BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.718 of 2014
Date of institution: 24.12.2014
Date of Decision: 20.10.2015
Nisha wife of Sandeep Kumar resident of 4, FF Palam Enclave, Opposite Qila Complex, Kharar 140301, District SAS Nagar, Mohali, Punjab.
……..Complainant
Versus
1. M/s. Singla Builders & Promoters Ltd., having its office at NH-21, Chandigarh Kharar Highway, Mohali, Punjab through its Director.
2. Ms. Swati, Authorised signatory, M/s. Singla Builders & Promoters Ltd., SCO 146-147-148, Sector 43-B, Chandigarh.
………. Opposite Parties
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 P.S. Bassi, counsel for the complainant.
Shri Sukaam Gupta, counsel for the OPs.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint seeking following directions to the OPs to:
(a) pay her Rs.39,990/- as penalty clause as per agreement to sell in case of delayed payment till 30.11.2014 and to pay the interest .
(b) pay her Rs.2,00,000/- for mental harassment.
(c) pay her Rs.33,000/- as litigation expenses.
The case of the complainant is that she applied for allotment of 1 BHK flat at SBP Homes Sector 126, Kharar Mohali on 29.05.2011 by paying Rs.72,500/- as booking amount vide cheque dated 06.06.2011. The OPs made allotment of the flat No.216/1 in Sector 126, Kharar vide allotment letter dated 02.06.2011. On demand from the OPs, the complainant made further payment of 15% to the tune of Rs.1,45,000/- on 03.06.2011. Thereafter, an agreement to sell dated 02.06.2011 was executed between the parties regarding Flat No.216/1. It was agreed that the flat would be delivered to the complainant after completion of construction on or before 31.03.2013. The area of the flat was 700 sq. ft. and the total sale consideration including Preferential Local charges, club membership charges and car parking charges were Rs.14,50,000/-. As per Clause No.10 of the agreement in case the offer of possession by the OPs is not made by due date then the OPs shall be liable to pay Rs.3/- sq. ft. per month of the super area till the date of offer of possession. The complainant has been regularly following up with the OPs for possession of the flat. The complainant came to know from e-mail that possession letter was dispatched on 20.10.2014 which was never delivered to the complainant. The complainant even informed the OPs about her change of address. The complainant requested the OPs to send the possession letter through mail so that she could make the balance payment and other charges to take possession of her flat. The complainant got the possession letter on 29.10.2014 wherein the penalty clause amount was not deducted from the balance payment. The complainant visited the OPs but they denied about the penalty clause. The complainant informed the OPs that the balance amount is ready with her and she is waiting only for deduction of penalty clause amount. Till date the complainant has not received any communication on this issue even after sending 4 reminders on mail. The complainant has been forced to reside in rental premises for which she is paying Rs.10,000/- per month as rent. As per Clause 10 of the agreement the Ops are liable to pay Rs.3/- per sq. ft. per month of super area i.e. 700 sq. ft. to the complainant till the date of notice of offer of possession. The complainant is entitled to Rs.2100/- per month as compensation from 01.04.2013 to 29.10.2014 which comes to Rs.39,900/-. The complainant got issued legal notice dated 26.11.2014 to the OPs but the OPs have failed to settle the issue. With these allegations the complainant has filed the present complaint.
2. After admission of the complaint, notice was sent to the OPs. OPs in the written statement have pleaded that the complaint has been filed on misconceived facts and it is not maintainable in its present form. The dispute between the parties is of civil nature and can only be decided by a civil court. The complaint is barred by estoppels, waiver and acquiescence. The date of delivery of possession as 31.03.2013 was subject to reasonable extension of period of delivery as well as the ‘Force Majeure Clause’ as contemplated in the agreement. This clause came into force for the reason that the infrastructure projects in whole region were caught in the wrangle over the ban on mining as imposed by the Hon’ble Apex Court due to which the supply of necessary building material like sand, gravel etc. remained short which was beyond the control of the OPs. Due to non availability of construction material the possession had delayed a bit, thus the penalty clause does not come into force. The complainant was timely and regularly apprised about the status of the flat. The possession letter was issued at the relevant time. Denying any deficiency in service on their part, the OPs have sought dismissal of the complaint against it.
3. To succeed in the complaint, the complainant tendered in evidence affidavit Ex.CW-1/1 and copies of the documents Ex.C-1 to C-9.
