BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No. 493 of 2013

Date of Instt. 24.12.2013

Date of Decision :17.11.2014

Avtar Singh Dhaliwal aged about 65 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-111, Sector-5 Noida(U.P) India through its Managing Director.

1(A). M/s Shourya Towers Pvt, Ltd, D-44, Sector-6, Noida (U.P).

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

.........Opposite parties

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

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

Sh.APS Pathania Adv., counsel for opposite parties.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 against the opposite parties on the averments that the complainant is a NRI and permanently settled in England. At present he is in India and residing at Village Garha, Jalandhar. During the month of January, 2007, the complainant came to India and one of the representative of the opposite party contacted him and allured him to purchase a flat by saying that the flat will be good for residence purpose or it can be sold on a handsome profit in coming short future. The complainant fell into his trap and on his asking became ready to purchase a flat. A flat No.B-3-101 was agreed to be purchased by the complainant at Shourya Towers, Jalandhar, India from the opposite party. Reference may be given to their pamphlet and allotment letter dated 1.1.2007. After all the negotiations, it was settled between the parties as under:-

i) Basic Price Rs.31,28,000/-

ii) (-)10% received Rs. 3,12,800/-

____________

Rs.28,15,200/-

iii) On possession(-)5% Rs.1,56,400/-

___________

Rs.26,58,800/-

iv) (-) Cash discount 9% Rs. 2,39,292/-

___________

Rs.24,19,508/-

v) (+) 1st Floor+3%

PF PCL Rs. 2,50,240/-

____________

Rs.26,69,748/-

vi) (+) IFMS Rs. 19,550/-

____________

Rs.26,89,298/-

2. These amounts after negotiations were settled between the parties on 2.1.2007 subject to payment within 10 days. This amount has been duly signed by the opposite party on 2.1.2007. Amount of Rs.3,12,800/- was given to opposite party against receipt No.3923. A cheque bearing No.100004 dated 1.1.2007 was given. Further amount of Rs.26,89,298/- was given to opposite party against receipt No.3939 dated 7.1.2007. A cheque bearing No.100007 dated 11.1.2007 was given to the opposite party. The flat was purchased by giving down payment in lump sump i.e why above mentioned amounts were finalized between the parties on 2.1.2007. The complainant did not prefer to purchase the flat in installments as per the pamphlet of the opposite party. It has been clearly mentioned in the pamphlet of opposite party that possession of the flat will be given in the month of October 2008, failing which opposite party will be liable to penalty at the rate of 5% per sq.feet per month for the delayed period. After paying the total amount as well as after October 2008, the complainant had been reminding the opposite party to handover the possession of the flat as per their commitment but they had been putting off the matter on one pretext or the other. Even today the flat is incomplete and is not ready for delivery to the complainant. All the flats including the flat of the complainant is still under construction. The non completion of the flat is admitted by the representative of the opposite party as admitted by him in his email sent on 23.10.2011 and in the said email illegal amount of Rs.1,47,563/- is being demanded by opposite party. Various reminders were sent by the complainant to the opposite party regarding handing over the possession of the flat. Complainant is entitled for penalty @ Rs.5/- per sq.ft per month to the complainant from October 2008 till December 2013. The flat is of 1955 sq.ft and total amount comes to Rs.606050/-. The complainant is also entitled for damages on account of mental agony and harassment. On such like averments, the complainant has prayed for directing the opposite parties to pay him penalty/rental value of Rs.8 Lacs. He has also claimed Rs.50,000/- on account of compensation and further Rs.50,000/- on account of litigation expenses.

3. Upon notice, opposite parties appeared and filed a written reply raising preliminary objections regarding maintainability, limitation, jurisdiction, locus-standi, complaint being pre-mature etc. They further pleaded that the complainant was himself eager to purchase the flat in question. The opposite parties never allured him with regard to the sale purchase of the flat and earning the handsome profit. Since the complainant is himself admitting that he purchase the flat for his benefit purposes for earning profits, as such this forum has also got no jurisdiction to entertain, try and decide the present dispute. The complainant is bound to make the entire payment as per the demands and notices given by the opposite parties. It is the desire of the allottee to make the payment in installments or in full as per his desire. There was no pre-condition with regard to the down payment. There is no agreement in written between the parties with regard to the alleged penalty @ Rs.5/- per sq.feet of the flat on monthly basis for the delayed period. The complainant had never given any demand for taking the possession of the flat in question. The complainant has falsely made these allegations. Rather the complainant has to clear the entire payment as per the demand of the opposite parties and after making the entire payment the complainant is entitled for possession. But in the present case the complainant has not made the entire payment as alleged. Hence, the present complaint is devoid of any merits. They denied other material averments of the complaint.

