STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH.

APPEAL NO.484 OF 2009

1.      Saloni wife of Late Sh. Sham Lal resident of H.No.85, Sector 21C, Chandigarh.

2.      Neena Kohli wife of Sh. Manoj Kohli resident of H.No.85, Sector 21C, Chandigarh.

3.      Seema Sharma wife of Laxmi Kant Sharma resident of H.No.85, Sector 21C, Chandigarh.

                                                ………Appellants.

Versus

1.      Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

2.      The Managing Director, Shalimar Estate (Pvt.) Ltd, Corporate Office, SCO No.110-111, Sector 8C, Chandigarh.

…Respondents.

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL (RETD.), PRESIDENT.

HON’BLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

                        HON’BLE MRS. NEENA SANDHU, MEMBER.

Argued by:            Sh. Ramandeep Singh, Advocate for the appellants.

                        Sh. Arun Kumar, Advocate for the respondents.

MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.

1.                     This is an appeal against the order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 30.7.2009 passed in complaint case No.47 of 2009 : Saloni and others Vs. Shalimar Estate (P) Ltd. and another.

2.                     Briefly stated the case of the complainants are that they were allotted one Showroom by OPs vide letter dated 20.6.2005 in Category B with super area of 500 Sq. Ft in an upcoming shopping mall to be constructed by the OPs, which the complainants were intended to use for earning their livelihood by way of self employment. It was averred that OPs vide Annexure P-1 promised to handover the possession of the said showroom with the period of two years. As per the complainants, they had purchased the said showroom in question from Mr. Arun Kumar and Mr. Manoj Kohli, who were the original allottees and the said showroom was duly transferred in the name of the complainants vide letter dated 15.12.2006 (P-5). The original allottees, it was averred, had already paid Rs.28,50,000/- to the OPs as per the schedule mentioned in the allotment letter (P-5/A to P-5/C). It was next averred that as per the allotment letter, the total amount to be paid by the time of physical possession was 60% of the chargeable price i.e. Rs.35,64,000/- (60% of Rs.59,40,000) and the balance 40% amount i.e. Rs.7,14,000/- was to be paid in equated monthly installments in ten years with interest @11% per annum. It was next averred in the complaint that vide letter dated 10.1.2008, OPs informed the complainants about the allotment of a Commercial Showroom No.237 on Second Floor subject to payment of outstanding dues and the OPs in this letter had deducted an amount of Rs.30,000/- as compensation out of the total cost of the showroom on account of delay in completion and as such, the next cost of the showroom came to Rs.59,10,000/-. The case of the complainants is that OPs also asked them to deposit Rs.13,26,654/- whereas they had to demand the balance amount of Rs.7,14,000/- only as per the allotment letter. On 6.6.2008, it was averred, the complainant deposited an amount of Rs.9,27,000/- with the OPs vide Annexure R-7 and further requested them to adjust the amount of Rs.4 Lacs i.e. the cost of reserved parking slot in monthly installments and as such, as per the complainants, OPs had received the full amount of the showroom in question.  The case of the complainants is that inspite of depositing an excess payment of Rs.2,13,000/- with the OPs, OPs had failed to deliver the possession of the showroom in question to them. As per the complainants, even after charging the excess amount and misrepresenting them about the balance amount due, OPs had deceived them by asking for more amount. The complainants further averred that earlier interest charged by OPs in case of delayed payment was 15% per annum but now, OPs are putting penalty of Rs.50/- per day for delayed payment of installments i.e. 32.24%, which was grossly unjust and unlawful. Alleging the above acts of OPs as deficiency in service on their part, the complainants had filed the present complaint before the learned District Forum.

3.                     The version of OPs is that vide letter dated 10.1.2008, the complainants were offered the possession of the showroom but they had not completed the formalities and had not taken the possession of the same. It was pleaded by the OPs that the complainants were also intimated to start the fit our works in the said showroom after obtaining permission letter from the OPs by depositing a sum of Rs.13,26,654/- but they failed to deposit the said amount by the due date. OPs had denied the averment regarding depositing of excess amount of Rs.2,13,000/- by the complainants with them. As regards the delay, OPs submitted that the same occurred due to the work stopped by Haryana Pollution Control Board, against which OPs had also approached the Hon’ble High Court of Punjab and Haryana and as a result, the project was delayed for about more than a year. OPs further submitted that being a large project, there was also shortage of material due to power cuts, labour and appointment of new contractors in place of old contractors, who left the work in between on various occasions. Pleading no deficiency in service as well as any unfair trade practice on their part, OPs prayed for dismissal of the complaint.

