Chandigarh

StateCommission

CC/73/2015

Devinder Mohan - Complainant(s)

Versus

The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED) - Opp.Party(s)

Ajay Mehra & Lakhbir Singh, Adv.

30 Jun 2015

ORDER

 STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Consumer Complaint	:	73 of 2015
Date of Institution	:	20.04.2015
Date of Decision	:	30.06.2015

 

Sh. Devinder Mohan S/o Sh. Dina Nath Modi, NF-137, Modian Mohalla, Mai Hera Gate, Jalandhar (Punjab).

……Complainant.

Versus

The Punjab State Federation of Cooperative House Building Societies Ltd. (HOUSEFED), Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh through its Managing Director.

              ....Opposite Party.

 

Complaint under Section 17 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                 SH. DEV RAJ, MEMBER.

                 MRS. PADMA PANDEY, MEMBER.

Argued by:

Sh. Ajay Mehta, Advocate alongwith Sh. Lakhbir Singh, Advocate for the complainant.

Sh. Dharam Vir Sharma, Senior Advocate alongwith Ms. Shivani Sharma, Advocate for the Opposite Party.

PER DEV RAJ, MEMBER

              The facts, in brief, are that the Opposite Party was running the business of real estate in India. In the months of January-February 2009, it invited applications from general public through advertisement (Annexure    C-2) in leading newspapers while offering flats on easy installments in their project “Cooperative Housing Complex” at Banur, S.A.S. Nagar, Mohali on Chandigarh-Rajpura Highway. It was stated that as per the brochure alongwith the application form, there were three category of flats viz. Category-1, Category-2 & Category-3 (EWS). It was further stated that the complainant, who was in need of his own residential property, and could not afford property in Chandigarh, decided to purchase a residential flat in the project of the Opposite Party. It was further stated that the complainant applied for Category-1 flat and deposited Rs.1,01,000/- alongwith the application form/brochure (Annexure C-3). It was further stated that as per the application form/brochure, the tentative cost of Category-1 flat was Rs.20.18 Lacs.

2.           It was further stated that the Opposite Party informed the complainant, vide letter dated 22.06.2009 (Annexure C-4) that he had been allotted a Category-1 flat, at the tentative cost of Rs.20.18 Lacs, and he had to pay the remaining amount from time to time in installments as per the schedule of payment. It was further stated that no specific date of possession of flats was given by the Opposite Party. It was further stated that the Opposite Party informed under the RTI Act vide letter dated 17.09.2009 (Annexure C-5) that possession of the flats at Banur was likely to be handed over in the last quarter of the year 2011. It was further stated that the complainant kept on requesting the Opposite Party by visiting its office regularly, for possession of the flat, in question, but it was coining lame excuses for delay in giving possession (Annexures C-8 & C-9).

3.           It was further stated that the Opposite Party issued letter dated 07.11.2014 (Annexure C-7) intimating all the allottees that the final price was formulated as Rs.32,70,000/-, which was approximately 60% more than the tentative price of the flat, as claimed at the time of allotment. It was further stated that the Opposite Party further intimated that possession of the flat would be given on complete payment of the aforesaid amount on or before 15.02.2015. It was further stated that the complainant had paid a sum of Rs.20,18,000/- till 11.02.2015 towards the cost of the flat. It was further stated that the last payment of Rs.8,07,000/- was made on 11.02.2015 through RTGS vide acknowledgement (Annexure C-6 colly.). It was further stated that the complainant approached the Opposite Party, sought justification and requested it to disclose the criteria on the basis of which, the final cost of the flat was arrived at Rs.32,70,000/-. It was further stated that the functioning of the Opposite Party could be seen from the fact that due to the alleged corrupt practices, adopted by the contractor, in connivance with its certain officials in some other project, FIR No.2 dated 02.05.2012 under Sections 420, 466, 467, 471 and 120B IPC and under Section 13(1) read with Section 13(2) of the Prevention of Corruption Act, at Police Station Vigilance Bureau, Flying Squard-I, Mohali, was registered. 

