Chandigarh

DF-II

CC/439/2020

Bimla Rani - Complainant(s)

Versus

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

Nirmal Singh Jagdeva

24 Oct 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II, U.T. CHANDIGARH

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Bimla Rani w/o Late Sh.Bhushan Kumar, R/o H.No.1235, Sector 68, SAS Nagar, Mohali, Punjab.

             … … … Complainant

Versus

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

    (2.  The Superintending Engineer, Punjab State Federation of Cooperative House Building Society Ltd. (Housefed), Punjab, SCO No.150-151-152, Sector 34-A, Chandigarh.

    (   … … … Opposite Parties

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.BRIJ MOHAN SHARMA,     MEMBER

Argued by:    Sh.Nirmal Singh Jagdeva, Counsel for Complainant.

Ms.Vertika H.Singh, Counsel for OPs.

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1]       It is observed in para No.1 of the complaint that one Ms.Hem Latha had booked the flat in question at Mohali in 2004 and thereafter complainant had purchased the said flat from Ms.Hem Latha and it was transferred by the OPs in the name of complainant, therefore, complainant is consumer of OPs and competent to file the present complaint.

2]       As per averments made in the complaint, Ms.Hema Latha (previous allottee) applied to the OPs for allotment of residential flat in a scheme known as “Cooperative Housing Scheme of Built Up Flats’ in Sector 79, SAS Nagar, Mohali. The OPs offered 5 categories of flats viz. I, II, III, IV and V at the tentative cost of Rs.17.15 Lakhs, Rs.12 Lakhs, Rs.9 Lakhs, Rs.6.60 Lakhs and Rs.5.50 Lakhs respectively. Vide letter dated 24.03.2004 (Ex.C-4), Category-III Flat at Cooperative Housing Complex, Sector 79, SAS Mohali, was allotted to previous allottee at a tentative cost of Rs.9 Lakhs.

    It is stated that as the OPs were unable to raise construction in the complex, due to litigation pending in the Hon’ble Punjab and Haryana High Court, so they written letter dated 29.06.2006 (Ex.C-7) to previous allottee seeking her option either to withdraw the earnest money deposited towards the flat along with interest at the rate of 10% p.a. or send her consent to retain the flat at the enhanced cost, which was to be intimated during the course of construction/after the construction of flats. Accordingly, previous allottee gave her undertaking (Ex.C-8) to retain the flat and that she would be bound to pay the remaining balance amount towards the enhanced cost as fixed by the Housefed during the course of construction/after completion of the project.

    It is stated that on 24.03.2014, the present complainant had purchased the flat from Mrs.Hema Latha (previous allottee) after paying the entire consideration and OPs after taking the transfer fee issued transfer of allocation of Category-III Flat in question vide letter dated 24.03.2014(Ex.C-9) in favour of complainant.

    It is stated that vide letter dated 15.07.2014 (Ex.C-11), complainant was allotted Flat No.1696C, Floor No.III, Category III in Cooperative Housing Complex, Sector 79, SAS Nagar, Mohali, in the draw of lots held on 05.06.2014, but the OPs raised the cost of the flat from Rs.9,00,000/- to Rs.20,81,000/-. Even the complainant was made liable for payment of interest @ 18% p.a. on the due payment along with watch and ward charges in case allottee failed to take possession of the flat upto 15.09.2014. It is stated that vide letter dated 09.03.2015 (Ex.C-14), the OPs handed over possession of flat No.1696C, Floor No.III, Category III at Cooperative Housing Complex, Sector 79, SAS Nagar, Mohali. The possession of the flat was taken by the complainant on 09.03.2015 vide Physical Possession Certificate (Ex.C-13).

    It is stated that entire payment of flat was deposited in 2004 as per old price and the allottee was given assurance that construction would start within 2004 itself and possession of the flat would be handed over on 31.03.2006. However, the possession of the flat has been offered after 8 years. The OPs have delayed the project and resultantly cost of the flat has been arbitrarily enhanced by the OPs more than double from Rs.9,00,000/- to Rs.20,81,000/-. It is stated that the delay in delivery of possession amounts to deficiency in service and as such, the OPs are liable to pay interest on the deposited amount for the period of delay till delivery of possession. The aforesaid act and conduct of the OPs amount to deficiency in service. Hence, the present complaint.