4.                     The learned District Forum, in its analysis of the complaint, firstly while relying upon the judgment of Hon’ble Punjab and Haryana High Court in the case of National Building Construction Corporation Ltd. Vs. State of Haryana, 2007 (2) RCR (Civil) 120, the learned District Forum recorded in the impugned order that if the complainants were dissatisfied with any of the term or condition as made by the OPs with the original allottees, they could have rejected the same or might not accept the same. On merits, the learned District recorded that as per Annexure P-1 under Brief Information & Mode of allotment, 60% of the chargeable price minus amount already paid was to be paid at the time of handing over of physical possession and the balance 40% of chargeable price was payable in lumpsum without interest within 60 days from the issue of allotment letter or in equated monthly installments in 10 years with interest @11% per annum and subsequently, on handing over of the possession, the allottee(s) were entitled for delivery of possession of the showrooms within 2 years only after he/she/they had completed all the formalities and paid all dues and furnished/executed all documents required/prescribed under the scheme and in allotment letter. Referring to Annexure P-5 Ref. No.SEP/06/20561 dated 15.12.2006 in favour of the complainants whereby transfer of rights in the Registration No.110 for allotment of a Commercial Showroom at Shalimar Mega Mall, Site No.5, Sector 5, Panchkula had been effected, the learned District Forum observed that in this letter, it had been stated that all other terms & conditions of the allotment will remain unchanged meaning thereby that the contract, which was originally entered into between the original allottees Mr. Arun Kumar and Mr. Manoj Kohli from whom the complainants had purchased the showroom, were to remain as it were without any change. Next referring to Annexure P-6 dated 10.1.2008 in favour of the complainants, the learned District Forum recorded that in this letter the complainants were requested to deposit the due amount of Rs.13,26,654/- positively within 30 days from the issue of this letter i.e. upto 9.2.2008 and further the complainants, as per this letter, could start fit out works in the said showroom after obtaining permission letter from the office of OP on deposit of said dues. It further recorded in the impugned order that OPs had also requested the complainants to intimate them about the payment plan of remaining 40% cost i.e. Rs.23,64,000/- of the showroom, which was given by the complainant vide Annexure P-7, dated 6.6.2008. Next referring to Annexure P-9, the learned District Forum recorded that in this letter, OPs had clearly intimated that the complainants had already been informed to take possession of showroom to start fit out work vide letter No.SEPL/08/21306 and the possession of showroom was thereby offered, which they were required to take immediately after completing the required formalities. Thus, as per Annexure P-9, in the view of the learned District Forum, it was conclusively proved that the possession of the showroom in question was duly offered to the complainants and they were directed to start their fit out work, which could only be started if the premises were fully constructed. As per the learned District Forum, Had the showroom not been constructed, the fit out work could not had been started. The learned District Forum also recorded that it was not the case of the complainants that they were unable to start the fit out work as the showroom was incomplete. As per the learned District Forum, the complainants even after receipt of letter dated 10.1.2008 and 2.9.2008 neither started the fit out work nor submitted any designs thereof to the OPs and as such, in the view of learned District Forum, the complainants failed to perform their part of the contract and were also defaulter in making payments of the installments as well as maintenance charges and also did not come forward to take possession of the showroom while the showroom was complete. As regards the delay in handing over the possession, the learned District Forum recorded in the impugned order that the delay so caused was neither intentional nor willful but the same was due to the act of Haryana Pollution Control Board against whom the OPs promptly approached the Hon’ble Punjab & Haryana High Court and got the relief. Thus, in the view of the learned District Forum, the delay in completion the project was not at all attributable towards the OPs and as such, no deficiency was attributed on the part of OPs on this account. Finding no merit in the complaint, the learned District Forum dismissed the same.

5.                     Aggrieved by the impugned orders of the learned District Forum, the complainants have filed the present appeal. The appeal having been taken on board, notices were sent to the respondents/OPs and record of complaint case was summoned from the District Forum. Sh. Ramandeep Singh, Advocate appeared on behalf of the appellants/complainants whereas Sh. Arun Kumar, Advocate represented the respondents/OPs.

