BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Col. (Retd.) R.P.Vohra son of late Sh.N.K.Vohra, aged 80 years, (Senior citizen), R/o N-4, KLESTON Housing Board Colony, Shimla, 171001 (H.P.) and Mrs. Surjit Vohra (Wife of R.P.Vohra).

….…Complainants

                                      V E R S U S

M/s Penta Homes Pvt. Ltd., Regd. Office at SCO No.30, Sector 33-D (First Floor), Chandigarh – 160026 through its Vice Chairman (the Authorised Sinatory) Sh.J.K.Bhardwaj.

                                                ..…Opposite Party

CORAM:     SH.JAGROOP SINGH MAHAL            PRESIDENT

                   DR.(MRS) MADHU BEHL                     MEMBER

                   SH.RAJINDER SINGH GILL                  MEMBER

Argued by:   Complaint No.1 in person and husband/Repr. of Complt. No.2.

Sh.Ramesh Goyal, Adv. for OP.

PER SHRI JAGROOP SINGH MAHAL,  PRESIDENT

                   Succinctly put, the complainant and his wife booked one apartment in the Penta VIP Towers to be built and constructed by the OP for a total sum of Rs.13,10,000/-.  The OP executed an agreement of sale in Feb.,2006 in favour of the complainants selling the proposed Apartment No.275, 3^rd Floor, D-IV and as per the agreement the OP was to complete the construction and hand over the physical possession to the complainants by the month of April, 2007.  The complainants paid the instalments, including Rs.25,000/- for open parking space. However, the OP handed over the possession belatedly in July, 2009 i.e. after a delay of 2 years & 7 months.  Since, the said flat was not getting enough sun, so on their request, the OP agreed to change the flat and offered Flat No.678, D-6-V Block which was costing Rs.12,90,000/- i.e. Rs.20,000/- less than the earlier flat as it was on the 4^th Floor. A new agreement in this respect was executed between the parties and the old agreement was taken away by the OP.  However, after taking the possession of Flat No.678 on 30.10.2009, the complainants found the discrepancies therein such like the tiles in two toilet rooms were of various colours & shades, electric light points were incomplete as no bulb-holder was provided in any room, ceiling Fans/Exhaust Fans were not provided though its was mentioned in the brochure (Ann.-B) and no space in the respective walls was provided for fixing exhaust fans in the toilet rooms and kitchen.  These defects were brought to the notice of OP, who assured to remove it but did nothing.  Moreover, the OP had not paid Rs.5/- per square feet for the delay in completion and handing over the flat No.274 D-IV, as agreed.  Therefore, this complaint has been instituted  alleging the above acts of OP as gross deficiency in service and unfair trade practice due to which the complainant had to suffer a lot mentally, physically and financially.

2.                      In its written reply the OP admitted the factual matrix of the case.  However, it has been submitted that the payment was linked with the stage of construction but the complainant did not make the payment of instalments in time. It has been stated that no amount whatsoever was ever demanded from the complainants unless the same fell due as per the payment schedule.  It has also been stated that the complainant were accommodated by allowing them to exchange the flat of their choice and that too without charging any extra amount and moreover, no interest was claimed on the delayed installment though the last installment was paid after more than one year from the date of the completion of the flat.  It has been further stated that complainants took physical possession of the flat after their entire satisfaction as per Ann. OP-1.  It is pleaded that clause 17 was attracted only where the allottee had made the full payment.  It has been submitted that the project was delayed due to dispute with M/s Harcharan Dass Gupta to whom the work of construction was allocated and certain other unforeseen circumstances.  Denying all the material allegations of the complainant and 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.                      Parties led evidence in support of their contentions.