4. Evidence of the OPs consists of affidavit of Amandeep Singla, their Director Ex.OP-1/1and documents Ex.OP-1/2.
5. We have heard learned counsel for the parties and have also gone through the written arguments submitted by them.
6. The booking of one BHK flat No.216/1 at SBP Homes Sector 126, Kharar Moha having super area of 700 sq. ft. by the complainant and allotment of the same by the OP on 29.05.2011 is not disputed. The allotment letter dated 02.06.2011 has been proved by the complainant as Ex.C-1. As per the terms of allotment, the complainant was to make total agreed payment of Rs.14,50,000/- which includes the basic sale price, preferential location charges, club membership charges, car parking charges etc. as per agreement to sell dated 20.06.2011 Ex.C-3. As per the buyers agreement clause-10 the possession of the flat was to be given on or before 31.03.2013 and in case the OPs failed to give the offer of possession by due date then, the OPs were liable to pay Rs.3/- per sq. ft. per month of the super area till the date of offer of possession. As per the complainant, the OPs have issued her offer of possession on mail dated 29.10.2014 and asked her to make the balance payment of Rs.2,24,421/- and take the possession of the flat in question. As per the complainant while calculating the demanded amount of Rs.2,24,421/- the OPs have not given her the benefit of penalty clause of Rs.3/- per sq. ft. per month which she is entitled to from 01.04.2013 to 29.10.2014 i.e. the intervening period of agreed date of possession and actual date of offer of possession. The complainant has raised a query in this regard and the same remained unanswered in the hands of the OPs. Therefore, the complainant has raised a consumer complaint alleging deficiency in service and unfair trade practice on the part of the OPs.
7. The OPs on the other hand in the reply as well as written arguments have admitted delay in delivery of possession beyond the stipulated period but attributed the delay to force majeure clause as contemplated in the agreement. The reason for delay as per the OPs is that the infrastructure projects in whole region were caught in the wrangle over the ban on mining as imposed by the Hon’ble Apex Court and due to this fact the supply of building material like sand, gravel etc. remained short and thus the OPs could not raise the construction and deliver the possession within stipulated agreed time line by 31.03.2013. However, as per the OPs the offer of possession was offered to the complainant on 29.10.2014. Therefore, the delay of handing over the possession being beyond control of the OPs, the complainant is not entitled to any penalty clause as claimed by her.
8. The limited question for consideration in the present complaint whether the OPs have defaulted in adhering to the stipulated time frame of handing over the offer of possession and if so whether the complainant is entitled to benefit of agreed penalty clause as per Clause-10 of the buyers agreement Ex.C-3.
9. The factum of purchase of Flat in question is not disputed. Further as per the terms of allotment letter Ex.C-1 against the total price of the flat of Rs.14,50,000/- the deposit of booking amount of Rs.2,17,500/- is not disputed. Further payment of Rs.1,45,000/- vide receipt dated 03.06.2011 Ex.C-2 is not disputed. As per buyers agreement Ex.C-3 the complainant was to make the balance payment in 7 installments starting from 02.06.2011 to 31.03.2013 i.e. the agreed date of offer of possession. As per the complainant she has received offer of possession dated 29.10.2014 Ex.C-6 vide which the complainant has been asked to make payment of Rs.2,24,421/- on account of previous balance, payment due on possession as per allotment letter, interest free maintenance charges, service tax, society maintenance charges, service tax on balance, grand total being Rs.2,24,421/-. As per the complainant while raising the demand of Rs.2,24,421/- the OPs have failed to give her benefit of penalty clause of Rs.3/- per sq. ft. per month for 700 sq. ft. super area from the agreed stipulated date of possession of 01.04.2013 to 29.10.2014 i.e the actual date of offer of possession. Therefore, the complainant has made correspondence through e-mails raising the issue as is evident from Ex.C-7 and the said issue has not been redressed by the OPs despite having received the legal notice Ex.C-8.
10. The factum of delay in handing over the possession beyond agreed stipulated date of 31.03.2013 is duly admitted by the OPs and it is evident from Ex.C-6 that the offer of possession has been issued by the OPs on 29.10.2014. Thus, OPs have failed to abide by the terms of agreement qua the adhering of date line qua offer of possession is concerned. The reasons for not adhering to the date line of possession, as relied by the OPs i.e. force majeure – non availability of building material sand, gravel etc. without any supporting evidence is only a bald assertion on the part of the OPs and is of no help to them. Thus it is ample clear that there was delay of 19 months of handing over the offer of possession to the complainant by the OPs. As per terms of buyers agreement Clause-10 in the event of delay in handing over the possession beyond the agreed stipulated date line the OPs are to pay penalty of Rs.3/- per sq. ft. per month for the super area of the flat to the complainant. The said benefit has not been granted to the complainant by the OPs while issuing offer of possession dated 29.10.2010 Ex.C-6 and particulars of the demanded amount of Rs.2,24,421/- as per Ex.C-6 are silent about such benefit having been given to the complainant. As it is amply proved that there is delay in possession, the complainant is entitled to compensation and the OPs are under obligation under Clause-10 of the agreement to pay the said amount. Non payment of this amount is an act of deficiency in service on the part of the OPs for which the complaint deserves to be allowed and the complainant deserves compensation.
11. In view of above discussion, the complaint is allowed and the OPs are directed jointly and severally to:
(a) to re-schedule the demand of balance payment from the complainant after giving her benefit of penalty clause of Rs.3/- per sq. ft. per month for super area of 700 sq. ft. for the period of delay i.e. 01.04.2013 to 29.10.2014.
(b) to handover the possession of the flat in question to the complainant after receipt of payment as calculated at (a) above.
(c) to pay to the complainant a lump sum compensation of Rs.20,000/- (Rs. Twenty thousand only) for mental agony, harassment and costs of litigation.
12. Compliance of the above order be made within a period of thirty days from the date of receipt of a certified copy of this order. 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.
October 20, 2015.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
