BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.112 of 2015
Date of institution: 12.03.2015
Date of Decision: 10.02.2016
Bhavna Yadav d/o Darshan Lal Yadav, resident of House No.2021/2, Sector 40, Chandigarh through Special Power of Attorney Holder Sandeep Yadav s/o Darshan Lal Yadav, Resident of House No.2021/2, Sector 40, Chandigarh.
……..Complainant
Versus
Singla Builders and Promoters Ltd., Corporate Officer, Chandigarh-Kharar Road, Greater Mohali Punjab, through its Managing Director Mr. Amandeep Singla s/o Ram Saran Singla.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member
Mrs. R.K. Aulakh, Member.
Present: Shri Sunny Kohli, counsel for the complainant.
Shri Rohit Sharma, counsel for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant is filed the complaint through her attorney Sandeep Yadav seeking following direction to the Opposite Party (for short ‘the OP’) to:
(a) to pay interest @ 12% per annum on the amount paid by the complainant i.e. Rs.12,55,500/- from 31.03.2011 till realisation.
(b) to pay Rs.3.00 per sq. ft. on the delayed possession from 31.03.2013 till actual realisation of the amount claimed.
(c) to pay him Rs.2.00 lacs as compensation for mental torture and physical harassment and Rs.50,000/- as litigation costs.
The case of the complainant is that she entered into an agreement dated 10.05.2011 for purchase of one flat from the OP. Flat No.164/2, 2nd floor in SBP Homes at village Chajjumajra having super area of 1365 sq. ft. was allotted to the complainant. The total cost of the flat was Rs.23,90,000/-. The complainant made the payment of Rs.12,55,500/- till 22.01.2013. The complainant got the loan from Canara Bank and the EMI installments are regularly being paid by the bank to the OP. As per Clause 10 of the agreement, the OP was to hand over possession of the flat on or before 31.03.2013. Till date the possession of the flat has not been handed over to the complainant. The OP vide letter dated 08.02.2014 asked the complainant to remit an amount of Rs.7,76,000/- on or before 12.02.2014 failing which the complainant was to pay interest @ 18% per annum against the said amount. However, the complainant paid an amount of Rs.1,50,000/- vide draft dated 20.03.2014 but the OP refused to accept the said draft. The complainant visited the project several times and found that the project has not been completed. On asking by the complainant, the OP gave 6 months further date for giving the possession. With these allegations the complainant has filed the present complaint.
2. The OP in the preliminary objections of the written statement has pleaded that the complaint has been filed on false and misconceived facts. The project of the OP was completed well within time and the complainant was time and again approached to make balance payment of the agreed price and to take physical possession of the flat. The dispute between the parties is purely of civil nature which can be decided by the civil court. On merits, it is pleaded that had the complainant does not come within the purview of consumer as she is a perspective investor. The complainant did not make the payment on demand by the OP. The OP was constrained to issue various reminders as well as legal notice calling upon the complainant to make balance payment. Agreement to sell was not entered on 10.05.2012. The date of offer of possession on 31.03.2013 was subject to timely payment by the complainant, force majeure clause and other relevant clauses pertaining to extension of time for delivery of possession. Due to non availability of construction material, the handing over of possession has delayed a bit. Numerous families are already residing in the housing protect of the OP. Thus, denying any deficiency in service on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1, and tendered in evidence documents Ex.C-1 to C-7.
4. Evidence of the OP consists of affidavit of Amandeep Singla, its Director Ex.OP-1/1 and copies of documents Ex.OP-1 to Ex.OP-6.
5. We have heard learned counsel for the parties and have also gone through the written arguments filed by them.
6. The factum of allotment letter dated 10.05.2011 Ex.C-2 in respect of allotment of Flat No.164/2, 2nd Floor at Village Chajjumajra, Tehsil Kharar, Mohali by the OP in favour of the complainant is not disputed. In pursuance of the allotment letter the parties have executed agreement to sell dated 10.05.2011 Ex.C-3 wherein the complainant was to make payment of agreed sale consideration of Rs.23,90,000/- in 6 installments from 10.05.2011 to 08.01.2013 and the 7th installment was to be paid on 31.03.2013 or on possession. The OP was to complete the construction of the flat and was to handover the possession of the flat to the complainant on or before 31.03.2013. Time was the essence of the agreement. As per the complainant she has made a payment of Rs.12,55,500/- as on 22.01.2013 as per receipts Ex.C-3 (colly). The payment of said amount is not disputed by the OP. As per the complainant she has received a demand notice dated 08.02.2014 Ex.C-6 vide which she was asked to make payment of Rs.7,60,000/- on or before 12.02.2014 failing which the said amount will attract interest @ 18% per annum. The OP has not denied issuance of such demand notice. However, as per the complainant against the said demand notice she has approached the OP with a payment of Rs.1,50,000/- vide demand draft dated 20.03.2014 Ex.C-7, the OP has refused to accept the said payment and verbally informed her that the allotment of her flat has been cancelled. As per the complainant the cancellation of flat is illegal and arbitrary as the OP itself has failed to handover the possession within the stipulated agreed date and, therefore, the complainant is entitled to interest on the deposited amount besides the benefit of penalty clause on delayed possession as per terms of agreement.
