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

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Manoj Sharma s/o Sh.S.P.Sharma, Resident of H.No.345/2, Sector 44-B, Chandigarh 160047

….…Complainant

                                V E R S U S

1]     P.H.Houses Pvt. Ltd., through it’s Director, SCO 362, Second Floor, Sector 44-D, Chandigarh.

2]     State Bank of India, SCO 103-108, 1^st Floor, Sector 17-B, Chandigarh.

                                        ..…Opposite Parties

CORAM:       SH.RAJINDER  SINGH  GILL        PRESIDING MEMBER

                MRS. MADHU  MUTNEJA               MEMBER

Argued by:         Sh.R.P.Sharma, Advocate for complainant.

Sh.T.T.P.Singh, Advocate for OP-1.

Sh.K.B.Singh, Adv. for OP-2.

PER SH.RAJINDER SINGH GILL, PRESIDING MEMBER

               Briefly stated, the complainant had booked a two bedroom flat in Green Field Towers at Zirakpur with OP-1 by depositing Rs.50,000/- as booking amount on 6.11.2006. In response his booking, OP-1 allotted him Apartment No.A-IV-5 vide allotment letter dated 6.11.2006 (Ann. C-1).  The total price of the flat was Rs.17.25 lacs. An Agreement to Sell to this effect was also entered into between the parties.  It is averred that the complainant made payments of scheduled installments and all the payments so made were received and duly acknowledged by the OPs vide Ann.C-3 to C-5 (Colly.) which was 65% of the total cost of the unit i.e. Rs.11,21,250/-. According to the complainant, the physical possession of the flat was to be delivered by the OPs by 6.11.2008 but they failed to offer or deliver it even till filing of the complaint.  It is averred that complainant requested his bank to make further payment of Rs.3.45 lacs but the same was declined on the ground that “No work is going on, project is stand still”. It is also averred that construction of the project work has not been complete more than 45% as per valuation report dated 2.8.2009.The complainant requested OP-1 for handing over the possession of the flat immediately but to no avail which amounts to deficiency in service and unfair trade practice on their part. Hence, this complainant has been filed. 

2]             In the reply filed by OP No.1, 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 Rs.11,21,250/- i.e. 65% of the total cost of the flat of Rs.17.25 lacs.  It has been pleaded that the construction of the flat has been delayed due to recession in the market, non-cooperation of the bank from where the OPs have made arrangement for getting the loan as well as due to delayed payments made by the complainant as the complainant is still in arrear of Rs.4,31,250/- and non-payment of installment by other customers.  It has been pleaded that the complainant was supposed to pay the 90% of the total amount i.e. Rs.15,52,500/- by 31.6.2008, however, he has paid only Rs.11,21,250/- which is clearly not in consonance with the agreement to sell.  Besides this, the complainant is also liable to pay 10% of the Basic Sale Price at the time of possession.  It is also pleaded that all arrangements have been made and the remaining construction of the units/apartments shall be completed in near future and possession thereof would be given very soon.  Denying rest of the allegations and pleading no deficiency in service on the part of OP-1, it is prayed that the complaint be dismissed.

3]             In the reply filed by OP-2 i.e. State Bank of India, they mainly stated that as per the applicable guidelines, instructions, terms and conditions of the loan, two installments were released but thereafter it could not be released due to the stoppage of the construction as is admitted by the complainant also.  It is stated that the complainant has to repay the loan as per its terms & conditions settled between the parties.  Rest of the allegations have been denied by OP-2 being not related and it is prayed that the complaint qua OP-2 be dismissed. 

4]             Parties led evidence in support of their contentions.

5]             We have heard the ld.Counsel for the parties and have also perused the record.

6]             Admittedly, the complainant had applied for a Two Bedroom Flat in Green Field Towers at Zirakpur with OP-1 by depositing Rs.50,000/- as booking amount. He was allotted Apartment No.A-IV-5 vide Allotment Letter dated 6.11.2006 (Ann.C-1). According to Allotment Letter (Ann.C-1), the possession of the flat was to be delivered by OP-1 on or before 06.11.2008.  It is admitted case of the parties that the complainant had paid Rs.11,21,250/- out of the total cost of the flat, which was Rs.17.25 lacs. Inspite of making the aforesaid payment, OP-1 failed to even offer the possession of the flat to the complainant.  Moreover, OP-1 failed to prove that as on 6.11.2008 or on this date of arguments i.e. 12.1.2010 they have completed the construction of the flat or make the flat ready in all respect for delivering its possession to the complainant, which proves beyond any doubt that the OP-1 had not complete the construction of the flat even till today, which certainly amount to gross deficiency in service and their indulgence into unfair trade practice.

7]             The contention of OP-1 is that the construction of the flat has been delayed due to recession in the market and due to the non-cooperation of the bank from where they have made arrangements for getting the loan.  It is also contended that the complainant is still in arrear of Rs.4,31,250/-.  We do not find any merit in this contention of OP-1.   They have to offer the possession of the flat to the complainant on or before the date fixed i.e. 6.11.2008 but they did not do so nor they are able to deliver it as on date i.e. 12.1.2010, thereof, hence they cannot be given the benefit of their own wrongs.  Had their construction work was going on properly and timely, the bank/financial institution from where the complainant had sought housing loan, they would have disbursed the amount well in time to OP-1.

8]             According to the complainant, he has paid the amount after raising loan from bank and is paying interest on the said amount. In these circumstances, he cannot 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. 6.11.2008 on the part of OP-1 clearly amounts to deficiency in service and unfair trade practice.

9]             In view of the above findings, we allow this complaint against OP-1 only. OP-1 is directed to handover the possession of the flat in question after completing all necessary work, within a period of four months from today failing which it 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 actual payment to the complainant. Besides this, the OPs No.1 is also directed to pay Rs.7,000/- to the complainant as costs of litigation.

10]            However, the complaint qua OP-2 stands dismissed with costs of Rs.10,000/- as provided under Section 26 of the Consumer Protection Act, 198, as neither any deficiency in service against OP-2 has been alleged nor has been proved by the complainant.  More so, no relief has been sought against OP-2.  Therefore, in our opinion, the complainant has unnecessary impleaded OP-2 as party.  Otherwise also, in the order dated 26.8.2010, this Forum has already made it clear that if it is found that OP No.2 was not a necessary party and no relief is claimed against OP No.2, then OP No.2 would be compensated with costs of Rs.10,000/- as provided under Section 26 of Consumer Protection Act, 1986.

                The complainant shall pay the aforesaid cost to OP No.2 within 30 days from the date of receipt of copy of this order.

                Certified copies of this order be sent to the parties free of cost. The file be consigned.