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

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Complaint Case No  :  687 of 2010

Date of Institution :  19.10.2010

Date of  Decision   :  17.01.2011

Anshul Pal son of Shri N.K. Pal, # 131/78, Meghdoot Enclave, Kalidas Road, Dehradun.

….…Complainant

V E R S U S

M/s Reliant Infrastructure Pvt. Ltd., through its Director, SCO No. 62, Sector 17, Chandigarh.

                         ..…Opposite Party

CORAM:     SH.ASHOK RAJ BHANDARI             PRESIDING MEMBER

          DR.[MRS.]MADANJIT KAUR SAHOTA     MEMBER

PRESENT: Complainant in person.

         OP already exparte.

PER ASHOK RAJ BHANDARI, MEMBER

        Concisely put, Anshul Pal – Complainant booked an Apartment No. 402, 4^th Floor, Block-A1, having super area approx. 2129 Sq. Ft. in the Complex “WORLD 1”, Santemajra, Tehsil & Distt. Mohali, for a total price of Rs.36,19,300/- on 03.08.2006 and entered into an agreement with OP on 15.9.2006. It was averred that the Complainant had made all the payment/ installments to OP, to the extent of 95% of the amount, as per the Schedule stated in the Agreement and the OP was bound to handover the possession to him upto December, 2008 as per clause 4(a) of the Buyer’s Agreement. The remaining 5% of the total consideration was to be paid at the time of handing over the possession by the OP, which they failed to do, despite specific requests and repeated visits made by the Complainant, but every time he was not given satisfactory reply and rather, the OP tried to put off his request on one pretext or the other.  When nothing positive could come out, the Complainant requested the OP to handover the possession of the apartment vide letter dated 10.8.2010 and finally, also served a legal notice dated 18.9.2010 upon the OP, but to no avail. Hence, the present complaint has been filed, alleging the above act of OPs as gross deficiency in service and unfair trade practice on their part.

2]      Notice of the complaint was sent to OP seeking their version of the case. However, despite service, nobody has appeared on behalf of OP, therefore, OP was proceeded against exparte on 09.12.2010.

3]      Complainant led evidence in support of his contentions.

4]      We have heard the Complainant in person and have also perused the documents placed on record thoroughly.  As a result of the detailed analysis of the entire case, the following points/ issues have clearly emerged and certain conclusions/ arrived at, accordingly.

i]  The basic facts of the case in respect of the Complainant having booked an Apartment No.402, 4^th Floor, Block-A1, having super area approx. 2129 Sq. Ft. in the Complex “WORLD 1”, Santemajra, Tehsil & Distt. Mohali, for a total price of Rs.36,19,300/- on 03/08/2006 and having entered into an agreement with the OP on 15/09/2006 have all been established by the documents placed on record by the Complainant. It is also a fact that the Complainant as per the Payment Schedule has already made payment to the extent of 95% of the total cost of the apartment amounting to Rs.34,38,405/-. The remaining amount of Rs.1,80,895/- was required to be paid at the time of taking the possession of the apartment. As per Clause 4(a) of the Buyer’s Agreement, the possession of the apartment, complete in all respects, was to be handed over by the OP to the Complainant by December, 2008. From the documents placed on record by the Complainant, it is quite clear and proved beyond an iota of doubt that the possession of the apartment has not been handed over to the Complainant by the OP not only till December, 2008, but also thereafter for about 2 years. Not only that the OP addressed a letter to the Complainant dated 12^th October, 2010 (Ex.C-2), asking the Complainant to intimate the date on which he will be taking the possession of the flat after completing all the formalities. The said letter was received by the Complainant on 21/10/2010. The Complainant replied to this letter on 27/10/2010, informing the OP that he had personally visited the site on 25/10/2010 and found the following discrepancies/ deficiencies in the Apartment constructed by OP:-

“1) All the three rooms are without flooring.

2) Lift is not in working condition.

3) No electric work has been done neither in the flat nor in the service area.

4) Finishing touches have not been done in the flat.

5) Power back up system has still not been installed at the complex/ site.

6) No Club premises has been constructed, what to talk of the club facilities.

7) No proper lighting arrangement in the parking area.”

