BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.216 of 2015
Date of institution: 11.05.2015
Date of Decision: 10.02.2016
Mrs. Amanbir Kaur daughter of Manmohan Singh resident of House No.2376 (GF) SCL Complex, Sector 70, Mohali.
……..Complainant
Versus
M/s.Singla Builders and Promoters Ltd., Chandigarh Kharar Road, Tehsil Kharar, Mohali Punjab through its Managing Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri J.S. Ahluwalia, counsel for the complainant.
Shri Rohit Sharma, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) to pay her damages of Rs.30,000/- for not giving possession by the fixed date and deliver possession of the flat complete in all respects as per specifications given in the brochure.
(b) to pay her interest @ 18% per annum on Rs.14,90,000/- from 30.06.2013 till delivery of possession.
(c) to pay her Rs.30,000/- for mental and physical suffering and litigation charges of Rs.10,000/-.
The case of the complainant is that she booked one BHK flat in the fifth floor of IBHK towers of the OP by paying Rs.2,17,500/- as registration amount. The total sale consideration of the flat was Rs.14,50,000/-. As per the specifications contained in the brochure, the Master Bed room shall have premium emulsion, kitchen have ceramic tiles, 2ft above granite counter, toilets to have anti skid ceramic tiles upto 7’ height, stair case to have kota stone/marble on the steps and premium emulsion and balconies to have wealth proof paint. Besides this flooring at all places was to be vitrified tiles except Master Bed Room which shall have laminated wooden floor and toilet to have anit skid tiles, balconies to have anti skid tiles. It was also provided that the door would be skin moulded shutters at all places i.e. main entrance, drawing room, bath room and bed room etc. Electrical would be Modular switches and cooper wires, window frames and shutter would be of wooden, kitchen would have granite counter top, SS Sink, Modern kitchen, toilet to have premium chinaware and premium C.P. fitting, the stair case and balconies to have M.S. Railing. The OP allotted flat No.545 (fifth floor) vide allotment letter dated 20.07.2011 and buyers agreement dated 20.07.2011 was also executed. As per the agreement the possession was to be delivered on or before 30.06.2013. In case the offer of possession by the OP is not made by due date then as per Clause 10 of the agreement, the OP was liable to pay penalty @ Rs.3/- per sq. ft. per month of the super area till date of offer of possession. The complainant paid the amount of Rs.14,50,000/- and Rs.41,444/- before the date fixed for giving the possession. However, the OP has not offered possession of the flat. The complainant visited the site number of times to know the latest position of construction but found that the flat is still incomplete. Even the promised facilities have also not been mentioned in the brochure. With these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that the complaint has been filed on false and misconceived facts. The complainant booked the flat as an investor as her father has also booked one flat in the project of the OP. The project of the OP was completed well within time and the complainant was time and again approached to make balance payment of the agreed price and to take physical possession of the flat. The dispute between the parties is purely of civil nature which can be decided by the civil court. On merits, it is pleaded that had the complainant not satisfied with the progress and status of the flat, she would not have released the payment which was supposed to be released at the time of taking over the possession. The complainant made the last payment in the year 2013. The complainant remained mute spectator till 2015 when she filed the present complaint. The flat of the complainant is complete and the photographs produced by the complainant are procured one. Numerous families are already residing at the referred housing venture to their satisfaction. The complainant is not entitled for compensation as mentioned in Clause 10 of the agreement. Due to non availability of construction material, the handing over of possession has delayed a bit. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-15.
4. Evidence of the OP consists of affidavit of Amandeep Singla, its Director Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-3.
5. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
6. The allotment of one BHK flat No.545, 5th Floor, at village Santemajra, Tehsil Kharar, Mohali vide allotment letter dated 20.07.2011 Ex.C-3 and agreement to sell dated 20.07.2011 Ex.C-4 duly executed between the parties, and in furtherance of the agreement, the receipt of agreed sale consideration are admitted factum between the parties. The grievance of the complainant in the present complaint is that she has not been given the physical possession of the property on or before 30.06.2013 and till date. As per Clause-10 of the agreement to sell, the possession was to be delivered on or before 30.06.2013 whereas the OP has not yet handed over the physical possession of the flat to the complainant. Further during her visit to the site, the complainant found that the flat is still incomplete and is not as per the specifications contained in the brochure. The complainant has raised her both grievances with the OP and the OP has failed to respond to the same, thus giving rise to the present consumer dispute.
7. The issues, therefore, for consideration before this Forum are (i) whether there is delay in handing over the physical possession beyond the stipulated agreed date of possession, if so whether the complainant is entitled to compensation as per terms of agreement (ii) whether the flat in question suffers from various infirmities as against the promised specifications contained in the brochure, if so whether the complainant is entitled to compensation.