4. In support of his complaint, complainant has tendered in to evidence affidavit Ex.CA along with copies of documents Ex. C1 to C10 and evidence of complainant closed by order.

5. On the other hand, learned counsel for opposite party No.4 has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to OP4 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsel for the parties.

7. ExC-2 is booking form of the flat in question. It is dated 1.1.2007. Ex.C-3 is document regarding the price of the flat subject to payment within 10 days from 2.1.2007. The complainant has paid the entire amount vide receipts Ex.C-4 and Ex.C-5. Some cash discount was given to the complainant on account of down payment. So complainant has paid the entire amount. As per Ex.C-3 balance amount of Rs.26,89,298/- was to be paid within 10 days from 2.1.2007. He paid this amount vide receipt Ex.C-5 within the stipulated period. Ex.C-1(also Ex.OP1) is document regarding the booking of flats. On the reverse of it, it is clearly mentioned that possession of the flat October 2008. So opposite parties agreed to give possession of the flats by October 2008. On the reverse of Ex.C-1 it is mentioned that company would pay penalty @ Rs.5/- per sq.feet to its customer from delay in handing over the flat beyond 24 months after the construction barring force major circumstances. These facts are also mentioned on the reverse of receipt Ex.C-5. In their written reply, opposite parties have pleaded that complainant had never given any demand for taking possession of the flat in question. Ex.OP3(also Ex.C8) is letter/email dated 21.10.2011 sent by opposite party i.e Shourya Greens, wherein it is mentioned that their project was delayed due to unavoidable circumstances but at present work is in full rock meaning thereby that the project has not been completed till October 2011. Ex.C-10 is another letter dated 22.4.2013 sent by complainant to opposite parties, wherein it is mentioned that he is again here in India, visited their above project on 19.4.2013 and met with Mr.Sidhu and had a round of the above apartment. It is further mentioned in this letter that the above apartment is still incomplete and is not ready for possession although Mr.Sidhu promised to complete the same within this month. On the other hand, opposite parties have not placed on record any document or letter to show that it sent intimation to the complainant to take possession of the flat. So it appears that project including flat of the complainant was not complete till filing of the present complaint in December 2013. In their written reply, the opposite parties have not clearly stated that construction of the flat is complete and complainant may take possession of the same. However during the pendency of the present complaint on 3.7.2014, the opposite parties moved an application for dismissal of the complaint on the ground that the complainant has taken the physical possession of the flat in question voluntarily and has obtained no objection certificate from the opposite parties for the purposes of installation of electricity and other consumer durable items over the flat in question. In reply to this application, the complainant has denied having taken physical possession of the flat in question as alleged by the opposite parties. Even in this application, the opposite parties have not mentioned the date of taking physical possession of the flat by the complainant nor they have attached or produced on record the NOC given to the complainant. Moreover, the complainant is seeking damages till December 2013 i.e during the month when the present complaint was filed. Even if for arguments sake, it is assumed that complainant has taken possession of the flat in question during the pendency of the present complaint, it does not make any difference. Counsel for complainant contended that complainant has purchased the flat for earning profits after selling the same. We have carefully considered this contention advanced by counsel for the opposite parties but find no merit in it. In para 2 of the complaint, the complainant has simply pleaded that one of the representative of the opposite party contacted him and allured him to purchase a flat by saying that the flat was good for residence purpose or it can be sold on a handsome profit in coming short future. So he has simply mentioned about the representation made by the representative of the opposite party and has not admitted this fact. Learned counsel for opposite party contended that the present complaint is time barred as damages beyond period of 2 years can not be claimed. We have carefully considered this contention advanced by learned counsel for opposite parties. In the present case, the cause of action is continuing one till the construction is completed and possession is handed over to the complainant. The opposite parties were to deliver the possession by October 2008 and till December 2013, they failed to deliver the same. So there is delay of 62 months in handing over the possession of the flat to the complainant till December 2013. The opposite parties agreed to pay penalty @ Rs.5/- sq.feet per month. The area of the flat is 1955 sq.feet and compensation or penalty for one month comes to Rs.9775/-. For 62 months delay the compensation/penalty comes of Rs.606050/-. So complainant is entitled to this amount as compensation.

8. In view above discussion, the present complaint is accepted and opposite parties are directed to pay Rs.606050/- to the complainant within one month from the date of receipt of copy of this order failing which they shall also be liable to pay interest @ 9% after expiry of said period of one month till the date of payment. The complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

17.11.2014 Member President