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

Consumer Complaint No.84 of 2016

                                                Date of institution:  11.02.2016                                                  Date of decision   :  18.10.2018

Jatinder Singh Bedi son of Shri TBS Bedi, resident of H.No.1630, HIG, Sector 63,  Mohali, District SAS Nagar.

…….Complainant

Versus

1.     Amandeep Singla son of Shri Ram Saran Singla, Director M/s. Singla Builders and Promoters Ltd., Corporate Office at SCO No.146-147-148, Above HDFC Bank, Sector 43 and Registered/Branch Office at Village Desumajra- Chandigarh-Kharar Highway Road, Kharar, Tehsil Kharar, District SAS Nagar, Mohali.

        (Name of OP No.1 deleted from the array of OPs vide order dated 17.02.2016).

2.     M/s. Singla Builders and Promoters Ltd., Corporate Office at SCO No.146-147-148, Above HDFC Bank, Sector 43 and Registered/Branch Office at Village Desumajra- Chandigarh-Kharar Highway Road, Kharar, Tehsil Kharar, District SAS Nagar, Mohali through its  Director/MD - Amandeep Singla son of Shri Ram Saran Singla.

                                                         ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:    Shri G.K. Dhir, President,

                Shri Amrinder Singh Sidhu, Member.

Present:     Shri S.S. Sidhu, counsel for complainant.

                OP No.2 ex-parte.

        (Name of OP No.1 deleted from the array of OPs vide  order dated 17.02.2016).

Order by :-  Shri G.K. Dhir, President.

Order

               OPs launched project known as ‘SBP North Valley’ situate at village Santemajra, Tehsil Kharar, District Mohali.  On allurement of OPs, complainant got booked a residential house/flat in the said project by paying Rs.1,10,000/- on 25.07.2011 regarding which receipt was issued by OPs. Total payable sale consideration amount was Rs.11,40,000/-. Thereafter residential unit bearing Flat No.258 at Second Floor was allotted to complainant vide allotment letter dated 04.10.2011. Agreement of sale dated 04.10.2011 even was executed. As per payment schedule, complainant kept on paying amount of Rs.7,45,000/- to OPs on different dates. However, construction on the site has never been raised uptill 2013 and that is why complainant was compelled not to make further payments. Earlier payments were made by complainant after raising loan by way of mortgaging the flat. As per Clause-10 of the agreement dated 04.10.2011 executed between parties, possession of the flat was to be delivered to the allottees including complainant on or before 30.06.2013, but no endeavour has been made for completing the project.  After serving notice dated 12.01.2016 by OPs to the complainant for clearance of amount of Rs.4,66,396/-, payment was made, but despite that  neither flat completed and nor OPs are in a position to complete the construction of the said flat. Though OPs claim that flat is ready for delivery of possession, but vide report dated 14.11.2015 prepared by the valuer after inspection, it was found that flat in question is incomplete, due to which possession of the same cannot be handed over. As OPs not in a position to handover possession and that is why refund of the paid amount of Rs.7,45,000/- with interest @ 24% per annum from the date of issue of allotment letter dated 04.10.2011 upto the date of filing of complaint is claimed. Besides, compensation for mental harassment and agony of Rs.1.00 lakh and litigation expenses of Rs.50,000/- more claimed.

2.             In joint reply filed by OP No.1 and 2, it is pleaded inter alia as if complaint being false and misconceived is filed for harassing and humiliating OPs, despite the fact that complaint is not maintainable in the present form. Complainant is alleged to be an investor and that is why he at the relevant time approached OPs alongwith one Shri Madeep Singh for discussing that he (complainant) is looking for investment in some housing venture. Now due to slump in the real estate market, complainant has filed this complaint by concocting the story. Project floated by OPs was got completed in all respects. Date of offer of possession was agreed subject to timely payment by complainant. Force majure clause alongwith other relevant clauses for extension of time for delivery of possession are incorporated in the agreement, but complainant by way of pick and choose methods has reproduced contents of the agreement, favourable to him. Infrastructure projects in whole region are caught in the wrangle due to ban on mining imposed by Hon’ble Apex Court of the country, resulting in hindrance in supply of necessary building material like gravel etc.  Despite that OPs by putting best efforts have completed construction. Numerous families are residing in the referred housing venture. If the complainant was not satisfied with the pace of construction of the project, he would not have got released the payments at relevant times.  Rather complainant being defaulter on account of short payments as per payment schedule has filed this complaint for abusing process of law in counter blast to various reminders and legal notice sent by OPs. Issues between the parties alleged to be purely of civil nature because of involvement of intricate questions of law and facts requiring evidence. Complaint also alleged to be barred by principles of estoppel, waiver and acquiesce. It is also claimed that complaint is bad due to non joinder and mis joinder of parties and that no cause of action has accrued in favour of complainant. Present complaint being beyond pecuniary jurisdiction of this Forum alleged to be not maintainable. OPs launched the project in question after acquiring all the requisite permissions from the concerned  authorities. Complainant kept on releasing payments after being satisfied himself regarding pace and condition of the unit purchased. Complainant has not made payments as per schedule worked out in the agreement of sale and that is why OPs were constrained to issue notice to complainant for calling upon him to make payment of the agreed amounts. Report relied upon by complainant of surveyor is alleged to be procured one and vague one and as such same has no relevancy. Flat is alleged to be complete in all respects. Complainant was duly informed about the progress and process of project from time to time. Every query raised by complainant was properly entertained and answered. Other averments of the complaint denied.

