| ORDER | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 618 of 13-10-2014 Decided on : 29-02-2016 Shivani Jindal aged 26 years, D/o Sohan Lal Jindal, R/o H. No. 446, Kamla Nehru Nagar, Bathinda ….....Complainant Versus Town Improvement Trust, Bathinda, through its Executive Officer ........Opposite party Complaint under Section 12 of the Consumer Protection Act, 1986.
Quorum : Sh. M.P.Singh Pahwa President Smt. Sukhwinder Kaur Member Sh. Jarnail Singh Member Present : For the Complainant : Sh. Lalit Garg, Advocate For the opposite party : Sh. Amritpal Singh, Advocate. O R D E R M. P. Singh Pahwa This complaint has been filed by Shivani Jindal, complainant against Town Improvement Trust, Bathinda, opposite party under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act'). Briefly stated, the case of the complainant is that in the year 2010, the opposite party invited applications for allotment of flats to be got constructed in its Manmohan Kalia Enclave, Transport Nagar Scheme, Goniana Road, Bathinda. The complainant applied for allotment of a HIG Flat vide application Form No. 72 and deposited the requisite amount alongwith application. The opposite party held a draw on 13-12-2010 for allotment of flats to the persons, who applied for the same. The complainant was a successful applicant for allotment of a HIG Flat No. B-4 on 1st floor of Manmohan Kalia Enclave, Transport Nagar Scheme, Goniana Road, Bathinda for approximate value of Rs. 26,00,000/- besides Rs. 1,00,000/- as stilt parking and Rs. 1,04,000/- as cess @ 4%. The opposite party issued allotment letter No. 914 dated 27-4-2011. It is pleaded that as per schedule of payment of the price of the flat, the opposite party required the complainant to pay the remaining price of the flat in 5 equal six monthly installments of Rs. 4,05,000/- but the complainant requested that she may be allowed to deposit the remaining amount in 10 equal six monthly installments of Rs. 2,02,500/- which was allowed by the opposite party. The opposite party required the complainant to pay 5 installments of Rs. 2,02,500/- each without any interest. The opposite party agreed to handover the actual physical possession of the flat to the complainant fully complete in all respects upto 27-10-2013 i.e. at the time of getting deposited 5th installment. The opposite party however required the complainant to pay remaining 5 installments of Rs. 2,02,500/- with interest calculated on the balance amount payable half yearly from 27-4-2014 onwards. The complainant paid 5 installments of Rs. 2,02,500/- each against receipts upto 25-10-2013. It is pleaded that complainant purchased the said flat on the assurance given by the opposite party that they will hand over the actual physical possession of the flat, complete in all respects on or before 27-10-2013 and further with a hope that she will get benefit from the said flat by making use of thereof. The opposite party did not handover the actual physical possession of the flat allotted to the complainant in the said scheme upto 27-10-2013. The complainant approached the opposite party many times for giving possession of the flat, but the opposite party told that the flats are still incomplete and it will take sufficient long time. The complainant also wrote to the higher authorities for directing the opposite party to handover the possession of flat completed in all respects but the opposite party conveyed that the flats are still incomplete and will take sufficient long time. It is further pleaded that complainant approached the opposite party for depositing 6th installment of Rs. 2,02,500/- before 27-4-2014, but the officials of the opposite party refused to accept the installment and asked him to deposit the said amount of Rs. 2,02,500/- with interest otherwise the allotment of the flat would be cancelled and deposited amount would be forfeited. The opposite party is not entitled to interest at all till the date of handing over the possession of of the flat. The complainant is ready to pay 6th installment without interest. It is alleged that due to non handing over the actual physical possession of the flat, the complainant suffered huge financial loss. She could not make use of the flat right from 27-10-2013 till date. She is continuously suffering loss as the opposite party has not yet handed over the possession of the flat to her. Therefore, complainant is entitled to compensation to the tune of Rs. 10,000/- per month from 27-10-2013 till handing over the possession of flat. It is further alleged that the opposite party has not handed over the actual physical possession of flat so far and will not hand over the possession of the flat to the complainant in near future but the officials of the opposite party are threatening that they will get 6th installment with interest and in case of failure, her flat would be cancelled and deposited amount would be forfeited. The complainant has also alleged that due to adamant attitude and behaviour of the opposite party, she has suffered mental tension and agony and loss of physical health. She has claimed Rs. 50,000/- as compensation on that account. On this backdrop of facts, the complainant has filed this complaint for claiming Rs. 10,000/- as cost and direction to the opposite party :- i) Not to claim interest on the due amounts until the date of handing over actual physical possession of plot fully completed in all respects ii) To pay Rs. 10,000/- per month from 27-10-2013 till handing over actual possession. iii) Pay Rs. 50,000/- as compensation on account of mental tension and agony. Upon notice, the opposite party appeared through counsel and contested the complaint by filing written version. In written version, the opposite party raised legal objections that complaint is hopelessly time