Chandigarh

StateCommission

A/284/2023

GIAN CHAND SINGLA - Complainant(s)

Versus

SUSHMA BUILDTECH LIMITED - Opp.Party(s)

VISHAL MADAAN

05 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	284 of 2023
Date of Institution	:	17.10.2023
Date of Decision	:	05.01.2024

 

1. Gian Chand Singla son of Sh. Dev Raj Singla
2. Harsh Singla son of Sh. Gian Chand Singla

Both residents of #42, Tagore Nagar, Near Ekta Vihar Chowk, Ambala Cantt. (Haryana).

 ……Appellants/Complainants

V e r s u s

 

Sushma Buildtech Limited through its Director cum Authorized Signatory Sh. Bharat Mittal, Corporate & Registered Office: Unit No.B-107, business complex at Elante Mall, Indl. Area Phase-I, Chandigarh (UT)

…..Respondent/opposite party

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.PREETINDER SINGH, MEMBER

                            

Present:-    Sh.Vishal Madaan, Advocate for the appellants.

Sh.Vishal Singal, Advocate for respondent.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   The complainants (appellants in this appeal) by way of filing this appeal are seeking enhancement of the relief already awarded to them, vide order dated 29.08.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh (in short the District Commission), in consumer complaint bearing no.416 of 2020. Following relief has already been granted by the District Commission while allowing the said consumer complaint:-

9. “… In view of the above discussion, the present consumer complaint succeeds and the same is accordingly allowed. OPs are directed as under:-

1. to handover the physical possession of the unit in question to the complainant complete in all respects i.e. electricity availability and requisite water supply and the complainant shall pay the remaining outstanding amount of Rs.23126/- as demanded by the OPs vide Annexure C-10.
2. to pay the assured return amount to the complainant as per  Unit Buyer  Option Agreement Assured Return Plan w.e.f. 1.10.2019 till 31.7.2020 with interest @9% p.a. from the due date i.e. 1.10.2019  till onwards.
3. to pay Rs.30,000/- to the complainant as compensation for causing mental agony and harassment to him;
4. to pay Rs.10,000/- to the complainant as costs of litigation.

10. 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 direction at Sr.No.(i) (iv) above.
11. It is made clear that the complainant shall make applicable maintenance charges only after the completion of complete necessary formalities of handing over the unit to the complainant complete in all respect.
12. It is also made clear that complainants have not to pay any other delay payment interest or any other hidden charges.…..”    

 

Factual scenario:-

2.           Before the District Commission it was the case of the complainants that they booked booking office space for personal use and occupation in the project of the opposite party launched under the name and style “Sushma Chandigarh Infinium”, SAS Nagar, Mohali, on making payment of booking amount of Rs.5,30,204/-. The opposite party allotted unit No.14, 8^th Floor in the said project, for basic sale price of Rs.23,81,480/-. The complainants opted for down payment plan.  Buyer Agreement and Unit Buyer Option Agreement Assured Return Plan were executed between the parties on 27.11.2013. As per Buyer Agreement, possession of the unit in question was to be delivered within 42 months from the date of execution of the agreement i.e. upto 27.5.2017.  As per agreement the opposite party can charge delayed payment interest @ 24% per annum compounded monthly for the delay in payment by the complainants, whereas, as per Unit Buyer Option Agreement Assured Return Plan, it promised to pay assured return of Rs.53.30 per sq. ft. per month on the investment till the offer of possession. The complainants made complete payment in time but despite that the opposite party failed to deliver possession of the unit in question in time.  However, the assured return was also only till September 2019 only and thereafter  the opposite party stopped the same from October 2019 onwards. On the contrary the opposite party issued possession demand letter claiming Rs.22,337/- for IFMS and Rs.790/- delay in payment interest which is 24% per annum compounded monthly. The opposite party offered possession  of the unit vide letter dated 1.8.2020 alongwith demand of Rs.33,737/- payable to the  maintenance agency and Rs.19,394/- for electricity meter charges on or before 24.8.2020. The demand raised by the opposite party to the tune of Rs.790/- towards interest  is unjust and arbitrary as  the complainants never defaulted in making  payment of sale consideration. Moreover the complainants did not receive any communication to deposit the delay payment for the last 5 years. The opposite party without obtaining occupation/completion certificates offered possession of the unit in question. Under those circumstances, the complainants sent legal notice upon the opposite party in the matter but to avail. Hence, consumer complaint was filed before the District Commission.