3.             Complainant to prove his case tendered in evidence affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and thereafter his counsel closed evidence. On the other hand counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Ashok Kumar, Director alongwith documents Ex.OP-1 to Ex.OP-39 and thereafter closed evidence.  After closure of evidence by OPs, none appeared for OPs and as such OPs were proceeded against ex-parte. However, despite that case is decided on merits after going through the produced documents and submissions taken in the pleadings of written reply to the main complaint filed by OPs.

4.             Written arguments not submitted by complainant. Oral arguments heard and records gone through.

5.             It may be submitted here that name of OP No.1 deleted from the array of OPs after sufferance of statement by counsel for complainant on 17.02.2016 to the effect that he does not want to pursue the complaint against OP No.1. It was after record of statement of counsel for complainant that name of OP No.1 was ordered to be deleted from the array of OPs. So this order will be against OP No.2 only.

6.             From the pleadings of the parties and the submitted affidavits, it is made out that complainant purchased Flat No.258 in the project SBP North Valley at Village Sante Majra, Tehsil Kharar and that is why allotment letter Ex.C-3 was issued in his favour by OP No.2. In Ex.C-3 itself mention made as if complainant had deposited booking amount of Rs.1,10,000/- while agreeing to purchase Flat No.258 for total price of Rs.11,40,000/-. Ex.C-1 and Ex.C-2 are copies of brochure issued by OP No.2. It was thereafter that agreement of sale Ex.C-4 was executed between complainant and OP No.2 through authorised representative. As per payment plan, amount of Rs.1,10,000/- payable by 30.09.2011, but balance amount in 6 installments payable on 30.12.2011; 20.03.2012; 20.07.2012; 20.11.2012; 20.03.2013 and 30.06.2013 or at the time of delivery of possession. In view of contents of this agreement Ex.C-4, it is made out that complainant undertook to pay sale price of Rs.11,40,000/- as per worked out schedule, on the dates referred above. Even if such payment schedule is mentioned in Ex.C-4, despite that offer for possession of flat was made to complainant by OPs by issue of letter Ex.C-OP-33 dated 11.08.2015. Through Ex.OP-33, complainant was required to pay the balance amount of Rs.4,64,798/- within 15 days period. Though it is claimed by OP No.2 that flat is ready for delivery of possession, but report of approved valuer Major Tarvinder Singh Ex.C-6 establishes that flats bearing No.256 SF and 258 SF are incomplete and they are not in such a condition that possession of the same can be offered. So it is obvious that complainant has not responded to the calls for getting delivery of possession after finding that complete works, in the flat allotted to him, has not been done. As assurance was given to complainant for handing over completely built flat and as such complainant entitled to receive possession of flat on completion of all works and not before that. So if complainant refused to accept offer despite reminders, then complainant did right thing by exercising his option of not accepting possession of incomplete flat.

7.             Details of works not carried out in the flat are given in report of approved valuer Ex.C-6 as under:

        (a)    Door and window shutters except the entrance shutter.

        (b)    Glazing work.

        (c)    Sanitary and bath fittings.

        (d)    Provision of cupboard in bed room.

        (e)    Provision of storage cabinets in kitchen.

        (f)     Electric switches.

        (g)    Painting & polishing.

        (h)    Lift not installed.

8.             No record to the contrary produced. It is not shown as to how the report Ex.C-6 of the approved valuer is incorrect and as such report Ex.C-6 liable to be accepted as correct for finding that works in the flat were incomplete, but offer for possession made despite that. In such circumstances, complainant entitled for refund of the paid amount with interest from the dates of deposits, more so when he has deposited more than 65% of the sale consideration amount. Besides, if we go by terms of agreement Ex.C-4, then it is made out that possession was offered to be handed over to complainant on or before 30.06.2013, but offer for possession in this respect shown to be made through Ex.OP-33 on 11.08.2015 i.e. after more than two years of actual date by which possession was to be delivered. That also is an act of deficiency in service on part of OP No.2. Ex.C-7 is copy of reply of the legal notice sent by OPs to complainant. Perusal of Ex.C-7 shows as if amount of Rs.7,45,000/- alone has been paid by complainant, but balance amount has not been paid and as such it is projected through written statement of OPs as well as affidavit Ex.OP-1/1 of Shri Ashok Kumar, Director of OP No.2 that complainant has not sticked to the payment plan schedule. In view of this, complainant is termed as defaulter in payment of installments as per schedule. However, as already discussed above complainant is not a defaulter because he is entitled to have possession of the flat on completion of works therein and not before that. Those works have not been completed till submission of report Ex.C-6 and as such complainant committed no default virtually in making payment, but default was committed by OP No.2 in not completing the works in the flat allotted to complainant.

