DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT
Complaint No. : 375
Date of Institution: 23.12.2016
Date of Decision : 21.08.2017
Vipin Kumar Vig, aged about 40 years, S/o Vijay Kumar Vig R/o Dhoda Chowk, Railway Road, Kotkapura.
...Complainant
Versus
- Anil Kumar, M D Shivalik Apartments, Shivalik Vihar Sites Pvt. Ltd, Head Office Shivalik Apartments, Kharar, District Mohali, Punjab, OPP Court building (East Side).
- Shivalik Apartments, Shivalik Vihar Sites Pvt. Ltd. Head Office: Shivalik Apartments, Kharar, Distt. Mohali, Punjab, Opposite Court Building ( East Side)
- Shri Ashok Kumar Gera S/o Bihari Lal Gera R/o Mohalla Dibbipur, Old City, Kotkapura.
....Opposite parties (Ops)
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. Ajit Aggarwal, President
Sh. Purshotam Singla, Member.
Present: Sh Vipin Wadhawan, Ld Counsel for complainant,
OPs Exparte
(Ajit Aggarwal, President)
Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to deliver the possession of flat in dispute or to refund Rs.11,50,000/- paid by complainant as price of flat with interest and to pay compensation for mental agony and harassment and financial loss to complainant and for litigation expenses.
2 Briefly stated, the case of the complainant is that OP-1 & 2 entered into an agreement bearing no. 508 dt 2.08.2008 with complainant regarding allotment of flat no. 111 on the first floor in Shivalik apartments at Kharar, District Roopnagar. Previously, flat no. 210, 2nd floor was allotted to Ashok Kumar Gera/Op-3 by OP-1 & 2 and after adjustment with OP-3, OP-1 & 2 with the consent of Complainant vide letter dt 2.08.2008, requested to transfer allotment of flat no.111 in lieu of flat no. 210 and by completing all formalities by adjusting the amount of OP-3, OP-1 & 2 allotted the flat no. 111 in lieu of flat no. 210. As per allotment /agreement letter clause-4 the physical possession of the flat shall be handed over to the complainant on dt 31.03.2009 and complainant paid total amount of Rs 11,50,000/- to OP-1 & 2 and balance of Rs 1,25,000/-was payable, but when complainant visited the site as per agreement on 31.03.2009 for taking possession, OPs failed to give the possession though complainant was ready to make payment of balance amount. Complainant also noted that house was not complete and as per version of OP-1 & 2, it would take six months to complete and therefore, complainant did not pay the remaining amount and thereafter, complainant visited many times to take possession of flat and was always ready to make payment of balance amount, but OP-1 & 2 failed to provide the flat in question and always requested to wait for some time and kept putting off the matter on one pretext or the other and asked him to pay balance amount on possession of the plot. Complainant approached Ops many times but Ops did not pay heed to the genuine request of complainant and complainant was surprised to receive a legal notice issued by OPs demanding Rs 1,25,000/- + sales tax of Rs 30,417/- from 21.08.2007 to 30.08.2010, total Rs 1,55,414/- otherwise threatened to cancel the said flat. On receiving the same, complainant approached OPs with request to take the balance amount alongwith sales tax and also requested Ops to give possession of the flat, but OP-1 again did not give the possession of said flat to complainant and thereafter, again and again, OP-1 & 2 harassed complainant by calling him at the site without any reason and also sent a letter dt 29.03.2012 whereby demanded amount of Rs 2,38,487/-within 15 days otherwise flat would be cancelled. On receiving the said letter, complainant approached OPs and stated that he is ready to pay the amount, but OPs said that flat is not ready. Complainant made many requests to Ops to hand over the possession of said flat, but OPs remained adamant in not delivering the possession of said flat to complainant. Complainant approached OP-3 and narrated the whole story and also asked him to help him in getting the possession of said flat from OP-1 & 2, but OP-3 also did not care. After that complainant issued a legal notice to OPs requesting him to give possession of said flat, which was replied by OPs stating that OPs would make payment within one month, but till date no payment is received. It is contended that prices of the flat have become almost double and this is the main reason for not handing over the possession of said flat to complainant by OPs. All this amounts to deficiency in service and trade mal practice on the part of Ops and has caused harassment and financial loss to complainant for which he is entitled for compensation alongwith possession of said flat. Hence, the complaint.
3 The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 09.01.2017, complaint was admitted and notice was ordered to be issued to the opposite party.
4 Notice containing copy of complaint was issued to OPs through registered cover. OP-1 & 2 were also served through publication in newspaper, but despite effecting service through RC as well as publication in vernacular paper, OPs did not appear in the Forum either in person or through counsel. Therefore, after making several calls and long waiting, when OPs did not appear in the Forum, it was presumed that Ops are not interested in pursuing the case and is intentionally evading service and hence, OP-1 & 2 were proceeded against exparte at 4.00 pm vide order dt 30.05.2017 and OP-3 vide order dated 14.03.2017.
