STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

IN APPEAL NO.493 OF 2009

1.      Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

2.      The Managing Director, Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

                                                ………Appellants.

Versus

1.      Sh. Sarabjeet Singh son of Sh. G. S. Sandhu resident of H.No.262, Sector 46A, Chandigarh.

2.      Smt. Navpreet W/o Sh. Sarabjeet Singh son of Sh. G. S. Sandhu resident of H.No.262, Sector 46A, Chandigarh.

…Respondents.

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. Arun Kumar, Advocate for the appellants.

                        Sh. Ramandeep Singh, Advocate for the respondents.

APPEAL NO.599 OF 2009

Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh through its Managing Director.

                                                ………Appellant.

Versus

Sh. Rajesh Kumar Gupta son of Sh. R. L. Gupta, House No.814, Sector 16, Panchkula.

…Respondent.

Argued By:            Sh. Arun Kumar, Advocate for the appellant.

                        Sh. Vikas Gupta, Advocate proxy for

                        Sh. D. K. Singhal, Advocate for the respondent.

APPEAL NO.600 OF 2009

1.      Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

2.      The Managing Director, Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

                                                ………Appellants.

Versus

ESS ENN Sales Corporation through its Partner Sh. Arun Narang, NH-21, Bhunter, District Kullu, Himachal Pradesh.

…Respondent.

Argued by:            Sh. Arun Kumar, Advocate for the appellants.

                        Sh. Ramandeep Singh, Advocate for the respondents.

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

1.                     Vide this common order, we are disposing of three appeals bearing No.493, 599 and 600 all of 2009 filed by OPs i.e. Shalimar Estate (P) Limited and another arising out of three different impugned orders dated 30.7.2009, 24.9.2009 and 15.9.2009 passed by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) in complaint cases No.48 of 2009, 550 of 2009 and 645 of 2009 passed. Since, the facts and issues involved in all the three complaint cases are common, hence, we also propose to decide all the above mentioned three appeals vide this common order, which is being passed in appeal No.493 of 2009 titled ‘Shalimar Estate and another Vs. Sarabjeet Singh and another’.

2.                 For the discussion of the issues, the facts have been gathered from complaint case No.48 of 2009 : Sarabjeet Singh and another Vs. Shalimar Estate (P) Ltd. and another. Briefly stated the case of the complainants is that they were allotted a showroom vide acceptance-cum-demand letter dated 28.2.2006 in an upcoming shopping mall to be constructed by the OPs. It was averred by the complainants that they deposited an amount of Rs.23,30,000/- as per the schedule mentioned in the allotment letter and further as per the brochure of the scheme, the date of handing over of possession of showroom was within two years from the date of allotment letter. OPs, it was next averred, published a new advertisement about the showrooms of the same shopping mall whereby scheme commenced on 28.11.2006 and closed on 12.12.2006 and the possession was stated to be delivered within two years. Subsequently, as per the complainants, another advertisement was published by the OPs regarding the showrooms of the same shopping mall whereby the scheme commenced on 12.10.2007 and closed on 26.10.2007 and again the possession was mentioned to be handed over within a period of two years. The complainant next averred that as per Clause 44 of the terms and conditions of the standard application form, in case payment of subsequent installments were not made on due dates, the intending allottee was to pay interest @ 15% per annum whereas as per clause 17, in case of delay in giving the symbolic possession of showroom beyond the committed time, the company/promoter was liable to pay compensation to the intending allottee(s) @ Rs.10/- per sq. ft. per month of the super area. The case of the complainants is that as the possession was not handed over within the stipulated time period, they served a legal notice dated 16.12.2008 upon the OPs calling upon them to inform the exact date of handing over of actual physical possession but to no avail. Alleging the aforesaid acts of OPs as deficiency in service and unfair trade practice on their part, the complainants had filed the present complaint.

3.                 The version of OPs is that vide acceptance-cum-demand letter dated 28.2.2006 the complainants were intimated that their application No.1611 was accepted for registration of allotment of commercial showroom in Shalimar Plaza, I.T. City, Mohali and that the payment of Rs.23,30,000/- was made by them. OPs submitted that the complainants deposited the registration money on 13.3.2006, therefore, the period of handing over the possession of the showroom started from 14.3.2006 and not from 28.2.2006. Admitting the averment of issuance of advertisements in the newspapers, OPs submitted that those were only with regard to the unregistered showrooms of the said shopping mall and were not related to the complainants and further had no effect on the previous scheme under which the complainants applied. OPs next stated that  the photocopy of the brochure attached by the complainants as Annexure P-2 was not of the same scheme for which they had applied and rather the same related to some other scheme floated by OPs. As per OPs, there was no mention of symbolic possession in the scheme and the complainants could only claim compensation with regard to delay of handing over the possession under Clause 12 and that Clauses 44 & 17 were not applicable. Pleading that the delay occurred due to force majeure circumstances and was not intentional, OPs prayed for dismissal of the complaint.

