Chandigarh

DF-I

CC/792/2022

GOURAV JINDAL - Complainant(s)

Versus

SKY LARK HOUSING DEVELOPMENT PVT. LTD. - Opp.Party(s)

01 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/792/2022
Date of Institution	:	07/09/2022
Date of Decision	:	01/08/2023

Gourav Jindal s/o Sh. Vinod Kumar Jindal r/o 332, Advocates Society, Sector 49, Chandigarh.

… Complainant

V E R S U S

1. Skylark Housing Development Pvt. Ltd., through its Managing Director, site office 1-4 Commercial Complex Skylark Enclave, Kharar Ambala Highway, Sector 115, SAS Nagar, Mohali (Punjab) 140307.
2. Amrik Singh s/o Kuldeep Singh Director Skylark Housing Development Pvt. Ltd., 1-4, Commercial Complex Skylark Enclave, Kharar Ambala Highway, Sector 115, SAS Nagar, Mohali (Punjab) 140307.

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Nirmal Singh Jagdeva, Counsel for complainant
	:	OPs ex-parte.

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Gourav Jindal, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that in the year 2010, OPs had launched a project Skylark Housing Pvt. Ltd., Sector 115, Mohali (hereinafter referred to as “subject project”) with the object to develop land and build flats on it and thereafter allot the same to its members.  The complainant, who is engaged in the business of floor tiles, had been supplying floor tiles to the OPs for their project and had expressed his intention to purchase one flat in the subject project. On 31.5.2016, OPs entered into buyer’s agreement (Ex.C-1) with the complainant, wherein it was agreed that the OP developer would develop and construct flat No.2606 on 6^th floor, Block 2, Tower No.2 of 1901 sq.ft. (hereinafter referred to as “subject flat”), which was a three bed room flat, with covered car parking, in the said project.  The basic sale price of the subject flat was ₹30,00,000/-. Complainant had opted for one time payment plan and as he had already supplied the floor tiles to the OPs for their project, OPs had adjusted the total consideration of ₹30,00,000/- against the subject flat, regarding which reference was also made in the document issued by the OPs. Till the year 2017-18, complainant found that the work of the flat was going on at snail’s pace.  Not only this, it was also found that no road or other approach road was developed on the spot and even the basic amenities were also lacking on the site.  In this manner, OPs have violated the provisions of Punjab Apartment and Property Regulation Act (PAPRA), 1995 by not developing the project even within three years from the date of agreement. Finally, on 11.9.2020, complainant approached Amrik Singh, Director of OP-1 who agreed through affidavit (Ex.C-2) that the possession will be handed over to the complainant qua the subject flat within three months to be expired on 31.12.2020. Since the OPs have not completed the work of the subject flat as agreed upon even through affidavit (Ex.C-2), the aforesaid act of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs did not turn up before this Commission, despite proper service, hence they were proceeded against ex-parte vide order dated 18.11.2022.

2. In order to prove his case, complainant tendered/proved evidence by way of affidavit and supporting documents.
3. We have heard learned counsel for complainant and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the complainant that the OPs had agreed to sell the subject flat to him for total sale consideration of ₹30,00,000/-, which has already been paid by the complainant as the OPs have been purchasing floor tiles from him for their project and the said sale consideration was adjusted against the cost of the tiles purchased by the OPs, regarding which reference has also been made in the flat buyer’s agreement/allotment (Ex.C-1) at page No.16 and further till the year 2020 i.e. even after more than four years, OPs have not completed the work of the subject flat and finally vide undertaking dated 11.9.2020 (Ex.C-2), OP-2/director of OP-1 had undertaken to hand over the subject flat to the complainant within three months, the case is reduced to a narrow compass as it is to be determined if the aforesaid act amounts to deficiency in service and unfair trade practice on the part of the OPs.
   2. Ex.C-1 is the copy of flat Buyer’s agreement/ allotment letter which clearly indicates that the OPs had agreed to sell the subject flat to the complainant for total sale consideration of ₹30,00,000/-, by adjusting the said amount against the cost of tiles purchased by the OPs for their project from the complainant, who admittedly has been engaged in the business of floor tiles.  It is also clear from the said agreement dated 31.5.2016 that no specific period has been mentioned in the same about the completion of the work or the period within which the possession of the subject flat will be handed over to the complainant.  As it has already been held in various judgments passed by the Hon’ble Courts that period of three years is reasonable time for a developer to develop the project, with six months grace period, and further when it has come on record that till the year 2020 i.e. for more than four years from the date of execution of the flat buyer’s agreement, OPs have failed to complete the construction work and besides that OP-2 being Director of OP-1 had undertaken through writing (Ex.C-2) that the possession of the subject flat will be handed over to the complainant within three months i.e. on or before 11.12.2020, but, failed to do so, till date, it is safe to hold that the said act amounts to deficiency in service and unfair trade practice on the part of OPs, especially when the entire evidence led by the complainant is unrebutted by the OPs.
   3. It has already been held by the Hon’ble National Commission in the case titled as Bhuvan Mehta Vs. Tulip Infrateh Pvt. Ltd. & Anr., I (2023) CPJ 13 (NC) that delay in delivery of possession amounts to deficiency in service and the complainant has legitimate right to claim fair delay compensation/ interest from OPs. The headnote of the said judgment is reproduced as under for convenience :-

“Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d), 21(a)(i) - Housing - Allotment of flat - Delay in delivery of possession - Deficiency in service -Total consideration for flat was Rs.77,16,000 - Committed date of possession as per agreement was November 2013, possession was offered in December, 2016 - As per Complainant, actually physical possession was taken over in May 2017 only although OP claims that actual physical possession was given on 14.12.2016 - Complainant is not entitled to compensation beyond date of offer to possession i.e., December 2016 - There is a delay in handing over possession of flat by OPs - Complainant cannot be made to wait for an indefinite time and suffer financially - Complainant have a legitimate right to claim fair delay compensation/interest from OPs - OPs are directed to pay delay compensation in form of simple interest @ 6% from committed date of possession, i.e. November 2013 till date of offer of possession, i.e., December 2016, within two months of date of order - OPs shall pay a sum of Rs.25,000 as cost of litigation to complainant - Liability of OPs shall be joint as well as several.”

4. Moreover, as in the instant case there is delay in handing over the possession of the subject flat by the OPs, complainant cannot be made to wait for an indefinite time and suffer financially. Hence, the complainant in the present case has legitimate right to ask for the delivery of possession and to claim fair delay compensation/interest from the OPs.
5. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed against the OPs.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to immediately handover the actual physical possession of the subject flat to the complainant;
2. to pay delay compensation in the form of simple interest @ 6% from the committed date of offer of possession i.e. 11.12.2020, till date of offer of possession.
3. to pay an amount of ₹20,000/- to the complainant as compensation for causing mental agony and harassment to him;
4. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(ii) & (iii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions above.
6. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/08/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Suresh Kumar Sardana] Member