DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 1120 of 2009 Date of Inst:06.08.2009 Date of Decision:. 19.08.2010 Sh.Dwarka Parshad s/o Sh.Gaja Nand r/o H.No.6175, Modern Housing Complex, Manimajra, Chandigarh. ---Complainant V E R S U S 1. Shalimar Estates Pvt. Ltd., Corp. Office SCO No.110-111, Sector 8-C, Chandigarh. 2. Sh.R.K.Aggarwal, Managing Director, Shalimar Estates Pvt. Ltd., SCO No.110-111, Sector 8-C, Chandigarh. ---Opposite Parties QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER SMT.MADHU MUTNEJA MEMBER PRESENT: Sh.Manmohan, Adv. for Sh.Jatin Kumar, Advocate for complainant Sh.Kapil Kumar, Adv. for OPs. --- PER LAKSHMAN SHARMA, PRESIDENT Sh.Dwarka Parshad has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) Hand over the physical possession of the showroom. ii) Adjust the excess amount charged on account of preferential charges. iii) Pay compensation of Rs.30000/- per month @ 15% p.a. on the amount deposited i.e. Rs.24,00,000/- with OPs. iv) Give the showroom measuring 500 sq. ft. instead of 315 sq. ft. v) Withdraw the demand notice for the payment of maintenance charges. vi) Pay a sum of Rs.2 lacs as compensation for harassment and mental agony. vii) Pay a sum of Rs.11,000/- as litigation expenses. 2. In brief, the case of the complainant is that Sh.Yadvinder Singh purchased a showroom measuring 500 sq. ft. under category B in Shalimar Mega Mall. The acceptance-cum-demand letter dated 16.12.2004 (Annexure C-1) was received by him. Sh.Yadvinder Singh was not willing to keep the said showroom. The complainant wanted to purchase the showroom in question. So he purchased the said showroom from Sh.Yadvinder Singh. Thereafter he applied for transfer of the showroom in his name. The showroom in question was transferred in his name by OPs vide letter dated 29.08.2005 (Annexure C-2). According to the complainant, as per letter dated 16.12.2004(Annexure C-1), 60% of the chargeable price i.e. Rs.17,15,500/- was to be deposited as per the mode of payment mentioned therein and remaining 40% i.e. Rs.6,56,930/- was to be paid in 120 equated monthly installments @ Rs.11,496/- per month with interest @ 11 % per annum. The possession of the showroom was to be delivered within two years by the OPs. The total consideration of the showroom in question was Rs.23,72,430/-. According to the complainant, he deposited Rs.24,00,000/- towards the cost of the showroom including the cost towards infrastructure maintenance security, cost of flooring, AHU etc. vide different receipts within the prescribed period. It has been pleaded by the complainant that OPs without informing him reduced the area of the showroom from 500 sq. ft. to 315 sq. ft. after transferring the same in his name. According to the complainant, the actual super area of the showroom comes to 250 sq. ft. only and the actual physical area is 137.5 sq. yards. As per the letter dated 10.01.2008 (Annexure C-10), OPs have illegally charged Rs.2,92,042/- in excess. It has been pleaded that he deposited a huge amount of Rs.24,00,000/- towards the showroom in question. Despite it, the possession of the showroom was not delivered to him, which was to be delivered to him on 15.12.2006. It has been pleaded that OPs issued the allotment letter to the complainant on 02.09.2008 requiring him to complete the formalities and to start fit out works in the showroom but they have not mentioned the formalities which were required to be completed. It has been pleaded that the OPs failed to deliver the possession of the showroom on or before 15.12.2006 which amounts to deficiency in service. According to the complainant, he is ready to pay the balance price as per the acceptance cum demand letter in case OPs offered the actual physical possession of the showroom in question. Thereafter, the complainant served a legal notice dated 12.06.2009 upon the OPs but to no effect. It has further been pleaded that due to delay in possession, he suffered huge financial loss and it amounts to deficiency in service on the part of OPs. In these circumstances, the present complaint was filed seeking the reliefs mentioned above. 3. In joint reply filed by the OPs, the facts with regard to allotment of commercial showroom bearing site No.SM-5, Sector 5, Panchkula vide allotment letter dated 02.09.2008, depositing of Rs.24,00,000/- by the complainant and their commitment to handover the possession of the showroom within 2 years as mentioned in the brochure have been admitted. According to the OPs, the complainant vide letter dated 10.1.2008 was offered the possession of the showroom but he has not completed the formalities and has not taken the possession. It has been pleaded that the complainant vide letter dated 10.01.2008 was intimated to start the fit out works in the said showroom after obtaining permission letter within 3 months but he failed to do so. It has further been stated that the complainant was again requested vide letter dated 02.09.2008 to complete the formalities which he failed to so. It has further been pleaded that the complainant was given the compensation of Rs.60,000/- for one year with regard to delay in completion of the showroom @ Rs.10/- per sq. ft. per month as per term & condition No.10 of the application form submitted by the complainant. It has further been clarified to the complainant that he was allotted the showroom No.353 on