 15-D, Chandigarh,

2.            Tilak Raj son of Sh. Giyan Chand r/o House No.3406, Sector 15-D, Chandigarh,

3.            Rakesh Verma son of lt. Satpal Verma r/o 3398, Sector 15-D, Chandigarh,

……Complainants.

V e r s u s

1.            M/s P.H. Houses Pvt. Ltd., Regd. Office #82, Sector 27-A, Chandigarh through its Director Sh. H.S. Randhawa.

2.            Sh. Vijay Shahu, M.D/Director of M/s P.H. Houses Pvt. Ltd., Administrative Office at SCO No.362, 2^nd Floor, Sector 44-D, Chandigarh

              .... OPs.

Complaint under Section 17 of the Consumer Protection Act, 1986.

BEFORE:  HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT.

                MRS. NEENA SANDHU, MEMBER.

S.  JAGROOP  SINGH   MAHAL, MEMBER.

Argued by:          Sh. Parmod Sharma, Adv. for the complainants

                   Sh. T.T.P. Singh, Adv. for the OPs

PER  JAGROOP  SINGH   MAHAL, MEMBER

                   Succinctly put, the complainants booked and purchased a flat/apartment No.B-IV-2 in Greenfield Towers, Zirakpur and made the full and final payment of Rs.18,75,000/- to the OPs.  An agreement to sell was executed for which the complainants completed all the formalities. The OPs agreed to hand over the possession of the flat within 27 months from the date of taking full and final payment failing which they were to pay penalty to the customers. After making the entire payment, the complainants visited the location but found that the construction of the flats was not going smoothly.  Subsequently, after waiting for some time, they again requested the OPs to hand over the possession, but the OPs put off the matter on one pretext or the other.  After waiting for long, the complainants sought refund, but the OPs flatly refused.  They also served a legal notice dated 23.8.2010 on the OPs, but to no avail.  Hence this complaint.

2.                      In their written reply the OPs did not dispute the receipt of payment of Rs.18,75,000/-. However, it has been stated that the said price was specially negotiated and the total cost of similar accommodation was Rs.31,20,000/-. It has been admitted that an agreement to sell was executed between the parties, but it was denied if there was any agreed date of possession.  It has been stated that the payment plan was never given to the complainants and the one relied upon by them was not applicable to their case.   It has been stated that the construction work halted because of non payment by many customers coupled with recession and non cooperation by the bank from whom the OPs had made arrangement for loan.  It has been averred that there is no clause of refund in the agreement to sell.  Pleading that there has been no deficiency in service or unfair trade practice on their part, prayer for dismissal of the complaint has been made

3.                      We have heard the ld. Counsel for the parties and have gone through the record of the case carefully. 

4.                      It is admitted by the OPs that the flat was allotted to the complainants for Rs.18,75,000/- and the entire amount has been deposited by them with the OPs.  It is also admitted that the possession of the flat has not so far been delivered to the complainants.  The contention of the OPs is that no time period was fixed for delivery of possession and, therefore, the present complaint is premature.  As against it, the ld. Counsel for the complainants has referred to Annexure C-2 which is the payment plan and in note 3 thereof it is specifically mentioned that the company would pay penalty to its customers @ Rs.5 per sq. ft. per month for any delay in handing over the apartment beyond the committed period of 27 months from the date of allotment. The payment plan B itself shows that only 5% of the total price  + stamp duty and any other charges are to be paid on possession and prior to that 20% of the price has to be paid within 450 days (i.e. 15 months) of the date of booking.  It shows that from the last payment, being made after 450 days of the date of booking, the OPs were still to take 12 months more to complete the construction and deliver possession. Annexure C-10 is the allotment letter in para 5 note (a) of which it is mentioned that the possession of the apartment shall be given to the second party only after full payment is made to the first party as per the terms and conditions set out in the agreement/payment plan. It may be mentioned that there are a number of blanks lying in the agreement (Annexure C-9) and as per clause 8 thereof, the construction was assured to be completed at the earliest from the date of commencement of the work.  A few reasons have been mentioned due to which the construction could be delayed, none of which is proved in the present case.  The OPs have not been able to produce any other payment plan, a reference to which has been made in note (a) of para 5 of the allotment letter (Annexure C-10). The OPs have not disputed if Annexure C-2 has been issued by their office but their contention is that it does not pertain to the flat in dispute.  They have not been able to mention as to what other payment plan was with respect to flat in dispute. The mere fact that the OPs sold the flat to the complainants for a lesser amount is not going to change the construction period because the construction of the flats is to be completed irrespective of the price charged by them.  We are, therefore, of the opinion that in view of Annexure C-2 read with the allotment letter (Annexure C-10), the possession was to be delivered within 27 months of the date of allotment i.e. from 18.12.2005.

