STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

Ashok Baliyan son of Sh.Lahri Singh r/o H.No.302, Shiv Colony, Pinjore.

                                                                .…Appellant

                                Vs.

Penta Home Pvt. Ltd., SCO 30, 1^st Floor, Sector 33-D, Chandigarh through its duly authorized signatory Mr.J.K.Bhardwaj.

                                                                …. Respondent 

BEFORE:   JUSTICE SHAM SUNDER,   PRESIDENT

                MRS. NEENA SANDHU, MEMBER

                SHRI. JAGROOP SINGH MAHAL, MEMBER

Present:   Sh.Deepak Aggarwal, Advocate for the Appellant.

                Sh.Abhinav Kansal, Advocate for the Respondent.

                                ---

MRS. NEENA SANDHU, MEMBER

1.                    This is an appeal filed by the complainant (now appellant) against the order, dated 11.07.2011 passed by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) in complaint case No. 94 of 2011, vide which, it  dismissed the complaint.

2.                    The facts, in brief, are that, the Complainant approached the Opposite Party,  for purchasing a two bed room, drawing/dinning Flat on 17.08.2006. The price of the said flat was quoted to be Rs.14,72,000/-, including free open car parking. It was stated that the Complainant paid a booking amount of Rs.1,47,200/- for the purchase of Flat No.327, Block D2, 6^th Floor in Penta VIP Towers, Zirakpur. It was further stated that the construction of flats was to be completed by the Opposite Party, by April 2007, as per Clause 16 of the agreement dated 06.09.2006 entered into between the parties. It was further stated that the complainant paid Rs.7,36,000/- vide receipt dated 06.11.2006. It was further stated that the Opposite Party could not complete the construction upto April 2007. The complainant  also paid Rs.2,00,000/- to the Opposite Party vide receipt 10.09.2007.        Thereafter, the Opposite Party further demanded balance amount of Rs.3,88,800/-, upon which the complainant told it to complete the construction of flats, as the possession was promised to be delivered by April, 2007. However, the construction was completed by the Opposite Party in the month of July 2010 i.e. after a lapse of more than 3 years. It was further stated that after the completion of flat, the complainant visited the office of the Opposite Party  for taking possession and paid Rs.3,88,800/- vide Receipt dated 30.08.2010, upon which it illegally demanded Rs.1,01,000/-, as penalty, for not making the full payment by April 2007. It was further stated that the said amount was deposited by the complainant, vide Receipt dated 31.08.2010, under duress, as the Opposite Party refused to hand over possession of the Flat.  It was further stated that for delay, in handing over the possession of flat i.e. from April 2007 to July 2010 (39 months), the Opposite Party, as per Clause No. 17 of the agreement dated 06.09.2006, was liable to pay Rs.4460/- per month @ Rs.5/- per sq.ft. for the super area of the flat i.e. 892 sq. ft., which comes to Rs.1,73,940/-. It was further stated that the complainant had also paid the extra bank interest, to the tune of Rs.3,00,000/- to Axis Bank, as the possession of flat was given by the Opposite Party in August 2010, instead of July, 2007. It was further stated that the complainant had also paid Rs.21,000/- vide Receipt dated 11.09.2010 as maintenance charges and Rs.1,000/- vide receipt dated 04.09.2010 towards borewell charges to the Opposite Party. It was further stated that due to the acts of omission and commission of the Opposite Party, the complainant had to sell the Flat at a very lower price, as it was not possible to live therein without parking area.  It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written version, the Opposite Party  took up the preliminary objection that the Complainant did not fall within the definition of “Consumer”, since he had re-sold the flat in question, immediately, after taking possession of the same. It was admitted that the complainant approached the Opposite Party, on 17.08.2006, and an agreement was entered into between the parties on 06.09.2006. It was further stated that the payments were not made, by the complainant, as per the agreement. The payment of Rs.7.36 lacs was made on 06.11.2006. This payment was in lieu of first, second and third installment, in a consolidated manner It was further stated that the first installment was due on 7.2.2006, the second installment was due on 7.4.2006 and the third installment was due on 7.7.2006. It was further stated that the complainant was informed on 14.9.2006, that the project was delayed, because of shortage of cement owing to Truck Operators strike and, as such, the complainant was informed not to make the payment of 3rd installment which, in the normal circumstances, was due on 7.7.2006. However, the complainant evaded the payment of installments by playing delaying tactics, and with an intent to hold the title of property without payment of money to the Opposite Party. It was further stated that the fourth installment in the sum of Rs.2,94,400/- became due on 7.11.2006 or on the completion of flooring, wood work, whichever was later. It was further stated that the complainant was duly informed on 16.11.2006 that the wood work and flooring were not complete and was running late by eight weeks. The complainant was requested to pay the fourth installment in the second half of December, 2006. Even thereafter, the complainant evaded the payment of fourth installment despite various attempts having been made to remind him in this regard. It was further stated that, ultimately, the complainant had made a part payment of fourth installment of Rs.2 lacs instead of Rs.2,94,400/- on 10.09.2007. It was further stated that the complainant was offered possession in November, 2008. Since 18.11.2008, the Opposite Party, wrote, as many as eight letters, intimating the complainant that the flat was ready for possession, and he was required to pay the balance of fourth installment, which was due in December, 2006 and fifth and sixth installments which were already overdue. However, the complainant did not respond to any of the letters/ reminders and continued making default in paying the amount due. While admitting the receipt of payment of Rs.3,88,800/- on 30.08.2010, and penalty amounting to Rs.1,01,000/-, it was further stated that the complainant never opted for a parking space, for which there was a separate price, in addition to the cost of the flat i.e. Rs.14,72,000/-. It was further stated that the complainant had wrongly demanded compensation under Clause 17 of the agreement, as this clause was only to become operative, if the allottee had made full payment of the price of flat and other charges. It was further stated that, the Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice. The remaining averments were denied, being wrong.

