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

                                  Consumer Complaint No.103 of 2015

                                  Date of institution:         09.03.2015

                                                  Date of Decision:             28.08.2015

Suresh Kumar Jaswal, S/o Mela Ram Jaswal, R/o House No. 22 (Duplex) Motiaz Royal Fame, Sector 117, Greater 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 Amandeep Bindra, 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 him damages to the tune of Rs.30,000/- for not giving the possession by the stipulated date.

(b)    to pay him interest @ 18% per annum on Rs.11,03,250/- w.e.f. 31.03.2013 till the filing of the complaint.

(c)    to pay him compensation for mental and physical suffering to the tune of Rs.30,000/- and for litigation to the tune of Rs.10,000/-.

                The complainant applied for allotment of a residential unit of 1 BHK at a duly agreed  basic price of Rs.12,50,000/- in the  project of the OP located at Village Chajjumajra, Tehsil Kharar Mohali and paid the registration/booking amount of Rs.1,87,500/-  as booking amount. Thereafter the OP has issued the allotment letter dated 21.05.2011 Ex C-1. Parties executed the agreement dated 21.05.2011 containing the terms and conditions of the allotment of the apartment. As per the duly executed agreement the complainant agreed to buy and the OP agree to sell flat No. 210/4 on level FOURTH in the project called SBP Homes of the said building  together with proportionate indivisible joint rights in the said land (hereinafter collectively referred to as the “Flat” of the said “Flat”) as per plan and specifications inspected, seen and approved for a basic price of Rs.12,50,000/- having an approximate  super are of 700 Sq. ft. which included the whole  of the area under periphery walls and half of the area of walls common with other flat(s) adjoining the said flat and share of the area under stair cases, lifts parking area, common areas and facilities etc i.e. super area. Further as per agreement to sell the complainant was required to make the total agreed consideration in 6 installments by 21.01.2013 and upon possession on or before 31.03.2013 was required to pay Rs. 1,25,000/-, the total consideration being 12,50,000/- was to be paid. Further the OP has agreed to hand over the possession of the flat to the complainant on or before 31.03.2013 and in the event of default on the part of the OP i.e. non adherence to the specified date of possession, the   OP was liable to pay to the complainant @ Rs.3/- per Sq. ft. per month of the super area till the date of offer of possession. However, the offer of the possession was with the rider that all payments including interest free maintenance security be cleared by the complainant before taking over the possession.

                In pursuance of the agreement the complainant has made payment of Rs. 62,500/- along with the application and a sum of Rs.1,25,000/- subsequently vide receipt  dated 23.05.2011. Thereafter the complainant has taken the loan from the bank for making further payments of the agreed consideration. The complainant has made the payments as per schedule and the OP in lieu thereof has issued receipts Ex.C-3 to Ex.C-16. The OP has issued a notice for offer of possession of the apartment on 16.10.2014 Ex.C-17 and demanded a sum of Rs.1,87,661/- from the complainant. Before making the said payment, as per the demand notice the complainant visited the site and found that the possession of the flat which was offered to the complainant was defective as the flat in question is not habitable. Therefore, the complainant raised the issue with the OP to remove the defects and deficiencies and the same has not been removed till date by the OP to make it fit for habitable and peaceful enjoyment of the property which the complainant has purchased with his hard earned money after taking loan from the bank. The defects pointed out by the complainant pertains to incomplete kitchen, bedroom, dining room, lift, parking, bathroom as shown in the latest photograph taken by the complainant. Thus the complainant has alleged in the present complaint that the OP has failed to offer him possession of a habitable complete flat as per the promises made by them in the brochure as well as buyer’s agreement and has further failed to pay him the compensation as per clause 10 of the buyer’s agreement for delay in possession beyond the agreed  stipulated  date of possession as the complainant has issued the offer of possession on 16.10.2014 i.e. after a delay of  one year  and seven months and till date the physical possession of the flat  complete in all respects is  not delivered to the complainant. Thus the complainant has suffered not only mental agony and harassment but also financial loss due to acts of omission and commission of the OP as he has been deprived of the peaceful possession of his property and is forced to live on rented accommodation besides paying heavy interest on the loan raised by him from the bank for making the payment of agreed consideration. The complainant has raised a consumer dispute against the OP alleging deficiency in service and unfair trade practice causing mental agony, harassment and financial loss to him and prayed for directions to the OP to deliver complete and peaceful property in question besides claimed damages of Rs.30,000/- for not giving the possession by the stipulated date and further sought compensation on various counts .