3]          Upon notice, the OPs appeared and filed reply and took preliminary objection that the complaint is barred by limitation as the same has been filed after a delay of 6 years from the date of offer of possession i.e. 15.07.2014.

         On merits, while admitting the factual matrix of the case stated that because of the stay order passed by the Hon’ble High Court, PUDA could not deliver the possession of the land to the OPs. Therefore, the OPs vide letter dated 29.06.2006 (Ex.C-7) gave an option to the allottee either to seek the refund of the earnest money deposited towards the flat along with interest at the rate of 10% p.a. or send her consent to retain the flat at the enhanced cost which will be intimated during the course of construction/after the construction of flats. The said option was exercised by the earlier allottee Ms.Hema Latha and undertaking dated 10.07.2006 (Ex.C-8) was submitted by her whereby she had given consent to retain the flat and was bound to make the remaining balance payment towards the enhanced cost as fixed by the Housefed during the course of construction/after completion of construction of the project. It is stated that even the complainant at the time of transfer of allocation of the said flat from the earlier allottee had submitted an affidavit dated 11.03.2014 (Annexure OP-1) whereby she had undertaken to pay the balance outstanding payments/installments towards the cost and other dues of the flat if any after the transfer in her name. Further, she had also undertaken to abide by the terms and conditions of the brochure/scheme of Housefed towards the allocation of the said flat. It is stated that complainant has also given a separate undertaking dated 11.03.2014 (Annexure OP-2) whereby she had given her consent to retain the flat and was bound to pay remaining balance towards the enhanced cost as fixed by the Housefed.

    It is stated that the interest of delayed payment had been charged strictly in accordance to Clause 8 of the terms and conditions of the brochure (Ex.C-1) and Clause 7 of the terms and conditions of the letter of the allocation dated 24.03.2004(Ex.C-4). Rather the same clause had been clearly stipulated as Clause 5 in the terms and conditions of the re-allocation letter dated 24.03.2014 (Ex.C-9). It is further stated that the possession was offered vide letter dated 15.07.2014 (Ex.C-11) whereby the complainant was requested to take the possession by 15.09.2014 and it was clearly mentioned in the letter that in case the complainant fails to take possession of the flat upto 15.09.2014 then she shall be liable to pay interest @ 18% per annum on the due payment along with watch and ward charges @ Rs.5000/- per month upto 15.12.2014 and thereafter the allotment of the flat shall be cancelled after forfeiting the entire money deposited by the complainant. It is stated that due to the request made by the complainant, the said allotment was not cancelled and further time was given for making the payment and taking the possession of the unit. Hence, the complainant was bound to make the payment of interest on delayed payments and the watch and ward charges for the period from November 2014 to March 2015. It is stated that cost of the flat had been raised as per the prevailing inflation rates. Denying any deficiency in service as well as all other allegations, the OPs have prayed for dismissal of the complaint. 

4]       Replication has also been filed by the complainant controverting the assertions of OPs as made in their written version.

5]       Parties led evidence in support of their contention.

6]       We have heard the learned counsels for the parties and have gone through entire documents on record.

7]       The main issue involved in the present complaint is whether there is any deficiency in service on the part of OPs or not?

         In order to find out answer to this question, the following facts and circumstances are necessary to be discussed:-

