Navdeep Rahil filed a consumer case on 01 May 2015 against Ansal Lotus Melange Projects Pvt. Ltd. in the DF-I Consumer Court. The case no is CC/583/2014 and the judgment uploaded on 12 May 2015.
Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at 1/18B, Asaf Ali Road, New Delhi 110002, through its Managing Director.
Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh, through its Assistant Manager/Authorised Representative.
……Opposite Parties
QUORUM:
P.L.AHUJA
PRESIDENT
MRS.SURJEET KAUR
MEMBER
For complainant
:
Sh. Ravinder Pal Singh, Advocate
For OP-1
:
Ex-parte
For OP-2
:
Sh. Rajeev Abhi, Advocate
PER P.L.AHUJA, PRESIDENT
Mrs. Navdeep Rahil, complainant has filed this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Ansal Lotus Melange Projects Pvt. Ltd. and another, Opposite Parties (hereinafter called the OPs), alleging that with an intention to settle down near Chandigarh and to own a residential flat for the residential purpose of her family, she agreed to purchase a 2 BHK flat from the OPs in their residential project Orchard County, Sector 115, situated on the Kharar-Landran road, District Mohali. Accordingly, the complainant booked a flat measuring 1225 sq. ft. in the pre-booking offer on 22.11.2006 by paying a sum of Rs.3,00,000/-. Thereafter the complainant was allotted flat No.204 in Tower No.3. On 23.2.2008 an allotment letter was signed between the complainant and the authorised signatory of the OPs but the area of the flat was changed from 1225 sq. ft. to 1324 sq. ft. @ Rs.2350/- per sq. ft. and OPs also charged an additional sum of Rs.300/- per sq. ft. as Preferred Location Charges (PLC) for AC flat and park facing. The total price of the flat was told to be Rs.35,08,600/-. According to the complainant, the allotment letter was not in consonance with Section 6 of the Punjab Apartments and Property Regulation Act, 1995. It has been averred that the OPs cleverly changed the terms and conditions of the possession clause from 30 months (as shown in application form vide clause 11) to a reasonable time (clause 11 of the allotment letter). According to the complainant, she has paid total amount of Rs.36,66,456/- vide receipts copies of which are at Annexure C-7 (colly.) in a hope that she would get possession of the flat at the earliest, but the OPs offered possession vide letter dated 19.3.2012 i.e. after about 4 years from the date of signing of the application form. When the complainant went to assess the feasibility and livability of the flat, she was shocked to see the poor quality of construction and poor workmanship and, therefore, she did not take possession. It has been averred that the OPs also illegally charged the complainant an amount of Rs.1,00,000/- for car parking. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the instant complaint.
None appeared on behalf of OP-1 despite due service, therefore, vide order dated 20.10.2014, it was proceeded exparte.
In its written reply, OP-2 has taken a number of preliminary objections including that the complaint is not maintainable; that this Forum has got no territorial jurisdiction; that disputed questions of facts and law are involved in the present complaint which cannot be decided in summary proceedings; that the complaint is time barred. It has been admitted that the complainant agreed to purchase a 2BHK flat. It has been submitted that the flat was never measuring 1225 sq. ft. since as per the application form for Unit 204, the tentative area for the flat was 1324 sq. ft. and the price of the flat was Rs.2650/- per sq. ft. for super built up area. It has been contended that the allotment letter was duly filled in and then read over and explained to the complainant who, after admitting the contents of the allotment letter, had put in her signatures in token of her correctness on the said allotment letter on 12.3.2008. It has been denied that the agreement (allotment) letter is not in consonance with Section 6 of the PAPRA Act, 1995. It has also been denied that the OPs while acting very cleverly has changed the terms and conditions of the possession clause from 30 months (as shown in application form vide clause 11) to reasonable time (clause 11 of the allotment letter). It has further been denied that the complainant was assured that the possession of the flat shall be delivered to her within a period of 30 months from the filling up of the application form. It has been pleaded that the complainant till date has not paid the payment punctually as per the agreed terms and conditions and has also not made the complete payment till date in spite of repeated requests and demands made through written requests/letters/e-mails. It has been contended that the complainant is also entitled to pay holding charges in terms of the letter dated 3.3.2014 till the delivery of the actual possession. It has been averred that there is no defect or discrepancy in the flat as alleged by the complainant in para 11 of the complaint. Pleading that there is no deficiency in service or unfair trade practice on its part, OP-2 has prayed for dismissal of the complaint.
