BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

                                  Consumer Complaint No.708 of 2014

                                 Date of institution:          19.12.2014

                                                 Date of Decision:            29.07.2015

Chander Parkash Gupta son of Gauri Shankar Gupta resident of Flat No.602, Tower-C, Vrindavan Gardens, Peermuchhalla, Zirakpur, District Mohali.

    ……..Complainant

                                        Versus

1.     Vrindavan Gardens, Peermuchhalla, MC Zirakpur, District Mohali through its partner Mukesh Goyal, Site Address: Vrindavan Gardens, Peermuchhalla (adjoining Sector 20 Panchkula), Zirakpur, District Mohali.

2.     Mukesh Goyal Colonizers & Builders Pvt. Ltd., through its Proprietor Mukesh Goyal, r/o Flat No.204, Tower-C, Vrindavan Gardens, Peermuchhalla, Zirakpur, District Mohali.

………. Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

CORAM

Mrs. Madhu. P. Singh, President.

Shri Amrinder Singh Sidhu, Member

Mrs. R.K. Aulakh, Member.

Present:    Shri Gunjan Rishi, counsel for the complainant.

Shri Sukaam Gupta, counsel for the OPs.

(Mrs. Madhu P. Singh, President)

ORDER

                The complainant has filed the present complaint seeking following direction to the Opposite Parties (for short ‘the OPs’) to:

(a)    complete the flat and project in accordance with promised specifications and standard.

(b)    pay interest @ 24% on the already paid Basic Sale Price and allied charges for delayed period and also pay him amount of Rs.1,60,000/- paid by him as rent

(c)    pay him Rs.5,00,000/- for completing the flat

(d)    issue him the possession letter and get registered the sale deed in the name of the complainant.

(e)    pay him Rs.5.00 lacs for mental agony, harassment and Rs.22,000/- as costs of litigation.

                The case of the complainant is that he booked a flat with the OPs on 28.06.2011 as the OPs had assured to provide him the facilities as per brochure and advertisement Ex.C-1 and C-2 respectively.  At the time of booking the complainant paid  the cost of the flat to the tune of Rs.26,37,000/- to the OPs vide receipt dated 28.06.2011 Ex.C-3. The complainant entered into agreement to sell  Ex.C-4 with the OPs with regard to Flat No.602, Block-C covered area of 1400  sq. ft. and super area of 1850 sq. ft. @ Rs.,27,53,000/- on 01.02.2012.  Accordingly allotment letter dated 01.02.2012 Ex.C-5 was issued by the OPs.  After that the complainant deposited Rs.81,500/- with the OPs as service tax vide receipt dated 24.08.2012 Ex.C-6. As per Clause 8 of the agreement the possession was to be delivered within 18-21 months from the date of booking and in case of delay in handing over the possession, as per Clause 13 of the agreement,  the Ops were liable to pay charges @ Rs.3/- per sq. ft. for 1850 sq. ft. amounting to Rs.5550/- per month.  The possession of the flat was offered to the complainant in July, 2014 whereas it was to be offered in March, 2013. Thus there was delay of 16 months in offering possession to the complainant. The complainant had to pay monthly rent @ Rs.9900/- to his landlord due to delayed period of possession.  The complainant found that the OPs had not provided the promised facilities in the flat and he pointed out the shortcomings to the Ops vide his letter dated 10.12.2013 Ex.C-8. The Ops coerced the complainant in the month of Jan. 2014 to deposit the balance sale consideration otherwise his allotment would be cancelled and the entire amount paid by him would be forfeited. Faced with this dilemma the complainant deposited Rs.1,16,000/- with the OPs on 20.01.2014 vide receipt Ex.C-9.  Thus, the possession was offered to the complainant in June, 2014.  After taking possession, the complainant applied for installation of electricity meter vide receipt dated 26.06.2014 Ex.C-10. The residents of the complex formed a society and the society submitted representation Ex.C-12 to the Executive Officer, MC Zirakpur to look into the grievances of the complainant. There was no response from the MC and then the complainant sent one notice to the OPs Ex.C-13 with a copy to the MC, Zirakpur and then followed by another representation dated 27.10.2014 Ex.C-14.  All these representations remained unattended and unanswered in the hands of the Ops and other authorities.  The complainant had to get the remaining work completed in the flat by spending from his pocket. The project has also not been completed by the Ops till date and the promised facilities like club house, CCTV camera, firefighting, power back up, 24 purified water and many other have not been provided by the OPs. With these facts, alleging the deficiency in service and unfair trade practice, the complainant has filed the present complaint.

