STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(First Appeal No.19 of 2010)

Shree Bhagwan Jindal son of late Shri Satayanarayan Jindal, resident of H.No.155, Sector 33-A, Chandigarh.

… Appellant

V E R S U S

1.                 M/s Penta Homes Pvt. Ltd., SCO No.30, First Floor, Sector 33-D, Chandigarh through Mr. Malwinder Singh, its Managing Director;

2.                 Mr. Dilsher Singh, Director

3.                 Mr. Gurpreet Singh, Director

4.                 Ms. Malwinder Kaur, Director, and

5.                 Ms. Meetika Singh, Director

All c/o M/s Penta Homes Pvt. Ltd., SCO No.30, First Floor, Sector 33-D, Chandigarh

              ....Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986.

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

                   MRS. NEENA SANDHU, MEMBER.

Argued by: Ms. Kirandeep Kaur, Adv. proxy for Sh. R.S. Raj, Adv. for appellant.

                   Sh. Surjeet Bhadu, Adv. for respondents.

PER  JUSTICE SHAM SUNDER, PRESIDENT

1.                           This appeal is directed against the order dated 7.12.2009, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant (now appellant).

2.                           The facts, in brief, are that the complainant booked one apartment in the Penta VIP Towers to be built and constructed by the OPs for a total sum of Rs.12,05,000/- including Rs.25,000/- for parking space and  agreement of sale dated 11.2.2006 was executed by the OPs in favour of the complainant, proposing to sell Apartment No.480, IInd Floor, Block D4. According to the agreement, the OPs were to complete the construction and hand over the physical possession to the complainant in the month of April 2007. He paid the instalments, towards the price, including Rs.24,467/- as penalty vide receipts C-3 to C-9; as the payment of some installments was late. The OPs handed over the possession of the flat in question on 3.6.2009 i.e. after a delay of approximately 26 months and that too without electricity connection. It was further stated that the complainant and other inhabitants started living in the apartments and the electricity was being supplied through generators on the condition that ACs and heaters could not be used, though in the brochure a promise was made that there would be 24 hour electricity back up.   It was further stated that the OPs were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed.

3.                           The OPs, in their written reply, admitted the factual matrix of the case.  It was, however, stated that the payment was linked with the stage of construction.  It was further stated that the complainant did not make the payment of instalments, in time. It was further stated that no amount, whatsoever, was ever demanded from the complainants, unless the same fell due as per the payment schedule.  It was further stated that clause 17 was attracted only where the allottee had made the full payment.  It was further stated that the OPs were supplying electricity @ Rs.4/- per unit, though they had to spend Rs.12/- per unit. It was further stated that the project was delayed due to dispute with M/s Harcharan Dass Gupta to whom the work of construction was allotted and certain other unforeseen circumstances.  It was further stated that the sale deed has already been executed, in favour of the complainant on 5.5.2009. It was further stated that when the possession was taken by the complainant on 3.6.2009, of the apartment, he did not raise any protest, with regard to the factum that he was given possession after long delay. He also did not raise any protest regarding other deficiencies.  It was further stated that the OPs were neither deficient, in rendering service, nor indulged into unfair trade practice.   The remaining averments were denied, being wrong.

4.                           The parties led evidence in support of their case. 

5.                           After hearing the Counsel for the parties, and, on going through the evidence and record of the case, the District Forum dismissed the complaint, on the ground, that the payment of installments towards price had not been made upto April 2007, but was made on different dates from 2006-2009.  It was further held by the District Forum, that when the possession was taken by the complainant, in the year 2009, if he had any grouse, he could raise protest, in regard thereto, but he did not do so. It was further held by the District Forum that as per clause 17 of the agreement, the OPs were entitled to reasonable extension of time, for the completion of project.  It was further held that the OPs were neither deficient, in rendering service, nor indulged into any unfair trade practice. 

6.                           Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.                           We have heard the Counsel for the parties and have gone through the evidence and record of the case carefully. 

8.                           The Counsel for the appellant, submitted that, in the first instance, the possession of the apartment in Penta VIP Towers was not given to the complainant in April 2007, as per the agreement.  He further submitted that there was delay of 26 months, in delivering possession.  He further submitted that even there was no regular electricity supply to the apartments, after the possession of the same was taken, by the complainant, and the same was being supplied through generator.  He further submitted that, on account of this reason, the complainant had to rent out some other accommodation and paid the rent for that.  He further submitted that the OPs were certainly deficient, in rendering service, and also indulged into unfair trade practice.  He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 

9.                           On the other hand, the Counsel for the respondents submitted that the payment of installments towards price of the apartment was not made in time but the last payment was made in the year 2009, when the possession was given to the complainant.  He further submitted that the OPs were entitled to reasonable extension of time, regarding the delivery of possession of the apartment as per clause 17 of the agreement.  He further submitted that when the possession was taken by the complainant, in the year 2009, he had no grouse nor did he raise any protest.  He further submitted that even while paying the installments between 2006 to 2009, he did not raise any protest, or grouse, that since he had not been given possession of the flat, in the month of April 2007, he was harassed and, as such, was entitled to compensation.  It was further submitted that the delay took place, on account of the circumstances, beyond the control of the OPs.  It was further submitted that the OPs neither indulged into unfair trade practice, nor were deficient, in rendering service.   

10.                       After giving our thoughtful consideration, to the rival contentions, advanced by the Counsel for the parties, in our considered opinion, the appeal is liable to be dismissed, for the reasons to be recorded, hereinafter.  There is no dispute about the factum that the complainant booked the flat in February 2006.  The payment plan of installments was linked with construction.  It is also proved from the evidence, on record, that the payment of installments was not made by the complainant, in time.  The last payment of installment was made by him on 3.6.2009 when the possession was delivered to him.  In case, the complainant had any grievance or grouse, he could stop making the payment of installments after April 2007, on the ground, that since the possession had not been delivered to him, of the apartment, as committed in the agreement, he was not liable to make payment thereof.  Why he made the payment of installments upto 2009, when the possession was delivered to him, is not known. It means that the complainant was fully satisfied that the project was not completed upto April 2007, by the OPs, due to the circumstances, beyond their control.  Not only this, there was also dispute, with the contractor as a result whereof, the latter filed a civil suit, which though was later on amicably settled.  The electricity was being supplied to the complainant and other inhabitants through generators, by the OPs, though they were charging Rs.4/- per unit, from them, but in actuality, they were spending Rs.12/- per unit.  Since the complainant voluntarily made payments, between the disputed dates, especially on 28.1.2008, 24.11.2008 and 23.4.2009, took possession of the apartment, got the sale deed executed, without raising any dispute or protest, later on, he could not come forward and say that on account of late delivery of possession, he felt harassment.  Even according to clause 17 of the agreement, on account of force majeure circumstances, reasonable extension of time, for delivery of possession, was permissible to the OP.  The District Forum was, thus, right in holding that, in view of the facts and circumstances of the case, there was neither any deficiency, in renderings service by the OPs, nor did they indulge into any unfair trade practice.

11.                       In view of the above, it is held that the order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 

12.                       For the reasons recorded above, the appeal, being devoid of merits, must fail and the same is dismissed with costs quantified at Rs.2,000/-

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

Pronounced.

19^th May, 2011

Sd/-

[JUSTICE SHAM SUNDER]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

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