4.           It was further stated that delay in execution of the project, by the Opposite Party, could not be attributed to the allottees, which led to such a huge demand from them illegally. It was further stated that the complainant was not running away, from paying any reasonable amount after deducting all those factors, which caused delay for which, the allottees were not responsible in any manner. It was further stated that, as per the application form/brochure, the complainant had the option to pay the remaining 40% amount of cost price i.e. Rs.8,07,000/- in 120 equal monthly installments of Rs.13,017/- per month with 15% interest. It was further stated that, however, the Opposite Party vide letter dated 03.11.2014 demanded Rs.20,59,289/- in lump-sum in one go till 15.02.2015, which was totally illegal and arbitrary. It was further stated that as per the letter dated 17.09.2009 (Annexure C-5), the Opposite Party was duty bound to give possession of the flat by the last quarter of 2011, but it failed to hand over the same within the prescribed period, despite receiving the requisite payment as per the schedule of payment.

5.            It was further stated that the aforesaid acts, on the part of the Opposite Party, amounted to deficiency, in rendering service, and 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 give the details on the basis of which, final cost of the flat was fixed; handover possession of the flat immediately at Rs.20.18 Lacs; or in the alternative, refund Rs.20,18,000/- alongwith interest @24% per annum w.e.f. the date of payment; pay Rs.15,00,000/- as compensation for harassment, mental agony and undue hardship, caused to him (complainant) on account of the deficiency in service and unfair trade practice; and Rs.33,000/- as litigation expenses.

6.           The Opposite Party was served, and put in appearance on 22.05.2015. It filed its written statement on 02.06.2015. In the written statement, the Opposite Party, admitted that it is a Cooperative Society registered under the Punjab Cooperative Societies Act, 1961. It was denied that the Opposite Party was running the business of real-estate. It was stated that the object of the Housefed was to provide houses/flats on no profit no loss basis and it could not be compared with builders. It was further stated that the Opposite Party offered 906 flats for shelter-less economical weaker sections of the Punjab State and Class III & IV employees of Punjab Government and its undertakings/cooperatives at Banur on easy installments. It was further stated that the booking opened on 17.11.2008, and closed on 16.12.2008. It was further stated that on public demand, 650 flats, out of the above flats, were offered to the general public by extending the scheme for general public also, for which booking opened on 10.2.2009 and closed on 20.3.2009. It was further stated that the flats were offered under partially self financing scheme, and balance payment was to be made in easy installments. It was admitted that in the brochure, three category of flats were offered as per the salient features mentioned therein.

7.           It was further stated that the complainant applied for the allotment of Category I flat and the price offered by the Opposite Party was the lowest than any other agency in the State of Punjab. It was further stated that the final cost of the flat was to be determined before offering the possession. It was further stated that the Opposite Party never committed any date for handing over the possession. It was further stated that the endeavor of the Opposite Party was to deliver possession as early as possible. It was further stated that the Opposite Party tried its best to complete the project, as early as possible, but due to the reasons that the site was located on the Zirakpur-Patiala Highway and was a low lying area by 8’/9’ below the highway road level it was delayed. It was further stated that civil, public health and external works were started in November 2009 after awarding the contract to M/s Deepak Builders. It was further stated that during the execution of the work, the site got flooded a number of times due to heavy rains, and construction could not be undertaken till the time, the rain water had to be drained out of the site. It was further stated that there was scarcity of building material due to mining problems in the State. It was further stated that due to the environment clearances, there was ban on mining in the State and, therefore, sand, gravel and bricks were not available, which also resulted in to delay in execution of the project.