8]       The complainant has alleged that she is entitled to compensation on the ground of delivery of delayed possession of the flat in question. The OPs in their written version stated that delay in construction of the above mentioned flat in the project was caused due to stay granted by the Hon’ble Punjab & Haryana High Court at Chandigarh. OPs further stated in their written version that Mrs.Hema Latha, previous allottee, was issued letter of allocation dated 24.03.2004, which is placed on record as Ex.C-4, for allotment of Category-III Flat at Cooperative Housing Complex, Sector 79, S.A.S. Nagar Mohali (Pocket-2). Further, OPs have placed on record letter dated 29.06.2006 as Ex.C-7 sent to previous allottee seeking her option either to withdraw the earnest money deposited qua flat along with interest @ 10% p.a. or to retain the flat at enhanced cost to be intimated to her during the course of construction/after construction of the flats in view of the stay granted by the Hon’ble Punjab & Haryana High Court at Chandigarh. Accordingly, she had exercised her option and gave her undertaking duly proved on record by OPs by filing it on record as Ex.C-8 where she has expressed her willingness to retain the flat and undertook that she would be bound to pay the remaining balance amount towards the enhanced cost, as fixed by Housefed during the course of construction/after completion of construction of the project. Further, the complainant at the time of allocation of the said flat from earlier allottee had also submitted an affidavit dated 11.03.2014 which was duly proved on file by OPs by placing it on record as Annexure OP-1 where she had undertaken to pay the balance outstanding payments/installments towards the cost and other dues of the flat if any after transfer of the flat in her name. She had also undertaken to abide by the provisions and terms & conditions of the brochure/scheme of Housefed towards the allocation of the said flat after the transfer of flat in her name. Most importantly, the complainant has given her separate undertaking dated 11.03.2014, which is placed on record by OPs as Annexure OP-2, wherein she had given her consent to retain the flat and bound herself to pay remaining balance towards the enhanced cost as fixed by the Housefed during the course of construction/after completion of construction of the project. Ultimately, intimation to take possession was sent to complainant vide letter dated 15.07.2014, which is placed on record as Ex.C-11, in which the final cost of the flat was mentioned as Rs.20,81,000/-. The physical possession of the flat in question was given to the complainant vide Physical Possession Certificate dated 09.03.2015, which is placed on record as Ex.C-13, after the complainant paid the balance sale consideration to them. Hence, as the complainant has given an undertaking that she is ready to take the possession after paying the enhanced price of the flat after construction it, in view of the stay granted by the Hon’ble Punjab & Haryana High Court at Chandigarh then she could not raise the plea of delay possession by OPs. It is observed that delay is due to operation of the stay granted by Hon’ble Punjab & Haryana High Court at Chandigarh. Thus, delay caused by OPs is justified because OPs could not violate the said stay order granted by the Hon’ble Punjab & Haryana High Court at Chandigarh.

         The OPs kept on requesting the PUDA/GMADA to grant permission to raise construction of flats in the complex, by writing letters. PUDA/GMADA has replied to those letters vide Annexure OP-5 & Annexure OP-6 that construction could not be raised and development could not be completed due to operation of the stay granted by Hon’ble Punjab & Haryana High Court at Chandigarh in the litigation before it regarding the project in question. Hence, when PUDA/GMADA is not allowing the OPs to raise the construction, they are legally bound to obey orders of the Hon’ble Punjab & Haryana High Court at Chandigarh. Hence, there is no deficiency on the part of OPs because OPs have given an option to the previous allottee as well as complainant either to withdraw from the project by getting refund of full amount plus interest @ 10% p.a. on the paid price or give their consent to hold the flat in question by paying enhanced price after completion of the construction of the flat and the previous allottee as well as complainant not only agreed to hold the flat and agreed to pay enhanced price of the flat due to delay in construction but also give their undertaking/affidavit to this effect to the OPs without any protest, so the principle of estoppel come into play and previous owner/complainant cannot claim compensation on account of delay of possession as the delay in construction is caused due to operation of stay order by the Hon’ble Punjab & Haryana High Court at Chandigarh which justified the OPs to construct the flat in question after they are allowed by PUDA/GMADA to the same. Hence, there is no deficiency in service by the OPs.

9]       Taking into consideration the above discussion and findings, the present complaint stands dismissed.

10]      Pending application(s) if any, stands disposed of accordingly. 

        The Office is directed to send certified copy of this order to the parties, free of cost, as per rules & law under The Consumer Protection Rules 2020 & Act 2019 respectively. After compliance file be consigned to record room.

Announced

24.10.2024                                                      

Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

Sd/-

 (BRIJ MOHAN SHARMA)

MEMBER

as