8. In order to answer the first question, it will be appropriate to look into Clause-10 of the Agreement to Sell Ex.C-4 which is reproduced as under:
“The company shall offer to handover the possession of the above said flat to the allottee on or before 30.06.2013. In case the offer of possession by the company is not made by due date due to any other reason not beyond the control of the company then the company shall be liable to pay to the allottee penalty @ Rs.3/- per sq. ft. per month of the super area till the date of offer of possession. Under no circumstances the possession of the flat shall be given by the company unless and until all payments including interest free maintenance security required to be made by the allottee in respect thereof have been made to the company. Nor shall the allottee have any right to claim possession of the flat without having made complete payments payable under this agreement and any other agreement between the allottee and the company in this regard and in the manner stipulated therein. As soon as the building is notified by the company as complete and ready for occupation, the allottee shall pay all arrears demanded by the company within 30 days of the intimation by the company and Rs.25/- per sq. ft. of the super area of the flat will be charged extra as IFMS which will be paid by the purchaser to the company at the time of possession/full and final payment.”
9. The OP in its written statement in Para No.16 has admitted that the offer of possession to the complainant has been delayed due to non availability of the construction material. Thus there is a clear admission on the part of the OP that the offer of possession has not been issued in favour of the complainant by till date. Even there is nothing on record to show issuance of offer of possession. Thus, it is ample clear that the OP has failed to discharge its contractual obligation of offer of possession by the stipulated date of 30.06.2013. The plea of the OP that the complainant has failed to pay the full amount before the issuance of offer of possession is again not supported by any evidence to show as to when the OP has issued any demand notice for making the payment. It was the contractual obligation of the OP to inform the complainant about the status of construction of her property and correspondingly demand for the payment schedule. In this regard also the OP has failed as there is nothing on record to acts of commission by the OP. However, the complainant has proved on record the payments made as per agreed sale consideration from 20.07.2011 to 20.03.2013 vide receipts Ex.C-5 to C-12 ad as per detail mentioned in the complaint in Para-6.
The receipt of payment has not been denied by the OP. Thus it is ample clear that the OP has not issued any offer of possession to the complainant on or before 30.06.2013 and till date. Therefore, the complainant is entitled to benefit of penalty clause @ Rs.3/- per sq. ft. per month for 770 sq. ft. area w.e.f. 01.07.2013 till the actual handing over physical possession of the flat in question to the complainant.
10. On the second issue the defects pointed out by the complainant in the flat in question against the promised specifications as per brochure. As per the complainant since she has not been handed over the possession till date, however, upon visit at the site she has found major draw backs and deficiencies in the flat against the promised specifications as per brochure and all the defects/deficiencies have been captured by her in the photographs taken at site which are Ex.C-13 to C-24. The said photographs have been duly proved by affidavit of the complainant. The plea of the OP that these are manufactured/procured photographs without supporting any counter evidence by the OP is of no help to it. Thus, on this issue also the complainant has proved that the flat in question built up by the OP is against the specifications as promised in the brochure as major defects/deficiencies have been brought to the notice of the OP which it has till date failed to rectify. Thus the defective construction in the flat is an act of deficiency in service and unfair trade practice as on both accounts i.e. removal of defects and offer of defect free possession till date is an act of deficiency in service and unfair trade practice writ large on the part of the OP. Therefore, the complaint deserves to be allowed and the complainant deserves to be compensated.
11. In view of above discussion, the complaint is allowed with the following directions:
(a) to pay to the complainant penalty @ Rs.3/- per sq. ft. per month for 770 sq. ft. area from 01.07.2013 till actual physical handing over possession of the flat in question.
(b) before handing over the defect free possession of the flat in question, to ensure the removal of defects particularly pointed out by the complainant and the construction of the flat in question is as per specifications promised in brochure.
(c) to pay to the complainant a lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) for mental agony, harassment and costs of litigation.
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.
February 10, 2016. Sd/-
(Mrs. Madhu P. Singh)
President
We give our dissent view
Sd/-
(Amrinder Singh Sidhu)
Member
Dissent view
Sd/-
(Mrs. R.K. Aulakh)
Member
BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.216 of 2015
Date of institution: 11.05.2015
Date of Decision: 10.02.2016
Mrs. Amanbir Kaur daughter of Manmohan Singh resident of House No.2376 (GF) SCL Complex, Sector 70, Mohali.
……..Complainant
Versus
M/s.Singla Builders and Promoters Ltd., Chandigarh Kharar Road, Tehsil Kharar, Mohali Punjab through its Managing Director.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri J.S. Ahluwalia, counsel for the complainant.
Shri Rohit Sharma, counsel for the OP.
Dissent view of the Members:
We agree with the order of Ld. President except clause (b) of direction of Para No.11 on the point that this direction is neither specific nor clear.
Pronounced.
February 10, 2016.
Sd/-
(Amrinder Singh Sidhu)
Member
Sd/-
(Mrs. R.K. Aulakh)
Member