8.           It was further stated that the electric layout was submitted by the Opposite Party to the Punjab State Power Corporation Ltd. (PSPCL) on 15.07.2009 but NOC was not issued. It was further stated that the Opposite Party applied to PSPCL for release of electric connection for contract demand of 3625 KVA at 11 KV supply voltage but it (PSPCL) was insisting it (Opposite Party) to construct 66 KV Sub Station within the premises of the Housing Complex. It was further stated that the Opposite Party had to file Petition No.46 of 2013 before the Punjab State Regulatory Commission,  which vide order dated 24.10.2013 directed the PSPCL to work out the load of the complex. It was further stated that another Petition No.6/2014 was filed, whereafter, a Joint Committee was constituted to inspect the site and work out the load of the entire complex. It was further stated that the aforesaid Commission decided the case, in favour of the Opposite Party vide order dated 29.4.2014 (Annexure OP-2) and directed the PSPCL to release the connection at 11 KV supply line instead of 66 KV sub-station, and it was only thereafter, that the NOC was issued by the Deputy Chief Engineer.

9.           It was further stated that draw of lots was held and specific flat numbers were allotted and, therefore, the exact/final cost of the flat was worked out after the completion of the project, but before handing over of possession of the flats, which as per the terms and conditions of allotment, the complainant was liable to pay. It was further stated that the estimate was prepared in the year 2008 when it was decided to launch the project for government employees, which was extended to the general public in the year 2009. It was further stated that the tentative price was fixed on the basis of the estimates prepared in 2008 and not in 2009. It was further stated that, therefore, after allotment of the work and completion of the project, there had been increase in the final cost of the flats, which was due to many factors detailed in Annexure OP-4. It was further stated that the head-wise calculations for working out of the cost of the project/flats was attached as Annexure OP-5. It was further stated that a letter was written on 7.11.2014 to the complainant for payment of the balance amount of Rs.20,59,289/- before handing over possession and it was intimated that the balance 40% could be made in 120 equated monthly installments with interest @12% per annum instead of 15% per annum as mentioned in the brochure. It was further stated that the rate of interest was reduced from 15% to 12% as would be apparent from the demand notice dated 7.11.2014 (Annexure C-7). It was further stated that the complainant was liable to make payment before possession was handed over to him and on failure to take possession, watch and ward charges, as mentioned in the brochure, were payable by him. 

10.         It was further stated that since the complainant had sought refund after possession of the flat had been offered to him vide Annexure C-7, therefore, the same could not be made in view of Clause 4 of the brochure. It was further stated that complaint was not maintainable regarding the determination of price of the flat, before this Commission. It was further stated that no FIR was registered in respect of the project at Banur. It was denied that there were any corrupt practices adopted by the contractor in connivance with the officials of the Opposite Party. 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.

11.         The complainant filed replication, wherein, he reiterated all the averments, contained in the complaint, and repudiated the same, contained in the written version of the Opposite Party.

12.         The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.

13.         The Opposite Party, in support of its case, submitted the affidavit of Sh. Sewa Singh, its Superintending Engineer, by way of evidence, alongwith which, a number of documents were attached. 

14.         We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 

15.         It is evident that the complainant applied for Category-I Flat (General Public Scheme) at Cooperative Housing Complex of the Opposite Party at Banur, Distt. Patiala and he was allotted the same vide allotment letter bearing No.Hfed/TW/2763 dated 22.6.2009 (Annexure   C-4) issued by the Opposite Party at Chanditarh, where it is having its Head Office. As per the allotment letter, the tentative cost of the flat was Rs.20.18 Lacs. In terms of allotment letter aforesaid, the complainant had already paid a sum of Rs.1,01,000.00. Besides registration money in the sum of Rs.2,02,000/-, 45% of the cost of flat i.e. Rs.9,08,000/- was to be paid in eight equated quarterly installments each amounting to Rs.1,13,500/- starting from 31.10.2009 to 31.07.2011. The allotment letter also stipulated that the balance, if any, towards the difference of final cost and tentative cost of the flat was to be paid at the time of handing over of possession of the flat. As per Condition No.4 of the allotment letter, 40% cost of the flat i.e. Rs.8,07,000/- was payable in 120 equated monthly installments spread over a period of 10 years with interest @15% per annum and each monthly installment was to be deposited by the allottee on or before the last day of every calendar month. The allottee had the option to deposit the remaining 40% of the cost of the flat i.e. Rs.8,07,000/- without interest within 30 days from the date of offer of possession of the flat. It is evident that the complainant, in all, paid an amount of Rs.20,18,000/- to the Opposite Party up-till 11.02.2015, as per the following break-up:-