4.                    The Parties led evidence, in support of their case.

5.                    After hearing the complainant in person, Counsel for the Opposite Party, and, on going through the evidence and record of the case, the District Forum, dismissed the complaint. 

6.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

7.                    We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

8.                The Counsel for the appellant submitted that the complainant approached the Opposite Party to purchase a two bed room plus drawing/dinning, flat on 17.08.2006, for Rs.14.72 lacs and an agreement was duly executed between the parties on 06.09.2006. According to the Counsel for the appellant, the Opposite Party promised to deliver possession of the said flat by April, 2007 but, it completed the construction in July, 2010 and thereafter, the appellant took possession of the flat vide possession form dated 09.12.2010 (Annexure R-5). He further submitted that there was delay of about three years in handing over the possession of flat to the appellant.  He also submitted that the complainant was not provided the free parking space, though the same was promised by the Opposite Party.

9.                On the other hand, the Counsel for the respondent, submitted that it was the appellant, himself, who failed to deposit the due installments as per the payment schedule, and due to this reason, the possession of the flat, in question, could not be offered to him in time. 

10.              Admittedly, the respondent  delivered the possession of the said flat after a delay of about three years.  Annexure C-4 shows that the appellant paid the last installment of Rs.3,88,800/- on 30.08.2010.   From the receipts (Annexure C-1 to C-5) issued by the respondent,  regarding the payment of installments between the period from 2006 to 2010, it is clear that the appellant did not make the payments of due installments, in time. Moreover, in Annexure R-5 i.e. the possession form, the appellant made a declaration to the effect that he had taken over the physical possession of flat 3 D2-VII-327, measuring approx. 892 sq. ft. (super area) on 6^th Floor, from M/s Penta Homes Pvt. Ltd., in accordance with the terms and conditions of the sale deed and complete in all respects to his entire satisfaction. If the appellant had any grouse on account of late delivery of possession, he could raise protest at that very time, but he did not do so.  Not only this, he filed the complaint on 17.02.2011, in which, he for the first time, expressed his grouse regarding late delivery of possession and claimed compensation. In view of the aforesaid declaration, the appellant, at this stage, cannot be heard to say that he is entitled to compensation, on account of delay in possession of the flat. Similar view has been taken by this Commission in First Appeal No.19 of 2010 titled as Shree Bhagwan Jindal versus M/s Penta Homes Pvt. Ltd. and others, decided on 19.05.2011, the facts whereof are identical and similar to the facts of the instant case.   Hence, there was no deficiency, in rendering service,  on the part of the respondent.

11.              From the perusal of Annexure C-6 i.e. the agreement executed between the parties, it is clear that the respondent  did not agree to provide the free car parking as in the column of ‘parking space” it was specifically written “Open”.  This fact is further corroborated from the possession form dated 09.12.2010 (Annexure R-5), wherein, the appellant had not opted for parking space facility.  So this plea of the Counsel for the appellant cannot be accepted for lack of any tangible evidence.        The District Forum was, thus, right in holding that, in view of the facts and circumstances of the case, there was neither any deficiency, in rendering service by the respondent, nor did it indulge into any unfair trade practice.

12.              In view of the above, it is held that the order passed by the District Forum, does not suffer from any illegality or perversity, warranting the interference of this Commission. 

13.              For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed with no order as to costs.

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

15.               The file be consigned to Record Room, after completion.

Pronounced.                                                                 Sd/-

25.01.2012                                              [JUSTICE SHAM SUNDER]

                                                                                 PRESIDENT         

Sd-

                                                                       [NEENA SANDHU]

                                                                                                MEMBER

Sd/-

                                                          [JAGROOP SINGH MAHAL]

                                                                                                MEMBER

cmg