BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.354 of 2015

                                 Date of institution:          20.07.2015

                                                    Date of Decision:             01.08.2016

Mahender Kumar Bhardwaj son of Ram Bilas and Mrs. Hemlata Bhardwaj wife of Mahender Kumar Bhardwaj, residents of Punjab National Bank, RSC Campus, Sector-6, Panchkula.

                                             ……..Complainant

                                        Versus

1.     M/s. Royale Mansion through its Partner, Peer Muchalla, Zirakpur, District SAS Nagar, Mohali (Punjab.

2.     Shri Ashok Singla, Partner, M/s. Royale Mansion through its Partner, Peer Muchalla, Zirakpur, District SAS Nagar, Mohali (Punjab.

                                                              ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Shri Amrinder Singh Sidhu, Presiding Member.

Mrs. R.K. Aulakh, Member.

Present:    Shri Bhushan Bhatia, counsel for the complainants.

                Shri Shakti Paul, counsel for the OPs.

(AMRINDER SINGH SIDHU, PRESIDING MEMBER)

ORDER

1.             The brief facts pleaded by  complainants  in the present complaint are that complainants purchased a flat as per allotment letter dated 17.05.2011 in Royale Mansion earlier owned by Royale Empire, Zirakpur, District SAS  Nagar (Mohali) and later this project was taken over by Opposite Parties vide MOU dated 20.01.2012 between Royale Empire and the Opposite Parties.  A fresh agreement to sell was executed between the Opposite Parties and complainants on 30.04.2012 which subsequently changed location of previous flat to Flat No.701, Block-1 of the project of the Opposite Parties. As per terms of this agreement dated 30.04.2012, the possession of the flat was to be given by the Opposite Parties to the complainants by 31.05.2013. The complainants raised a loan from HDFC Limited and a tripartite agreement was executed between the Opposite Parties, complainants and HDFC Limited on 30.04.2012. The complainants paid the installments towards cost of flat to the Opposite Parties. The complainants sold their only house at Bhiwani in the hope of getting of possession of the flat by scheduled date i.e. 31.05.2013. The progress of construction was very slow in the beginning and the construction work was stopped after some time. This amounts to deficiency in service on the part of the Opposite Parties. The complainants had no house to live in and they lost hope of getting the flat due to non construction of flat. As per Clause-13 of the agreement to sell, the Opposite Parties agreed to offer the possession of the flat upto 31.05.2013 failing which the Opposite Parties had to pay compensation @ Rs.6,650/- per month. The complainants requested the Opposite Parties to complete the construction of flat but there was no impact of it on the Opposite Parties. Aggrieved with the act of the Opposite Parties, the complainants were left with no alternative but to sell the said flat in July, 2014 to purchase an alternative house to live. The complainants sold the flat under pressure due to non commitment on the part of the Opposite Parties for offer of the flat as per terms of the agreement.

                Further the Opposite Parties compelled the complainants to pay Rs.35,000/- towards transfer fee  whereas, as per Clause 15 and 16 of the agreement dated 30.04.2012 no transfer fee was to be charged for the first transfer. This also amounts to unfair trade practice.

                Thus, deficiency in service and unfair trade practice committed by the Opposite Parties which caused great harassment, mental agony and financial loss to the complainants.

                Lastly, complainants prayed for a direction to the Opposite Parties for refund of Rs.35,000/- alongwith interest @ 18% per annum which was illegally charged by the Opposite Parties and to pay compensation @ Rs.6,650/- per month from June, 2013 to June, 2014 alongwith interest @ 18% per annum and to pay compensation of Rs.3,00,000/- (Rs. Three lacs) for loss of rebate on income tax, interest on housing loan and for inconvenience, mental and physical agony caused by the act of the Opposite Parties and also award of Rs.11,000/- as costs of litigation to the complainants.

2.             After service of notice, the Opposite Parties appeared through counsel and filed written version in which the Opposite Parties took preliminary objections that complaint is wholly misconceived; this Forum has  no jurisdiction to adjudicate upon this dispute; this dispute is triable by civil court; it is not a consumer dispute; complainants have no locus standi to initiate the present proceedings; the complainants have sold the flat; complaint is bad for non joinder of necessary and proper party; complaint is barred by limitation; it is frivolous and vexatious complaint. Further the Opposite Parties denied all the allegations on merits and lastly prayed for dismissal of this complaint with costs.

