STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Complaint case No. | : | 47 of 2012 |
Date of Institution | : | 17.09.2012 |
Date of Decision | | 09.01.2013 |
Kanchan Gupta, wife of Mr. Sunil Gupta, Resident of House No.3073, Sector 28-D, Chandigarh.
……complainant
V e r s u s
SMV Agencies Pvt. Ltd., Sales Office S.C.O. No.64-65, Ground Floor, Sector 34-A, Chandigarh, through its Managing Director
.... Opposite Party
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: MR. JUSTICE SHAM SUNDER(RETD.), PRESIDENT.
MRS. NEENA SANDHU, MEMBER
Argued by: Sh. R.S. Randhawa, Advocate for the complainant.
Sh. Rose Gupta, Advocate for the Opposite Party.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that, a representative of the Opposite Party, visited the premises of the complainant, at Chandigarh, and persuaded her to purchase a flat, which was being constructed by the Opposite Party, opposite Nabha Sahib Gurudwara, VIP Road, NAC Zirakpur, Punjab. On the representation made by the representative of the Opposite Party, the complainant entered into an agreement, with it (Opposite Party) to purchase a flat/unit no.501, type 3BR, 5th Floor, measuring super area 1747 sq. feet, the basic price whereof was Rs.35,11,470/-. On 16.11.2006, the complainant paid a sum of Rs.5,35,220/-, as booking amount of the said flat/unit. Allotment letter dated 16.11.2006 Annexure C-1 was issued, in favour of the complainant, by the Opposite Party. The entire price of the flat/unit, as per the agreement, was to be paid in 9 equal installments of Rs.3,23,758/- each and Rs.25,000/-, were to be paid towards part payment of the car parking. An amount of Rs.25,000/-, aforesaid, for car parking was paid by the complainant, vide receipt no.1070 dated 07.04.2008. The amount of 9 equal installments of Rs.3,23,758/- each, was paid by the complainant, at Chandigarh Sales office of the Opposite Party, vide receipts dated 02.02.2007, 02.04.2007, 02.06.2007, 31.07.2007, 09.09.2007, 29.11.2007, 02.02.2008 and 28.03.2008. It was stated that, in this manner, the complainant paid an amount of Rs.34,74,042/-, to the Opposite Party, in discharge of her obligation, towards the price of flat/unit. It was stated that according to Clause 30 of the agreement dated 16.11.2006, the flat/unit was to be constructed before October 2008, and the physical possession of the same was to be handed over to the complainant, by 31.10.2008.
2. It was further stated that, in order to purchase the aforesaid flat/unit, the complainant had taken loan of Rs.30,32,910/-, from HDFC Bank Limited, with interest @8% P.A. The complainant had been paying the installments, as well as interest, on the amount to the bank aforesaid. It was further stated that, later on, the rate of interest, to be paid to the bank, escalated to 11.25% P.A. It was further stated that neither the flat/unit was constructed nor the question of delivery of physical possession of the same, to the complainant, as per the agreement, on or before 31.10.2008, did arise. It was further stated that the complainant visited the office of the Opposite Party, and requested them, a number of times to complete the construction of flat/unit, and hand over its physical possession, to her, but it (Opposite Party), kept on lingering the matter, on one pretext or the other. Legal notices dated 21.05.2012 (infact 31.05.2012), were sent to the Manager, Customer Care Services, and the Managing Director of the Opposite Party, vide which, they were called upon, to refund the amount received by them, from the complainant, as well as to pay compensation, for mental agony and physical harassment, but to no avail.
3. It was further stated that neither the possession of the flat/unit, in question, was delivered to the complainant, by 31.10.2008, and even till date, nor the amount, deposited by her, was refunded to her. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to refund the amount of Rs.34,74,042/-, alongwith compound interest @18% P.A., till realization; pay Rs.10 lacs, as compensation, on account of mental agony and physical harassment; and cost of litigation, to the tune of Rs.25,000/-.