7. To answer the grievance of the complainant the following issues emerges from the complaint:
(a) Whether the cancellation of the flat by the OP is legal and valid?
(b) Whether the complainant is entitled to benefit of penalty clause benefit in the event of delay in handing over the possession beyond the agreed stipulated date for offer of possession i.e. 31.03.2013?
(c) whether the complainant is entitled to any other relief/compensation due to acts of omission and commission of the OP leading to deficiency in service and unfair trade practice.
8. It is admitted fact that the OP has issued the demand notice Ex.C-6 demanding from the complainant to make payment of Rs.7,60,000/- on or before 12.02.2014. As per terms of agreement the said amount is due as per the terms of agreements, schedule of payment of installments. The complainant has not paid the said amount as there is nothing on record to show the payment thereof. As per the complainant she has approached the OP with part payment of Rs.1.50 lacs against the said demanded amount. However, the same has not been accepted by the OP. There is nothing on record to show mode of delivery of said demand draft to the OP and refusal thereof by the OP. Thus, merely saying that the complainant has shown her willingness to make part payment against the demanded amount, in no manner goes in favour of the complainant. Thus, it is ample clear that as on 08.02.2014 the complainant was defaulter in adhering to the schedule of payments as per agreement. As per the OP, the possession of the flat was subject to the clearance of all dues by the complainant/allottee and the complainant/allottee has failed to make the payments as per schedule. Therefore, the complainant is not entitled to take benefit of her own wrongs as the OP has not indulged into any act of deficiency in service and unfair trade practice on this account. Further as per the OP, there is no cancelation of the allotment. As per their records, the complainant stands allotted the flat in question. The complainant has also not shown any document and oral cancellation as alleged by the complainant is in not favour of the complainant. Thus, the cancellation of the flat illegal, the first question is answered against the complainant and in favour of the OP.
9. As regards the answer to the second and third question, to find the answer again the agreement to sell Ex.C-3 is referred to. The relevant clause 10 of the agreement states that possession of the flat in question was to be handed over on or before 31.03.2013 failing which the OP is to compensate the complainant @ Rs.3/- per sq. ft. per month of the super area till the date of offer of possession. However, the offer of possession is subject to Clause-2 of the agreement vide which it is made clear to the complainant that the payment schedule is essence of the agreement and has to be followed by allottees strictly. As per the agreement, the complainant was bound to make all the payment except the 7th installment on or before 08.01.2013 and the complainant has failed to abide by the said payment schedule. Therefore, the complainant has been issued the demand notice for making the balance payment alongwith interest as per Clause 2 of the agreement and still the demanded amount has not been paid by the complainant. Therefore, the question of penalty clause will not come into force as the complainant himself has defaulted in making payment. We are not in agreement with such contention of the OP as the OP himself has admitted in letter attached with Ex.C-6 that due to force majeure the possession of the flat has been delayed. Thus there is a clear admission on the part of the OP that the offer of possession has not been issued in favour of the complainant and the acts of the OP for non completion of the construction by 31.03.2013 is further fortified by its own demand letter dated 08.02.2014 issued by the OP much later than the stipulated agreed date of possession dated 31.03.2013. Thus, it is ample clear that the OP itself has not completed the construction and was not ready to offer the possession by 31.03.2013 and till date has not even offered the possession of the flat. Thus, both the complainant as well as the OP have defaulted in discharge of their contractual obligations arising out of the agreement to sell dated 10.05.2011 Ex.C-3. Hence, the complainant cannot take benefit of her own wrongs and allege deficiency in service on the part of the OP, therefore, she is not entitled to benefit of penalty.
10. In view of above discussion, thus the complaint being devoid of any merit, is hereby dismissed. Certified copies of the order be furnished to the parties forthwith free of cost and thereafter the file be consigned to the record room.
Pronounced.
February 10, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
(Mrs. R.K. Aulakh)
Member