In her rejoinder, the complainant has controverted the stand of the OPs and reiterated her own. It has been averred that the flat of the complainant is not a fully AC flat as no AC has been installed which is the main reason that she has not taken the possession of the flat. It has been pleaded that the OPs have miserably failed to produce any evidence on record on what account the amount is due and have also not come up with a figure what amount is due till date.
The parties led evidence in support of their contentions.
We have scanned the entire evidence and written arguments submitted by the contesting parties.
It is the admitted case of the parties that Mrs. Navdeep Rahil booked a flat measuring 1225 sq. ft. in the pre-booking offer on 22.11.2006 by paying a sum of Rs.3,00,000/- to the OPs vide receipt, copy of which is Annexure C-1. The OPs sent letters dated 5.12.2006 and 17.12.2007 (Annexure C-2 and C-3) informing the complainant that she had booked a two bedroom apartment in Orchard County, Mohali and they had reserved the AC apartment for her on second floor in Tower C of an area of 1225 sq. ft. Thereafter, the complainant was allotted apartment No.204, second floor in Tower No.3 having a super built up area of approximately 1324 sq. ft. in the said complex for a total consideration of Rs.35,08,600/- vide allotment letter dated 23.2.2008 (Annexure C-5). Against the said price of Rs.35,08,600/- the complainant has made a total payment of Rs.36,66,456/- vide receipts Annexure C-7 (Collectively) as detailed below :-
S.No.
Particulars
Amount
1.
Booking amount vide cheque No.139065 dated 21.11.2006.
3,00,000/-
2.
Installment vide cheque No.139074 dated 30.12.2008
2,20,430/-
3.
Installment vide cheque No.139073 dated 12.03.2008
7,52,580/-
4.
Installment vide cheque No.268177 dated 21.7.2008
3,50,860/-
5.
Installment vide cheque No.268178 dated 25.8.2008
4,50,860/-
6.
Installment vide cheque No.214060 dated 01.10.2008
3,50,860/-
7.
Installment vide cheque No.216503 dated 28.12.2009
2,63,145/-
8.
Installment by cash on 12.10.2010, receipt dated 16.10.2010.
2,63,145/-
9.
Installment by cash on 26.07.2010, receipt dated 30.07.2010
2,63,000/-
10.
Installment vide cheque No.336427 dated 01.02.2011
2,93,034/-
11.
Installment vide cheque No.216511 dated 04.01.2013
4,21,487/-
Total amount paid
Rs.36,66,456/-
The first material question for determination in this case is whether the agreement or the allotment letter dated 23.2.2008 is a valid agreement and binding upon the parties or not. The complainant has drawn our attention to Section 6 of the Punjab Apartment Property Regulation Act, 1995 (hereinafter called as PAPRA Act 1995) and has contended that as per the said provisions, the promoter who intends to construct or constructs a building of apartments shall, before he accepts any sum of money as advance payment or deposit, enter into a written agreement for sale and the agreement shall be in the prescribed form together with the prescribed documents and shall be registered under the Registration Act, 1908. The complainant has further urged that the agreement to be prescribed under sub section (I) of Section 6 shall contain inter alia the particulars in respect of the date by which the possession of the apartment is to be handed over, the area of the apartment including the area of the balconies, the price of apartment including the proportionate price of the common areas and facilities etc. It has been contended by the complainant that since the allotment letter Annexure C-5 is not in consonance with Section 6 of the PAPRA Act 1995, the same is not binding upon her. It has been contended that the builder was not entitled to accept any sum more than 25% of the total sale consideration of the flat, therefore, there is no valid agreement to sell between the complainant and the OPs and the complainant is entitled for the interest @ 12% per annum on the amount paid by her to the OPs from the date of such deposits till the date a valid agreement to sell is executed.
