DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.220 of 2017
Date of institution: 20.03.2017 Date of decision : 29.11.2018
1. Gulshan Sharma son of Shri Ramesh Sharma
2. Sharda Devi wife of Shri Ramesh Sharma
Both residents of House No.19, Jagjivan Nagar, Near Dhobi Ghat, Hisar.
…….Complainants
Versus
Singla Builders & Promoters Limited, SCO No.146, 147 and 148, 1st Floor, Sector 43-B, Chandigarh through its Director.
……..Opposite Party
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Ms. Nitika Singla, counsel for complainants.
OP ex-parte.
Order by :- Shri G.K. Dhir, President.
Order
Complainants submitted application with OP for allotment of one flat in its project named as SBP Housing Park falling under village Rauni, Tehsil Derabassi, District Mohali by paying amount of Rs.74,250/- through cheque. Thereafter another amount of Rs.1,48,500/- paid in cash to OP on 05.12.2011. Formal allotment letter dated 07.08.2012 was issued by OP in the names of complainants for confirming that apartment No.564, Floor No.5, Tower No.6 with area of 770 sq. ft. (super area) in the project has been allotted for sale consideration of Rs.14,85,000/-. Possession of the flat was agreed to be handed over on or before 31.12.2014, but time for delivery of possession of the apartment can be extended to 6 months. On execution of agreement, an amount of Rs.2.00 lakhs was paid to OP on 03.10.2012 and thereafter another amount of Rs.1.50 lakh paid through NEFT transaction on 05.04.2013. Another amount of Rs.1.00 lakh more paid through cheque on 12.03.2015 and as such in this way total sum of Rs.6,72,750/- had been paid by complainants to OP during period from 23.09.2011 to 12.03.2015. However, OP failed to complete development works at the spot as promised. Complainant No.1 visited site on 20.10.2016 for finding that civil work of tower No.5 is yet to be completed and no pucca roads constructed at the spot. Wooden work in flats of tower No.5 even yet to be started and there was no electricity, sewerage and water connection available in that area. After getting said knowledge, complainant No.1 contacted concerned official of OP, who called upon complainants to bear with the company. OP has failed to complete the development works at the spot and it is not in a position to handover possession and as such by pleading deficiency in service on part of OP and after serving legal notice dated 24.11.2016, this complaint filed for seeking refund of paid amount of Rs.6,72,750/- with interest @ 18% per annum from the dates of payment till realisation. Compensation for mental harassment and agony of Rs.5.00 lakhs and litigation cost of Rs.1,10,000/- and further compensation on account of escalation of cost of amount of Rs.5.00 lakhs claimed.
2. In reply submitted by OP, it is claimed that contradictory stand in the complaint has been taken for getting undue benefit. Moreover, it is claimed that complaint is filed on false and misconceived facts because complainants themselves failed to release payments in due time and that is why numerous letters/demand notices were served on complainants. Complainants expressed their inability to make payments as per schedule. Requests for granting more time for payments were submitted. Complainants described themselves as investors and not the end user. Complainants estopped by principle of waiver, estoppel and acquiesce from filing this complaint, more so when complaint has been filed with ulterior motive by suppressing material facts. Complainants want to take benefit of their dishonest intention. Matter being purely of civil nature can be got decided from civil court of competent jurisdiction and complaint also alleged to be bad due to non joinder and misjoinder of parties. No cause of action accrued in favour of complainants. Launching of project named and styled as SBP Housing Park after obtaining all the requisite approvals is an admitted fact. Factum of payments alleged to be admitted, but subject to production of proof of receipts. Date of delivery of possession was subject to certain terms and conditions including timely payment of installments to be made by complainants, but they violated those terms. Demand notices were not served by OP in arbitrary manner, but present complaint alleged to be filed in counter blast to issue of demand notices by OP. By denying other averments of the complaint, prayer made for dismissal of the complaint.
3. Complainants to prove their case tendered in evidence affidavit Ex.CW-1/1 of complainant No.1 alongwith documents Ex.C-1 to Ex.C-6 and thereafter their counsel closed evidence.