 

Written reply filed by opposite party:-

3.           Opposite party contested the complaint and filed written reply wherein it was stated that  offer of possession was made to the complainants on 1.8.2020 upon completion of all the amenities at the project site.  Due to force majeure circumstances,  there was delay in construction.  However,  as per agreement the opposite party had  duly paid assured return to the complainants to the tune of Rs.11,44,865/-  from the year 2013 to year 2020 as per the agreement, prior to offer of possession. The complainants  have accepted the same and as such they have no right to seek refund or any delay possession compensation. Completion/occupation certificates have already been granted by the competent authority. The complainants are bound by the terms and conditions of the buyer’s agreement and assured return agreement plan dated 27.11.2013.  All other allegations made in the complaint were  denied being wrong.

 

Rejoinder:-

4.           In the rejoinder filed, the complainants reiterated all the averments contained in their complaint and controverted those of opposite party.

 

Evidence filed by the parties

5.           The contesting parties led evidence by way of affidavits and numerous documents before the District Commission.

 

Decision of the District Commission:-

6.           The District Commission after hearing the contesting parties and on going through the material available on record, allowed the consumer complaint, in the manner stated above.
7.           Hence this appeal has been filed by the appellants/complainants seeking enhancement of the relief already granted by the District Commission.
8.           Record of the District Commission has been requisitioned.
9.           We have heard the contesting parties and have scanned the entire record of this case, including written arguments filed by the appellants.

Submissions of contesting parties:-

10.           During arguments, the appellants/complainants vehemently contended that though the District Commission allowed the consumer complaint filed by them, yet, it fell into a grave error by not awarding following relief: -
    1. The assured  return should have been granted till actual delivery of physical possession of the unit in question instead of 31.07.2020, because the offer of possession dated 01.08.2020, Annexure C-11 was accompanied with unwarranted demands, Annexure C-10 and was issued in the absence of occupation and completion certificates;
    2. Instead of ordering payment of remaining amount by the complainants, the said amount should have been ordered to be adjusted out of the payable amount towards assured  return by the opposite party to the complainants, as it had been promised by the opposite party vide email  dated 09.11.2019, Annexure C-9;
    3. Opposite party should have been directed to issue fresh  offer of possession letter after adjustment of assured  return;
    4. No compensation by way of interest for the period of delay in delivery of possession has been awarded by the District Commission;
    5. Compensation for mental agony and harassment and also cost of litigation awarded to the tune of Rs.30,000/- and Rs.10,000/- respectively is on the lower side

 

11.           On the other hand, counsel for respondent/opposite party submitted that the order passed by the District Commission being not based on the correct appreciation of facts and law on the point needs to be set aside and the consumer complaint should be dismissed. 

Observations and findings of this Commission:-

          The first question which needs to be decided in this appeal is, as to whether, the appellants are entitled for assured return beyond 31.07.2020 or not? Admittedly, the respondent has paid assured return to the appellants till September 2019 and thereafter stopped the same. Thereafter, possession of the unit in question was offered vide letter dated 01.08.2020, Annexure C-11, which has been challenged by the appellants by way of filing consumer complaint before the District Commission out of which this appeal has arisen. It may be stated here that  after going through the record of the case very minutely, we are of the considered opinion that the possession so offered by the respondent vide letter dated 01.08.2020, Annexure C-11, was not a valid possession as it was accompanied with demands, Annexure C-10 i.e. advance maintenance charges of Rs.33,737/- and also remaining sale consideration of Rs.23,126/- totaling Rs.56,863/- meaning thereby that it was a conditional offer of possession. However, the said demands can easily be termed as unwarranted, in view of candid promise made by the respondent vide email dated 09.11.2019, Annexure C-9, wherein, the respondent had agreed and informed the appellants that AR (Annual Return) shall be settled on offer of possession of the said unit. However, there is nothing in the said offer of possession letter dated 01.08.2020, Annexure C-11 or demand letter, Annexure C-10, that  the amount of said annual return stood adjusted/settled by the respondent, as a result whereof, the appellants were  compelled to enter into this litigation, over and above, grievances qua offer of paper possession, as discussed above.  Thus, in our considered view, the said offer of possession being conditional, especially in the face of contents of email dated 09.11.2019, Annexure C-9, wherein, the respondent had agreed and informed the appellants that AR (Annual Return) shall be settled on offer of possession of the said unit, cannot be said to be valid possession and our this view also finds support from the ratio of law laid down by the Hon’ble Supreme Court in Utpal  Trehan  Versus DLF   Home  Developers Ltd., Civil Appeal No. 4690 Of 2022, decided on   July, 11^th  2022, wherein also it was clearly held that if possession letter is conditional on settling of accounts, the builder cannot argue that there was a valid offer of possession. Thus, it has been proved on record that possession of the unit offered vide letter dated 01.08.2020 was not valid and legal possession and on the other hand was conditional, as discussed above. At the same time, it is also an admitted fact that because of nonpayment of the said amount by the appellants, possession of the unit was not delivered to them by the respondent, as a result of which, they are deprived of use of the same. Till date the appellants are empty handed despite the fact that almost entire sale consideration stood received by the respondent. Under these circumstances, the District Commission should have awarded assured  return from 01.10.2019 till actual physical possession of the unit is delivered complete in all respects, to the appellants/complainants. To this extent, the order of the District Commission needs modification. 