We have given our thoughtful consideration to the above arguments but we regret our inability to accept the same. A perusal of the copy of the allotment letter Annexure C-5 clearly shows that the same is duly signed by the complainant and two witnesses apart from the authorised signatory of the OPs. The complainant has given it in writing that she accepts the allotment on the terms and conditions mentioned in the allotment letter. The complainant did not raise any objection after the execution of the allotment letter on 23.2.2008 till the filing of the consumer complaint on 1.9.2014 in respect of the terms and conditions of the allotment letter. Therefore, now she is estopped from raising such pleas. Apart from it, challenging the validity of the agreement/allotment letter, is outside the purview of the Consumer Protection Act. The same can be challenged in a civil court of competent jurisdiction. Allotment letter is dated 23.2.2008 and is signed by the complainant on 12.3.2008. A consumer complaint before this Forum can be filed within two years of accrual of cause of action. The complainant is challenging such an agreement before this Forum by filing a complaint in the year 2014, therefore, the relief claimed by the complainant that she is entitled to interest @ 12% per annum on the amount paid by her to the OPs till the date a valid agreement is executed is patently barred by limitation.
The second point for determination before this Forum is whether this Forum has territorial jurisdiction to try the present complaint or not? It has been contended by the OPs that it is clearly stated in clause 39 of the allotment letter Annexure C-5 that the Court at Delhi alone shall have territorial jurisdiction for adjudication of all matters arising out or in connection with this agreement. It has been contended that the property in question is situated in District Mohali, therefore, either the Court at Delhi or at Mohali has jurisdiction to try and decide the present complaint. It has been submitted that as no cause of action arose to the complainant at Chandigarh, therefore, this Forum has no territorial jurisdiction to try the present complaint.
We have given our careful consideration to the above arguments. It is true that the apartment allotted to the complainant is situated within the jurisdiction of District Mohali. It is also true that as per the terms and conditions of clause 39 of the allotment letter Annexure C-5, it is stated that the Courts at Delhi alone shall have the jurisdiction on all the matters arising out of or in connection with the agreement, nevertheless we find that a part of cause of action arose to the complainant at Chandigarh, therefore, this Forum has jurisdiction to try this complaint. Pertinently, the complainant has categorically pleaded in para 3 of the rejoinder that the payments made by her have been credited in the Axis Bank account of the OPs at Chandigarh. The email messages at Annexure R-37 furnished by the OPs give the bank’s name as Axis Bank and its address at Madhya Marg, SCO 41-42, Sector 8-C, Chandigarh. The OPs have been asking the complainant to transfer the amount to them through RTGS in their bank at Chandigarh. According to the complainant, most of the payments have been made by her through cheques which all were credited in the Chandigarh Branch account of the OPs. The copies of the payment receipts at Annexure C-7 (Colly.) also show the address of the corporate office of the OPs as SCO 183/184, Sector 9C, Madhya Marg, Chandigarh. The OPs have not filed any affidavit to this effect that most of the payments made by complainant through cheques were not credited in their Chandigarh branch account.
In Bubbly Singh & Anr. Vs. Ansal Lotus Melange Projects Pvt. Ltd., Complaint Case No.08 of 2013, decided on 1.5.2013 by the Hon’ble State Consumer Disputes Redressal Commission, UT, Chandigarh, a similar objection was taken by the learned Counsel for the OPs that the parties by mutual agreement excluded the jurisdiction of all other courts except the courts at Delhi. However, our own Hon’ble State Commission, after considering the judgment in Cosmos Infra Engineering India Ltd. Vs. Sameer Saksena and another-I (2013) CPJ 31 (NC) and other rulings held that even if it is assumed that the complainants had agreed to the terms and conditions of allotment letter, limiting the jurisdiction of the Courts at Delhi, the same could not exclude the jurisdiction of the Commission at Chandigarh, where a part of cause of action accrued to them. In that case also the payment of consideration took place at Chandigarh and a part of cause of action arose to the complainant at Chandigarh, therefore, Hon’ble State Commission held that the Commission at Chandigarh had got the territorial jurisdiction to entertain and decide the complaint. It was also held that no help could be drawn by the Counsel for the OPs from Clause 39 of the allotment letter. In the instant case also, since the OPs have not disputed that the payment of consideration relating to the apartment allotted to the complainant was made to them at Chandigarh, therefore, since a part of cause of action arose to the complainant at Chandigarh, this Forum has jurisdiction to try this complaint.
