BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.173 of 2015

Date of Instt. 27.4.2015

Date of Decision :25.05.2016

Avtar Singh Dhaliwal aged about 70 years son of Hari Singh R/o 37, Engliestede Close, Handsworth Wood, Birmingham B20IBJ(U.K) at present Village Garha, Jalandhar.

..........Complainant

Versus

1. M/s Shourya Towers Pvt Ltd., B-III, Sector-5, Noida (UP) India, through its Managing Director.

2. M/s Shourya Towers Pvt Ltd., D-44, Sector-6, Noida (UP).

3. Nitishree Infrastructure Ltd., D-44, Sector-6, Noida (UP), through its Managing Director.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Sh.Vipin Kanwar Adv., counsel for the complainant.

Sh.APS Pathania Adv., counsel for the OPs.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that complainant purchased flat No.B-3-101 at Shourya Towers, Jalandhar from the OP and paid the entire amount i.e. price of the flat Rs.26,89,298/- to the OP vide receipt No.3939 dated 7.1.2007. It has been clearly mentioned by the OP that possession of the flat will be given to the allottee in the month of October 2008 failing which OP will be liable to pay penalty @ Rs5/- per sqft per month for the delayed period. The OP did not hand over the possession of the flat in question. Therefore, the complainant was entitled for penalty @Rs.5/- per sqft per month from October 2008 till December 2013. Flat in question is of 1955 sqft and total amount of penalty comes to Rs.6,06,050/-. The complainant filed complaint before this Forum which was decided on 17.11.2014 in which the complainant was awarded Rs.60,06,050/-. The OP did not file any appeal against that order dated 17.11.2014 of this Forum nor the OP paid the penalty for the remaining period i.e. from January, 2014 till today despite so many request made by the complainant. On such averments, the complainant has prayed for directing the OPs to pay the penalty @Rs5/- per sqft per month of flat measuring 1955 sqft from January, 2014 till today. He has also claimed compensation and litigation expenses.

2. Upon notice, OPs No.1 & 2 appeared and filed a written reply pleading that in the earlier complaint filed by the complainant no such amount of the penalty was demanded nor this Forum vide order dated 17.11.2014 has ordered for payment of future penalty. Therefore, this complaint is not maintainable.

3. Notice of this complaint was given to the OP No.3 but nobody has turned-up despite service and as such it was proceeded against exparte.

4. In support of her complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C13 and closed his evidence.

5. On the other hand, learned counsel for opposite parties No.1 and 2 has tendered affidavits Ex.OP-A and Ex.OP-B alongwith copies of documents Ex.OP1 and evidence of the OPs No.1 & 2 closed by order.

6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased flat No.B-3-101 at Shourya Towers, Jalandhar from the OP and paid the entire amount i.e. price of the flat Rs.26,89,298/- to the OP vide receipt No.3939 dated 7.1.2007 Ex.C5. The allotment letter issued by the OP is Ex.C7. It has been clearly mentioned by the OP that possession of the flat will be given to the allottee in the month of October 2008 failing which OP will be liable to pay penalty @ Rs5/- per sqft per month for the delayed period. The OP did not hand over the possession of the flat in question. Therefore, the complainant was entitled for penalty @Rs.5/- per sqft per month from October 2008 till December 2013. Flat in question is of 1955 sqft and total amount of penalty comes to Rs.6,06,050/-. The complainant filed complaint before this Forum i.e. complaint case No.493 of 2013 which was decided on 17.11.2014 Ex.C13 and OP was directed to pay Rs.6,06,050/- to the complainant within one month from the date of receipt of copy of order failing which they shall be liable to pay interest @Rs.9% per annum after expiry of said period of one month till the date of payment. The complainant was also awarded Rs.3000/- as litigation expenses. The OP did not file any appeal against that order of this Forum nor the OP paid the penalty for the remaining period i.e. from January, 2014 onwards till today despite so many requests made by the complainant. The learned counsel for the complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.

8. Whereas the case of the OPs No.1 & 2 is that in the earlier complaint filed by the complainant no such amount of the penalty was demanded nor this Forum vide order dated 17.11.2014 Ex.C13/Ex.OP1 has ordered for payment of future penalty. Therefore, this complaint is not maintainable as there is no deficiency of service on the part of the OPs No.1 & 2qua the complainant.

9. From the entire above discussion, we have come to the conclusion that the complainant purchased the aforesaid flat from the OP on payment of entire amount i.e. Rs.3,12,800/- vide receipt dated 1.1.2007 Ex.C4 and Rs.26,89,298/- vide receipt dated 7.1.2007 Ex.C5. The OP was bound to hand over the possession of the flat in question to the complainant by October, 2008 as held by this Forum vide order dated 17.11.2014 failing which OP was liable to pay penalty of Rs.5/- per sqft per month. The area of the flat in question is 1955 sqft and the penalty per month comes to Rs.9775/-. All these facts have been decided by this Forum vide order dated 17.11.2014 Ex.OP1/Ex.C13. The OP did not file any appeal or revision against that order, as such that order has become final. It also stands proved on record that the OP has not delivered the possession of the flat in question to the complainant up till now i.e. upto May 2016. This Forum vide order dated 17.11.2014 Ex.OP1/Ex.C13 passed order against the OP to pay penalty for non delivery of the flat in question to the complainant for 62 months i.e. from October 2008 till December 2013 amounting to Rs.6,06,050/- alongwith cost of litigation. The OP could not produce any evidence nor could produce any cogent evidence for non delivery of the possession of the flat in question up till now. So, complainant is entitled to penalty @Rs.5/- per sqft per month from January 2014 to April 2016 i.e. for 28 months which amounts to Rs.2,73,700/- (9775 x 28 = 2,73,700/-) to the complainant.

10 Consequently, we allow this complaint with cost and OPs are directed to pay Rs.2,73,700/- to the complainant within one month from the date of receipt of copy of this order, failing which OPs shall be liable to pay interest @Rs.9% per annum on the aforesaid amount after expiry of said period of one month till the date of payment. The OPs are also directed to pay the cost of litigation to the tune of Rs.3000/- to the complainant. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Bhupinder Singh

25.05.2016 Member President