4.                 The learned District Forum, in its analysis of the complaint, accepted the contention of OPs that the period of two years for delivery of possession was to start from 14.3.2006 and the possession of the showroom had to be delivered to the complainants by 13.3.2008. It further recorded that there was no dispute about it that the entire payment was required to be made by the complainants during this period and which was accordingly paid by the complainants vide receipts Annexure P-5/B, P-5/C, P-5/D, P-5/E and P-5/F. The learned District Forum then referred to the advertisements (Annexures P-6 and P-7) vide which OPs promised to complete the construction within two years and the completion of construction was further pushed to 26.10.2009. As per the learned District Forum, when there were three advertisements for the shopping mall wherein the same promise was being made to complete the construction within two years, the construction could be expected to be completed when the period of two years expired with respect to the last of the advertisements. In the view of the learned District Forum, this goes to prove that the construction had not been completed before 13.3.2008. The learned District Forum also observed in the impugned order that OP failed to produce any evidence to suggest as to what were the causes due to which the construction of the showrooms were not completed within the period of two years and the mere mention of force majeure circumstances was not enough to justify the delay. The learned District, thus was of the firm opinion that the delay in the construction of the showrooms was intentional and not beyond the control of the OPs. As regards the contention of OPs that in case of delay, they were only liable to pay compensation to the complainant @ Rs.10/- per sq. ft. per month of the super area and not more than that, the learned District Forum was of the view that this contention of OPs could not be accepted as correct because the terms and conditions in this respect were not signed by the complainants and thus, they were not bound by the same and as the same had been signed by the OPs, they could not wriggle out of it. As regards Condition No.17 of the terms and conditions, the learned District Forum recorded in the impugned order that OPs, as per this condition, had not paid any amount so far to the complainants and if they were honest in their dealings and wanted to abide by this clause, they would had paid the compensation from the day they delay started in raising the construction. As per the learned District Forum, since the OPs had charge interest @15% per annum on delayed payments from the complainants, they were also liable to pay interest at the same rate for delayed delivery of possession also. Taking a lenient view, the learned District Forum hold the OPs liable to pay compensation @12% per annum. In view of its above analysis, the learned District Forum allowed the complaint and directed the OPs to pay the complainant compensation @12% per annum on the total amount of Rs.23,30,000/- w.e.f. 1.4.2008 (15 days after the period of two years expired as mentioned in Para 4 of the reply) till the last date of the month in which the possession was actually delivered to the complainants. It also directed the OPs to pay an amount of Rs.5,000/- as costs of litigation to the complainants and the payment was ordered to be made for the previous month by the 7^th of each succeeding month. The amount of compensation and litigation costs which had fallen due was ordered to be paid by the OPs within 30 days from the date of receipt of copy of the order failing which, OP were made liable to pay penal interest @12% per annum w.e.f. the date the amount became due till it was actually paid to the complainants.

5.                     Aggrieved by the impugned orders of the learned District Forum, OPs have filed three separate appeals as stated in the opening para of the order. The appeals having been taken on board, notices were sent to the respective respondents/complainants and record of complaint case was summoned from the District Forum. Sh. Arun Kumar, Advocate appeared on behalf of the appellants/OPs in all the three appeals whereas Sh. Ramandeep Singh, Advocate represented all the respondents/complainants.

6.                     Sh. Arun Kumar, Advocate learned counsel for the appellants/OPs submitted that the learned District Forum has wrongly gone by the terms and conditions as set forth in para No.17 of a different scheme whereas in the present case, as per the application form filled by the complainants, the term and condition applicable was Para 12 of the terms and conditions of the scheme applied for by the complainants. He emphatically submitted that as per this condition, OPs were required only to pay the complainants compensation @Rs.10/- per Sq. Feet per month of the super area. He reiterated that OPs were only liable to pay the complainants as per the scheme for which, they had been enrolled for the delay in handing over the possession of the premises in question. He also submitted that even the delay in construction of the showroom was not intentional and was beyond the control of OPs and in fact, as per the terms and conditions of the policy, no compensation was to be paid by the OPs for such unintentional delays. He, therefore, prayed that the impugned order be set aside and if at all the complainants be granted relief as per Clause 12 of the scheme for which the complainants had applied for.