The next material contention raised by the complainant is that in the original application form dated 26.1.2008 (Annexure C-6), it was mentioned in clause 11 that the company shall endeavour to give the possession of the unit to the intending allottees within 24 to 30 months subject to force majeure circumstances but in the allotment letter dated 23.2.2008 clause 11 was modified and it was mentioned that the possession of the said premises was likely to be delivered by the company to the apartment allottee within a reasonable period from the date of the agreement subject to force majeure circumstances. It has been urged that this act on the part of the OPs amounts to unfair trade practice.
After bestowal of thought over the entire matter, we do not find any unfair trade practice on the part of the OPs on the above count. Significantly, the allotment letter was executed by the complainant subsequent to the submission of the application form, with her free will and consent, accepting terms and conditions written therein and signing the declaration to this effect that it were the terms and conditions of the agreement/allotment letter which were enforceable. Since the agreement/allotment letter is a bilateral agreement, duly signed by both the parties, its terms and conditions are enforceable. Otherwise also, after issuance of the allotment letter on 23.2.2008, the objection taken by the complainant in this regard in the consumer complaint filed on 1.9.2014 is beyond the period of limitation. In this way, there cannot be any question of unfair trade practice on the part of the OPs.
The next question for determination is whether there is delay in offering/delivering possession of the apartment to the complainant. It has been urged by the complainant that at the time of booking, it was told that the possession of the apartment would be given within 30 months from the date of booking. However, the offer of possession of residential apartment was given to the complainant vide letter dated 19.3.2012 (Annexure R-33) and in this way, there is a delay of more than four years in delivering the possession. On the other hand, it has been contended by the OPs that the complainant had opted to purchase the residential flat No.204 on construction linked plan and the demands were raised from her from time to time, so the date of completion of the project has no relevance. It has been argued by the OPs that time was not the essence of the contract for delivering the possession because as per the allotment letter dated 23.2.2008 it was clearly stated that the possession of the said premises will be delivered to the allottee within a reasonable time from the date of the agreement. The complainant never objected to the terms and conditions of the allotment letter at the time of its execution or thereafter. It has been vehemently contended by the OPs that since the complainant was offered possession vide letters dated 19.3.2012 and 10.4.2012 (Annexure R-33 and R-34) according to the payment plan applicable to her, therefore, there is no delay in the delivery of possession of the flat.
We have given our anxious consideration to the rival contentions. As we have already observed, when later on an allotment letter was issued, which was duly signed by the complainant, the terms and conditions of the allotment letter Annexure C-5 supersede the terms and conditions of the application form (Annexure C-6). Clause 11 of the allotment letter Annexure C-5 reads as under :-
“11. THAT the possession of the said premises is likely to be delivered by the company to the apartment allottee within a reasonable period from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of completed payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Apartment Allottee who shall within 30 days thereof, remit all dues and take possession of the Apartment. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charge @ Rs.5/- per sq. ft. per month if he fails to take possession within 30 days from the date of issue of offer of possession.”
