STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

APPEAL NO.523 OF 2009

Sh. Paramvir Singh son of Late S. Bhupinder Singh R/o House No.654, Phase II, Mohali.

                                                ………Appellant.

Versus

P. H. Houses Pvt. Ltd. through its Managing Director, Administrative Office: Second Floor, SCO No.362, Sector 44-D, Chandigarh.

…Respondent.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

Argued By:            Sh. Anant Kataria, Advocate for the appellant.

                        Sh. T.T.P. Singh, Advocate for the respondent.

APPEAL NO.668 OF 2009

P. H. Houses Pvt. Ltd. through its Managing Director, Administrative Office: Second Floor, SCO No.362, Sector 44-D, Chandigarh.

                                                ………Appellant.

Versus

Sh. Paramvir Singh son of Late S. Bhupinder Singh R/o House No.654, Phase II, Mohali

…Respondent.

Argued By:            Sh. T.T.P. Singh, Advocate for the appellant.

                        Sh. Anant Kataria, Advocate for the respondent.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     Vide this common order, we propose to dispose of two appeals i.e. Appeal No.523 of 2009 filed by the complainant Sh Paramvir Singh and Appeal No.608 of 2009 filed by OP i.e. P.H. Houses Pvt. Ltd. arising out of one and the same order dated 17.8.2009 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) in complaint case No.423 of 2009 : Sh. Paramvir Singh Vs. P.H. Houses Pvt. Ltd.

2.                     Briefly stated the case of the complainant is that in response to an advertisement of OP for allotment of residential unit in their Greenfield Towers, VIP Road, Zirakpur, applied for one Unit on 20.11.2006 and deposited the booking amount of Rs.50,000/- vide Annexure C-1. The complainant, as per the averments made in the complaint, was allotted Unit No.A-V-4, 2BR, Vth Floor for total sum of Rs.17,50,000/- in the said residential society of OP vide Annexure C-2. As per the schedule of payment, 90% of the price amount was to be paid in four different installments and the remaining 10% plus stamp duty along with any other charges were to be paid to OP at the time of handing over the possession, which was to be delivered on or before 21.11.2008. Out of the total amount of Rs.17,50,000/-, the complainant paid the total sum of Rs.15,75,000/- to the OP as four installments plus booking amount as per the payment schedule vide Annexures C-1, C-3 to C-6. The case of the complainant was that despite paying the above amount, OP failed to handover the possession of the unit allotted to the complainant by 21.11.2008 and instead, OP stopped the construction of the apartment. As per the complainant, he requested the OP vide his letter dated 24.1.2009 (C-7) either to deliver him the possession of the unit or refund the money with interest but to no avail. The case of the complainant was that since, the OP failed to comply with the terms and conditions of the agreement, it had to pay the complainant penalty @Rs.5/- per sq. ft. per month as per Note No.3 of the payment plan of the allotment letter for any delay in handing over the physical possession of the unit beyond the committed period of 24 months from the date of allotment. The complainant next averred that neither the possession of the unit was delivered to him by the OP nor it had refunded the money with interest or paid the penalty. Alleging the above act of OP as deficiency in service as well as unfair trade practice on its part, the complainant had filed the present complaint.

3.                     OP in its version had admitted the averment of allotment of unit to the complainant and the amounts paid by the complainant as per payment schedule. It had also admitted the payment of penalty in case of delay in delivery of possession as per Note No.3 of the payment schedule. As regards delay in handing over the possession of the unit in question to the complainant, OP stated that the construction of the apartments had been delayed due to the recession in the market and non cooperation of the Bank from whom it had made an arrangement for getting loan and also due to the delayed payments made by other customers. OP also stated that the delay was beyond the control of OP and the amount deposited by the complainant had been spent on the construction, which was at its final stage. Pleading no deficiency in service on its part, OP prayed for dismissal of the complaint. 