2.             After admission of the complaint, notice was sent to the OPs. The OPs have pleaded that the project was completed by the Ops within time and the complainant was time and again approached to make balance payment of the agreed price and also to take physical possession.  The complainant wants to take benefit of his own wrongs in a dishonest manner.  The dispute between the parties is of civil nature and can be decided by the civil court.  On merits, the Ops have pleaded that the complainant booked the flat after understanding the payment plan and satisfying himself with other specifications.  The delay, if any, caused was due to the circumstances beyond the control of the OPs due to non availability of construction material.  The possession was offered to the complainant in January, 2014.  The electricity connection is to be applied by the individual resident.  Denying any deficiency in service on their part, the Ops have sought dismissal of the complaint.

3.             To succeed in the complaint, the complainant proved on record affidavit Ex.CW-1/1 and tendered in evidence documents Ex.C-1 to C-16.

4.             Evidence of the OP consists of affidavit of Mukesh Goyal their authorised signatory Ex.OP-2/1 and photographs Ex.OP-1 and satisfactory certificates Ex.OP-2.

5.             We have heard learned counsel for the parties and have also gone through written arguments filed by them.

6.             The allotment of the flat vide allotment letter dated 01.02.2012 Ex.C-5 is not disputed. The payment of the agreed sale consideration is not disputed. As per the buyers agreement the possession was to be delivered within 18 to 21 months from the date of booking. In fact there is delay of 16 months in handing over the possession and the complainant has not been compensated by invoking the penalty clause as agreed under clause 13 of the buyers agreement for delay in actual physical possession.  Secondly the flat was incomplete and the complainant has to spent Rs.5.00 lacs for making it habitable and liveable. Another grievance of the complainant is that he has not been issued possession letter and sale deed has not been executed. Therefore, due to these acts the complainant has suffered mental agony and harassment.

7.             Whether there is delay in handing over the flat in question beyond the agreed time frame causing financial loss and mental agony.  In order to this grievance we would like to go through the agreement to sell dated 01.02.2012 Ex.C-4. Clause 8 of the said agreement relates to possession of flat within 18 to 21 months from the date of booking subject to timely payment by the complainant and availability of the construction material or any change in the Govt. policy. Further clause 13 of the agreement puts an obligation on the OPs to pay Rs.3/- per sq. ft. per month for 1850 sq. ft. area amounting to Rs.5550/- per month as compensation for the delay. It is ample clear from the documents that the complainant has booked the flat in question on 28.06.2011 and as per buyers agreement the promise date of possession i.e. 18 to 21 months thereafter expires on 28.03.2013 and no possession was handed over to the complainant by said date. The OPs themselves have admitted having committed delay in handing over the possession due to non availability of construction material being an obstacle in completing the project in a time frame manner. Neither the OPs have shown any document to show the offer of possession in Jan, 2014 nor has the complainant produced any evidence to show delivery of possession in June, 2014. However, the OPs have admitted having caused delay in handing over the possession. Therefore, the delivery of possession in the month of June, 2014 duly supported by affidavit of the complainant is to be believed. Thus, it is ample clear there is delay of about 16 months in handing over the possession beyond the agreed time frame. The complainant is thus entitled to get the benefit of penalty clause of Rs.3/- per sq. ft. for 1850 sq. ft. covered area p.m. which comes to Rs.5550/- per month for a period of 16 months.

8.             The next grievance of the complainant is that he has been given incomplete flat and has to shell out another Rs.5.00 lacs on the fixtures and to make the flat liveable and habitable. In support of his contention he has attached various bills showing the amount spent b him. The OPs have denied having left the work incomplete. As per agreement Ex.C-8 whatever the pending work pointed out by the complainant have been completed by 30.12.2013 and the bill  relied upon by the complainant pertain to subsequent period. The complainant has not proved purchase of material and utilization of this material shown in the bills for completion of pending works of the flat. Therefore, in the absence of any supporting evidence, to purchase of material and utilization thereof by the complainant is of no help to him.

9.             The next allegation of the complainant is that he has not been provided the possession and the sale deed has not been executed is well founded as the OPs have not placed on record the possession letter, issued if any to the complainant showing delivery of possession. As stated in preceeding paras, as per complainant date of possession is June 2014 whereas as per it is Jan. 2014. In order to resolve issue of exact date of possession, the possession letter should have come from the side of OPs which they have failed. Therefore, the act of the OPs in not issuing possession letter and further execution of sale deed is an act of deficiency in service on their part.

11.           The complaint, therefore, is allowed with the following directions to the OPs:

(a)    to pay to the complainant Rs.88,800/- (Rs. Eighty eight thousand eight hundred only) on account of delay in possession.

(b)    to issue possession letter to the complainant  and get the sale deed executed of the flat in question in favour of the complainant

(c)    to pay a sum of Rs.25,000/- (Rs. Twenty five thousand only)  as compensation 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.                           

July 29, 2015.     

                             (Mrs. Madhu P. Singh)

                                                                        President

                                                        (Amrinder Singh Sidhu)

Member

(Mrs. R.K. Aulakh)

Member