STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (Appeal No.6 of 2011) Date of Institution: 13.1.2011 Date of Decision : 30.03.2011 Uppal’s Marble Arch, Pocket No.2 & 3, Manimajra, Chandigarh ……Appellant V e r s u sNalini Chawla w/o Sh. Mohan Lal Chawla r/o Kuwait through her authorized representative Sh. B.L. Chawla r/o H.No.600, Sector 16, Panchkula. ....Respondent BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: None for the appellant. Sh. Gunjan Rishi, Advocate for the respondent. PER JUSTICE SHAM SUNDER, PRESIDENT 1. This appeal under Section 15 of Consumer Protection Act, 1986 (hereinafter to be referred as the Act) is directed against the order dated 23.11.2010, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter referred to as the District Forum), vide which the complaint, filed by the complainant/respondent, was accepted and the OP/appellant was directed to pay interest @ 10% per annum, as damages, on the amount deposited by the complainant from 1.4.2009 till the possession of the flat was delivered to her (complainant). It was further directed that the arrears of compensation, alongwith litigation costs of Rs.5,500/-, shall be paid within thirty days from the receipt of copy of the order. It was further directed that compensation, in future, shall be paid for each month by the 10th of next following month failing which, interest would be payable @ 12% per annum, on the arrears, not paid in time, in accordance with the order. It was further directed that the OP would pay interest for the whole month, in which the possession was delivered. 2. The facts, in brief, are that the complainant (now respondent), an NRI, entered into an Apartment Buyer’s agreement with the OP on 20.8.3008 with regard to the 4-Bed room apartment No.12, E-Block, First Floor, having an area of approx. 2450 sq. ft. and paid total consideration of Rs.99,22,500/- for the said unit. As per clause 8.1 of the said agreement, the possession of the flat, complete in all respects, was to be delivered, on or before 30 months from the date of start of construction. It was assured by the OP, that, in case of delay, penalty @ Rs.50/- per sq. ft. would be paid by it. It was further stated that the OP, vide its email dated 7.10.2008, assured the complainant that the possession would be delivered in March 2009. However, when the complainant visited India in November 2009, she found that the construction, at the spot, was very slow. She was also astonished to see the state of affairs, existing at the spot. She wrote letter dated 27.11.2009, expressing her displeasure and disappointment. She requested the OP to compensate her for delay in handing over the possession. Thereafter also, she contacted the OP, a number of times, for handing over the possession of the flat, but to no avail. It was further stated that the complainant came to know that the Chandigarh Administration raised certain objections, and refused to issue the completion certificate, to the OP, vide letter dated 8.3.2010. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed. 3. In the written reply, the OP did not dispute the factum of booking the flat by the complainant and payment of Rs.99,22,500/-. It was also admitted that Apartment Buyer’s Agreement was entered into between the parties. It was stated that the entire delay occurred due to the act of the Govt./ Competent authority i.e. the Estate Officer, UT, Chandigarh in not issuing the completion certificate in time. It was further stated that clause 8.1 of the agreement was subject to force majeure and, therefore, the OP was entitled to reasonable extension of time for offer of possession. It was denied that, at the time of signing the agreement, the OP gave any assurance to the complainant with regard to the payment of penalty @ Rs.50/- per sq. ft. or had deliberately delayed the handing over of possession. It was further stated that the construction was complete way back in March 2009. However, due to administrative lethargy, on the part of the Estate Office, the completion certificate could not be issued. The remaining allegations were denied, being wrong. 4. After hearing the Counsel for the parties, and on going through the evidence and record of the case, the District Forum accepted the complaint, in the manner, referred to, in the opening para of the judgment. 5. Feeling aggrieved, the instant appeal, was filed by the OP/appellant. 6. The appeal was fixed for arguments for 29.3.2011, but none put in appearance, on behalf of the appellant. Not only this, even on 21.2.2011, when the appeal was adjourned for arguments, none appeared on behalf of the appellant. Even on 17.3.2011, none appeared on behalf of the appellant and in the interest of justice, the appeal was adjourned for arguments for 29.3.2011. It appears that the appellant is not interested in prosecuting the appeal. Under these circumstances, no alternative is left with this Commission, than to decide the appeal on merits. 7. We have heard the Counsel for the respondent, and have gone through the evidence, and, record of the case, carefully. 