DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No. 587 of 2015                                         Date of institution:  02.11.2015                                         Date of decision   :  17.10.2017

Baljeet Kaur wife of Tajinder Singh and Tajinder Singh son of Gurcharan Singh, residents of Flat No.18-A, Ground Floor, Comfort Green Homes, Village Khanpur, Kharar, District Mohali, Punjab.

                             ……..Complainants

                                        Versus

1.     Surya City Builders & Developers Private Limited, # 303 Shivalik Enclave, Landra Road, Kharar, District Mohali, Punjab through its Managing Director.

2.     Singla Builders & Promoters Limited, Corp. Office SCO 146, Sector 43, Chandigarh through its Managing Director.

                                                       ………. Opposite Parties

Complaint under Section 12 of   

Consumer Protection Act, 1986.

Quorum

Shri Ajit Pal Singh Rajput, President

Mrs. Natasha Chopra, Member

Present:    Shri J.S. Bain, counsel for the complainants.

                Shri Amandeep Bindra, counsel for the OPs.

ORDER

By Ajit Pal Singh Rajput, President

                Complainants Baljeet Kaur and Tajinder Singh have filed the present complaint against the Opposite Parties (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act.  The brief facts of the complaint are as under:

2.             The complainants entered into agreement  on 21.10.2013 with the OPs for purchasing flat No.18-A, Comfort Green Homes, Village Khanpur, Kharar, District Mohali comprising 930 sq. ft. area (approximately) consisting of 2 bedrooms, 2 toilets, D/D, kitchen, open car parking for a total sum of Rs.14,25,000/-. The complainants made all the required payments to the OPs as per the schedule and took the possession of the flat on 29.11.2013.  At the time of handing over possession of the flat, the OPs assured that the basic facilities like (a) spacious car parking; (b) M.C. Water supply; (c) Privacy; (d) security; (e) RCC roofing; (e) provision of Hot and cold water  and (f) Modern Kitchen would be provided as per brochure.  However, the aforesaid facilities have not been provided to the complainant and the project of the OPs has not been approved by the PUDA.  The complainants are facing the problems, as mentioned in Para-5 of the complaint, from the date of taking possession.  There is lot of difference in the sample flat shown to the complainants and the flat handed over to the complainants. Inspite of regular requests to the OPs, they are not providing the promised facilities. The complainants even sent the legal notice dated 06.07.2015 and 16.07.2015 sent to the OPs but in vain.   Hence, the complainants have sought direction to the OPs to pay them compensation of Rs.4.00 lakhs alongwith future interest for deficiencies in services and not proving the basic amenities and Rs.11,000/- as litigation, mental agony and harassment charges.

3.             The OPs in their joint reply have pleaded that the complaint has been filed on totally misconceived facts for harassing and humiliating the OPs.  The photographs attached with the complaint are fabricated. The alleged dispute is purely of civil nature as it involves intricate questions of facts and law. The complaint is barred by principles of estoppels, waiver and acquiescence and hopelessly time barred.   On merits,  the OPs have pleaded that the possession of the flat was delivered to the complainant much before the agreed date. The brochure was conceptual and indicative one and this fact was specifically made understand to the complainants.  The entire construction has been carried out under the expert supervision of professional contractors and architectures and all the houses have been provided with good quality material.  The OPs have denied that the complainants ever approached with regard to alleged shortcomings or ever served a legal notice in this regard.  The OPs have denied any deficiency in service and unfair trade practice on their part and have sought dismissal of the complaint.

4.             In order to prove the case, the counsel tendered in evidence affidavit of the complainant Ex.CW-1/1 and copies of agreement to sell Ex.C-1; letter of authority Ex.C-2; possession letter Ex.C-3; no objection certificate Ex.C-4; brochure Ex.C-5; letter  dated 09.09.2013 Ex.C-6; 22 original photographs Ex.C-7; CD Ex.C-8; legal notice dated 06.07.2015 Ex.C-9 and original postal receipt Ex.C-10; newspaper cutting Mark-A. In rebuttal, the evidence of the OPs consist of affidavit of Shri Ashok Kumar, their Director Ex.OP-1/1.

5.             At the very outset, learned counsel for the OPs has argued that the complainants are not consumers and the  present complaint is not maintainable before this Forum as the complainants have themselves admitted that they have taken over the possession on 29.11.2013 vide Ex.C-3 which has been duly signed by both the complainant and the concerned person of the OP.  At the time of taking possession the complainant has not raised any complaint regarding the facilities. In support of his contention, he has relied upon the decision of Hon’ble National Commission in Harpal Arya Vs. Housing Board Haryana, Revision Petition No.3338 of 2007 decided on 04.01.2016.

6.              We find force in the contention of learned counsel for the OPs.  Once the complainants have taken over the possession on 29.11.2013 Ex.C-3 without raising any protest for non provision of the promised facilities, they cannot be termed as ‘consumer’ of the OPs.  The Hon’ble National Commission in case titled as Harpal Arya Vs. Housing Board Haryana, (supra) in Para No.15  has held as under:

“Thus, from the aforesaid documents, it is manifestly clear that petitioner had executed the Hire Purchase Tenancy Agreement with the respondent and in pursuance thereof, he had also taken possession of house on 27.10.2004. Further as per possession certificate, it is clear, that petitioner had taken the possession, without any pre conditions. Now after getting the possession, it does not lie in the mouth of the petitioner to state that house is not in a habitable condition.  Once petitioner, had taken the possession with open eyes and without any pre-conditions, he cease to be a consumer. The consumer complaint was filed on 25.05.2005, that is, after about seven months of taking over the possession of the house. Therefore, on the face of it petitioner was not a ‘consumer’ at the time of filing of the complaint, since there was no privity of contract between the parties. Therefore, complaint is liable to be dismissed on this ground alone.”

                The facts of the present complaint are squarely covered by the aforesaid decision of the Hon’ble National Commission. Therefore, we are of the view that the complainants have ceased to be the consumers of the OPs.

                Accordingly, in view of our above discussion and the case law titled as Harpal Arya Vs. Housing Board Haryana(Supra) the  present complaint along with the member sets is hereby returned with liberty to the complainants to approach the appropriate court of law for redressal of their grievance.

                The order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Pronounced

Dated: 17.10.2017

                                      (A.P.S.Rajput)
 President

(Mrs. Natasha Chopra)

Member