4. The Opposite Party, in its written version, pleaded that the complainant had not approached this Commission, with clean hands, and, as such, she was not entitled to any relief, sought for by her. It was stated that the complainant has no locus standi to file the complaint. It was further stated that she was estopped from filing the complaint, by her own act and conduct. It was further stated that this Commission, has no territorial Jurisdiction to entertain, and decide the complaint, as the flat/unit, which was allotted to the complainant, is situated at VIP Road Zirakpur, which is, within the territorial Jurisdiction of S.A.S. Nagar, Mohali, Punjab, and, only the State Consumer Disputes Redressal Commission, Punjab, has got the territorial Jurisdiction to entertain, and decide the same. The allotment of flat, in question, to the complainant was admitted. It was further stated that the complainant, only paid a sum of Rs.33,35,198/- and not Rs.34,74,042/-. It was also admitted that the possession of the flat/unit, could not be delivered to the complainant, on or before 31.10.2008, the time stipulated, in the letter of allotment. It was further stated that according to Clause 30 of the terms and conditions of the letter of allotment, the Opposite Party was bound to pay penalty @Rs.5 per square feet of the super area, per month, to the allottee, in case of delay, in delivery of physical possession of the flat/unit. It was further stated that since there was delay, in delivery of physical possession of the flat/unit, the Opposite Party had already paid the amount @ Rs.5 per square feet/per month, as compensation, to the allottees, for 44 months, starting from 01.02.2009 to 03.09.2012. It was further stated that the offer of possession of the flat/unit, in question, vide letter dated 26.09.2012, was given to the complainant, after receipt of legal notice dated 31.05.2012. It was further stated that since the offer of possession was given to the complainant, which had not been challenged by her, she was not entitled to the refund of amount, asked for, by her. It was further stated that the Parties being governed by the terms and conditions of the allotment letter, could not claim any relief, beyond the same, nor could the same be granted to them (Parties), by this Commission. It was further stated, that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents attached.
6. The Opposite Party, in support of its case, submitted the affidavit of Sh. Rajneesh Sharma, its authorized representative, by way of evidence, alongwith which, a number of documents were attached.
7. We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
8. The first question, that arises for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint, or not. No doubt, in the written version, submitted by the Opposite Party, it was pleaded that since the property, in question, is situated in the area of Zirakpur, District S.A.S. Nagar, Mohali, falling in the State of Punjab, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. It may be stated here, that Annexure C-15, application form for allotment of flat/unit was submitted by the complainant, to the Opposite Party at its Chandigarh Office bearing SCO No.64-65, Ground Floor, Sector 34-A, Chandigarh. Not only this, even a Tripartite Agreement Annexure C-16 dated 07.12.2006, amongst the complainant, as well as Sunil Gupta, SMV Agencies Private limited and Housing Development Finance Corporation Limited, was executed at Chandigarh. This agreement was duly signed by an authorized signatory of the Opposite Party. Not only this, it is further evident, from the receipt Annexure C-4, that a sum of Rs.3,23,758/, on account of third installment, towards the part price of the flat/unit, in question, was also paid by the complainant, to the Opposite Party, at its Sales Office, at Chandigarh. Not only this, all the receipts, vide which the payment was made towards the price of flat/unit, also bear the address of the Sales Office of the Opposite Party i.e. SCO No.64-65, Ground Floor, Sector 34-A, Chandigarh. The claim of the complainant, in the complaint, duly supported by her affidavit, was to the effect, that all the payments were made towards the price of flat/unit, at the Sales Office of the Opposite Party, at Chandigarh. In the affidavit of Sh. Rajneesh Sharma, authorized representative of the Opposite Party, it was not denied that the payment of installments, was made towards the price of flat/unit, at the Sales Office of the Opposite Party, at Chandigarh, vide receipts aforesaid. Since, the payment of installments, towards price of flat/unit, in question, was paid at Chandigarh; the Tripartite Agreement, referred to above, was also executed at Chandigarh; and the application form was submitted by the complainant, to the Sales Office of the Opposite Party, at Chandigarh, a part of cause of action arose to the complainant at Chandigarh. Since, a part of cause of action, arose to the complainant, at Chandigarh, this Commission, has got territorial Jurisdiction, to entertain and decide the complaint. The objection of the Opposite Party, in its written version, regarding the lack of territorial Jurisdiction, of this Commission, therefore, being devoid of merit, must fail, and the same stands rejected.