A perusal of clause 11 itself makes it clear that the complainant was told that the possession of the said premises was likely to be delivered by the company to her within a reasonable period from the date of the agreement. We are of the opinion that a period of three years would be a reasonable period for delivery of the possession from the date of the agreement. The OPs have not produced any evidence to prove this fact that the construction of the flat could not be completed within a period of three years on account of force majeure circumstances. We are of the opinion that the OPs were required to offer possession at least after conclusion of three years from the date of allotment i.e. 23.2.2011. However, the offer of possession of the flat was made to the complainant vide letter dated 9.3.2012 (Annexure R-33). Evidently, though the construction of the flat ought to have been completed by 23.2.2011, yet the offer of possession was made only on 19.3.2012/10.4.2012. The OPs have not explained any force majeure circumstances on account of which the construction was delayed. We are not impressed with this contention that time was not the essence of the contract because demands were raised from the complainant from time to time in accordance with the construction linked plan. We are of the opinion that the circumstances clearly point out towards inordinate delay in making the offer of possession to the complainant. Since the delivery of possession of the flat has been unreasonably delayed by the OPs, therefore, we feel that the complainants are entitled to compensation for deficiency in service, mental agony and harassment.
The complainant has next contended that OPs have made an illegal demand of Rs.1,00,000/- on account of car parking, which is in the common area of the society and the builder cannot sell the same. It has also been contended that the OPs are not entitled to overcharge towards any area which was actually never increased or to charge any amount towards open/stilt car parking area. The complainant in this regard has referred to a judgment of the Hon’ble Supreme Court titled Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd.-Civil Appeal No.2544 of 2010 decided on 31.8.2010. However, we are not impressed with the above contention because the summary of dues attached with the allotment letter shows that an amount of Rs.1,00,000/- was to be paid by the complainant towards covered/open car parking space. The said summary of dues is duly signed by the complainant. The complainant cannot wriggle out of the amount mentioned in the allotment letter duly signed by her. The ruling Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-operative Housing Society Ltd. (supra) cited by the complainant relates to Maharashtra Ownership Flats (Regulations of Promotion Construction Sale, Management & Transfer) Act, 1963 and the same is not applicable to the facts of the present case. Hence, at this stage it cannot be contended by the complainant that the OPs are not entitled to the car parking charges of Rs.1,00,000/-.
The next material point that falls for consideration is whether the complainant has made the full payment in respect of the construction of the apartment or she has failed to pay the outstanding dues despite the email messages of the OPs. As we have already observed, the complainant has made a payment of Rs.36,66,456/- during the period from 21.11.2006 to 4.1.2013 to the OPs against the sale consideration of Rs.35,08,600/-. Pertinently, vide letter dated 2.4.2012 (Annexure R-32), the complainant was asked to make payment of an amount of Rs.4,22,427/- + Rs.26,000/- towards interest free maintenance and security deposit payable in favour of Star Facilities Management Ltd. Thereafter, the complainant deposited an amount of Rs.4,21,487/- towards the installment vide receipt dated 4.1.2013 (at page 48 of the paper book of the documents of the complainant). Later on, the OPs sent an email dated 10.4.2013 (Annexure R-37 at page 104 of the paper book) to the complainant informing her that an amount of Rs.21,352/- was still outstanding. Similar email messages were sent on 24.4.2013 (at page 100) and 4.5.2013 (at page 105). However, the email message dated 17.4.2013 (Annexure R-37 at page 99) sent by the husband of the complainant shows that he works in Singapore and he last visited the office of the OP in January (2013). He met Mr. Gaurav and Mr. Amit at that time and made his final payment and was advised that all accounts were cleared and he was waiting for the pink slip to arrive for two weeks before he left for Singapore but he had not received it till then though three months had passed. The husband of the complainant sent another email to one Ms. Manjari, official of the OPs on 4.5.2013 to provide him the email and contact details of Mr. Amit and Mr. Gaurav and he had to speak to them to sort this out. The husband of the complainant in the email sent on 4.5.2013 (Annexure R-37 at page 105) asked Ms. Manjari and Mr. Gaurav that if they could not do their vettings and clearance properly, he was not responsible for that. However, despite that the OPs have not produced any affidavit of Mr. Amit and Mr. Gaurav to prove that the complainant was not told in January 2013 that the payment being made by her in January 2013 was full and final. We feel that the contention of the complainant that she made the full and final payment of Rs.4,21,487/- on 4.1.2013 is correct. When the complainant had made the payment of Rs.4,21,487/- on 4.1.2013, she could also make the payment of Rs.21,352/- had she been told to make that payment on that date itself. We find sufficient force in the contention of the complainant that she is not responsible for any verification made by the OPs later on because it was for the OPs to make their vettings and clearances properly. We agree with the contention of the complainant that nothing was due towards her after making the payment of Rs.4,21,487/- on 4.1.2013.