barred. That the complaint is not maintainable. That the complainant has got no locus standi or cause of action to file the complaint. That the complainant does not fall within the definition of consumer That intricate questions of law and facts are involved in the case which cannot be decided by this Forum under summary procedure. That the complainant is willful defaulter of Improvement Trust and has not approached this Forum with clean hands. That in case the complainant does not pay interest on the installments as per schedule, then her flat is liable to be cancelled as per rules, regulations, instructions, terms and conditions of the allotment accepted by the parties. That the complaint is not maintainable in view of Clause 13 of the Agreement executed between the parties. On merits, it is pleaded that it was informed to the complainant by the opposite party that possession of Flat B-4 will be given as per terms and conditions agreed between them. The terms and conditions of allotment letter is binding on the parties and complainant had read over and accepted the terms and conditions of allotment. It is further pleaded that the complainant was given option to pay the price of the flat in half yearly installments and even 5 installments without interest. This benefit was granted only considering the fact that the possession was not ready immediately on allotment. From six installment onward interest is payable as per the concluded contract between the parties duly mentioned in the allotment letter and accepted by the complainant. The complainant is legally liable to pay these installments from 6th onward alongwith interest and penalty. On the one hand, the complainant is not paying the balance installments as per agreed schedule and on the other hand, she is not taking possession of flat. The complainant is willful defaulter. It is further pleaded that due to recession in real estate over the period, the complainant and other allottees are trying to evade payment of balance installments on some false pretext and some even asked for refund of their amount already paid. The complainant and similarly some other allottees also, intended to delay the payment and even they wanted to refund of their amount, which they know was totally against the terms and conditions of allotment. After controverting all other averments, the opposite party prayed for dismissal of complaint. Both the parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence her affidavit dated 19-9-2014 (Ex. C-1) and photocopies of letters (Ex. C-2 to Ex. C-6). In order to rebut this evidence, opposite party has tendered into evidence affidavit of Beant Kaur, Asst. Trust Engg. dated 22-04-2015 (Ex. OP-1/1). We have heard learned counsel for the parties and gone through the record. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that the averments of the complainant are that the opposite party has failed to complete the construction and provide basic amenities. The applications were invited vide Brochure and 'Handing over the possession' was detailed at condition No. '10' of this Brochure. As per this condition, the allottee was invited to take possession of flat in semi-finished condition. The complainant has placed on record letter dated 21-2-2014 (Ex. C-5). This letter is about four months after tentative date of delivery of possession. In this letter it is mentioned that work regarding lift etc., is yet to be completed and the complainant was given only option to take possession of flat if he is willing to take possession without remaining amenities. Therefore this letter proves that on 21-2-2014, the flat was not ready for delivery of possession for want of some amenities like lift etc. Moreover, the flat was to be offered after obtaining possession certificate from the Trust Engineer. The tentative period for completion of flat was estimated as two years and six months. The allotment letter is dated 27-4-2011 (Ex. C-3). Therefore, the opposite party was required to offer the possession upto 27-10-2013 and after obtaining possession certificate from Trust Engineer. There is nothing on record to prove that the opposite party has obtained the possession certificate from the Trust Engineer. The opposite party has also nowhere pleaded that they have obtained possession certificate from Trust Engineer. The complainant has placed on record letter dated 3-4-2014 (Ex. C-7) written by Executive Officer and addressed to Regional Deputy Director. This letter is with reference to one complaint made against Officer/Officials of Improvement Trust, Bathinda. In this letter it is revealed that work regarding H.T.L.T. Electricity, fire fighting, lifting and landscaping is yet to be completed. Therefore, letter written by Executive Officer also proves that opposite party has not yet provided basic amenities. As such, the opposite party cannot claim that the flat is ready for delivery of possession. The opposite party has also not brought on record any letter to prove that opposite party has offered flat to the complainant after providing all the amenities in the area i.e. Transport Nagar. The opposite party has already received 5 installments upto 27-10-2013 The complainant is deprived from the benefit of possession since 27-10-2013. So, the complainant is entitled to interest @ 18% p.a. on the amount already paid by complainant, till the delivery of possession. The opposite party was also to claim interest @ 18% and above in case of default in payment by the complainant. The principle of equity demands that when the opposite party is in default in delivering the possession, they should be penalized with interest on the amount deposited by the complainant. The learned counsel for the complainant further submitted that complainant is deprived from the benefit