4. None turned up for OP despite grant of numerous opportunities and as such OP was proceeded against ex-parte vide order dated 10.08.2018.
5. Written arguments not submitted. Oral arguments heard and records gone through.
6. Though it is the claim of OP that complaint is bad due to misjoinder and non joinder of parties, but names of parties, who should have been impleaded, but not impleaded not disclosed and as such objection raised in that respect without any basis liable to be rejected.
7. Complaint alleged to be filed by concealing material facts regarding non sticking to payment schedule by complainants, but present is a case in which OP itself has not completed construction for handing over possession by stipulated date, despite the fact that it has received Rs.6,72,750/- from complainants on different dates. So fault lies with OP in not completing the project in time for handing over possession of the flat on or before 31.12.2014 as stipulated through buyer’s agreement Ex.C-3. Reference to Article 4 (a) (i) of buyers agreement Ex.C-3 in this respect can specifically be made. Though schedule of payment of total sale price of Rs.14,85,000/- envisaged through Article 2 of sale consideration clause of Ex.C-3, but despite that fault lays with OP in not completing the project or raising construction and as such certainly complainants entitled for refund of deposited amount, more so when no material produced by OP to establish that complainants purchased apartment/flat in question as investors. Rather it is the case of complainants that they purchased the apartment/flat for self use and use of family and as such certainly complainants are consumers of OP.
7. Application for booking of flat produced as Ex.C-1 for establishing that cheque of amount of Rs.74,250/- handed over by complainants to OP at the time of booking against the total agreed price of Rs.14,85,000/-. Confirmation of price amount of Rs.14,85,000/- as basic sale price even given through agreement Ex.C-3 through which flat No.564, in Floor No.5, Tower No.6 was allotted to complainants. Payment receipt Ex.C-4 shows deposit of Rs.1.00 lakh by complainants with OP on 10.04.2015. Receipt of Rs.6,72,750/- by OP from complainants acknowledged through demand letter Ex.C-6, where through demand for balance amount of Rs.7,13,557/- was put forth. In view of this acknowledgement made through Ex.C-6, it is obvious that actually complainants have deposited Rs.6,72,750/- with OP out of the basic sale price.
Balance payment was sought through demand letter Ex.C-6 dated 16.01.2017, but that payment has not been made by complainants because numerous civil works have not been done and as such fault lay with OP in not completing construction and handing over possession by stipulated time of 31.12.2014.
8. However, complainants even have not sticked to payment plan schedule and as such fault also lay with complainants in not abiding by terms of payment schedule. As per law laid down in Randhir Singh and Anr. Vs. Omaxe Chandigarh Extension Developers Pvt. Ltd. 2015(1) CPJ 514 (NC), if the purchaser remained defaulter in not adhering to the installment payment plan, then he is not entitled for any interest, even though the builder had not developed the site, due to which he is not in a position to deliver possession. It is so because he who seeks equity must do equity. In case the equity seeker himself is deficient, then he is not entitled for any interest, is the crux of ratio of above said case. Ratio of this case is fully applicable to the facts of the present case. Complainants deposited just 45% of sale consideration amount and as such fault also remains with complainants. So entitlement of complainants for refund of deposited amount of Rs.6,72,750/- with interest @ 12% per annum will be from the date of issue of legal notice Ex.C-5 dated 24.11.2016 and not before that. Complainants also entitled to compensation for mental harassment and agony because they have been dragged in unnecessary litigation.
9. As a sequel of above discussion, complaint allowed with direction to OP to refund the received amount of Rs.6,72,750/- (Rs. Six Lakhs Seventy Two Thousand Seven Hundred Fifty only) alongwith interest @ 12% per annum from the date legal notice Ex.C-5 dated 24.11.2016 till payment. Compensation for mental agony and harassment of Rs.20,000/- (Rs. Twenty thousand only) and litigation expenses of Rs.5,000/- (Rs. Five thousand only) more allowed in favour of complainant and against OP. Payment of amount of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of the order, failing which the complainants will be entitled to interest @ 7% per annum on these amounts from today till receipt of these amounts. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
November 29, 2018.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