6.                     Sh. Ramandeep Singh, Advocate learned counsel for the appellants/ complainants submitted that 26.6.2007 was the due date for the offer of possession as per the agreement entered into between the parties. He further submitted that as per OPs, the possession had been offered in January 2008 but his contention was that Annexure P-6 of the complaint, as per which OPs contend to have offered the possession of the showroom was in fact only a letter, which granted the complainant the permission to start fit out works in the showroom after obtaining permission from the OPs and this annexure nowhere mentions anything with regard to offering of the possession and he further added that even though this letter had been written, in fact the showroom was still not ready for the fit out works to be started. He, thereafter referred to Para No.5 of Annexure P-9 dated 2.2.2008 in which it is stated that “the possession of the showroom is hereby offered, which may be taken immediately after completing the required formalities”. The learned counsel thereafter referred to Page 45 of the appeal, which is a letter from Estate Officer, HUDA, Panchkula regarding permission/licence to run and operate the multiplex/theatre in the showroom at Site No.5, Sector 5, Panchkula and also referred to some media reports to prove that the mall was not operational and ready. He, therefore, prayed that since the complainants had already made all the payments, the complaint be allowed and the impugned order be set aside. In this context, he also referred to the judgment of this very Commission in the case of Shalimar Estate (P) Ltd. and another Vs. Jaspreet Kaur wherein a similar complaint had already been allowed by this Commission.

7.                     In response, Sh. Arun Kumar, Advocate learned counsel for the respondents/OPs submitted that the order passed in the case of Shalimar Estate (P) Ltd. and another Vs. Jaspreet Kaur  as referred to above by the learned counsel for the appellants had been passed because there was a chance of compromise between the parties and because of which, the appellants had not filed any written statement and thus, the appeal was dismissed as there was no evidence on record from the side of OP whereas in this case, he submitted that the possession of the showroom had been offered to the complainants as early as January 2008 vide Annexure P-6, which permitted the complainants to start the fit out works and ipso facto meant that the possession was being offered. He further submitted that the complainants on their part failed to supply the fit out drawings and also failed to complete the formalities as required of them. His next submission was that even the compensation required to be paid by the complainants as per Clause 10 of the agreement had not been paid. Finally submitting that it was a detailed and well reasoned order, the learned counsel prayed for dismissal of the appeal.

8.                     We have carefully perused the complaint case file as well as the impugned order and have also heard the learned counsel for the parties. Firstly, we are in consonance with the view held by the learned District Forum that there was no deliberate delay on the part of OPs in handing over possession of the showroom to the complainants. Secondly, we do not subscribed to the contention of the complainants that Annexure P-6 whereby they had been asked to start the fit out works in the showroom did not mean that it was an offer of possession and the offer of possession in fact was only offered view Annexure P-9 dated 2.2.2008. We are in agreement with the view held by the learned District Forum that once the complainants had been asked to start the fit out works in the showroom, it ipso facto meant symbolic offer of possession and also indicated that the showroom was duly constructed. We do not subscribe to the contention of the complainants that media reports annexed with the appeal at Pages 46 to 49 as well as the letter of Estate Officer, HUDA, Panchkula at Page 45 of the appeal prove that the mall had not been constructed. Furthermore, since the complainants have indicated no action taken on their part to start the fit out works even after they were offered to do so in February 2008, it goes to prove that it is the complainants who are dragging their feet and there is no delay as such in the offer of possession of the showroom by the OPs because the complainants have failed to prove by any cogent evidence that they were unable to start the fit out works because of non completion of the showroom. Thus, we concur with the conclusion drawn by the learned District Forum that the complainants had failed to perform their part of the contract and they were also defaulters in making payments of the installments as well as maintenance charges and they did not come forward to take possession of the showroom while the same was complete.

9.                 In view of the foregoing discussion, we do not find any merit in the appeal and the same is dismissed as it lacks substance. Keeping in view the peculiar circumstances of the case, parties are left to bear their own costs of litigation.

10.                   Copies of this order be sent to the parties free of charge.

Pronounced.

19^th April 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[MAJ. GEN. S. P. KAPOOR (RETD.)]

MEMBER

Sd/-

[MRS. NEENA SANDHU]

MEMBER

Ad/-

APPEAL NO.484 OF 2009

Argued by:            Sh. Ramandeep Singh, Advocate for the appellants.

                        Sh. Arun Kumar, Advocate for the respondents.

                                                …..

                        Vide our detailed order of even date recorded separately, this appeal filed by the complainants has been dismissed.