5 Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-17 and then, closed the evidence.
6 As there is no rebuttal from opposite parties. We have heard the exparte arguments on behalf of complainant and have very carefully gone through the affidavits and documents on the file.
7 The Counsel for the complainant argued that the OP-1 & 2 are builder and developer. They launched a scheme for constructing apartment at Kharar namely Shivalik Apartments. They allotted a flat no.111 on first floor to the complainant for total price of Rs.12,75,000/-. The OPs duly executed allotment-cum-agreement on 02.08.2008 in favour of the complainant, previously flat bearing no.210 second floor was allotted to OP-3 and complainant with consent of OP-1 & 2 made arrangement with OP-1 & 2 and OP-1 & 2 in lieu of flat no.210 allotted flat no.111 to complainant and made adjustment of all the dues out of the total sale price 12,75,000/-. Complainant paid Rs.11,50,000/- to OP-1 & 2 till 02.08.2008, copies of receipts regarding payment of this amount issued by OPs as Ex C-9 to C-12, allotment cum agreement letter Ex C-8, only Rs. 1,25,000/-was remained balance out of the total price which was to be paid at the time of delivery of physical possession of flat to the complainant as per agreement. The physical possession of the flat was to be delivered by 31.03.2009 but on the stipulated date the OP-1 & 2 failed to deliver the possession of the flat to the complainant. Complainant visited the site along with remaining price but he found that the flat was incomplete. The OPs assured him it will be ready within six months. The complainant again visited the site so many times to take possession of the said flat and he was always ready to pay the balance amount but OPs failed to provide the possession of the flat and always requested to wait for some more time for competition of the flat. He putting of the matter on one pretext or the other. The OP-1 & 2 demanded the balance price from complainant but complainant asked them that as per agreement he will pay the balance price at the time of delivery of physical possession. The OP-1 told the complainant that he has no need to visit the site again and again. They themselves informed him when the flat become ready for the possession. The complainant did not receive any intimation from the Ops, rather Ops issued a notice to complainant and demand balance sale consideration, plus sale tax and also threaten that otherwise they shall cancel the flat. The complainant visited to OP-1 and told them that he is ready to pay the balance amount plus tax but only after the delivery of possession as he has already paid a huge amount amounting to almost entire sale price of the flat. On 29.03.2012 OPs sent a letter to complainant and demanded an amount of Rs.2,38,487/- from him otherwise the flat will be cancelled. The complainant again visited the OP-1 and found that flats are still not ready for possession. Now the OPs are refused to hand over the physical possession of the flat as the price of property increases many folds and with the intention of cheating the complainant. OPs putting of the matter on one pretext or the other. The complainant issued legal notices to Ops on 07.04.2013 and 21.07.2014. The complainant approached to OP-3 and asked him for help to complainant for delivery of possession as OP-3 is working on commission basis with OP-1 & 2 but OP-3 refused to give any help to complainant. The complainant issued a notice dated 07.04.2013 through his counsel to Ops but Ops did not give any reply to this notice. The copy of the notice is Ex C-2, again complainant issued notice dated 21.07.2104 to Ops, the copy of the which is Ex C-3 in response to this notice OP-1 give reply vide which they informed that the allotment of flat to the complainant is cancelled and complainant can get refund of the money paid by him to the OPs. The Ops made fraud with the complainant and they want to cheat the complainant as the rates of property are increases many folds. It amounts to deficiency in service and unfair trade practice. The Counsel for the complainant argued that the complaint be accepted and Ops are directed to refund the amount received by OPs from the complainant as price of the flat along interest @ 24% PA. The Counsel for the complainant made attention on letter Ex C-8 it reveals that at the Sr. No.12, it is condition that if any allottee made delay in the payment of instalment, the company will charge interest @ 2% PM i.e. 24% PA on the delayed amount. At Sr. No.15 the company assure the buyers if they fail to deliver the possession of the apartment at time, they will compensate them with interest @ 1% PM plus interest at standard rate paid by Nationalise Bank for the period of delay in handing over the possession. In these circumstances when the company himself charged the interest @ 24% from the buyer from the defaulting payment the complainant also entitled to get the interest @ 24% PA from the OPs on the payment made by him. In support of his arguments, the counsel for the complainant made reliance on the citation 2015 ( 1 ) Consumer Law Today, 552 titled as Puneet Malhotra Vs Parsvnath Developers, decided by Hon’ble National Commission, New Delhi:
Consumer Protection Act, 1986, Section 2 (1) (g) & Interest Act, 1978- Allotment of flat-Housing Construction-Delay in construction-Interest-held- As per the agreement between the parties, the complainant was required to pay interest @ 24% PA in the event of delay on his part in making payment to the opposite party-Logically, if the seller is charging interest from the buyer @ 24% PA, it should have no hesitation in paying the interest at the same rate to him in the event of its failure to complete the construction of the flat within the time frame agreed between the parties.