Sr. No.	Date	Amount (Rs.)	Annexure
1.	19.03.2009	1,01,000.00	C-6 (Colly.)
2.	18.07.2009	2,02,000.00	-do-
3.	27.10.2009	1,13,500.00	-do-
4.	25.01.2010	1,13,500.00	-do-
5.	24.04.2010	1,13,500.00	-do-
6.	30.07.2010	1,13,500.00	-do-
7.	09.11.2010	1,13,500.00	-do-
8.	27.01.2011	1,13,500.00	-do-
9.	03.05.2011	1,13,500.00	-do-
10.	01.08.2011	1,13,500.00	-do-
11.	11.02.2015	8,07,000.00	-do-
Total:		20,18,000.00

 

It is also evident that the Opposite Party informed vide letter dated 17.09.2009 (Annexure C-5) that possession of flats was likely to be handed over in the last quarter of the year 2011. It may be stated here that this letter was sent by the Opposite Party when a query to this effect was made by one Sh. Arvinder Kumar. The Opposite Party only informed that possession of the flats was likely to be handed over in the last quarter of the year 2011. This cannot be considered to be a firm commitment. As per another letter dated 24.02.2010 (Annexure  C-8), Sh. Ravinder Kumar was informed that construction work of the flats at Banur had been started and the tentative completion of the project was two years. Again vide letter dated 19.10.2011 (Annexure C-9), Sh. Ravinder Kumar was informed that possession of flats at Cooperative Housing Complex, Banur  was likely to be given during 2^nd/3^rd quarter of 2012 to the allottees. Thus, neither in the brochure, nor in the allotment letter nor in the aforesaid letters, there was any firm commitment by the Opposite Party to deliver possession by a particular date. 

16.        As regards the averment of the complainant in Para 10 of the complaint that due to the alleged corrupt practices adopted by the contractor in connivance with certain officials of the Opposite Party, FIR No.2 dated 02.05.2012 under Sections 420, 466, 467, 471 and 120B IPC and under Section 13(1) read with Section 13(2) of the Prevention of Corruption Act, at Police Station Vigilance Bureau, Flying Squard-I, Mohali was registered, it has no connection with the project at Banur. The alleged corrupt practices as per the complainant himself pertained to some other project and even to substantiate the correctness of averments, no cogent evidence has been produced. This contention, therefore, does not hold water, being devoid of merit.

17.         The first question, which falls for consideration, is, as to whether the Opposite Party could increase the price of the flat, in question. The answer to this question, is in the affirmative. The flat, in question, was allotted vide allotment letter dated 22.06.2009 (Annexure C-4). Condition No.8 of the terms and conditions of allotment letter (Annexure C-4) and Condition No.7 of the Brochure (Annexure C-3), being relevant, are extracted hereunder:-

“8.   The exact/final cost of the flat shall be worked out after the completion of flat but before handing over the possession of the flat. The cost difference due to allotment of floor, change in covered area of flat or due to any other reason whatsoever, the same shall be payable by the allottee at the time of the possession. The price is liable to increase due to variation in plinth area, scope of work, change in specifications, design, increase in cost of land, rate of interest, amount of interest, increase in the cost of raw materials or for any reason and the same shall be binding upon you.”

“7.   HANDING OVER OF POSSESSION.

