PRESENT:      Sh.Anant Kataria, Adv. for complainant

Sh.Vishal Bali, Adv. for OPs No.1 and 2.

OP-3 exparte.

                            ---

PER LAKSHMAN SHARMA, PRESIDENT

          Sh.Karunesh Sharma has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs No.1 and 2 be directed  to :-

i)   to hand over the physical possession of the built up flat.

ii)  to pay interest @ 24% p.a. on the deposited amount of Rs.14,52,000/- from 04.09.2008  (i.e. schedule date of possession) till its realization.

iii)    to pay cost of escalation @ 10% of the total cost of the project i.e. Rs.17.00 lacs.

iv)         To pay the interest on the loan amount of Rs.7 lacs raised by the complainant from OP-3.

v)              To pay a sum of Rs.3 lacs as compensation for mental agony and harassment.

vi)         To pay a sum of Rs.10,000/- as costs of litigation.

2.        In brief, the case of the complainant is that he had booked a two bed room flat in Green Field Towers at Zirakpur with OPs by depositing Rs.50,000/- as booking amount. In response of his application, he was allotted Apartment No.A-V-5 vide allotment letter dated 04.09.2006 (C-1).  The total price of the flat was Rs.17.00 lacs. According to the complainant, as per clause 2 of the allotment letter, the physical possession of the flat was to be delivered after two years of the booking i.e. on or before 04.09.08. The complainant also availed the loan of Rs.7 lacs from OP-3 for purchase of said flat.  According to the complainant, he deposited total cost of the flat i.e. Rs.17,00,000/- by availing 5% discount of Rs.85000/- for down payment offered by OPs. The copy of the receipts are Annexures C-3/1 to C-3/3. According to the complainant, as per the terms and conditions of the allotment letter, OPs were bound to deliver the physical possession of the flat on or before 04.09.2008 but they have failed to do so despite his repeated requests and visits which amounts to deficiency in service and unfair trade practice on their part. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OPs No.1 and 2, it has been admitted that the complainant had booked a two bed room flat in Green Field Towers at Zirakpur by depositing Rs.50,000/- as booking amount. It has further been admitted that the complainant had paid the total cost of the flat.  It has been pleaded that the construction of the flat has been delayed due to recession in the market and non-cooperation of the bank from where the OPs have made arrangement for getting the loan.  It has been pleaded that as per clause of penalty in the application form, the company would pay to the allottee(s) amount @ Rs.5/- per sq. ft. per month for any delay in offering possession of the flat beyond the period stipulated in the apartment buyers agreement for delivery of possession”. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4.        We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 

5.        It is the admitted case of the parties that the complainant had applied for a two bed room flat in Green Field Towers at Zirakpur with OPs by depositing Rs.50,000/- as booking amount. He was allotted Apartment No.A-V-5 vide allotment letter dated 04.09.2006 (C-1). As per agreement, possession of the flat was to be delivered by OPs on or before 04.06.2008.  Admittedly the complainant has paid the total cost of the flat. Despite it, the possession of the flat has not been delivered to him so far. It has also been admitted that the physical possession of the flat was to be delivered to the complainant on or before 04.06.2008. However, it has been argued by the learned counsel for OPs that as per clause of penalty in the application form, OPs are liable to pay to the allottee(s) rebate @ Rs.5/- per sq. ft. per month for any delay in offering possession of the flat beyond the period stipulated in the apartment buyers agreement for delivery of possession”. According to the complainant, he has paid the amount after raising loan from OP-3 and is paying interest on the said amount. In these circumstances, he can not be forced to wait for an unlimited period for physical possession of the flat in dispute. According to the complainant, non-delivery of physical possession after expiry of the date i.e. 04.09.08 on the part of OPs amounts to deficiency in service and unfair trade practice.

6.        Admittedly, the construction of the flats has not been completed so far and possession of the flat has not been delivered to the complainant so far. Complainant has raised loan for making the payment of the flat. He cannot be forced to wait for the delivery of possession for an unlimited period. So the argument advanced by the learned counsel for the OPs has no force. So, there is deficiency in service and unfair trade practice on the part of OPs.

7.        It has been argued vehemently by the learned counsel for the complainant that OPs be directed to refund the amount to the complainant. However, no such prayer has been made in the complaint filed by the complainant. In fact, the complainant has prayed that OPs be directed to hand over the physical possession of the flat.

8.        In view of the above findings, this complaint is allowed with a direction to OPs No.1 and 2 to hand over the possession of the completely constructed flat in question within a period of six months from today failing which OPs shall be liable to refund the total amount paid by the complainant along with interest @ 18% p.a. from the dates of respective deposits till its realization. The OPs No.1 and 2 are also directed to pay Rs.5000/- as costs of litigation. 

9.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

12.03.2010

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

cm

sd/-

(ASHOK RAJ BHANDARI)

MEMBER