12.           The next question that falls for consideration is, as to whether, the appellants are also entitled to get  compensation by way of interest for delay in delivery of possession of the unit in question or not? It may be stated here that the appellants have been awarded assured  return @Rs.53.30 per square feet of area of the unit, per month which comes to around Rs.23,810/- per month, against the investment of around Rs.26,22,567/-, as provided under clause 2 of the “Unit Buyer Option Agreement Assured Return Plan” dated 27.11.2013, Annexure C-4,  which amount (Rs.23,810/- per month) is fair enough, to  meet the loss if any suffered by the appellants. Similarly, compensation awarded by the District Commission to the tune of Rs.30,000/- for the agony and harassment suffered by the appellants and also cost of litigation to the tune of Rs.10,000/- cannot be said to be on the lower side.
13.           It is significant to mention here that the object of the Consumer Protection Act is not to enrich consumers unjustly. In our considered opinion the assured  return already received by the appellants, for the period of delay and also for the remaining period being awarded by this Commission is just, fair and reasonable. As such, plea taken by the appellants in this regard stands rejected.
14.           Keeping in view the above discussion, this appeal stands partly allowed. The impugned order passed by the District Commission is modified and the respondent/opposite party is directed as under:-
    1. to issue fresh offer of possession of the unit in question and handover physical possession thereof to the appellants/ complainants complete in all respects within a period of 30 days from the date of receipt of a certified copy of this order.
    2. to pay the entire assured return amount to the appellants/ complainants as per Unit Buyer Option Agreement Assured Return Plan from 01.10.2019 till 31.12.2023, within a period of 30 days from the date of receipt of a certified copy of this order, failing which the entire accumulated amount for the said period i.e. from 01.10.2019 till 31.12.2023 shall carry penal interest @9% p.a. from the date of default till this entire accumulated amount is paid to the appellants/complainants.
    3. To pay to the appellants/complainants, assured return amount as per  Unit Buyer Option Agreement Assured Return Plan w.e.f. 01.01.2024 onwards (per month), by the 10^th of the following month till actual delivery of physical possession of the unit, complete in all respects, as ordered in sub-para no.(i) above. 
    4. To adjust the amount to be paid by the appellants/complainants towards remaining sale consideration of the unit in question, if any, without  charging any delayed interest or hidden charges, out of the assured return amount payable by the respondent/opposite party, as ordered above. However, it is made clear that the respondent/opposite party shall not charge maintenance charges from the appellants/complainants, if applicable, till actual delivery of physical possession of the unit, complete in all respects, as ordered in sub-para no.(i) above. 
    5. to pay Rs.30,000/- to the appellants/complainants as compensation for causing mental agony and harassment to them and also Rs.10,000/- as costs of litigation, within a period of 30 days from the date of receipt of a certified copy of this order, failing which these amounts of compensation and litigation shall entail interest @9% p.a. from the date of default till realization 
15.           Certified copies of this order be sent to the parties, free of charge, forthwith.
16.           The concerned file be consigned to Record Room, after completion and record of the District Commission be sent back immediately.

Pronounced

05.01.2024

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

Rg