Consumer Protection Act, 1986, Section 2 ( 1) (g) & interest Act, 1978-Allotment of flat-Housing construction-Delay in construction-Interest-Held- The interest ought to be at a higher rate in a case where the delay is for five years or more-OP directed to refund the amount which the complainants had deposited with it, along with interest on the said amount @ 18% per annum from the date the deposit was made till the date the refund is made-this comprises 8% per annum on account of appreciation in the land value and increase in the cost of construction and 10% on account of interest.
8 As the land which was agreed to be sold is situated at Kharar Distt. Hoshiarpur and this Forum has jurisdiction to try and decide this complaint. Ld counsel for complainant argued that all the transactions between the parties were made at Faridkot.The payment regarding plot was also made to OPs at Faridkot office and agreement was also executed between the parties at Faridkot within the territorial jurisdiction of this Forum. So, this Forum has jurisdiction to try and decide this complaint. He put reliance on citation 2005 (3) Consumer Protection Judgements 581 titled as Divisional Railway Manager/Commercial, Southern Railway Vs Jasbir Singh decided by Union Territory Consumer Disputes Redressal Commission, Chandigarh wherein they held that plead of lack of territorial jurisdiction was arose on the ground that the train originated from Ernakulam in the State of Kerala and the destination station was New Delhi and as such, District Forum, Chandigarh has territorial jurisdiction to adjudicate the complaint. The Hon’ble State Commission observed that so far as the booking of ticket from the website of the Indian Railways at Chandigarh is concerned, it has been admitted and once this fact is admitted then a part of cause of action arose at Chandigarh where the tickets were booked on website and the tickets were delivered at Chandigarh, u/s 11 (2) (c) of the Consumer Protection Act, 1986, which provides that complaint shall be instituted in a District Forum within the local limits of whose jurisdiction. In our considered opinion, the District Forum was right in holding that it had territorial jurisdiction to entertain and adjudicate the complaint cases and the arguments advanced by the ld counsel for the appellants to the contrary has no merit. In order to prove that this Forum has jurisdiction to decide the present complaint, ld counsel for complainants has placed reliance on citation in case law 2014 (2) Consumer Law Today titled as Ms Dilshad Gill Vs M/s EMAAR MGF Land Pvt Ltd & Ors, wherein Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U T Chandigarh has observed that Consumer Protection Act, 1986, Section 11-Territorial Jurisdiction-Flat at Chandigarh-Apart of Cause of action, accrued to the complainant at Chandigarh and as such, this Commission has the territorial jurisdiction to entertain and decide the complaint. In present case also, the payment is received by Ops from complainant at Faridkot as per Expression of Interest-cum-Agreement dated 06.10.2012. It is further argued that Ops received payment at Faridkot and agreement in question is also executed between parties at Faridkot. He further put reliance on the citation 1997 (10 Consumer Protection Judgments 144. Titled as Kanshi Ram Vs Maruti Udyog Ltd and Ors decided by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla wherein they held that what is cause of action. The cause of action constitutes bundle of facts which are taken with the law applicable to them gives the plaintiff the right to relief against the defendant. It goes without saying that the aforementioned circumstances that the complainant is a resident of Bilaspur and that he got the bank draft prepared at Bilaspur, confirmed the proposal of respondent no. 2 at Bilaspur and got the vehicle after the receipt of the same bank draft, are in fact the vital facts in the formation of the contract of purchase/sale of Maruti Car. Having regard to all these circumstances, we have no hesitation to hold that part of cause of action has arisen in Bilaspur and the District Forum has jurisdiction to try the complaint. They further discussed in Lucknow Development Authority Vs M K Gupta III (1993) CPJ (SC) AIR1994 Supreme Court 787. The Supreme Court has held that the provisions of the Act have to be construed in favour of consumer to achieve the purpose of enactment as it is social benefit oriented legislation. Having regard to the above observations of the Supreme Court, if it is found that the District Forum, Bilaspur in the facts and circumstances of the case has jurisdiction otherwise under Section 11 of the Consumer Protection Act, 1986 to decide the complaint, Courts should not so readily infer about the exclusion of the jurisdiction of the District Forum. If two interpretations are which go in favour of consumer, should normally be adopted by the Courts.
