BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.491 of 2014
Date of institution: 04.08.2014
Date of Decision: 03.06.2015
Kanshi Ram son of Mewa Ram, resident of House No.2016, Sector 21, Panchkula (Haryana).
……..Complainant
Versus
1. The Premium Acres Infratech Pvt. Ltd., through its authorised signatory, SCO 205, Ground Floor, Sector 110, TDI City, Mohali, Punjab.
2. The Taneja Developers & Infrastructures Ltd., through its Managing Director, Regd. Office 9 Kasturba Gandhi Marg, New Delhi 110 001.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Mrs. R.K. Aulakh, Member.
Present: Shri Subhash Chander, counsel for the complainant.
None for OP No.1.
Shri Manoj Vashishtha, counsel for OP No.2.
(Mrs. Madhu P. Singh, President)
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 for issuance of following directions to the Opposite Parties (for short ‘the OPs’):
(a) to pay him delay charges @ Rs.7,000/- per month alongwith interest @ 15% per annum for the delay from 25.04.2013 onwards.
(b) to pay compensation of Rs.2,00,000/- for mental agony and physical harassment.
(c) to pay litigation expenses of Rs.25,000/-
The complainant’s case is that in pursuance to advertisements in newspapers by OP No.1, on 20.05.2010 he applied for allotment of a residential flat measuring 192 sq. yard vide application Ex.C-1 and deposited a sum of Rs.4,39,000/- by cheque dated 27.06.2010. The complainant was allotted flat No.18202 on 1st floor with total cost of Rs.23,50,000/- vide allotment letter dated 01.07.2010 Ex.C-2. Thereafter, agreement Ex.C-3 was executed between the complainant and OP No.1 on 25.04.2011. In pursuance to the agreement the complainant has been making payment from time to time and in all paid the total amount of Rs.23,50,000/- with OP No.1 from 27.06.2010 to 17.07.2013 which was confirmed by OP No.1 vide e-mail dated 02.05.2012 Ex.C-4. As per Clause-9 of the agreement the possession was to be delivered within 24 months from the date of agreement. The complainant has been requesting OP No.1 to handover the possession as full cost has already been paid by him but OP No.1 is not responding to the requests made by the complainant. As per Clause-9 of the agreement if the possession is delayed, OP No.1 shall pay Rs.7,000/- per month as delay charges for the period of delay. Thus, alleging deficiency in service on the part of OPs the complainant has filed the present complaint.
2. OP No.1 in the written statement has pleaded that this Forum has no jurisdiction to entertain the present complaint. The complainant was given due opportunities to take possession but he has failed to do so as he had to bear charges on account of inflation. The complainant is liable to pay the inflation charges and other charges as per Clause-11 of the agreement. On merits, it is admitted that the complainant has deposited Rs.23,50,257/- towards the price of the flat. In Clause 9 of the Buyers Agreement it is specifically mentioned that in the event of failure of the complainant to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of maintenance charges or any other levies on account of the allotted unit but the actual possession shall be given on payment of all outstanding payments as demanded by OP No.1. Thus, denying any deficiency in service on its part, OP No.1 has sought dismissal of the complaint.
3. OP No.2 in its written statement has pleaded that it is in the business of development of various residential and commercial complexes in various cities of India. OP No.1 has purchased 150 fully developed residential plots measuring 192 sq. yards each in order to develop them and to further sell off to prospective buyers. OP No.2 is not having any interference with the development, construction activity by OP No.1 over the 150 plots. OP No.2 is also not party to agreement dated 25.04.2011 executed between OP No.1 and the complainant. Thus, complaint against OP No.2 is liable to be dismissed.
4. Evidence of the complainant consists of his affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-8.
5. Evidence of OP No.1 consists of affidavit of Ranjit Singh its GM Ex.OP-1/1 and document Ex.OP-1 to Ex.OP-5.
6. Evidence of OP No.2 consist of affidavit of Rohit Gogia, its authorized signatory Ex.OP-2/1.
7. We have heard the learned counsel for the complainant and OP No.2 and have gone through the written arguments filed by them. However, neither any written arguments filed by OP No.1 nor anyone appeared on its behalf for addressing the oral arguments.
8. Admittedly OP No.2 is the developer who has developed the township and further sold it to OP No.1 for allotment to the prospective buyer. Admittedly the complainant is buyer of property from OP No.1 as per allotment letter dated 01.07.2010 Ex.C-2 and buyers agreement dated 25.04.2011 Ex.C-3 duly executed between the complainant and OP No.1. Admittedly the complainant has made full and final payment as per e-mail sent by the OP No.1 to complainant Ex.C-4. The disputed issue is that despite having accepted the full payment, the possession of the property has not been granted to the complainant by OP No.1 and in this regard complainant has raised certain queries vide Ex.C-5 dated 21.09.2013 and the same remained unattended in the hands of the OPs. So much so the complainant has issued legal notice dated 29.01.2014 Ex.C-6 to the OPs. The possession has not been handed over to him so far. Therefore, the complainant has sought invocation of penalty clause for delay in possession and not honouring the penalty clause by the OP No.1 as per complainant is an act of deficiency in service and unfair trade practice.
9. Perusal of Ex.C-5 i.e. reply to the demand notice dated 11.09.2013 reveals that the complainant has already deposited Rs.23,50,257/- as on 17.07.2013 and the demanded amount as per demand notice 11.09.2013 i.e. Rs.88,907/- as service tax and Rs.1,16,800/- as EDC charges are challenged by the complainant besides highlighting certain pending works, like plumbing, electricity, wooden work etc. Instead of resolving the issue the OPs have issued a fresh demand notice dated 26.02.2015 Ex.OP-2 vide which another amount of Rs.14,69,275/- has been demanded from the complainant. We have gone through the statement of account Ex.OP-2 and found that the complainant has already paid Rs.23,50,257/- and the OPs have demanded another sum of Rs.14,69,275- on account of cancellation fee, service tax, commission, interest deduction etc. but computing off amount shown in those heads does not come to the total figure of Rs.14,69,275/- as demanded by the OP No.1. Further the interest deduction issue has already been addressed by OP No.1 vide its e-mail Ex.C-4 vide which it has admitted having received the payment. Thus the amount demanded in Ex.OP-2 is not maintainable and the issue of non delivery of possession has been duly proved by the complainant. As per terms of agreement Clause 9 the possession was to be given to the complainant within 24 month from the date of agreement failing which the OP No.1 is pay Rs.7,000/- per month as delay charges for the period of delay. Admittedly the agreement has been signed on 25.04.2011 and 24 months period from 25.04.2011 has expired on 24.04.2013. Admittedly the complainant has made all the payment by 17.07.2013 and the construction is not complete as is evident from Ex.C-5. Therefore, from 17.07.2013 till the date of actual physical possession by OP No.1 to the complainant, the complainant is entitled to received Rs.7,000/- per month for delay in possession. Non release of said amount to the complainant is an act of deficiency in service and unfair trade practice for which the complaint deserves to be allowed against OP No.1 and the complainant deserves to be compensated. However, complaint against OP No.2 deserves to be dismissed as no relief is claimed against OP No.2.
10. In view of above discussion, the complaint is allowed and OP No.1 is directed to:
(a) pay Rs.7,000/- per month to the complainant w.e.f. 17.07.2013 till the date of handing over of actual physical possession to the complainant.
(b) pay him a lump sum compensation of Rs.50,000/- (Rs. Fifty thousand only) for 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.
June 03, 2015.
(Mrs. Madhu P. Singh)
President
(Mrs. R.K. Aulakh)
Member