2.             After service of notice upon OP, OP appeared through counsel and filed reply to the complaint taking preliminary objections of non maintainability of the complaint on account of lack of pecuniary jurisdiction of this Forum to entertain the present complaint, besides filing the reply on merits. On merits the OP has denied any deficiency in service and unfair trade practice on its part. The sale and execution of the agreement to sell Ex.C-2 of the flat in question is admitted by the OP. The OP has admitted having received the agreed consideration in installments and further admitted having issued the offer of offer of possession and demand of Rs.1,87,661/-. The OP has denied having offered the possession of incomplete flat and explained to the complainant that the pending work issues raised by him pertains to cosmetic in nature and will be removed once the possession is taken over by the complainant in  order to maintain the aesthetics of the unit. The complainant has unnecessary raised the issues and has not paid the demanded amount which he is required to make the payment before taking the physical possession of the flat in question. The OP has even doubted the veracity of the photographs relied upon by the complainant to show the defects and deficiencies of the flat in question. The OP has further explained the reasons for delay in handing over the possession to the complainant on or before 31.03.2013 subject to force majeure clause i.e.  the ban on mining as imposed by the Hon’ble Apex Court due to which the supply of the necessary building material like sand, gravel etc. remained short and, therefore, the reasons were beyond the control of the OP to complete the construction of the project and hand over the physical possession of the flat in question to the complainant on or before 31.03.3013. Thus denying any deficiency in service and unfair trade practice on its part, the OP has sought dismissal of the complaint.

3.             The complainant tendered in evidence his affidavit Ex.CW-1/1 and documents Ex.C-1 to C-25.

4.             Evidence of the OP consists of affidavit of Amandeep Singla, its Director Ex.OP-1/1 and documents Ex.OP-1/2 to Ex.OP-1/3.

5.             We have heard learned counsel for the parties and have also gone through their written arguments.

6.             The allotment and sale of the flat in question by the OP at the agreed rate of Rs.12,50,000/-  in favour of the complainant is admitted. In pursuance of the agreed sale consideration the complainant has paid Rs.11.00 lacs on different dates upto 30.03.2013 i.e. the last payment of being Rs.93,750/- as per receipt dated 30.03.2013 issued by the OP Ex.C-16. Thereafter, the complainant has received letter dated 16.10.2014 Ex.C-17 from the OP regarding offer of possession of the flat in question wherein the OP has asked the complainant to pay Rs.1,87,661/- on various accounts and take the possession of the property in question. After receiving the said notice, the complainant approached the OP to inspect the site and found many discrepancies and defects in the flat as per photographs attached by the complainant Ex.C-18 to C-25 showing incomplete work in the bathroom, bed room, kitchen, paint on doors and windows, loose electricity wires hanging outside the house, incomplete lift only a pit for the lift. Therefore, the complainant has refused to accept the offer of defective possession and not paid the demanded amount as per Ex.C-17. The OP has failed to remove the defects and offer complete perfect and peaceful possession of the property in question to the complainant and has not further paid the agreed penalty of Rs.3/- per sq. ft per month in the event of failure to handover the possession within the stipulated agreed period as per allotment letter. As per Clause 10 of the agreement to sell dated 21.05.2011 Ex.C-2 the possession of the flat was agreed to be handed over on 31.03.2012 and the said cut off date has not been adhered to by the OP as is ample evident from Ex.C-17 dated 16.10.2014 wherein the offer of possession has been made by the OP in favour of the complainant and even the said offer is defective as stated above and till date the OP has not handed over the possession. Therefore, aggrieved by the acts of unfair trade practice and deficiency in service, the complainant has prayed for directions to the OP.

7.             Before taking up the matter on merits, it will be appropriate to address the preliminary objection raised by the OP regarding maintainability of the complaint on the ground of lack of pecuniary jurisdiction of this Forum to entertain the present complaint. As per the OP the complainant in the relief clause is seeking possession of the unit which amounts to the tune of Rs.12,50,000/- besides interest @ 18% on the deposited amount of Rs.11,03,250/- from 31.03.2013 till the filing of the complaint, damages expenses on different accounts, and compensation for mental and physical suffering and litigation charges of Rs.40,000/-.

8.             We have perused the prayer/relief claimed clause of the complaint which is reproduced as under:

(a)    Damages of Rs.30,000/- for not giving the possession by the fixed date in the agreement and deliver possession immediately of the flat.

(b)    Interest at the rate of 18% on sum of Rs.11,03,250/- from 31.03.2013  upto filing of the complaint.