Based on the above stated deficiencies, the Complainant informed the OP that the said apartment was not at all ready for handing over the possession and that he undertakes to pay the remaining 5% amount of Rs.1,80,895/- at the time of taking possession after he is given the flat complete in all respects. In respect of other charges i.e. for parking fee, power back up fee, club membership fee and interest free maintenance security etc., the Complainant has promised to pay for all these facilities only as and when provided for by the OP.

ii] The material dispute between the parties is that whereas, as per the Buyer’s Agreement, the possession of the apartment was to be handed over to the Complainant by OP upto December, 2008 and on the contrary, the flat was not ready for taking possession, as late as October, 2010, which means that a period of about 02 more years had since elapsed after December, 2008 and still, the apartment was not ready for occupation by the Complainant.  The Complainant on his part has fulfilled, in toto, his part of the contract by making 95% payment, which has been duly acknowledged by the OP through its letter dated 12^th October, 2010. Further, there are penal clauses in the Buyer’s Agreement, applicable to both the parties in case of default or deficiency by any of them. Article 5 under heading “Default” of the Buyer’s Agreement states as under:-

“If for any reason the Developer is not at all in a position to offer the Apartment, as agreed herein, the Developer shall offer the Purchaser an alternative property or refund the amount in full with interest @10% per annum without any further liability to pay damages or any other compensation.”

    On these grounds, the Complainant has prayed in his complaint seeking directions to the OP to hand over the possession of the apartment, complete in all respects, as per terms & conditions stated in the Buyer’s Agreement and also a compensation of Rs.10.00 lacs for the loss suffered by him due to non-compliance of the terms and conditions of the Agreement on the part of the OP and also the harassment caused to him due to certain actions of the OP. It is obvious that OP has neither given possession of the fully completed apartment nor offered alternative property, nor refunded the entire amount paid by the Complainant, along with interest @10% per annum. All this clearly establishes and proves serious deficiency of service on the part of OP vis-à-vis the Complainant.

5]      On detailed analysis of the facts of the case, it is observed that the facts stated by the Complainant in the complaint have been duly well established. The OP has remained absent throughout the proceedings of the case and thus, there is no defence evidence on its behalf. As such, we have to accept the version of the Complainant, especially when it is duly supported by all relevant documents and papers. The OP has not complied with the terms and conditions of the Buyer’s Agreement and has also delayed the handing over of the possession of the apartment for about 2 years beyond the due and agreed date. Even after the lapse of two more years, as per the inspection conducted by the Complainant, the Apartment No.402, 4^th Floor, Block-A1, having super area approx. 2129 Sq. Ft. in the Complex “WORLD 1”, Santemajra, Tehsil & Distt. Mohali, is not ready for taking possession and is suffering from a number of deficiencies, some of which are very glaring and serious. Presuming that these deficiencies and defects continue to exist in the given flat, the same is not in a livable condition and as such, there is no point of the Complainant taking possession of the incomplete flat, which he cannot use for residence purpose. The OP has also admitted in its letter dated 12^th October, 2010 that it has already received 95% of the payment from the Complainant and that the remaining 5% is to be paid only at the time of handing over the possession of the apartment, after the entire work in the apartment is done by the OP and that the flat is ready to shift in. That is not the case in the present complaint. A lot many jobs of civil construction are yet to be done in the flat before it becomes fit for living.   

6]      In view of the above detailed discussion, we are of the considered view that there is deficiency of service on the part of the OP, as they have not fulfilled their part of the contract as per the Buyer’s Agreement. In view of this, in our considered opinion, there is a lot of merit, weight and substance in the complaint and it must succeed. We, therefore, allow the complaint in favour of the Complainant and against the OP & pass the following order.

7]      The OP shall do the following in favour of the Complainant:-

(i)    The OP shall hand over the possession of Apartment No.402, 4^th Floor, Block-A1, having super area approx. 2129 Sq. Ft. in the Complex “WORLD 1”, Santemajra, Tehsil & Distt. Mohali, complete in all respects and duly finished to the Complainant.  The OP shall not recover any penal charges or interest payment or any other dues under whatever name from the Complainant while handing over the possession of the apartment to the Complainant.

(ii)    The OP shall pay compensation of Rs.4,00,000/- for causing physical harassment, mental agony and pain, as well as financial losses to the Complainant, on account of inordinate delay caused in handing over the possession of the completely finished apartment.

(iii)    To pay a sum of Rs.7,000/- as litigation costs to the Complainant.

8]      After receiving the possession of the apartment, complete in all respects and fully finished, as well as in a ready to live condition, the Complainant shall pay the balance amount of Rs.1,80,895/- to the OP being 5% of the total payment of the cost of the apartment.

9]      The aforesaid order be complied with by the OP, within a period of 30 days from the receipt of its certified copy, failing which OP shall pay the sum of Rs.4,00,000/-, along with interest @18% per annum with effect from 1^st January, 2009, till the date of realization, besides complying with the rest of the order as at (i) and (iii) in the foregoings.

10]    Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

17.01.2011

                    Sd/-                                                          

                                (ASHOK RAJ BHANDARI)

PRESIDING MEMBER

                            Sd/-

(DR.[MRS]MADANJIT KAUR SHOTA)

MEMBER