1. The exact/final cost of the flat shall be worked out after the completion of flat but before handing over the possession of the flat. The cost difference due to allotment of floor, change in covered area of flat or due to any other reason whatsoever, the same shall be payable by the allottee at the time of the possession. The price is liable to increase due to variation in plinth area, scope of work, change in specifications, design, increase in cost of land, rater of interest, amount of interest, increase in the cost of raw materials or for any reason and the same shall be binding upon the allottee.
2. The allottee shall be given the possession of the flat only, after he/she has completed all the formalities and paid all the dues till date.
3. In case the allottee opts to pay the 40% cost of the flat in monthly instalments, then he/she will have to furnish/execute all the documents before the Sub-Registar concerned as required/ prescribed by Housefed under the scheme and it is further made clear that if any charges are levied by the revenue department for the execution of these documents, those shall be payable by the allottee.”

Similar issue came up before the Permanent Lok Adalat (PUS), Rupnagar in Kailash Chand Jain Vs. Housefed Punjab, Case No.57/06.02.2015 decided on 19.5.2015 wherein, also, the tentative price of the flat was Rs.20,18,000/- and the final price was fixed at Rs.33,10,000/-. The Permanent Lok Adalat (PUS), Rupnagar held that the Housefed, in terms of Clause 4 of the allotment letter was competent to enhance the price of the flat.

18.         The scheme launched by the Opposite Party was a self-financing scheme. The contention of the complainant that there was variation in increase/enhancement on account of construction of 288 flats as reflected in Annexure OP-20 and Annexure OP-4 is not on sound footing. The gross amount of work completed in Annexure OP-20 is on account of civil, public health and electrical works whereas Annexure OP-4 indicates increase under various heads, which are not included in Annexure OP-20. The increase in the price         has been duly explained by the Opposite Party in Annexure OP-4, according to which, there was          increase in the price due to increase in prices of the material, escalation in the price of the goods              during the year 2009 to 2014, increase in the rate of service tax by the Government of India, construction of STP Plant, Double Plumbing System & Rain Water Harvesting Well as per the conditions of the Ministry of Environment & Forest, installation of H.T./L.T. system as per Rules of the Punjab Power Corporation Ltd., additional cost paid to the Municipal Committee due to sewerage line, increase in labour cess, interest paid by the Housefed on borrowed capital, payment to Punjab Power Corporation Ltd, for feeder line and increase in items because of the requirement of the site. It was, under these circumstances, that the Opposite Party had to increase the price and while offering possession to the complainant vide letter dated 07.11.2014, he (complainant) was told that final cost of the flat was Rs.32,70,000/- and since he (complainant) had already made payment in the sum of Rs.12,11,000/-, he was required to pay a sum of Rs.20,59,289/- as on 07.11.2014, as reflected in the letter (Annexure C-7). The complainant was also given an option that he could avail of loan as per requirement subject to maximum of 40% of the cost of the flat recoverable in 120 equated monthly installments with interest @12% per annum by executing hire purchase tenancy agreement in favour of Housefed, Punjab in the Court of concerned Sub Registrar before taking possession of the flat. The complainant could also take possession of the flat by making the balance payment of the flat and accept offer of possession vide Annexure C-7 aforesaid. He (complainant) made payment in the sum of Rs.8,07,000/- on 11.2.2015 through RTGS (Annexure C-6 colly.) and, thus, in all, the complainant made payment of Rs.20,18,000/-, which was the original tentative price of the flat, subsequently increased to Rs.32,70,000/-. The Counsel for the Opposite Party placed reliance on the judgments titled Gujarat Housing Board Vs. Datania Amrit Lal Fulchand and Ors., 111 (1993) CPJ 351 (NC) contending that the question of pricing could not be gone into by the Consumer Forums and Bareilly Development Authority Vs. Ajay Pal Singh, AIR 1989 SC 1076, wherien the Hon’ble Apex Court held that “When the brochure indicated estimated cost and other terms of allotment issues – fact that actual cost may increase or decrease is clearly indicated in brochure in view of which increase in cost of houses by development authority cannot be labelled as arbitrary and discriminatory.” In Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 Supreme Court Cases 711, the Hon’ble Apex Court has held that “…. Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the development authority will be entitled to revise or increase the price….”. In any case, when the Opposite Party has given item-wise justification for the increase, the price increased cannot be said to be imaginary and unjustified and the Opposite Party was within its rights to increase the same. Thus, in the instant case also, in view of the afore-extracted clause, cost of the flat, in question, was tentative and the Opposite Party has given details/justification for enhancement of the same. Therefore, the Opposite Party could increase the price. There was, thus, neither any deficiency in rendering service nor indulgence into unfair trade practice by the Opposite Party, on account of the enhancement of price.