9. The second question, that falls for consideration, is, as to when the physical possession of the flat/unit allotted to the complainant, was to be delivered to her, by the Opposite Party. Annexure C-1, is the allotment letter dated 16.11.2006, alongwith which, the detailed terms and conditions are attached. According to this allotment letter, the actual physical possession was to be delivered to the complainant, by 31.10.2008. Admittedly, the actual physical possession of flat/unit was not delivered to the complainant, by the promised date. Even by the time, the complaint was filed, the actual physical possession of flat/unit, had not been delivered to the complainant. No doubt, according to the Opposite Party, the offer of possession was given to the complainant, vide letter dated 26.09.2012, i.e. after the filing of the complaint. The perusal of Annexure R-1 dated 26.09.2012, reveals that the complainant was informed, by the Opposite Party, that the project was near completion, and ready for possession, and she was asked to clear all the dues, within 15 days. It was not mentioned, in this letter that the project had already been completed. Near completion does not mean that the project had been fully completed. This letter of offer of possession, which was given by the Opposite Party, to the complainant, after the filing of the complaint, in our considered opinion, can only be said to be a paper transaction. How, in the absence of completion of project, the actual physical possession of the allotted unit could be delivered to the complainant, is not known. So, no reliance can be placed on the document Annexure R-1. The Opposite Party, misled the complainant, and deprived her, of her hard earned money, in the sum of Rs.33,35,198/-. The Opposite Party, thus, made a false promise, that the actual physical possession of the flat/unit, would be delivered to her, by 31.10.2008, but it failed to do so. By not delivering the actual physical possession of the flat/unit, in question, to the complainant, by 31.10.2008, or even by the time, the complaint was filed, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is, thus, entitled to the refund of Rs.33,35,198/- admitted to have been deposited by her with the Opposite Parties and not Rs.34,74,042/-, as complete proof, with regard to the deposit of the latter sum, was not produced by the complainant.
10. The next question, that falls for consideration, is, as to whether, the complainant is entitled to interest, on the amount, already deposited by her, of which she was deprived of, for a long time, without delivery of physical possession of the flat/unit, or not. The complainant has claimed the refund of amount, as the Opposite Party was not in a position to deliver the physical possession of unit to her, on or before 31.10.2008 or till the time the complaint was filed. After the expiry of 31.10.2008, the date stipulated for the delivery of possession it was required of the Opposite Party to refund the amount to the complainant, with reasonable rate of interest, but it did not do so. The complainant was deprived of her hard earned money, in the sum of Rs.33,35,198/-, for a period of more than about four years. Had this amount, been refunded to the complainant, in time, by the Opposite Party, within reasonable time, she would have certainly invested the same, in some business or deposited the same, in a bank, as a result whereof, she would have earned handsome returns thereon. The complainant was, thus, caused financial loss by illegally and improperly withholding the amount aforesaid, by the Opposite Party. The complainant, is, thus, entitled to interest @10% P.A., on the amount of Rs.33,35,198/-, from the respective dates of deposits, till realization.
11. According to Clause 30 of the terms and conditions of the agreement, executed between the parties, in case, possession was not offered to the complainant by the stipulated date, then the opposite party shall be liable to pay compensation @ Rs.5/- Sq.ft. of the super area, per month, for the period of delay. Since the possession has not been delivered till date, and the huge amount of the complainant is lying deposited with the opposite party, he is entitled to compensation @ Rs.5/- per sq. ft per month of the super area from 1.11.2008(31.10.2008 being the stipulated date for delivery of possession) till realization of the amount.
12. The complainant has also sought compensation for mental agony and physical harassment, for not delivering the physical possession of the flat/unit, in question, allotted to her, by the stipulated time. One can really visualize the condition of a person, who throughout hoped for the delivery of actual physical possession of the flat/unit, by 31.10.2008, but was not given the same, even till date. The complainant, thus, suffered a tremendous mental agony and physical harassment, on account of such acts of omission and commission of the Opposite Party. According to Section 14(d) of the Consumer Protection Act, 1986, the Consumer Foras can grant compensation, to the complainant. The word compensation is again of wide connotation. According to the dictionary, it means, compensating or being compensated, thing given as recompense. In legal sense, it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Under these circumstances, the complainant is held entitled to compensation, on account of mental agony and physical harassment, caused, at the hands of the Opposite Party, to the tune of Rs.1,00,000/-.
13. No other point, was urged, by the Counsel for the parties.
14. For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Party is directed as under:-
i. To refund the amount of Rs.33,35,198/-, to the complainant, alongwith interest @10% P.A., from the respective dates of deposits till realization.
ii. To pay compensation, in the sum of Rs.1,00,000/-, on account of mental agony and physical harassment, caused to the complainant, and for indulging into unfair trade practice.
iii. To pay
iv. To pay cost of litigation, to the tune of Rs.20,000/-.
v. The aforesaid payable amounts, shall be paid, by the Opposite Party, within 45 days, from the date of receipt of a certified copy of this order, failing which it shall be liable to pay interest @12% P.A., on the amounts mentioned in clauses (i) to (iii) from the date of default, besides payment of costs, to the tune of Rs.20,000/-.
15. Certified Copies of this order be sent to the parties, free of charge.
16. The file be consigned to Record Room, after completion
Pronounced.
January 9,2013 Sd/-
[JUSTICE SHAM SUNDER(RETD.)]
PRESIDENT
Sd/-
[NEENA SANDHU]
MEMBER
