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

                                  Consumer Complaint No. 95 of 2015

                                  Date of institution:           02.03.2015

                                                   Date of Decision:            19.08.2015

Surinder Kumar  son of Darshan Pal & Mrs. Neelam Garg wife of Surinder Kumar, residents of B-13, Kapil Vastu, Anushakti Nagar, Mumbai 400094.

                                          ……..Complainants

                                        Versus

1.     M/s. Sanjeev Kumar and others, through its MD Narinder Kumar Goyal, Site Office City Heights, Peer Muchhalla, Zirakpur, District SAS Nagar.

2.     Sanjeev Kumar Chowdhary, MD M/s. Sanjeev Kumar and others, Site Office City Heights, Peer Muchhalla, Zirakpur.

        (Name of OP No.2 deleted vide order dated 13.04.2015).

                                                                ………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

ARGUMENTS HEARD AND DECIDED BY

Shri Amrinder Singh Sidhu, Presiding Member

Mrs. R.K. Aulakh, Member.

Present:     Shri Tarsem Lal Garg, authorised representative of the complainants.

Shri Amit Sharma,  counsel for OP No.1.

Name of OP No.2 deleted.

(Amrinder Singh Sidhu, Presiding Member)

ORDER

                The complainants filed the present complaint through their authorised representative namely Tarsem Lal Garg pleading that an agreement to sell was signed between   the  Opposite Parties (hereinafter referred as ‘OPs’) (first party) and the complainants (second party) on 03.01.2011 with regard to Flat No.205, City Heights, Peer Muchalla, Zirakpur, District Mohali for consideration of Rs.24.05 lacs. An amount of Rs.18.50 lacs was paid and second installment of Rs.3.70 lacs was to be paid on 15.03.2012 and third installment of Rs.1.85 lacs was to be paid on possession.  OPs (first party) offered possession of the flat vide letter No.DL/CH/005 dated 06.07.2013 and directed to the second party (complainants) to make payment of all dues within 15 days. On enquiry the OPs (first party) asked to pay extra charges of Rs.3.13 lacs in addition to the amount of third installment of Rs.1.85 lacs. The breakup of this additional amount was conveyed through e-mail which is as under:

                Gas Pipeline               Rs.   40,000.00

                Power Back up           Rs.1,50,000.00

                Club House                Rs.   25,000.00

                IFMS (Security)         Rs.   50,000.00

                IBMS                        Rs.   48,000.00

                                                -

                                Total:        Rs.3,13,000.00

                                                                On receipt of this mail the representative of the complainants (second party) visited the office of the OPs (first party) on 19.07.2013 to clarify that payment of extra charges in the agreement have not been mentioned for the so called added facilities provided by the OPs (first party). The representative of the complainants (second party)  after the visit at site found the work was still incomplete and the second party undertaken to make balance payment + IFMS (Security) + IBMS + Club Membership + service tax on receipt of notification regarding completion of the flat. It was further requested that the complainants (second party)  are entitled for compensation @ Rs.3.00/- sq. ft of super built area for delay in possession w.e.f. 31.12.2012. The said amount of compensation was requested to be adjusted from the dues payable by the complainants (second party).  The OPs (first party) arrogantly warned complainants (second party) that if balance amount with service tax and extra charges are not deposited within 3 days then the booking of the flat shall stand cancelled. Complainants (second party) intimated the OPs (first party) that they never denied to deposit charges which are payable as per agreement and the OPs (first party) cannot take arbitrary decision of cancellation. Representative of complainants (second party) visited OPs (first party) office and OPs (first party) verbally promised to complete the entire remaining work and handover the ready possession of the said flat to complainants (second party) within 10 days of receipt of money.  Based on verbal promise of the OPs (first party), complainants (second party) transferred a sum of Rs.3.50 lacs in OPs (first party) account on 31.07.2013 and the OPs (first party) were intimated about this transaction. It was further intimated that Surinder Kumar one of the complainants (second party) will come to Chandigarh on 12.08.2013 or any other later date subject to availability of air tickets. The OPs (first party) was requested to make the flat ready for possession by said date.  The OPs (first party) did not complete the work and all the wishes of the complainants (second party) to ‘own house’ remained unfulfilled. The OPs (first party) did not complete the work despite repeated requests. Ultimately the representative of the complainants (second party)  took physical possession of incomplete flat with a promise from the OPs (first party) that remaining work like painting, permanent power supply connection and other remaining all the jobs will be completed in few days alongwith possession letter and registration of the flat. But the OPs (first party) did not turned up with any promise including possession letter and registration of flat.