9.             Ex.OP-1 is copy of resolution passed by OP No.2 in favour of Shri Ashok Kumar for authorizing him to appear, whereas Ex.OP-2 is letter sent by OP No.2 to complainant on 05.12.2011 for calling upon him to deposit Rs.2,32,000/- by 30.12.2011. Ex.OP-3 is receipt of courier, produced to show as if  some notice was sent to complainant by OP No.2. Ex.OP-4 is notice sent by OP No.2 to complainant for calling upon him to deposit Rs.2,32,000/- by 15.01.2012.  Copy of postal receipt Ex.OP-5 produced to show dispatch of Ex.OP-4. Ex.OP-6 is another notice sent by OP No.2 to complainant for calling upon him to deposit Rs.1,71,000/- by 20.03.2012 and copy of the postal receipt is produced as Ex.OP-7. Ex.OP-8 and Ex.OP-9, the copies of notices produced for establishing that complainant was called upon to pay next installment of Rs.3,03,000/- and Rs.3,42,000/- on or before 30.06.2012 and 22.07.2012 respectively, whereas Ex.OP-10 is copy of postal receipt. Notice dated 25.08.2012 (Ex.OP-11) sent through postal receipt Ex.OP-12 for establishing that complainant was called upon to pay Rs.1,89,000/- within ten days. Demand of Rs.3,60,000/- even was put forth through notice Ex.OP-13  dated 08.11.2012 as well as through notice Ex.OP-15 dated 05.01.2013, but demand of Rs.5,31,000/- from complainant was made by OP No.2 through notice Ex.OP-17 as well as Ex.OP-19. Demand of Rs.3,42,000/- was made by OP No.2 from complainant vide demand notice dated 20.06.2013 Ex.OP-21, but of Rs.5,13,000/- vide notice dated 05.07.2013 Ex.OP-22 as well as through notice dated 08.01.2014 Ex.OP-23, Ex.OP-25 dated 15.03.2014, notice dated 11.12.2014 Ex.OP-27, notice dated 18.02.2015 Ex.OP-29, notice dated 18.04.2015 Ex.OP-31 and notice dated 05.05.2015 Ex.OP-32. Courier/postal receipts of dispatch of these notices also produced as Ex.OP-14; Ex.OP-16; Ex.OP-18; Ex.OP-20; Ex.OP-24; Ex.OP-26; Ex.OP-28 and Ex.OP-30. Demand letter Ex.OP-33 also was issued for calling upon complainant to pay Rs.4,64,798/- within 15 days period. Ex.OP-34 is copy of courier receipt for establishing dispatch of notice Ex.OP-33.  Ex.OP-35 is the same thing as is Ex.C-7. Ex.OP-36 is courier receipt showing dispatch of reply Ex.OP-35. Through Ex.OP-37 demand of Rs.4,66,396/- was made by OP No.2 from complainant.  Ex.OP-38 is the final notice sent by OP No.2 to complainant and Ex.OP-39 reflects the total payment made by complainant to OP No.2.  However, the flat is not completed because of above pointed out deficiencies and as such refusal by complainant to accept possession is quite appropriate.  OP No.2 virtually wants to handover possession of incomplete flat to complainant with a view to earn more profits than the one visualized, while entering into agreement Ex.C-5 and as such act of offering possession of incomplete flat is an act of adopting unfair trade practice by OP No.2. Being so, submission advanced by counsel for complainant has force that complainant is entitled for refund of entire paid amount with interest with effect from the dates of deposits. That interest @ 12% per annum allowed by keeping in view the provisions of Rule 17 framed under PAPRA Act, 1995.

10.            No other worth mentioning point needs to be discussed, being not raised.

11.            As a sequel of above discussion, complaint allowed by directing OP No.2 to refund the received amount of Rs.7,45,000/- (Rs. Seven Lakhs Forty Five thousand only) with interest @ 12% per annum from the dates of deposits  till payment. Compensation for mental agony and harassment of Rs.20,000/-  (Rs. Twenty thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against  OP No.2.  Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 18, 2018.

                                                                (G.K. Dhir)

                                                                President

(Amrinder Singh Sidhu)

Member