8. Annexure C-1 is the news letter, issued by the OP, in September 2006. Vide this letter, the general public and the prospective vendees, were intimated, by making a representation that the plans for Marble Arch had been sanctioned vide letter No.1078/T3 dated 7.9.2006; Bhoomi Poojan took place on 23.9.2006; and the construction will commence soon. It was also represented in this news letter that the possession shall be delivered by the end of June 2008. Annexure C-2 is the Apartment Buyer’s Agreement, which was entered into between the parties. In clause 8.1 of this agreement, it was mentioned, in clear cut terms, that the OP would offer possession on or before 30 months, from the date of start of construction of the said residential complex, except in case of certain unforeseen circumstances or force majeure. On 7.10.2008, the OP sent an email (Annexure C-3/A), to the complainant in which again it was mentioned that the possession would be given in March 2009. However, the OP did not stick to the dates, either given in the news letter (Annexure C-1) or mentioned in the agreement (Annexure C-2), or in the email (Annexure C-3/A). The complainant then sent several emails (Annexure C-4 to C-7) to the OP. It was, thereafter, that the OP vide email dated 23.2.2010 (Annexure C-8) intimated the complainant that it had already applied for the completion certificate, to the Chandigarh Administration. It was further intimated, vide this email, that the inspection by the JE had already been undertaken, and it was expecting the final inspection by the Chief Architect, in the near future. It was also intimated through this email that, as soon as the completion certificate, was received, the possession would be, delivered, to the complainant in a month’s time. However, the fact remains that, till today, the possession of the flat has not been delivered to the complainant by the OP. This clearly goes to show that the OP was deficient, in rendering proper service. It, illegally, kept huge amount deposited by the complainant, with it, towards the price of the flat, but did not hand over the physical possession to her in time. The OP was, thus, liable to pay interest at a reasonable rate, on the amount, deposited by the complainant, from the date of deposit, until the date of delivery of physical possession of the apartment. In our considered opinion, the District Forum was right, in holding that interest @ 10% per annum, as damages, from 1.4.2009, the date when the possession was committed to be delivered, till the date of delivery of possession, could be said to be reasonable. The District Forum, in our considered opinion, was also right in holding that this rate of interest not only would be lesser than the rate of interest of 24%, mentioned by the OP in clause 6.4 of the agreement, but also lesser than the compensation of Rs.50/- per sq. ft. per month, as mentioned by it in clause 8.2 of the agreement. 9. It is a matter of common knowledge, that the builders, in the first instance, issue attractive and fanciful advertisements to attract the gullible investors/purchasers and receive enormous amounts from them, but, thereafter do not stick to the schedule of construction. This course is adopted by them intentionally because if they, in the very beginning, represent that the construction would be completed after 4-5 years, the number of customers may be less, or their project may not get as many buyers, as are needed. It, therefore, can be said to be an unfair trade practice, on the part of the OP, by giving such attractive, fanciful and misleading advertisements, knowing fully well that they would not be able to complete the project, within the time, mentioned in the said advertisements. The OP, thus, misled the general public and prospective buyers. The complainant invested a huge amount of Rs.99,22,500/- towards the basic sale price of the apartment, believing the representation of the OP, contained in the news letter (Annexure C-1) and, also in the agreement to be true that the project would be completed and physical possession would be handed over to her by 31.3.2009. The OP also indulged into unfair trade practice, by giving the aforesaid misleading advertisement. 10. No doubt, right from the very beginning, the case of the OP was to the effect that, as per clause 8.1 of the agreement (Annexure C-2), it was entitled to a reasonable extension of time for delivery of possession of the residential apartment. In the email dated 7.10.2008 (Annexure C-3/A), sent by the OP to the complainant, no such fact was mentioned, but it was mentioned that the possession shall be delivered by March 2009. It was not that on account of the reasons beyond the control of the OP that the construction could not be completed, in time, and physical possession could not be delivered, to the complainant, as per the terms and conditions of the agreement (Annexure C-2) and email (Annexure C-3/A). If the completion certificate was not issued to the OP, it was on account of its own fault. So many objections were raised by the