3.                     The learned District Forum, in its analysis of the complaint, has recorded in the impugned order that admittedly, OP had agreed to handover the possession of the flat/unit to the complainant on 21.11.2008, which had not been given. It also recorded that OP had admitted the delay in handing over the possession of the unit to the complainant, which according to OP was due to the reasons beyond its control. While recording the contention of counsel for the OP that OP was ready to pay the penalty at the rate i.e. Rs.5/- per sq. ft. per month for the delay as per Note No.3 of the payment schedule, the learned District Forum observed that  there was not much dispute about the payment, which the complainant had been demanding and OP was willing to pay. As regards the delivery of possession of the unit, the learned District Forum recorded in the impugned order the willingness of OP to handover the same to the complainant immediately on its completion. In view of its above discussion and keeping in view the admission on the part of OP as regards delay in handing over the possession of the unit to the complainant and further its willingness to handover the same as and when the construction gets complete, the learned District Forum allowed the complaint and directed the OP to deliver the possession of the flat/unit by completing the same without any delay and till the possession was delivered, OP was directed to pay the complainant a compensation @Rs.5/- per Sq. ft. per month w.e.f. 1.12.2006 till the last day of the month in which the possession is given. OP was also directed to pay arrears within 30 days from the date of receipt of copy of the order and thereafter, the compensation for each month was ordered to be paid by 10^th of each succeeding month failing which OP was held liable to pay penal interest @12% per annum w.e.f. the date the amount accrued till the date of actual payment. The complainant was also awarded a sum of Rs.500/- as costs of litigation.

4.                     Aggrieved by the said order of learned District Forum, both the complainant as well as OP have filed separate appeals. The appeals having been taken on board, notices were sent to the respective respondents and record of complaint case was summoned from the District Forum concerned. Sh. Anant Kataria, Advocate appeared on behalf of the complainant whereas Sh. T.T.P Singh, Advocate represented the OP. In his appeal, the complainant has prayed for setting aside the impugned order and he has prayed for grant of reliefs as claimed in his complaint before the learned District Forum. On the other hand, OP in its appeal has prayed for modification of the impugned order as per the terms and conditions agreed to by the parties.

5.                     Sh. Anant Kataria Advocate learned counsel for the OP submitted that the learned District Forum had erred in granting compensation to the complainant @Rs.5/- per sq. feet per month w.e.f. 1.12.2006. He drew the attention of the Bench to the agreement (Page 38) of the appeal paper book wherein as per Note No.3, it had been agreed between the parties that this compensation @Rs.5/- per sq. feet per months for the delay in handing over the apartment was liable to be paid by the OP for any delay beyond the committed period of 24 months from the date of allotment. He reiterated that the learned District Forum had wrongly allotted this compensation w.e.f. 1.12.2006 whereas it should have been allowed from 12.12.2008. His next submission was that the direction awarding interest @12% per annum on the payment of this compensation for each month not paid till 10^th  of the succeeding month, is also not tenable under the eyes of law. He emphatically submitted that whereas the OP was ready to pay compensation to the complainant for the delay in handing over the possession of the flat, the learned District Forum had misinterpreted the clause and had given directions in the impugned order, which were beyond the terms and conditions of the agreement. He, therefore, prayed that the impugned order be modified in terms of the agreement.

6.                     On the other hand, the learned counsel for the complainant submitted that the OP had unduly delayed handing over of possession of the flat, which is causing great hardship to the complainant particularly in view of the escalating costs relating to the rental etc. He prayed that the learned District Forum had not granted any compensation for mental agony and physical harassment of the complainant. He further submitted that since offer of possession has not been made so far and it is unlikely that it would be done in the near future, OP be directed to refund the amount paid by the complainant along with interest and compensation as prayed for in the complaint.

7.                     Responding to the submissions of the learned counsel for the complainant with regard to enhancement of compensation and refund of the amount paid by him to the OP, the learned counsel for the OP submitted that the flats are under construction and they are nearing completion and soon they would be completed and handed over to the buyers. He also reiterated that in the meantime, OP is ready to compensate the complainant as per the terms of the agreement. He emphatically, therefore, submitted that there was no case for any enhancement in the compensation to be paid to the complainant or ordering refund of the amount with interest.

8.                     We have gone through the records on file as well as the impugned order and have heard the learned counsel for the parties.

