Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 06.
Instituted on : 03.01.2017.
Decided on : 13.02.2019.
Mrs. Nirmal Dalal w/o sh. Surender Singh Dalal, Permanent Address H.No.1299, Sector-03, Rohtak(Haryana) and presently R/o A-1184, Ground Floor, Sector-17B, Gurgaon-122001.
………..Complainant.
Vs.
- M/s Sun City Buildcon Pvt. Ltd. Suncity Business Tower, 2nd Floor, Golf Course Road, Sector-54, Gurgaon-122002.
- M/s Suncity Buildcon Pvt. Ltd., Sector-35, Sonepat Road, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
SMT. SAROJ BALA BOHRA, MEMBER
Present: Sh.Naseeb Dalal, Advocate for the complainant.
Sh.Anurag Malik, Advocate for the opposite parties.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant had deposited an amount of Rs.1214717/- during the period from February 2007 to October 2009 to the respondents towards basic price of plot and other charges as per their demand and as per agreement signed between the respondents and complainant, after completion of development work in the project, the possession of plot was supposed to be offered in February 2010 but the possession was offered by the respondents through notice to complainant on 1st February 2016 i.e. after inordinate delay of about 6 years. That after depositing the money, complainant visited the site many times but found that no development work was going on there and complainant requested the respondents time and again for early possession of her plot and payment of interest as compensation for delayed period. That as per respondents claim, the delay in possession of plot is attributed only to the stay order of Hon’ble Punjab & Haryana High Court that lasted for 5 years, 4 months and 22 days. That now complainant has come to know that said project land covering the plot of complainant was not covered under the said stay and they had mislead the complainant deliberately. That as per the agreement between the parties, in case of delayed payment, the allotte is liable to pay interest @ 24% p.a.. The total amount paid to the respondents upto 05.04.2010 was Rs.1214717/- and total interest for unnecessary delay comes to Rs.15.71 lakh. That the possession of plot was given to the complainant on 04.07.2016. That the development work was not completed at the time of possession and as such there is deficiency in service on the part of OPs. Hence this complaint and the complainant has prayed for directing the opposite parties to pay an amount of Rs.15.71 lakh in lump sum for delayed period prior to the offer of possession and @ 24% p.a. for delayed period from offer of possession till completion of development work relating to her plot and also to pay compensation and litigation expenses as explained in relief clause.
2. After registration of complaint, notice was issued to the opposite parties who appeared and filed their written reply submitting therein that it is denied that possession was to be offered in Feb 2010 as per allotment agreement. That there was no inordinate delay of 6 years in offer of possession. That it is denied that no development work at the site except the period of order dt. 05.04.2010 of Hon’ble Court P & H at Chandigarh under CWP No.13611 of 2009 . It is submitted that due to above said order development of entire project was hampered badly and same is beyond the control of OPs. It is denied that OPs are liable to pay interest to the complainant for a period of 5 years 4 months and 22 days as reciprocal promise. That there is no deficiency in service on the part of OPs and dismissal of complaint has been sought.
3. Ld. counsel for the complainant has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C35 and closed his evidence. On the other hand, ld. counsel for OPs tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R4 and closed his evidence.
4. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
5. In the present complaint the respondent officials made objection that complainant is not consumer in view of the order dated 04.01.2016 of Hon’ble National Commission in Revision Petition No.1942 of 2013 titled as T.K.A.Padmanabham Vs. Abhiyan CGHS Ltd. But the perusal of the contents of this case law reveals that the fact of the present case are totally different from the cited law. In that case, the respondent filed an application under Section 8 of the Arbitration and Conciliation Act, 1996 before the District Forum and District Forum allowed the application and referred the parties to the Arbitration and disposed of the complaint accordingly. The complaint was not decided by the District Forum on merits and thereafter the petitioner filed appeal before the State Commission which was also dismissed . Hence the revision petition No.1942 of 2013 was filed by the petitioner. In this petition also, the application under Section 8 of Arbitration Act was decided and the Hon’ble National Commission found that when the petitioner is not a consumer at the time of filing of the complaint, the consumer complaint is not maintainable. Accordingly revision petition was dismissed. Meaning thereby, the complainant petitioner approached the National Commission only against the application u/s 8 of Arbitration and Conciliation Act, 1996. As per this Act, the difference arising in relation to members of the society and affairs of the society, would be decided by the registrar of the Cooperative Societies. In this way, in that revision Petition, the fact regarding delay of possession has not been decided anywhere by the District Forum or the Hon’ble State Commission and Hon’ble National Commission. Only application u/s 8( c) of the Arbitration Act was decided.
6. Now as per the complainant, he has placed reliance upon the order of Hon’ble State Commission, West Bengal, Kolkata in case No.CC/247/2014 decided on 15.03.2018 titled as Mr. Tapash Roy Vs. Havelock Properties Ltd., whereby Hon’ble Presiding Member has held that: “Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. Therefore, the agreement between the parties towers above the rest.. In AIR 1996SC 2508 (Bharti Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus: “In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to the original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bount by the terms in the contract” Hon’ble State Commission further observed that : “Complainant being ‘consumer’ as defined in Section 2(1)(d) of the act hired the services of OP on consideration and despite payment of entire consideration amount, OP failed to render services in accordance with the agreement dated 31.05.2007 and thereby deficiency within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
7. After considering all the facts it is observed that the law referred above by ld. counsel for the complainant is fully applicable on the facts and circumstances of the case. In the present case, as per the agreement, both the parties signed the agreement on dated 27.01.2009 and the possession letter Ex.C3 was given on 04.07.2016, possession taken over by purchaser and handed over by the Developer. As per allotment agreement Ex.C1, the same was signed by the parties on 27.01.2009, as per clause 15 it is mentioned that: “The company shall make its all efforts to complete the internal development of the Township within apporx12(twelve) months from the date of signing of this allotment agreement of the Plot or from the sanctioning of all services plans of the entire township whichever is later, subject to force majeure clause”. In the present case the date of agreement is 27.01.2009 and as per agreement basic sale price is Rs.995670/- plus other charges. As per Ex.C5, total amount of Rs.1615574/- has been received by the respondent. As per document Ex.C6 an amount of Rs.1214717/- has already been paid by the complainant upto 05.04.2010 and remaining amount was also paid by the complainant. As per clause 15 of the agreement dated 27.01.2009, the possession was to be given upto one year i.e. 27.01.2010. Now after adding the grace period of 6 months, the possession should have been given upto 27.07.2010 but the possession was given in 2016. Hence the complainant is entitled for the interest @ 12% p.a. on Rs.1214717/- for the delayed period.
8. In view of the facts and circumstances of the case, we hereby allow the complaint and direct the opposite parties to pay interest @ 12% p.a. on Rs.1214717/- w.e.f. 27.07.2010 to 01.02.2016 and also to pay a sum of Rs.50000/-(Rupees fifty thousand only) as compensation on account of deficiency in service as well as litigation expenses to the complainant within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
13.02.2019. ................................................
Nagender Singh Kadian, President
..........................................
Ved Pal Hooda, Member.
………………………………
Saroj Bala Bohra, Member.
