Chandigarh

DF-I

CC/137/2015

Kulwinder Kaur - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd. - Opp.Party(s)

Arora V.K. & Navyug Singh

18 Nov 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Consumer Complaint  No	:	CC/137/2015
Date  of  Institution	:	04/03/2015
Date   of   Decision	:	18/11/2015

 

 

 

 

 

1. Kulwinder Kaur wife of Lt. Col. Hardev Singh Hundal, resident of House No.700, New Bank Wali Gali, Rayya District Amritsar, Punjab.

 

2. Lt. Col. Hardev Singh Hundal Son of Sardar Shamir Singh Hundal, resident of H.No. 700, New Bank Wali Gali, Rayya, District Amritsar, Punjab. 

 

….Complainants

Vs.

 

1. Omaxe Chandigarh Extension Developers Pvt. Ltd. having its Regional office at 143-144, First Floor, Sector 8-C, Madhya Marg, Chandigarh through its Regional Manager.

 

2. Omaxe Chandigarh Extension Developers Pvt. Ltd. having its corporate office at 10, L.S.C. Kalkaji, New Delhi 110-019 through its Managing Director.

…… Opposite Parties 

 

 

BEFORE:   MRS.SURJEET KAUR             PRESIDING MEMBER

          SH.SURESH KUMAR SARDANA      MEMBER

 

 

For Complainants	:	Sh. Arora V.K., Advocate
For OPs	:	Sh. Munish Gupta, Advocate.

 

 

PER SURESH KUMAR SARDANA, MEMBER

 

 

 

                The facts, in brief, are that the complainants allured with the advertisement and assurance of the Opposite Parties applied for an independent floor in the project of the Opposite Parties, which was allotted to them vide allotment letter Annexure C-7. The basic price of the flat was Rs.40,30,501.25/-. It has been alleged that the Opposite Parties promised to the complainants that the possession of the flat in question shall be delivered within 24 months from the date of booking. But when the complainants visited them on 06.02.2015 there were surprised to find that the there was no construction at all even after lapse of 37 months since the date of booking. Alleging that the aforesaid acts amounted to deficiency in service and unfair trade practice on the part of the opposite parties, the complainants have filed the instant complaint.

2.      Notice of the complaint was sent to Parties, seeking their version of the case
3.      The Opposite Parties filed their written reply and admitted the factual matrix of the case. It has been denied that there was stipulated period of 24 months for the delivery of the possession of the flat, in question. It has further been stated that time period depends on the payment plan chosen by the prospective buyer. The complainants opted for construction linked plan and a perusal of the same would show that no specific period for possession as alleged is mentioned. It only provides for break up of installments as and when the construction progresses.  The complainants were apprised time to time qua the status of construction.  It has been denied that there was no construction at the site in fact construction was started in October 2014 and the possession could only be offered when the construction is completed. Hence there was no delay in offering possession. The remaining allegations were denied, being false. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint has been made.

    

4.     Parties were permitted to place their respective evidence on record, in support of their contentions.

 

5.     We have heard the learned counsel for the parties and have perused the record, along with the written arguments filed on behalf of both the sides.

 

6.     Annexure C-1 speaks about two plans. Payment plan and the construction linked plan. It is observed that the payment chosen by the Complainants is the construction linked plan. It provides for break-up of installments as and when the construction progresses. The details have been given by the Opposite Parties in Annexure R-2. The footnote no.4 of Annexure C-1 is reproduced below:-

 

“4.  The company would pay to the consumers @ Rs.10/- per sq. ft. per month as a compensation for any delay in handing over the possession beyond the committed period as mentioned in the Agreement/Allotment letter. The consumer would also be liable to pay holding charges @ Rs.10/- per sq. ft. per month if he/she fails to take possession within 30 days from the date of issuing notice for offer of possession.”

 

          It can be clearly seen that the completion time is mentioned as 24 months.

 

7.     In view of the basic terms and conditions of the application form dated 12.12.2011 (Annexure R-1) duly signed by the Complainants, it is crystal clear that the cause of action to file the Complaint could arise after 12.12.2013 after the completion of 24 months. Hence, the contention of the Opposite Parties that the Complaint is pre-mature does not hold any ground. In our view if the builder issues temporary advertisement/ promises to deliver the possession of the constructed flat as given in Annexure C-1, within 24 months, then the fault certainly lies with the Builder. Normally, delay in construction of building may arise because of various reasons.  But, in our country, it is known fact that delay occurs in obtaining various permissions from different governmental authorities, and this fact is well-known to the builder.   The time normally taken in getting such permissions could have been contemplated by the builder before issuing the brochure.  It would be unfair trade practice, if the builder, without any planning and without obtaining any effective permission to construct building/apartments, invites offers and collects money from the buyers. If the construction of the building/apartment is delayed, because of such delay, and the possession of the apartment is not delivered within the stipulated time, the builder would be liable to bear the escalation cost and not the buyer/consumer. Therefore, it cannot be said that the condition contained in the contract would only prevail and not the terms of the brochure which is an alluring promise given by the Builder. If the contention of the learned counsel for the OPs is accepted that the terms of the agreement would prevail and not what is stated in the brochure, then  it would amount to misleading advertisement  with false promise to  lure the  needy prospective buyers.   This would also be unfair trade practice as provided under Section 2(1) (r) of the Consumer Protection Act.  Such brochure also gives undue advantage to the builder vis-à-vis other builders. Hence, the said contention cannot be accepted.

 

8.     In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainants deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are, jointly and severally, directed to:-

 

[a]  To make payment of compensation for the delay in handing over the possession of the flat @ Rs.10/- per sq. ft. per month of the super area to the Complainants from the date when 24 months were elapsed, till realization; 

 

[b]  To make payment of Rs.1,00,000/- to the complainants towards compensation for causing mental and physical harassment.

 

[c]  To make payment of Rs.20,000/- to the complainant as litigation expenses.

 

 

9.     The above said order be complied with by the Opposite Parties, within 30 days from the date of receipt of its certified copy, failing which the amount at Sr. No. [b] shall carry interest @12% per annum from the date of filing of the present Complaint, till actual payment, besides payment of litigation costs of Rs.20,000/- and complying with the directions as at Sr. No.[a] above.

 

10.     The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

 

Announced

18^th November,2015                            

Sd/-

(SURJEET KAUR)

PRESIDING MEMBER

 

Sd/-

(SURESH KUMAR SARDANA)

MEMBER

 

 

 “MP”