BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.327 of 2015
Date of institution: 14.07.2015
Date of Decision: 20.04.2016
1. Ramesh Kumar son of Tulsi Ram, resident of Doon School, The Mall Road, Dehradun, Uttra Khand.
2. Rachna Devi wife of Ramesh Kumar son of Tulsi Ram, resident of Doon School, The Mall Road, Dehradun, Uttra Khand.
……..Complainants
Versus
Singla Builders & Promoters Ltd. through its Director Amandeep Singla son of Ram Saran Singla having registered office at Chandigarh-Kharar Road, Desu Majra, Tehsil Kharar, Greater Mohali, District SAS Nagar, Punjab.
………. Opposite Party
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri Amrinder Singh Sidhu, Member.
Present: Shri P.S. Bhangu, counsel for the complainant.
None for the OP.
(Mrs. Madhu P. Singh, President)
ORDER
The complainants have filed the present complaint seeking following direction to the Opposite Party (for short ‘the OP’) to:
- Pay the compensation of Rs.1,22,310/- with interest @ 18% per annum from 31.03.2013 to 24.06.2015 for delay in possession.
- To pay compensation to the tune of Rs.1,00,000/- for deficiency in service and unfair trade practice.
The complainants applied and were allotted flat No.186/3 (3rd Floor) at village Chajju Majra, Tehsil Kharar, District Mohali having approximate super area of 1510 sq. ft. and covered area of 1080 sq. ft. The complainants deposited with the OP booking amount of Rs.4,03,500/- vide cheuqe dated 07.04.2011, Agreement to sell was signed between the parties on 07.04.2011. The total sale consideration of the flat was Rs.26,90,000/- which was paid by the complainants as per the payment schedule mentioned in Clause-2 of the agreement. An amount of Rs.6,90,000/- was paid by the complainants by through HDFC Bank and Tripartite Agreement was executed between the complainants, HDFC Bank and the OP. As per Clause-10 of agreement to sell dated 07.04.2011, the possession of the flat was to be handed over by the OP on or before 31.03.2013 and in case of failure of the OP to handover the possession, the OP was liable to pay to the allottee @ Rs.3/- per sq. ft. per month of the super area till the date of offer of possession. Inspite of making the entire payment, the OP did not complete the construction of the flat and kept on delaying the matter on one pretext or the other. The complainants had been issuing various reminders through e-mails and letters to the OP, however, the OP never responded to the same. The possession has been handed over to the complainants on 24.06.2015. Therefore, the complainants are entitled for compensation for the period of delay in handing over the possession. With these allegations the complainants have filed the present complaint.
2. The OP in the written statement has pleaded that this Forum does not have the pecuniary jurisdiction to entertain the complaint as the complainants are seeking possession of the flat amounting to Rs.26,90,000/- alongwith compensation to the tune of Rs.1,22,310/-. The complainants have failed to make out a dispute covered under the provisions of Consumer Protection Act. The project of the OP was complete in all respects well within time and the complainants were time and again approached and intimate to make payment of balance agreed price and then take physical possession of the flat. Thus, the complainants themselves are defaulter in making timely payment. The dispute between the parties is purely of civil nature and can only be decided by this Civil Court. On merits, the OPs have denied that the complainants made the payment as per schedule. The date of possession agreed as 31.03.2013 was subject to timely payment by the complainants, force majeure clause and other relevant clauses pertaining to extension of time for delivery of possession. The sale deed of the flat has been executed and the complainants have taken over the possession of the flat. Thus, denying any deficiency in service and unfair trade practice on its part, the OP has sought dismissal of the complaint.
3. To succeed in the complaint, the complainants proved on record affidavit of complainant No.1 as Ex.CW-1/1 and copies of documents Ex.C-1 to C-6.
4. Evidence of the OP consists of affidavit of Amandeep Singla, its Director Ex.OP-1/1 and copies of documents Ex.OP-1/2 to OP-1/6.
5. We have heard learned counsel for the complainants and gone through the written arguments filed by him. Neither anybody on behalf of the OP nor its counsel appeared to file written arguments and address oral arguments on 14.03.2016 and 30.03.2016. Therefore, on the basis of pleadings and evidence on record we are going to decide the present complaint.
6. The factum of allotment of flat No.186/3 (3rd Floor) at village Chajju Majra, Tehsil Kharar, District Mohali having approximate super area of 1510 sq. ft. and covered area of 1080 sq. ft. vide allotment letter dated 07.04.2011 Ex.C-1 and agreement to sell dated 07.04.2011 Ex.C-2, payment of total agreed sale consideration of Rs.26,90,000/- and possession and execution of sale deed dated 25.06.2015 Ex.C-6 is not disputed between the parties.
7. The only dispute the complainant has raised is nonpayment of compensation as per penalty clause Clause-10 of the agreement Ex.C-2. As per Clause-10 of the agreement Ex.C-2, the OP was to handover the possession of the flat to the complainants on or before 31.03.2013 whereas actually the offer of possession has been made by the OP to the complainants on 25.05.2015 Ex.OP-1/5 and finally after clearing all the outstanding dues the possession has been granted and the sale deed has been executed on 25.06.2015 vide sale deed Ex.C-6. As per the complainants there is delay of approximately 26 months from 31.03.2013 i.e. the promised date of delivery of possession till 25.06.2015 i.e. the actual date of possession and for delay of almost 26 months the OP has not given them the benefit of penalty clause of Rs.3/- per sq. ft. per month for the super area till the date of offer of possession.
8. The limited issue whether the complainants are entitled to get the benefit of penalty clause as per their representation dated 10.06.2015 Ex.C-5 sent to the OP by registered post. As per the request letter under reference i.e. Ex.C-5 the complainants have requested the OP to give them benefit of penalty clause before finalizing the due amount prior to taking over the possession.
9. As per offer of possession letter dated 25.05.2015 Ex.OP-1/4 the complainants were required to make a total payment of Rs.4,22,278/- and further followed by reminder dated 25.05.2015 Ex.OP-1/5. The complainants reverted back to the OP through discussions and e-mail dated 10.06.2015 followed by written request dated 10.06.2015 sent by registered post Ex.C-5 to adjust the amount due on account of penalty against the demanded amount. The OP without looking into the request of the complainants asked the complainants to pay the demanded amount. Since the complainants have already paid more than 95% of the amount and remaining 5% demanded amount was to be paid at the time of possession, finding them in quandary could not loose the possession in the absence of no response from the OP qua their request letter Ex.C-5.
10. Thus it is ample clear that the complainants are entitled to the benefit of penalty clause vide Clause-10 of the agreement as it is amply proved that against the promised date of possession i.e. 31.03.2013 the complainants have been actually offered the possession on 21.02.2015 vide Ex.OP-1/4 without giving them the benefit of delayed possession. Thus, the act of omission on the part of the OP is certainly an act of deficiency in service and unfair trade practice. Therefore, the complaint deserves to be allowed and the complainants deserve to be compensated.
11. In view of above discussion, the complaint is allowed with the following direction to the OP:
(a) to pay to the complainants compensation of Rs.1,22,310/- (Rs. One lac twenty two thousand three hundred ten only) with interest @ 9% per annum w.e.f. 25.06.2015 till actual payment for delay in handing over the possession.
(b) to pay to the complainants lump sum compensation of Rs.25,000/- (Rs. Twenty five thousand only) on account mental agony, harassment and costs of litigation.
Compliance of this order be made within a period of thirty days from the date of receipt of a certified copy of this order. 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.
April 20, 2016.
(Mrs. Madhu P. Singh)
President
(Amrinder Singh Sidhu)
Member