                Lastly the complainants (second party) requested this Forum to issue an order to the OPs (first party)

(a)    to hand over possession letter and completion certificate of the flat.

(b)    to provide all promised amenities (like proper power supply, swimming pool, club house etc.) to make the flat and building as a whole living worthy.

( c)   To give compensation @ Rs.3.00/- per sq ft. per month for 1750 sq. ft. area as per agreement for a period from 01.01.2013 to 31.07.2013.

(d)    to give an interest of 18% of the flat cost (Rs.24,05,000/-) from 01.08.2013 to the date of handing over the possession letter/registration of said flat as compensation (the period of deliberate delay in handing over the possession after receiving the full payment).

(e)    to direct the OPs (first party) to make registered deed for the flat; for which stamp duty as applicable on today; will be paid by the second party and additional, if any will be borne by the OPs (first party).

(f)     to impose penalty of Rs.5.00 lacs for harassment and mental torture borne by the complainants (second party) at the hands of the OPs (first party).

(g)    to award Rs.50,000/- as litigation charges in favour of the complainants (second party) to be paid by the OPs (first party).

2.             After service of notice upon OP No.1, OP No.1 appeared through counsel and filed reply to the complaint taking preliminary objections for the dismissal of the complaint that this Forum has no jurisdiction to entertain this complaint in view of the agreement to sell dated 03.01.2011 executed between the parties to the present complaint, as per Clause 27 of the agreement it is admitted by both the parties that the courts of Panchkula shall have jurisdiction to  entertain the matter of dispute between parties; complainants are not consumers as per definition of ‘consumer’ of Consumer Protection Act; complainants have not come to this Forum with  clean hands; complaint is false and frivolous; no deficiency on the part of OP No.1 and no cause of action has arisen in favour of the complainants and against the OP No.1. Complainants have raised complicated facts and require evidence and, therefore, the same is required to be adjudicated by the civil court at Panchkula; non joinder of necessary parties.

                On merits also, the OP No.1 (first party) denied all the allegations made against it and prayed for dismissal of this complaint with costs.

3.             The complainants placed on record affidavit Exb.CW-1/1 and tendered in evidence documents Exb.C-1 to C-11.

4.             OP No.1 placed on record affidavit of Narinder Kumar Goyal its partner Exb.OP-1/1 and tendered in evidence documents Exb.OP-1/2 to OP-1/6.

5.             We have heard authorized representative of the complainants and learned counsel for OP No.1 and have also gone through the file.

6.             The complainant prayed this Forum to direct the OP No.1 to execute registered sale deed of the flat in question which costs Rs.24,05,000/-  besides other reliefs to handover possession letter and completion certificate of the flat, to provide all amenities (like proper power supply, swimming pool, club house etc. compensation @ Rs.3.00 per sq. ft. per month for 1750 sq. ft. area from 01.01.2013 to 31.07.2013, interest @ 18% on the cost of the flat (Rs.24,05,000/-) from 01.08.2013 till the date of handing over the possession letter/registration of the said flat and compensation of Rs.5.00 lacs for harassment and Rs.50,000/- for litigation charges.  So complainants prayed to direct the OP No.1 to execute sale deed of the flat which costs more than Rs.24.00 lacs beside other reliefs.  So it is observed that complainants have claimed relief which exceeds the pecuniary jurisdiction (i.e. Rs.20.00 lacs) of this Forum. Therefore, this complaint is dismissed on the preliminary ground of lac pecuniary jurisdiction of this Forum, without going into the merits of the complaint.

                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 19, 2015.         

(Amrinder Singh Sidhu)

Presiding Member

(Mrs. R.K. Aulakh)

                    Member