Punjab

StateCommission

CC/13/24

Sh. Sudershan K. Mahajan - Complainant(s)

Versus

Progressive Promoters and Developers. - Opp.Party(s)

Munish Goel

18 Feb 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,  PUNJAB  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

Consumer Complaint No.24 of 2013                                                 

            Date of institution  :    27.02.2013

Date of decision     :    18.02.2015

 

Sudershan K. Mahajan S/o Ram Rattan Mahajan, R/o 5185, MHC, Mani Majra, Chandigarh.

                                                                             ...Complainant

Versus

1.      Progressive Promoters and Developers, Sector 112 (Behind   Chandigarh Engineering College), Landran, SAS Nagar, Mohali, through its Proprietor/Authorized Signatory.

 

2.      K.S. Walia, Sector-112 (Behind    Chandigarh Engineering      College), Landran, SAS Nagar, Mohali, being the Proprietor of    Progressive Promoters and Developers.

                                                                              …Opposite Parties 

Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986.

Quorum:- 

          Hon’ble Mr. Justice Gurdev Singh, President.

                        Shri Baldev Singh Sekhon, Member.

                        Mrs. Surinder Pal Kaur, Member.

Present:-

   For the complainant          : Shri Munish Goel, Advocate.

   For the opposite parties   : Ex parte.

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    Complainant, Sudershan K. Mahajan, has filed this complaint under Section 17(1) (a) (i) of the Consumer Protection Act, 1986 for the issuance of following directions to the opposite parties:-

 

i)        to rectify/remove all the defects in Flat No.406, Block-A,  Springdale Towers, Zirakpur, within two months from the date      of filing of the complaint;

ii)       to pay interest @ 18% on the amount of Rs.26,43,840/-, being         the deposit made by him, from the date of dissolution deed i.e.         12.08.2010 till the date of actual delivery of possession of the      flat;

iii)      to pay Rs.5/- per sq.ft. per month from 13.11.2010 till the         physical possession of the flat is given to him;

iv)      to provide basic amenities at the site within two months of the          filing of the complaint and to provide all necessary documents          to show that their project has been cleared by all concerned      departments and they have got necessary sanction for     construction and are in a position to give physical possession          of the flats to the allottees;

v)      to pay Rs.10,00,000/-, on account of the increase in the cost of       construction in the last three years;

vi)      to pay Rs.2,00,000/-, on account of the compensation for        mental tension, harassment and mental agony suffered by him;     and

vii)     to pay Rs.33,000/- as cost of litigation.

 

He alleged, in his complaint, that he himself, K.S. Walia, opposite party No.2 and Mrs. Meena Kukreja entered into a partnership and constituted partnership firm on 31.08.2005 under the name and style of opposite party No.1. It was agreed between them to construct flats at Zirakpur in the name of Springdale Towers and, accordingly, the construction of 81 residential flats was started at the site.  Being an architect, it was settled that he would get 22% of the profits/losses for preparing the design and drawings for the development of flats and that he would contribute Rs.33 lacs. Accordingly, he contributed that amount and had been preparing the design and drawings for the development of the land, as an architect. The flats were constructed by them; out of which 61 were sold by the other partners and 18 flats remained unsold. He found that the other partners were not giving him the detail of accounts and were behaving indifferently. They were managing the whole project of their own whims and maintaining their own bank accounts without his approval.  The disputes arose between them and he was left with no other option, but to file a petition under Section 9 of the Arbitration Act, 1996, for restraining the other partners from selling the remaining flats. During the arbitration proceedings, the issue was settled and the partnership was dissolved on 12.08.2010; in respect of which, the dissolution deed was executed. After the settlement of accounts, it was found that a sum of Rs.1,19, 99,870/- was due to him in lieu of his share. He was in need of residential house and wanted to purchase flat for his self living. He has got two sons and it was in his mind to purchase two more flats for them for the purpose of their marriage and expansion of the family. One Manohar R. Sapre also showed interest for purchasing one flat for himself on account of the love and affection with him and the sole idea on the part of that person was to live close to him. Accordingly, he decided to put his hard-earned money for the purchase of four flats. Accordingly, it was decided between him and the other partners that they would allot four flats, having Nos.601, 603 and 605 in Block-B and flat No.406 in Block-A in his name and in the names of Kshitij Mahajan, Manohar R. Sapre and Siddharth Mahajan. The total sale price of the first three flats was Rs.25.20 lacs, each, whereas the total price of the fourth flat was Rs.29,37,600/-. The different amounts, which were adjusted towards that total sale price, are detailed in Para No.6 of the complaint. After the adjustment of the said amounts towards the amount, which was found due to him at the time of settlement of the accounts of the firm, the balance amount was paid by means of two cheques. In this way, the opposite parties allotted flat No.406 for a consideration of Rs.29,37,600/-; out of which Rs.26,43,840/- was adjusted, vide Partnership Dissolution Deed  dated 12.08.2010 and the balance amount of 10% i.e. Rs.2,93,760/- was to be paid at the time of possession. The details of the structure etc. were mentioned in the allotment letter and physical possession of the flat was to be given as per the details given in that letter. It was agreed that the physical possession of the flat will be given to him within 60 days of the issuance of that letter. Thereafter, agreement to sell dated 12.10.2010 was entered into between him and the opposite parties, vide which, it was agreed that in case the possession of the flat was not given even after the grace period of one month, the opposite parties shall pay the penalty of Rs.5/- per sq. ft. per month to him. He visited the site a number of times to check, whether the construction/repair work inside the flats was completed or not and found that the same had not been completed. The opposite parties showed their helplessness to complete the same till January, 2012. They raised illegal demand of the balance amount, vide letter dated 15.09.2011, in which the interest was also demanded without even offering the physical possession. He again received letter dated 15.10.2011 from the opposite parties for making the payment of balance amount immediately. In response to both the letters, he wrote to the opposite parties to fix the time for inspection of the flats, but they failed to do so. Ultimately, he received letter dated 18.03.2012, in which he was asked to come present for inspection on 27.03.2012. Accordingly, he visited the site on 27.03.2012 and found that they had not constructed the internal part of flat as per specification mentioned in the allotment letter and a number of changes had been made in the specifications of various items of work; which was detailed in Para No.18 of the complaint. He asked the opposite parties to rectify the defects, vide letter dated 08.04.2012, and requested them to send copy of requisite permissions, sanctions and clearance by the concerned Govt. Departments, in order to show that the construction of the flats was as per the permissible limits. No such information was supplied to him, though he had been repeatedly writing the letters to the opposite parties. The opposite parties have neither rectified the defects nor had given the physical possession of the flat to him, which amounts to deficiency in service on their part. As a result thereof, he is suffering loss, physically as well as mentally.  