5.                      To a specific query made by the Bench, the ld. Counsel for the OPs stated that the OPs would still take one year more to complete the construction.  They are already running late by about 3 years and 6 months, which is inordinate delay.  They are neither delivering the possession to the complainants nor paying any compensation to them for withholding the amount, without delivering possession, beyond a period of 27 months as undertaken by them.  As per note 3 of the payment plan (Annexure C-2), the OPs were liable to pay Rs.5/- per sq. ft. per month for the delay in handing over the apartment, beyond the committed period of 27 months, which expired on 18.3.2008.  The amount of compensation for 1639 sq. ft. of the flat @ Rs.5 per sq. ft. comes out to Rs.8,195/- per month i.e. Rs.98,340/- per year.  As against it, the minimum rate of interest, being charged by the OPs, as mentioned in note (d)(i) of para 5 of the allotment letter (Annexure C-10), is 18% per annum, if the delay in the payment of installment was one month and 24% per annum if it was upto three months. The interest on the said amount of Rs.18,75,000/- @ 18% per annum, would  yield Rs.3,37,500/-/- per year, which is much more than the amount the OPs would be liable to pay as compensation.  Ordinarily, if the OPs do not give possession of the flat and want to refund the amount, they should pay compensation as interest on this amount @ 18% and 24% per annum but, since the allotment letter (Annexure C-10) is overloaded in favour of the OPs and as per Annexure C-2 the complainants are entitled to Rs.5/- per sq. ft. per month for the period of delay, if the possession is given, we are of the opinion that the compensation should be paid by the OPs at this rate i.e. Rs.8,195/- per month w.e.f 18.3.2008, till the possession is delivered to the complainants.

6.                      The ld. Counsel for the complainants has argued that if the possession is not delivered even within one year from today, then his entire deposited amount should be refunded alongwith an equal amount towards compensation and Rs. Five lacs towards mental harassment, financial hardship and inconvenience caused to the complainants. The flat purchased by the complainants in 2005 for Rs.18,75,000/- would not be available to them in 2012 because the prices are increasing day by day.  It would be difficult for them to purchase such a flat with this amount and the loss was entirely due to the default of the OPs, who did not construct the building in time.  We are, therefore, of the opinion that in that eventuality, if the flat is not delivered to the complainants within one year from today, the OPs should also pay Rs. three lacs as compensation for increase in prices, mental harassment, financial hardship and inconvenience caused thereby to the complainants, including the increase in the cost of construction. 

7.                      In view of the above discussion, we are of the opinion that the present complaint succeeds and the following directions are issued to the OPs :-

i)             The OPs shall deliver possession of the flat, complete in all respects, to the complainants by 9.9.2012.

ii)           The OPs shall pay the compensation @ Rs.5/- per sq. ft. of the covered area i.e. Rs.8,195/- per month to the complainants w.e.f 18.3.2008, till the possession is delivered. 

iii)         In case the arrears of above said compensation is not paid within thirty days from the date of receipt of copy of the order, and any monthly compensation is not paid by the 5^th of each succeeding month, the OPs would be liable to pay the same with interest @ 9% per annum.

iv)          If the possession is not delivered to the complainants within one year, as ordered, the OPs would be liable to refund the amount of Rs.18,75,000/- alongwith interest @ 18% per annum from the date of deposits till the payment is made to the complainant.  The compensation paid under clause (ii) above shall be adjusted towards interest.

v)           In that case, the OPs shall also pay Rs. Three lacs as compensation towards increase in prices of flats, building material, mental and physical harassment.

vi)          In case of direction No.(iv)&(v) above, if the said amount is not paid within thirty days from the date of receipt of copy of the order, the OPs would be liable to pay the same alongwith interest @ 24% per annum w.e.f. today, till the same is paid to the complainants.

vii)        The OPs shall also pay Rs.10,000/- as costs of litigation.

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

Pronounced.

9^th September, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

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