19.        The contention of the complainant that there was no increase in the cost of land is of no significance. In fact as is evident from Annexure OP-4, wherein the Opposite Party  has given the details of increase in price under various heads, there is no increase in the cost of land but increase in the cost of other items and, therefore, the argument of the complainant is of no avail.

20.         As regards wrong calculation by the Opposite Party, in Exhibit OP-5 (Page 120), the Opposite Party has clarified that it was a typographical mistake. There is force in the contention of the Opposite Party. In case, we accept the contention of the complainant, then the price of the flat, in question, would work out to 1297 sq. ft. ÷ 9 = 114.11 Sq. Yards @Rs.2528.80 Sq. Yards = Rs.3,64,485.17 i.e. significantly lesser than what it was tentatively fixed. The floor-wise price for Category-I flat was shown as Rs.33,10,000/- and it could be only if the rate was 2528.80 per Sq. feet and not 2528.80 per Sq. yard. Thus, the contention of the Opposite Party that it was only on account of typographical mistake that cost was shown to be calculated in square yards but actually, the same was calculated in square feet, is correct.

21.         As regards delay in offering possession, which was in fact offered in November 2014, the Opposite Party has stated that the same was on account of force majeure circumstances and completion of flats and handing over the same was dependent upon a number of circumstances. The Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank’s case (supra), while laying down general principles, regulating the grant of relief to the consumer who complained of delay in delivery or non-delivery and sought  redressal under the Consumer Protection Act, 1986, inter-alia, held as under;

“Where no time is stipulated for performance of the contract (that is for delivery), or where time is not the essence of the contract and the buyer does not issue a notice making time the essence by fixing a reasonable time for performance, if the buyer, instead of rescinding the contract on the ground of non-performance, accepts the belated performance in terms of the contract, there is no question of any breach or payment of damages under the general law governing contracts. However, if some statute steps in and creates any statutory obligations on the part of the development authority in the contractual field, the matter will be governed by the provisions of that statute.”

No doubt, the electric layout plan of the project was submitted by the Opposite Party to Punjab State Power Corporation Ltd. (PSPCL) on 15.07.2009 and it applied for the release of electric connection for contract demand of 3625 KVA with connected load of 3262.708 KV at 11 KV supply voltage but the NOC was not issued to it (Opposite Party) by PSPCL on the ground that load demanded worked out to be 4953.564 KW, which could be released on 66 KV supply voltage for which, it (Opposite Party) was required to construct a 66 KV Sub-Station. This would have enhanced the cost of the project by around 11-12 Crores. The Opposite Party filed Petition No.46 of 2013 before the Punjab State Electricity Regulatory Commission, (PSERC) Chandigarh and vide order dated 24.10.2013, PSERC directed PSPCL to first calculate actual load of individual occupants/consumers and connection of electricity was directed to be released accordingly. However, orders of PSERC were not impleaded by PSPCL and Petition No.6 of 2014 was filed before PSERC, Chandigarh for implementation of the order dated 24.10.2013, which was disposed of on 29.04.2014 and the supply voltage of the Housefed Complex at Banur was determined as 11 KV and PSPCL was directed to initiate further action to release individual connections as per Rules and Regulations after the completion of requisite formalities. Due to the force majure circumstances referred to above, shelter whereof has been rightly taken by the Opposite Party, it  could not offer possession of the flats earlier to 2014.. The Opposite Party has stated that delay in possession was due to various reasons beyond their control including that it tried to save money on the installation of 11 KV grid station instead of 66 KV grid station which process itself took a lot of time. Undoubtedly, due to money saved on installation of a grid of lower capacity, the ultimate beneficiaries were the allottees, but at the same time, in our considered opinion, while offering possession vide letter dated November 2014, the time given by the Opposite Party to deposit the balance amount either in lump-sum or in 120 equated monthly installments was too short. Still the complainant deposited a sum of Rs.8,07,000/- on 11.02.2015. To enable the complainant to make the balance payment or to opt for the facility of loan under the hire purchase tenancy arrangement, the complainant, in our opinion, is entitled to more time.