Estate Office, when the OP applied for the issuance of the completion certificate. It was not that frivolous objections were raised by the Estate Office. It is evident that when the OP applied for the issuance of the completion certificate, the SDO (Building) Z-II, for Estate Officer, Chandigarh, wrote a letter Annexure C-9 to it wherein objections, as under, were raised :- “i) The DPC certificate is not available in the building plan file so the set backs and the overall height of the blocks may be checked and verified by the SDO (B). ii) Light to basement through glass blocks at surface level as sanctioned has been replaced with fibre sheet and level has been raised 2’-6” in slope with louvers on 3 side has been made in Block 1 and Block 2. In block 2, front skylight behind the change room has been omitted, size of skylight in still area has been reduced and fibre sheet in place of glass blocks has been flushed with floor level thus reduced the basement light and permanent RCC bench finished with granite for sitting has been provided in these changes have been shown in red in the photocopy of sanctioned plan. iii) Thickness of external wall including plaster is 6” which is against the sanctioned plan. iv) Open wooden trellis supported on M.S. square pipe passage in between swimming pool and stilt parking/gymnasium, free standing wall near swimming pool and green area near stilt parking has been made and the same are within the zoned area. v) Meter room has not been constructed. vi) Size of main entry/exit and wicket gate on front boundary wall is 6.0 M alongwith 1.5 M fixed grill and outer façade of boundary wall is brick face with partly plastered on the top and the same has been shown in red in the photocopy of sanctioned plan. vii) Clear height of basement floor for parking is 8’-0” below the RCC beam and sanitary/services pipes are hanging below the beam on the corner/end side and the clear height is 6’9” approx. in that area. viii) Scooter parking (130m area) in the rear has been converted into green space and walkways has been provided in pocket A & B in compulsory green area and the same has been shown in the submitted photocopy of sanctioned plan. ix) M.S. Steel structure (3’-0” x 3’-0” and ht. 30’-0” (approx.) has been made in the D.G. set area. The representative has intimated that this structure is for supporting the exhaust pipe of D.G. set. x) Changes have been made such as False ceiling in kitchen and living room is at 8’-0” which are within the permissible limit and split A.C. has been provided. False ceiling has been provided in corridor at 7’-5” which is compoundable. Clear height of health club below A.C. duct is 7’-5” which is compoundable. One glass partition for yoga/meditation has been made as shown red in the photocopy of sanctioned building plan. xi) Position of column of single unit at 4th floor in block 1 has been shifted and size of projection has been reduced from 3’-3” to 2’-7 ½” which has been shown in the photocopy of sanctioned building plan. xii) Finishing work in block 3 are under progress. xiii) Partition wall between E.W.S and main unit has not been constructed. xiv) 21 No. water tank control on the roof of terrace but the distance from end wall is less than 4’-0” which may be compounded as per clause No.6 of the Chief Administrator order No.5770 dated 21.4.1998.” In these circumstances, the aforesaid ground, taken in the memorandum of appeal, does not merit acceptance. The District Forum was right in holding that since the completion certificate could not be issued, on account of the fault of the OP, the complainant could not be blamed. We are, thus, of the considered opinion, that the ground taken up, in the memorandum of appeal, that there was neither deficiency, in rendering service, on the part of the OP nor did it indulge into unfair trade practice, is without substance, and deserves to be rejected. 11. The Counsel for the respondent, at the time of arguments, submitted that the possession of the apartment had not been delivered to the complainant, till date. A copy of the email dated 12.10.2010, sent by the OP, to the husband of the complainant/ respondent, which has been submitted by the Counsel for the respondent, at the time of arguments, clearly goes to show that the policy of the OP, is, that it does not give possession to the complainant, in those cases, where there is any legal/Court case pending. It means that the OP is not ready to give physical possession of the apartment, to the complainant, on account of the complaint filed by the complainant. 12. In view of the above discussion, we are of the considered opinion, that the order of the District Forum does not suffer from any illegality or perversity, warranting the interference of this Commission. 13. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with costs, quantified at Rs.5,000/-. 14. Copies of this order be sent to the parties free of charge. Pronounced. 30th March, 2011 sd/- [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER hg
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
