DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.:632 of 2009 Date of Inst:04.05.2009 Date of Decision:12.03.2010 Vijay Kumar Bedi s/o late Sh.Jagdish Chand Bedi resident of House No.926-A, Sector 43-A, Chandigarh. ---Complainant V E R S U S 1. P.H.Houses Pvt. Ltd., through its Director, SCO 362 (Second Floor), Sector 44-D, Chandigarh. 2. Sh.Vijay Sahu, Director, P.H.Houses Pvt. Ltd., Regd. Office # 82, Sector 27-A, Chandigarh. 3. LIC Housing Finance Ltd., SCO 48-49, First Floor, Sector 9-C, Chandigarh. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.R.P.Sharma, Adv. for complainant Sh.Vishal Bali, Adv. for OPs No.1 and 2. Sh.O.P.Narang, Advocate for OP-3. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Vijay Kumar Bedi 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.12,02,000/- from 26.08.08 till its realization. iii) to pay cost of escalation @ 10% of the total cost of the project i.e. Rs.18.50 lacs. iv) To pay the interest on the loan amount raised by the complainant from OP-3. v) To pay a sum of Rs.3 lacs as compensation for mental agony. 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 through cheque No.766490 dated 27.08.2006 drawn on State Bank of Patiala, Chandigarh. In response to his application, he was allotted Apartment No.A-1-5 vide allotment letter dated 27.08.2006 (C-1). The total quoted price of the flat was Rs.18.50 lacs. According to the complainant, as per clause 2 of the allotment letter, the physical possession of the flat was to be given after two years of the booking i.e. on or before 27.08.08. The complainant also availed the loan facility of Rs.14 lacs from OP-3 for purchase of said flat. According to the complainant, he deposited Rs.12,02,000/- on 31.12.2007 against the total price of Rs.18.50 lacs. According to the complainant, the flats have not been completely constructed so far. Construction work has been completed to the extent of 40% to 45% only. It has further been pleaded that the complainant wrote a letter dated 14.01.2008 (Annexure C-4) to OPs No.1 and 2 mentioning therein that there was no sign of any construction work going on at the site as on 25.11.06 and therefore, how could OP-3 (finance company) release the funds. As such charging of interest for delayed payments is not justified. It was further mentioned that if the construction work is not going on, the Bank (OP-3) will not be able to release the next installment. According to the complainant, possession of the flat has not been given till date and progress in construction is also not commensurate with the amounts received by OPs. So it is a 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 through cheque No.766490 dated 27.08.2006 drawn on State Bank of Patiala, Chandigarh. It has further been pleaded that it was between the complainant and the finance company to make payment to OP-1, and as per the agreement OP-1 was entitled to interest on the delayed payment. It has further been pleaded that the complainant was a defaulter in payment as per payment plan. Inspite of repeated reminders he has failed to make the payment which has resulted in delay of construction. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal. 4. In its separate written statement, OP-3 pleaded that it was liable to release the loan amount only as per the progress of development of the project. The builder has not made much progress as is evident from the reports of the valuer (Annexure C-6, C-7 and Annexure R-III). It has further been pleaded that OP-3 has already released Rs.9,10,200/- out of sanctioned loan of Rs.14 lacs as on 31.12.2007. It has further been pleaded that as per reports of the valuer dated 05.03.2008 and 14.06.2008, 45% of the project has been completed by the builder and there is no sign of further progress since 14.06.2008. So OP-3 could not take any further risk without seeing the progress of project. In these circumstances, according to OP-3, there is no deficiency in service on its part and the complaint against it deserves dismissal. 5. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 6. 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 through cheque No.766490 dated 27.08.2006 drawn on State Bank of Patiala, Chandigarh. It is also admitted that the complainant was allotted Apartment No.A-1-5 vide allotment letter dated 27.08.2006 (C-1). Admittedly, the complainant had paid a sum of Rs.12,02,000/- against the total cost of the flat i.e. Rs.18.50 lacs. As per clause 2 of the allotment letter dated 27.08.2006 (Annexure C-1), the physical possession of the flat was to be delivered to the complainant on or before 27.08.2008. Admittedly, the possession has not been delivered so far. 7. The case of the complainant is that the construction has been completed only to the extent of 40-45% and he alleges that there is no likelihood of the construction being completed in the near future. According to the complainant, he has paid the amount after raising a loan from LIC Housing Finance Ltd. (OP-3) and continues to pay interest on this said amount. In these circumstances, he cannot wait for an unlimited period of time for possession of the flat in dispute. According to the complainant, non-delivery of the physical possession after expiry of the date i.e. 27.08.08 on the part of OPs amounts to grave deficiency in service. 8. On the other hand, it was vehemently argued by the learned counsel for the OPs that the complainant has failed to pay the full amount as per the payment plan. It has further been pleaded that the construction could not be completed as the allottees have failed to make full payment and because of paucity of funds due to recession in the market. It has been admitted that the complainant has paid a sum of Rs.12,02,000/-. However, according to OPs, a sum of Rs.4,63,000/- is still outstanding against the complainant. 9. Thus, admittedly the construction of the flats has not been completed so far. As per the report of the approved valuer of the Bank (OP-3), the construction work has been completed only to the extent of 45%. Admittedly as per the agreement, the possession was to be delivered on or before 27.08.2008. Thus, there is deficiency in service on the part of the OPs. The argument advanced by the learned counsel for the OPs that the total amount has not been paid so far has no force. Admittedly, the complainant has paid a sum of Rs.12,02,000/- which is more than 2/3rd of the total cost of the flat. The construction has been made only to the extent of 45%. Thus, failure to deliver the possession amounts to deficiency in service. 10. It has been further argued by the learned counsel for the complainant that OPs be directed to refund the amount paid by 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. 11. The complainant has failed to make out any case of deficiency in service against OP No.3 and therefore, the complaint qua OP-3 stands dismissed. 12. In view of the above findings, this complaint is allowed with a direction to OPs No.1 and 2 to hand over the physical possession of completely built up 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 date of respective deposits till its realization. OPs No.1 and 2 are also directed to pay Rs.5000/- as cost of litigation. 13. The complainant is also directed to pay Rs.4,63,000/- being the balance amount of the flat to OPs No.1 and 2 simultaneously on receipt of its physical possession. 14. 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 Sd/- (MADHU MUTNEJA) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | MR. A.R BHANDARI, PRESIDING MEMBER | , | | 