the third floor having super area of 315 sq. ft. The complainant was again written letter dated 14.03.2009 & 01.08.2009 requiring him to deposit Rs.55,955/- and Rs.1,75,410/- towards equated monthly installments, common area maintenance and non-operational charges respectively but he failed to deposit the same. According to the OPs, the complainant was not coming forward to take the possession for the reasons best known to him. All other pleadings of the complainant have been denied by the OPs. In these circumstances, according to OPs, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 5. Admittedly, the complainant paid a sum of Rs.24,00,000/- against the total price of the showroom i.e. Rs.23,72,430/-. The above said amount has been paid in installments as per the demand made in demand-cum-acceptance letter dated 16.12.2004. Admittedly, OPs were to hand over the possession of the showroom within two years i.e. upto 07.12.2006. OPs have failed to provide completion certificate and letter for possession despite several requests. OPs can make demand for the remaining amount only at the time of delivery of possession. As the completion certificate and possession letters have not been made available to the complainant, the plea that the complainant has failed to pay the remaining installments and has failed to start fit out works cannot be accepted. Thus, there is deficiency in service on the part of OPs. 6. The next contention of the complainant is that he had purchased the rights of Sh.Yadwinder singh to whom the showroom measuring 500 square ft. was originally allotted. Now the showroom which is being offered to him is 315 square ft whereas he is being charged Rs.24,32,430/- for the said area. Learned counsel for the OP has drawn our attention to the letter (Annexure OP-4). From this letter, it is apparent that the showroom which was being offered to him has super area of 315 square ft. The said showroom is offered to him @ Rs.7020/- per square ft. The total price of the showroom having super area of 315 square ft. comes to Rs.24,32,430/-. Thus, the complainant is not being charged for an area measuring 315 square ft. Furthermore, the showroom which was allotted to the complainant abuts to the staircase and as per the lay out plan prepared by the architect a part of the showroom which was allotted to the complainant has been utilized for the construction of the said staircase resulting in reduction of area from 500 sq. ft to 315 sq. ft. As the complainant is being charged for the area measuring 315 square ft., so the complainant should have no grouse for it. Another showroom having area of 500 square ft. was offered to the complainant but he did not accept the said offer. So the complainant is not entitled to any relief on this score. 7. As per Clause No.10 of the terms and conditions of the application form, the complainant is entitled to damages @ Rs.10/- per sq. ft. per month of super area in case of delay in delivery of the possession. Clause 10 of the application form reads as under:- "The company/promoters shall endeavor to give possession of showroom to those allottees whose payment shall be regular as per payment plan of the scheme within two years from issue of acceptance-cum-demand letter subject to force Marjorie circumstances and on receipt of all payment as per the payment plan of the allotment. Other charges due payable up to date of possession and on receipt of post dated cheques of equates monthly installments, according to the payment plan applicable to him/her/them. The company/promoter on completion of the construction shall issue fins' call to the intending allottee(s) who shall within 30 days thereof, remit all dues and post dated cheques of EMI's and take possession of the showroom. In the event of his / her / them failure to take possession for any reason whatsoever, he / she / they shall be deemed to have taken possession of the allotted showroom and shall bear all maintenance charges and any other levies on account of the allotted showroom. In case of delay, in giving the possession of showroom beyond the committed time the company / promoter shall be liable to pay compensation to the intending allotee(s) @ Rs. 10 per sq.ft. Per month of the super area. in case the Intending Allottee(s) will not make the -showroom operational after the offer of possession and after the expiry of fit out period he/she/they will be liable for payment of non-operational charges @ Rs. 10 per sqft. Per month of the super area to the company/promoter. 8. In these circumstances, the complainant is only entitled to the compensation as per Clause 10 reproduced above. But he is not entitled to the amount as prayed for by him in the complaint. The above said view stands fortified by the ratio of the case titled as Shalimar Estate (Pvt.) Ltd. and another Vs. Sh.Sarabjeet Singh and another decided by our Hon'ble State Commission in Appeal No.493 of 2009 vide order dated 19.04.2010. 9. In view of the above findings, the complaint is dismissed. However, it is made clear that the complainant shall be entitled to the damages as per the clause reproduced above. 10. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 19.08.2010 sd/- (LAKSHMAN SHARMA) PRESIDENT Cm Sd/- (ASHOK RAJ BHANDARI) MEMBER Sd/- (MADHU MUTNEJA) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MRS. MADHU MUTNEJA, MEMBER | | 