9.                     It is an admitted case by the parties that the complainant has paid the due amount for the flat as per schedule and that the possession of the flat has not been handed over to the complainant, even though the promised period of construction of the flats i.e. 24 months has already elapsed and the flat should have been handed over to the complainant on 1.12.2008. It is also admitted by the parties that as per the agreement, the OP is required to pay the complainant compensation @Rs.5/- per sq. feet per month from the date beyond the promised 24 months allowed for the construction of the flat, till handing over of possession of the flat to the complainant. It is also admitted fact that till the complainant filed the complaint or till the passing of the impugned order, no such compensation had been paid by the OP to the complainant. A critical perusal of the condition governing the compensation to be paid clearly indicates that in the instant case, the compensation due to be paid to the complainant is w.e.f. 1.12.2008 as he had been  allotted the flat on 20.12.2006 and the compensation was payable w.e.f. two years thereafter in case the possession was not handedover. In this view of the matter, we find that the learned District Forum has erred in granting this compensation w.e.f. 1.12.2006 and this anomaly in the impugned order, therefore, needs to be corrected in the impugned order. It has also been submitted by the learned counsel for the OP that the flats are going to be ready soon and they shall be handed over to the complainant when the construction is completed. Thus, at this stage, we find no reason or justification for directing the OP to refund the amount paid by the complainant with interest to the complainant more so as the OP is ready and willing to compensate the complainant in terms of the agreement for the delay in offer of possession.

10.                   From the above discussion, it clearly stands out that the complainant is entitled to payment of compensation by the OP @Rs.5/- per sq. feet per month w.e.f. 1.12.2008 and this amount should have been paid regularly per month w.e.f. the aforesaid date which admittedly has not been done and thus, in our considered view, the complainant is entitled to payment of this amount along with reasonable interest on the same till this payment is made. Further, as per the agreement, OP is required to pay the complainant monthly compensation, which implies that it must be paid by a reasonable date of the succeeding month and if the same is not done, it must be paid to the complainant along with a punitive interest. In this view of the matter, we find that the direction of the learned District Forum directing the OP to pay the required compensation by the 10^th of each succeeding month and in failure to do so, pay the same along with interest @12% per annum, is not legally flawed and does not require any interference.

11.                   In view of the foregoing, the appeal No.523 of 2009 filed by the complainant for enhancement of compensation or refund of the amount with interest is dismissed as it lacks merit. Appeal No.668 of 2009 filed by OP is partly allowed and the impugned order is modified to the extent that the OP is now directed to pay compensation @Rs.5/- per sq. feet per month w.e.f. 1.12.2008 till the last date of the month in which the possession is given. It is further directed that the monthly compensation for the period w.e.f. 1.12.2008 till the passing of this order shall carry interest @6% per annum from the 10^th of each succeeding month till actual payment and this amount shall be paid to the complainant within a period of 30 days from the date of receipt of copy of the order. Other than this modification to the impugned order, there is no change in the directions given by the learned District Forum with regard to subsequent compensation becoming due till the possession of the flat is offered as well as the costs directed to be paid. Subject to this modification, the impugned order is upheld.

12.                   Copies of this order be sent to the parties free of charge.

Pronounced.

3^rd May 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-

APPEAL NO.523 OF 2009

Argued By:            Sh. Anant Kataria, Advocate for the appellant.

                        Sh. T.T.P. Singh, Advocate for the respondent.

                                                …..

                        Vide our detailed order of even date recorded separately, this appeal filed by the complainant has been dismissed and the cross appeal No.668 of 2009 filed by OP has been partly allowed.

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

APPEAL NO.668 OF 2009

P. H. Houses Pvt. Ltd. through its Managing Director, Administrative Office: Second Floor, SCO No.362, Sector 44-D, Chandigarh.

                                                ……Appellant.

Versus

Sh. Paramvir Singh son of Late S. Bhupinder Singh R/o House No.654, Phase II, Mohali

…Respondent.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

PRESENT:            Sh. T.T.P. Singh, Advocate for the appellant.

                        Sh. Anant Kataria, Advocate for the respondent.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     For orders, see the orders passed in Appeal No.523 of 2009 titled as ‘Sh. Paramvir Singh Vs. P. H. Houses Pvt. Ltd’.

2.                     Copies of this order be sent to the parties free of charge.

Pronounced.

3^rd May 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-