22.         The next question, which arises for consideration, is, as   to whether   the complainant   is entitled for any compensation or not. In Bangalore Development Authority Vs. Syndicate Bank’s case (supra), the Hon’ble Apex Court has held that “….the quantum of compensation to be awarded, if it is to be awarded, will depend on the facts of each case, nature of harassment, the period of harassment and the nature of arbitrary and capricious or negligent action of the authority which led to such harassment…”. In the instant case, the fact that the Opposite Party has already offered possession before filing the complaint, cannot be overlooked. In fact though as per the terms of the brochure and allotment letter, remaining 40% of the cost of flat could be paid in 120 equated monthly installments by raising loan from Housefed under hire purchase tenancy agreement but the Opposite Party has extended concession to the complainant by reducing the rate of interest from 15% to 12%. Since the Opposite Party has already offered possession to the complainant, the complainant is not entitled to any compensation.

23.         The complainant is also not entitled to refund of money deposited, as the same is not permissible as per terms of the Brochure.

24.         In view of the aforesaid position, the complainant, on making balance payment in lump-sum or by availing the option of making the balance 40% payment in 120 equated installments, can have the possession of the flat, in question, as stipulated in the terms and conditions of the brochure and the allotment letter. Thus, there could not be said to be any deficiency, in rendering service or indulgence into unfair trade practice attributable to the Opposite Party, in raising demand of the balance amount of the flat, in question, from the complainant, whereafter only, the complainant can have the possession.

25.         However, the judgments relied upon by the Counsel for the Opposite Party in Manohar Lal Sharma Vs. D.D.A and another, 1994 (1) CPJ (NC) 22, Kartar Singh Vs. Delhi Development Authority, 2008 (1) CPJ (NC) 93, Jagdish Gurnani Vs. Lucknow Development Authority, 2010 (1) CPJ (NC) 265, Radha Verma Vs. Vice Chairman Ghaziabad Development Authority, 2014 (2) CPJ (NC) 205, Bareilly Development Authority Vs. Ajay Pal Singh, AIR 1989 SC 1076, and Delhi Development Authority Vs. Ashok Kumar Behal and Ors., 2002 AIR (SC) 2940 are distinguishable on facts.

26.         No other point, was urged, by the Counsel for the parties.

27.          For the reasons, recorded above, the complaint is partly accepted, with costs, and the Opposite Party is directed as under:-

(i)    To hand over legal physical possession of Category-I flat (under General Public Scheme) in Cooperative Housing Complex of Housefed, Punjab at Banur, District Patiala, to the complainant, within two months, from the date of receipt of a certified copy of this order, on completion of all the formalities and payment of the balance price by him (complainant) i.e. either in lumpsum within 30 days from the date of receipt of a certified copy of this order or in 120 equated monthly installments with interest @12% per annum instead of 15% per annum.

(ii)   To pay cost of litigation, to the tune of Rs.15,000/- to the complainant.