2.           The opposite parties did not appear before this Commission, in spite of their service and were proceeded against ex parte, vide order dated 22.04.2013.
3.           To succeed in the complaint, the complainant proved on record his affidavit Ex.C-A and the documents Ex.C-1 to Ex.C-34.
4.           We have carefully gone through the evidence, so produced by the complainant, and have heard the learned counsel on his behalf.
5.           After having gone thoroughly through the allegations made in the complaint and the documents proved on the record, we have reached the conclusion that intricate questions of fact and law are involved and it will not be prudent to decide this complaint in summary proceedings. The matter requires thorough investigation and that exercise can be done only by the civil court.
6.           The  Deed  of Partnership was proved on record as Ex.C-1. A perusal thereof shows that the complainant constituted that partnership firm with opposite party No.2 and one Mrs. Meena Kukreja and they had undertaken to carry on the business under the name and style of opposite party No.1 and the business, to be carried on, was the promotion and development of the residential colonies etc. It can easily be made out from the allegations made in the complaint that the flat, which has been made the subject matter of the complaint, was included in the project; which was being executed by the complainant along with the other partners. The Deed of Dissolution, so mentioned in the complaint, was proved on the record as Ex.C-3. Vide that Deed, the partnership was dissolved on 12.08.2010 and the complainant retired from the firm and the other two partners agreed to continue the same business under the same name. The continuing partners agreed to pay the sum of Rs.1,19,99,870/- to the complainant in lieu of the capital and the profits, in the manner mentioned in Clause-6 thereof.  The flat in question bearing No.406, was to be given to him in lieu of that amount, besides the other flats; which were to be given in the names of other persons.  Once the partners entered into such an agreement by way of Deed of Dissolution, there was no question of the allotment of that flat and the complainant was to get the same by virtue of his share in the profits of the firm.
7.           The Allotment Letter  was  proved  on the record as Ex.C-4, which is dated 14.08.2010 and the Agreement to Sell has been proved as Ex.C-5. That agreement is dated 12.08.2010. If a detailed agreement regarding that had already been executed between the complainant and opposite party No.1 containing all the terms and conditions on 12.08.2010, where was the question of the allotting of the flat, vide allotment letter dated 14.08.2010? It is also pertinent to note that the person, who put his signature on behalf of opposite party No.1, had also put the signature on the endorsement of acceptance; which was to be signed by the complainant.
8.           All these facts create doubt in the allotment of flat No.406 to the complainant, as an independent transaction. The facts have to be gone into detail in order to determine, whether the documents so relied upon by the complainant are genuine, or have just been created in order to make out relationship of “consumer” and “service provider”?   Such an exercise can be done only by the civil court and all those facts cannot be decided by this Commission during summary proceedings.  Accordingly, the complaint is rejected and the complainant is relegated to the civil court.
9.           The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

 

                                                        (JUSTICE GURDEV SINGH)

                                                                       PRESIDENT  

                                                         

                                                        (BALDEV SINGH SEKHON)

                                                                         MEMBER

                                                         

                                                      (MRS. SURINDER PAL KAUR)

February 18, 2015                                       MEMBER

(Gurmeet S)