The next question for determination is whether there are defects on account of poor quality and construction and poor workmanship of apartment No.204, due to which the complainant has not taken the possession of the flat. The complainant has specifically alleged in para 11 of the complaint that following discrepancies are still there in the flat :-
“(i) Flat was not fully AC, whereas the complainant was charged Rs.200/- per sq. ft. for providing the fully AC flat.
(ii) Wall surfaces are uneven in all the rooms/drawing dining.
(iii) Doors of the windows and doors not closing properly.
(iv) Rust stains on the Italian marbel in the living/drawing dining room.
(iv) Gaping in the main door, sub standard door framing.
(v) Marbel near the sliding door in the drawing room cracked.
(vi) Gap in the parapet flooring.”
Further, the complainant has also mentioned in her rejoinder that she was in the process of taking possession of the flat after making the last payment and she came to know one major shortcoming i.e. the OPs have not installed the ACs in her flat in spite of charging Rs.300/- per sq. ft. from her. In reply to para 11 of the complaint, the OPs have denied that there are discrepancies in the flat as alleged in sub paras (i) to (vii). It has been submitted that there is no poor quality of construction and workmanship. It has been mentioned that the certificate of company’s architect/ engineer to that effect is attached. However, unfortunately, no such certificate of the company’s architect/engineer has been attached with the reply filed by the OPs. The complainant has specifically mentioned in her rejoinder that from a perusal of all the documents attached with the reply from Annexure R-1 to R-39, there is no document available on record in respect of report of the architect and the OPs are trying to mislead this Forum that the flat is defect free. It is also important to note that even in his email message dated 17.4.2013 (Annexure R-37 at page 102 of the paper book), the husband of the complainant mentioned that he had made a list of repairs/amendments and works to be done in his apartment and he asked Ms. Manjari, official of the OPs, to advise if the same had been done or not. No reply to the email message dated 17.4.2013 was given by the OPs to this effect that the flat was defect free and it did not require any repair/amendment. As we have already observed, the OPs have not filed any report of their architect/engineer to this effect that the flat is defect free. The non-production of such a certificate draws an adverse inference against the OPs and proves that the complainant was justified in not taking possession of the flat in question on account of the shortcomings mentioned in para 11 of the complaint. The OPs have not installed the ACs in the apartment of the complainant in spite of charging Rs.300/- per sq. ft. from her.
The last point for determination is whether the OPs are entitled to charge holding charges from the complainant as per the letter dated 3.3.2014 (Annexure R-39) for not taking the possession. As we have already observed, the complainant is justified in not taking possession of the flat because of the shortcomings mentioned in para 11 of the complaint, therefore, it follows that the OPs are not entitled to any holding charges as mentioned in their letter dated 3.3.2014 (Annexure R-39).
For the reasons recorded above, we find merit in the complaint and the same is partly allowed. The OPs are jointly and severally directed as under :-
i) To remove the defects/shortcomings as detailed in para 11 of the complaint to the satisfaction of the complainant.
ii) Not to charge any interest/penal interest/holding charges from the complainant till the actual physical possession is delivered to her.
iii) To pay a compensation of Rs.2,00,000/- for the delay in offering possession of the flat to the complainant and causing mental agony and harassment to her.
iv) To pay litigation costs of Rs.21,000/- to the complainant.
This order be complied with by OPs within one month from the date of receipt of its certified copy failing which they shall make the payment of the amount mentioned at Sr.No.(iii) above with interest @ 9% per annum from the date of filing of the present complaint till realization, apart from compliance of remaining directions.
The certified copies of this order be sent to the parties free of charge. The file be consigned.
Sd/-
Sd/-
01/05/2015
[Surjeet Kaur]
[P. L. Ahuja]
hg
Member
President
Consumer Court Lawyer
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