3.             Evidence of the complainants consists of affidavit of Mahender Kumar Bhardwaj complainant No.1 Ex.CW-1/1 and copies of documents Ex.C-1 to C-8.

4.             Evidence of the Opposite Parties consist affidavit of Ashok Singla, O.P. No.2 as Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-9.

5.             We have heard the arguments of counsel for the parties and also gone through the file. The complainants are consumers of the Opposite Parties as they have availed services of the Opposite Parties for consideration.  The Opposite Parties admitted sale of flat to the complainants. Further the objection of the Opposite Parties that the present dispute is not a ‘consumer dispute’ is without any substance because as per Section 2 (o) of the Consumer Protection Act, 1986 (as amended upto date) the definition of ‘service’ includes ‘housing construction’ and as the Opposite Parties denied the allegations made in the complaint against them by the complainants in their complaint so there is a ‘consumer dispute’ between the parties.

                Further objection of the Opposite Parties that this complaint is triable by the civil court and it cannot be tried and adjudicated by the District Fora is also without any substance because the subject matter involved in the present complaint is a simple case of deficiency in service and unfair trade practice which can be tried and adjudicated upon by the District Fora  in summary procedure. Further the Opposite Parties taken objection that complainants have no locus standi to initiate the present proceedings because he has sold the flat in question is also without merits because complainants have booked the flat to live in and they have sold their only house at Bhiwani in the hope of getting flat in time and further they were forced to do so as the Opposite Parties caused delay in its construction which caused delay in providing possession to the complainants. The complainants filed their affidavit dated 17.07.2015 to this effect. The complainants are entitled to recover their due amount on account of deficiency in service and unfair trade practice committee by the Opposite Parties. If the Opposite Parties has delivered timely possession to the complainants,  then complainants are not forced to suffer harassment and financial losses. So the Opposite Parties cannot take benefit of their own wrong. Further, such highly technical objection cannot be taken into consideration as it will frustrate the very purpose of this benevolent Act.

                Further the Opposite Parties took objection that this complaint is barred by limitation. Receipt No.1861 dated 06.07.2014 which is Exb.C-7 reveals that the Opposite Parties charged transfer fee of Rs.35,000/- from the complainants on 06.07.2014 for the first transfer which they are not legally entitled to charge that amounts to unfair trade practice on the part of the Opposite Parties. So the cause of action arose to the complainants on 31.05.2013 when the Opposite Parties failed to deliver the flat in question to the complainants and then on 06.07.2014 when the Opposite Parties illegally charged transfer fee of Rs.35,000/- from the complainants. Complaint is filed on 20.07.2015 in this Forum. Therefore, complaint is within prescribed period of limitation of 2 years.

                Further clause-13 of the agreement to sell which is Exb.C-3 proves that the Opposite Parties agreed to offer the possession of the flat upto 31.05.2013 failing which the Opposite Parties had to pay compensation @ Rs.6,650/- per month. Non payment of agreement compensation not only amounts to deficiency in service but also negligence on the part of the Opposite Parties. Opposite Parties failed to prove any document that proves that actual physical possession alongwith completion certificate of concerned flat is delivered to the complainants before June, 2014.

6.             In view of above said discussion, the Opposite Parties are jointly and severally held deficient in providing services to the complainants on account of delay in providing possession to the complainants and also guilty of unfair trade practice for illegally charging Rs.35,000/- from complainants. Therefore, the complaint is partly allowed and Opposite Party No.1 M/s. Royale Mansion through its Partner, Peer Muchalla, Zirakpur, District SAS Nagar, Mohali (Punjab) as well as Opposite Party No.2     Shri Ashok Singla, Partner, M/s. Royale Mansion through its Partner, Peer Muchalla, Zirakpur, District SAS Nagar, Mohali (Punjab) are jointly and severally directed to :

(i)     to refund Rs.35,000/- alongwith interest @ 12% per  annum from the date of receipt i.e. 06.07.2014 till the date of its actual refund to the complainants.

(ii)    to pay compensation of Rs.6,650/- per month from June, 2013 till June, 2014 alongwith interest @ 12% per annum to the complainants.

(iii)   Further pay lump sum compensation of Rs.20,000/- on account of mental tension, harassment and costs of litigation to the complainants.

                Compliance of the above directions be made within a period of thirty days from the date of receipt of a certified copy of this order. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.

Pronounced.                           

August 01, 2016.     

                                                        (Amrinder Singh Sidhu)

Presiding Member

(Mrs. R.K. Aulakh)

                     Member