28.         Certified Copies of this order be sent to the parties, free of charge.

29.         The file be consigned to Record Room, after completion.

Pronounced

June 30, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

[DEV RAJ]

MEMBER

 

 

Sd/-

[PADMA PANDEY]

 MEMBER

Ad

STATE COMMISSION

(Complaint Case No.73 of 2015)

[Devinder Mohan Vs. Housefed]

 

Argued by:

Sh. Ajay Mehta, Advocate alongwith Sh. Lakhbir Singh, Advocate for the complainant.

Sh. Dharam Vir Sharma, Senior Advocate alongwith Ms. Shivani Sharma, Advocate for the Opposite Party.

Dated the 30^th day of June 2015

ORDER

            Alongwith the complaint, the complainant moved an application for staying the operation of letter dated 07.11.2014 (Annexure C-7) issued by the Opposite Party, whereby the Opposite Party raised the demand of balance payment of Rs.20,59,289/- by enhancing the tentative price of the flat, in question, viz. from Rs.20,18,000/- to 32,70,000/-.

2.         Reply to the application aforesaid was filed by the Opposite Party on 02.06.2015, rebutting the contents thereof.

3.         Arguments, on the application aforesaid heard.

4.         The complainant in the prayer clause has sought possession. Since, the Opposite Party vide letter dated 7.11.2014 offered possession, complainant’s prayer to this extent is contrary to the relief sought.

5.         Since the arguments in the complaint were heard on 16.06.2015, and the same (complaint) is being decided, on merits, the application aforesaid becomes infructuous at this stage.

6.         In view of the above, the application for staying the operation of letter dated 07.11.2014 (Annexure C-7) is dismissed being infructuous.

7.         On the other hand, the Opposite Party also moved two separate applications, on 10.06.2015 and 15.06.2015, to place, on record, two additional affidavits of Mr. Sewa Singh, Superintending Engineer alongwith certain annexures.

8.         The application moved on 10.06.2015 by the Opposite Party, was to the effect that it was only on account of typographical mistake that cost was shown to be calculated in square yards but actually the same was calculated in square feet. In support of this application, the Opposite Party sought to place, on record, the affidavit of Mr. Sewa Singh, its Superintending Engineer.

9.         Reply to the application dated 10.06.2015 aforesaid was filed by the complainant on 15.06.2015, wherein the contents of the application aforesaid were rebutted on the ground that in the affidavit of Sh. Sewa Singh sought to be placed, on record, the Opposite Party has tried to justify the enhancement while giving explanation and increased percentage in respective categories as mentioned in Annexure OP-5 but the Opposite Party failed to explain the increase percentage.

10.       Similar is the other application moved on 15.06.2015 by the Opposite Party for placing, on record, additional affidavit of Sh. Sewa Singh, its Superintending Engineer, in support of the basis of increase in the price of the flat on different counts.

11.       Reply to this application was filed by the complainant on 16.06.2015, rebutting the contents thereof.

12.       Arguments on the applications aforesaid were heard.

13.       Here it is pertinent to mention that the aforesaid issue of enhancement in the cost of the flat, in question, on different counts is also merit based. Since the issue aforesaid is the crux of the matter, to be decided on merits, the affidavits of Sh. Sewa Singh, Superintending Engineer, sought to be placed, on record, are just and necessary for settling the controversy and just decision of the case. As such, both the applications moved on 10.06.2015 and 15.06.2015 are allowed. The affidavits of Sh. Sewa Singh, Superintending Engineer are taken on record, by way of additional evidence.

14.       All the aforesaid three applications are disposed of accordingly.

15.       The Counsel for the complainant does not want to file any rebuttal evidence to the additional evidence allowed to be produced by the Opposite Party.

16.       Arguments, in the main complaint, already heard.

17.       Vide our detailed order of the even date, recorded separately, this complaint has been partly accepted, with costs, as per the directions given in the main order.

18.       Certified copies of the order be sent to the parties free of charge.

 

Sd/- (DEV RAJ) MEMBER

Sd/- (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT

Sd/- (PADMA PANDEY) MEMBER

 

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