(c)    Compensation for mental and physical suffering Rs.30,000/- litigation charges of Rs.10,000/-.

                Admittedly the value of the flat is Rs.12,50,000/- and the complainant is seeking possession of the said flat. Therefore, for the purposes of determining pecuniary jurisdiction as envisaged under Section 11 (1) of the Consumer Protection Act, the value of flat in question i.e. Rs.12,50,000/- and the compensation claimed is to be taken into consideration. The complainant has claimed interest on the deposited amount of Rs.11,03,250/- @ 18% from 31.03.2013 till filing of the complaint i.e. 05.03.2015 which comes approximately to Rs. 3,97,188/- plus compensation for mental agony and suffering and litigation charges of Rs.40,000/- and all these sums clubbed together the total sum claimed comes to Rs. 16,88,000/- and the said claimed amount falls within the pecuniary jurisdiction of this Forum and this Forum has the jurisdiction to entertain the complaint where the value of goods and services and the compensation, if any, claimed does not exceed Rs.20.00 lacs. Therefore, the objection of the OP in this regard is not maintainable and is discarded.

9.             Now on merits, the counsel for the complainant has argued that the OP has issued him the offer of possession dated 16.10.2014 Ex.C-7 after having received Rs.11.00 lacs against the agreed consideration of on 30.03.2013. Before making the balance payment and taking the physical possession of the flat in question, the complainant inspected the flat in question and found the construction not in order and the flat not habitable as bathroom seats are missing, no tap and slab in the kitchen, no electric fitting in the kitchen, bedroom not furnished, loose water supply pipes, lift not operational, only civil construction of installing the lift with an empty pit has been put on place, loose electric wires at the basement and first floor in the complex etc. The complainant informed the OP to remove those defects but till date the defects have not been removed and since there is delay in handing over the possession beyond the stipulated agreed period, he had not been compensated as per agreed rate of Rs.3/- per sq. ft. per month for the period of delay.  In order to prove the complainant has relied upon his own affidavit as well as photographs to show the defects and deficiencies in the flat and the complex and further delay in handing over the possession beyond the stipulated date, the complainant has relied upon the terms of buyers agreement Ex.C-2 Clause-10 as per which the possession was to be given on or before 31.03.2013 whereas the offer of possession has been issued on 16.10.2014 and that too is a defective offer and till date no possession has been handed over to him. On both the counts there is no rebuttal evidence by the OP. Thus, it is well proved that the OP has made a defective offer of possession of the flat and that too delayed by more than one year and seven months from 31.03.2013 till the defective offer of possession i.e. 16.10.2014 and the delay is continuing as no possession has been handed over to the complainant. The OP in its reply has tried to take the shelter of force majeure clause of the agreement to show its bonafide for extension of time for delivery of possession. As per the OP there was short supply of necessary building material which restrained it to carry out the development of the project within the agreed stipulated period and this fact has been conveyed to the complainant. We do not find any merit in such contention as no such document of non availability of the building material or having conveyed its inability to  the complainant  showing delay in completion of the project  has been placed on record by the OP and mere bald assertions is of no help to the complainant. The complainant has, therefore, proved his case of unfair trade practice and deficiency in service on the part of the OP on both counts i.e. delay in handing over possession beyond the agreed stipulated period, depriving him of the proper and effective possession and further depriving him of the payment of amount as per agreed penalty clause due to the delay in handing over possession. Thus, on all these counts we are of the view that the complaint deserves to be allowed and the complainant deserves to be compensated on account of mental agony and financial loss he has suffered due to delay in possession as he has been deprived of the use and benefit of the flat which he has acquired with an intention to live.

10.           In view of above discussion, the complaint is allowed and the OP namely M/s Singla Builders and Promoters Ltd., Chandigarh Kharar Road, Tehsil Kharar, Mohali, Punjab through its Managing Director is directed as under:

(a)    to remove the defects and defects in the flat in question and deficiencies of amenities in the complex within a period of one month from this order and thereafter handover the defect free possession of the flat to the complainant to his satisfaction after clearance of outstanding dues by the complainant.

(b)    to pay to the complainant penalty @ Rs.3/-per sq. ft per month for super area of 700 sq. ft. on account of delay in possession from 01.04.2013 till the date of handing over of the actual physical possession of the flat to the complainant.

(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.

                Compliance of directions at (b) and (c) above be made by the OP within a period of forty five days from the date of receipt of certified copies 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.                           

August 28, 2015.

                                                                       (Mrs. Madhu P. Singh)

                                                                                           President

(Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

                    Member