of flat as its possession is not delivered since 27-10-2013. The complainant is entitled to compensation @ 10,000/- per month from 27-10-2013 till the date of delivery of possession. The complainant is also not liable to pay interest on remaining installments. On the other hand, the learned counsel for the opposite party has submitted that complainant can claim only amenities as per terms and conditions incorporated in the allotment letter and Brochure. There is nothing in the allotment letter entitling the allottee (complainant in this case) to claim any amenity before taking possession of the flat. As per Brochure also, the allottee has to take possession of the flat in semi-finished condition and the flat is to be offered on 'as is where is basis'. The complainant has been offered to take possession of flat in semi-finished condition vide letter Ex. C-5. Thereafter the lift has been installed, tested, examined and its possession has been handed over to the Trust by Installing Company. Therefore, it is proved that opposite party has completed its part. Now the complainant cannot claim any interest or compensation from the opposite party. Moreover, she is liable to pay the remaining installments with interest as agreed between the parties as per allotment letter. We have carefully gone through the record and have considered the rival contentions. From the pleadings of the complainant coupled with arguments advanced by learned counsel for the complainant, it emerges that complainant has claimed following reliefs :- (i) 18% interest on the amount paid by her (ii) Rs. 10,000/-p.m. as compensation on account of delay
(iii) Not to charge interest on remaining installments The flat was allotted to the complainant vide allotment letter dated 27-4-2011. Therefore, the entire controversy is to be decided on the basis of letter dated 27-04-2011. As per this letter, the complainant was to pay 75% of the balance amount by way of half yearly installments commencing from 27-10-2011 upto 27-04-2016. Of course the complainant has paid five installments upto 27-10-2013. As per Brochure, the tentative period for completion of flat is estimated as two years and six months. There is nothing to show that in case of delay in handing over the possession, the complainant will be entitled to any interest on the paid amount as claimed by the complainant in this complaint. Therefore, the complainant is not entitled to interest as claimed by her. Now coming to the second relief. As discussed above, the opposite party was to handover the possession within two years and six months i.e. upto 27-10-2013. Admittedly, the opposite party has failed to deliver the possession. The opposite party has pleaded that the flat is ready for delivery of possession to the complainant but no evidence to prove this version has been placed on file. Therefore, in the absence of any evidence it cannot be accepted that opposite party is not at fault or that the opposite party has offered possession of flat to the complainant after providing all basic amenities required for enjoyment of flat. As per written version as well as conditions mentioned in the Brochure, the opposite party was to offer flat after obtaining possession certificate from the Trust Engineer. It is neither pleaded nor proved that the opposite party has obtained possession certificate from Trust Engineer. This fact also proves that the opposite party has not yet provided basic amenities required for enjoyment of flat. The complainant has also brought on record copy of letter (Ex. C-7) issued by Executive Officer and addressed to Regional Deputy Director, Local Government Department. In this letter, it is admitted that H.T.L.T. Electricity work, fire fighting , lifting and landscaping work are yet to be completed. This fact also proves that work regarding basic amenities such as electricity is yet to be completed. Therefore, the opposite party cannot claim performance on its part. Thus, the conclusion is that the opposite party has failed to deliver possession upto expected date i.e. 27-10-2013. The complainant is deprived of benefit of possession. The complainant has claimed Rs. 10,000/- per month as compensation from 27-10-2013. Keeping in view the rental value of the flat, this amount is considered quite reasonable. Therefore, the complainant is held entitled to compensation @ Rs. 10,000/- per month from 27-10-2013 till the date of delivery of actual physical possession after completion of basic amenities. So far as the prayer of the complainant regarding directions to the opposite party not to charge interest on the remaining installments is concerned, no direction can be issued in this regard keeping in view the allotment letter/agreement between the parties. Moreover, the complainant herself has admitted the fact regarding 5 installments without interest and remaining installments with interest in paragraph No. 4 of his complaint The complainant has also claimed Rs. 50,000/- as compensation on account of botheration etc., but since the complainant has been awarded compensation on account of delay in delivery of possession, therefore, we are of the opinion that complainant is not entitled to any compensation for alleged harassment and botheration etc., For the reason recorded above, this complaint is partly accepted with cost of Rs.5000/-. The opposite party is directed to pay Rs. 10,000/- per month as compensation w.e.f. 27-10-2013 till the date of delivery of actual physical possession of flat in question to complainant after providing basic amenities. The compliance of this order be made within 30 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 29-02-2016 (M.P.Singh Pahwa ) President (Sukhwinder Kaur) Member (Jarnail Singh ) Member
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