7.                     Sh. Ramandeep Singh, Advocate learned counsel for the respondents/complainants submitted that the impugned order was just, fair and legal and because of the delay in offer of possession of the premises, the complainants had suffered substantial financial loss. He, therefore, prayed that the appeal be dismissed.

8.                     We have gone through the evidence on record as well as the impugned order and have also heard the learned counsel for the parties. 

9.                     Having heard the learned counsel for the parties and having analysed the evidence on record, it becomes clear that the complainant Dr. Sarabjeet Singh had applied for registration for allotment of a commercial showroom in Shalimar Plaza, Cite No.1, IFP, Phase VIII B, IT City, Mohali. It is also seen that the blank application form, which this complainant had filed as Annexure P-2 with the complaint and which had been referred to by the learned District Forum has a different title as that is the application form for registration for allotment of a commercial showroom under assured rental income scheme in Shalimar Plaza, Site No.1, IFP, Phase VIII B, IT City, Mohali. Thus, at the face of it, we accept the contention of learned counsel for the appellants/OPs that it is the term and conditions of the application form filled by the complainant, which are relevant and binding and not the terms and conditions of the blank form, which has been filed by Dr. Sarabjeet Singh, complainant along with his complaint. It is also not understood as to why Dr. Sarabjeet Singh did not file a copy of the application form No.1611, which he had filled for the allotment of commercial showroom in Shalimar Plaza, Site No.1, IFP, Phase VIII B, I.T. City, Mohali. Another fact that emerges after perusal of this application form filed by the appeal paper book is that the applicant has signed the terms and conditions whereas the learned District Forum obviously erroneously has recorded in the impugned order that the terms and conditions of the scheme are not binding upon the complainant as he has not signed the same.

10.                   The reading of evidence and pleadings of the counsel confirm that the complainant had applied for allotment of a commercial showroom in Shalimar Plaza, Site No.1, IFP, Phase VIII B, I.T. City, Mohali. It is also apparent and admitted that there was delay in handing over possession of the showroom. We also concur with the view held by the learned District Forum that OPs have given no cogent evidence or believable reasons to prove that the delay in the offer of possession of the showroom was for reasons beyond their control. Thus, we are in consonance with the view held by the learned District Forum that OPs must compensate the complainants for the loss suffered by them due to delay in offer of possession.

11.                   The main issue that needs to be decided is as to what is the complainant entitled to receive from the OPs under the contract mutually agreed to between the parties. It is now clearly evident that Para 12 of the terms and conditions duly signed by the complainant and appended with the application form must form the basis of the payment to be made by the OPs to the complainants. As per Condition No.12, OPs are liable to pay the complainants a sum of Rs.4,000/- per month for each month of delay in handing over of possession @Rs.10/- per sq. ft. of the super area. Since, this amount admittedly has not been paid, the complainants are also entitled to interest on this amount for the denial of this financial benefit from the time the amount became due for payment. In addition, the complainants have been forced into unnecessarily litigation by the OPs and thus, the complainants are also entitled to the costs of litigation.

12.                   In view of the foregoing discussion, in our considered view, the direction of  learned  District  Forum  directing  the  OPs  to  pay    the complainants compensation  @12% per annum  on the total amount of Rs.23,30,000/- w.e.f. 1.4.2008 is legally not sustainable because the compensation to be paid to the complainants  is  to  be  as  per  a greed  terms  and    conditions and it  is  related  to  the  super area  of  the  showroom  and  not   to the       amount paid by the complainants and to this extent, the impugned order needs to be modified. Consequently, all the appeals bearing No.493, 599 and 600 all of 2009 filed by OPs i.e. Shalimar Estate (P) Limited and another are partly allowed and the impugned orders are modified with regard to the payment for the delay in offer of possession as under: -

“OPs are directed to pay the complainants sum of Rs.4,000/- per month payable on 7^th of each succeeding month w.e.f. 1.4.2008 till the actual date of possession of the showroom. OPs are further directed to pay interest @9% per annum on this amount of Rs.4,000/- deposited each month from the date of deposit till actual payment to compensate the complainant for the denial of this amount and also as compensation for mental agony and harassment. The direction given vide the impugned order as regards costs of litigation granted to the complainants as well as for the compliance of the order shall remain intact.”

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

Pronounced.

19^th April 2010.

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[JUSTICE PRITAM PAL]

PRESIDENT

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

MEMBER

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[MRS. NEENA SANDHU]

MEMBER

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