4.                      We have heard the complainants and ld.Counsel for the OP have also perused the record. 

5.                      The Contention of the complainants is that the OP was to complete the construction and handover the allotted flat number 275 in D-IV Tower, 3rd Floor to them by April, 2007.  However, they failed to handover the same by the stipulated period.  According to them the delivery of possession was delayed by the OP by two years and seven months.  The complainants therefore prayed for compensation of Rs.1,21,500/- i.e. @Rs.5/- per square feet.  On the other hand the Learned Counsel for the OP referred to the case “Col.N.S.Pandher Vs.Penta Homes Pvt. Ltd.”  which was decided by this Forum on 10.03.2009 vide Annexure OP-6 in which similar question was involved.  The entire evidence produced by the OP was analyzed and it was found that there was no deficiency in service on the part of the OP, as they were entitled to reasonable extension in time in view of Clause number 17. of the agreement.  In the present case also the contention of the OP is that the dispute arose with the contractor which was amicably decided vide Annexure OP-7.  The OP had requested for the N.O.C. from the Punjab Pollution Control Board which was issued vide Annexure OP-8.  The permission from the Nagar Panchyat, Zirakpur was obtained vide Annexure OP-9. The Nagar Panchyat, Zirakpur was requested by the OP and others vide Annexure P-10, Annexure OP-11 and Annexure OP-12 for making external development works which was to be done by Municipal Committee, Zirakpur.  The OP asked the Municipal Committee, Zirakpur for laying of sewerage pipe vide Annexure OP-13.  The Greater Mohali Area Development Authority, Mohali was requested vide Annexure OP-14 for external development charges and the Punjab Pollution Control Board was approached vide Annexure OP-15 to expedite the N.O.C. from the PPCB.  The other correspondence from OP-16 to Annexure OP-22 fully suggests that the OP was not sitting idle but was making efforts to complete construction.  Annexure OP-23 is the photograph of the building.  These documents were also considered by this Forum while deciding the case filed by Col.N.S.Pandher referred to above.  We are therefore of the opinion that there was no unjustified delay on the part of the OP in completing the construction.  The delay if any was justified in view of Clause 17 of the agreement Annexure OP-24 entered into between the parties. 

6.                      The complainants have taken possession of the flat without any objection and without demanding any compensation for the delay in the delivery of possession. If the complainant felt that they were entitled to compensation, the possession of the premises should not have been taken by them or an objection to that effect should have been raised at that time.  On the other hand it was mentioned by the OP that they were taking possession of the premises in accordance with the terms and conditions of the sale deed and complete in all respects “to their entire satisfaction”.  If they had any semblance of a right to claim compensation, the same would come to an end with the delivery of possession obtained in the manner referred to above.

7.                      The next contention of the complainant is that the apartment number 275, 3rd Floor, D-IV allotted to them was not getting enough sun and they therefore requested the OP for changing the flat which was accepted by them.  The new flat has been offered to the complainants and the possession thereof was obtained by them on 30.10.2009.  Before taking possession of the flat they had examined the flat and chose the same as a substitute for flat number 275.  When they accepted this flat they did not mention if the tiles of toilet rooms were having various colours and shades, they did not mention if light points were incomplete and no bulb holders had been provided or if the ceiling fans/exhaust fans have not been provided in the changed flat.  The complainants rather took possession of the flat “in accordance with the terms and conditions of the sale deed and complete in all respects to their entire satisfaction”. After taking the possession they cannot be heard saying that the said flat is not according to their satisfaction.  They cannot ask for change of the tiles or the additional fans, light, bulb holders, ceiling fans and exhaust fans etc.  as claimed by them.  If there was any deficiency in the changed flat they should not have accepted the same or if they accepted it, they should have made a mention of the same so that there could be a binding agreement among the parties for providing the fitments and fixtures in accordance there with.  However, the possession of the flat was taken by the complainants, as it is, regarding which the agreement to sell Annexure OP-25 was executed. Clause 2. of Annexure OP-25 specifically mentions that the price of the flat does not include the cost of electric fittings & fixtures, storage racks in kitchen cupboards in bedrooms, geysers, fan, electric and water meters etc, which shall be got installed by the Apartment Allottee at his own cost.  The agreement is signed by the complainant and in this agreement it is not the liability of the OP to provide any such fitments and fixtures.  The contention of the complainants therefore cannot be accepted in this respect also.

8.                      In view of the above discussion, we are of the opinion that there is no merit in this complaint as there is no deficiency in service on the part of the OP. The complaint therefore cannot be accepted and is accordingly dismissed.

                   Certified copies of this order be sent to the parties free of charge.  The file be consigned.