9 As complainant has made last payment to OPs on 20.08.2008 and agreement of sale was executed on 02.08.2008 i.e more than two years ago from the filing of complaint and thus, on the point of limitation, ld counsel for complainant has placed reliance on citation 2015 (3) Consumer Law Today, 16 titled as Satish Kumar Pandey & anr Vs M/s Unitech Ltd wherein our Hon’ble National Commission, New Delhi observed as Consumer Protection Act, 1986, Sections 2 (1) (g), 2 (1) (o) & 24 A - Housing Construction –Limitation – Delay in construction and possession by the builder – Plea of OP that since the last date stipulated in the buyers agreement for giving possession of the flat to them expired more than two years ago the complaint is barred by limitation prescribed in Section 24 – A – Held - it is by now settled legal proposition that failure to deliver possession being a continuous wrong, it constitutes a recurrent cause of action and therefore, so long as the possession is not delivered to him the buyers can always approach a Consumer Forum-it is only when the seller flatly refuses to give possession that the period of limitation prescribed in Section 24-A of the Consumer Protection Act would began to run-In that case the complaint has be to filed within two years from the date on which the seller refuses to deliver possession to the buyer.
The Ld. Counsel for the Complainant further argued that earlier Complainant filed a similar complaint on same cause of action against OP-1 & 3 before this Forum which was CC No.147 of 2014 titled as Vipan Kumar Vs Anil Kumar that complaint was allowed in favour of complainant and against the OP-1 vide which this Forum directed OP-1 to refund the amount of Rs.11,50,000/- along with interest @ 18% PA from the date of payment till realization along with compensation and litigation expenses. Against this order OP-1 preferred an appeal before Hon’ble Sate Commission, Punjab at Chandigarh tilted as Anil Kumar Vs Vipan Kumar bearing First Appeal No.1081 of 2015 decided on 02.11.2016 whereas the appeal filed by OP-1 was accepted by Hon’ble State Commission and order of this Forum was set aside vide its order Hon’ble State Commission, rejected the complaint filed by the complainant with liberty to file afresh complaint, impleading Shivalik Vihar Sites Pvt.Ltd as party i.e. OP-2 in the present complaint and vide its order Hon’ble State Commission, Punjab held that period during which this appeal was pending before this Commission, shall be excluded while computing the period of limitation for filing the fresh complaint, as such the present complaint is well within limitation.
It is further argued that the price of land in dispute is Rs.12,75,000/- and complainant has made payment of Rs.11,50,000/- and thus, complainant has not made the entire payment of land, therefore, ld counsel for complainant has relied upon case law cited as 2015 (3) Consumer Law Today, 48 titled as EMAAR MGF Land Ltd and anr Vs Dilshad Gill, wherein our Hon’ble National Commission, New Delhi has observed that “ Consumer Protection Act, 1986, Section 2 (i) (g)- Housing Construction–Delayin possession by appellant/Builder- Complainant/respondent defaulted in payment- Held- Appellants themselves have violated the material conditions with regard to handing over of the possession, now, it does not lie in their mouth to demand further payment from the respondent-The respondent was fully justified in not making the payment, when appellants failed to complete the construction and handover the possession, within the agreed period. Hon’ble National Commission decided that if OPs have failed to hand over the possession in time, then, they cannot demand further payment from the complainant.
10 We have heard the arguments of both the parties and have gone through the evidence led by the parties. It is proved on the file that OP-1 and 2 allotted a flat to complainant vide allotment letter Ex C-2 received Rs.11,50,000/- as price of the flat by Ex C-9 to C-12 and only Rs.1,25,000/- was remain balance which was to be paid at the time of delivery of possession as per allotment letter Ex C-8. As per agreement the possession was to be delivered by 31.03.2009 but the OPs fails to deliver the possession to the complainant on the time and putting of the matter which amounts to the deficiency in service and unfair trade practice.
11. We are fully convinced with the arguments and evidence and case law produced by the complainant. The complainant succeeds to prove his case. Hence, the present complaint is allowed against OP-1 & 2 and stand dismissed against OP-3. The OP-1 & 2 are directed to refund the amount of Rs.11,50,000/- which was received by them from the complainant as price of the flat along with interest @ 12% PA from the date of payment i.e. 02.08.2008 till final realization. Complainant is also held entitled to Rs 10,000/- as compensation on account of harassment and mental agony and Rs 5,000/-as litigation expenses. The OP-1 & 2 are directed to comply with the order within one month from the date of receipt of the copy of the order, failing which complainant can initiate proceedings under section 25 and 27 of the Consumer Protection Act. Copy of order be supplied parties free of costs as per rules. File be consigned to records after due compliance.
Announced in open Forum:
Dated: 21.08.2017
Member President (Purshotam Singla) (Ajit Aggarwal)
