Haryana

StateCommission

CC/420/2018

HONY.CAPT.JOGINDER SINGH - Complainant(s)

Versus

ARMY WELFARE HOUSING ORG. - Opp.Party(s)

HARSH VARDHAN

21 Mar 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Instituion:20.07.2018

                Date of final hearing:21.03.2023

                                                Date of pronouncement: 21.03.2023

 

Consumer Complaint No.420 of 2018

 

IN THE MATTER OF

 

Hony.Capt. Joginder Singh Kataria S/o Late Shri Sardar Singh Kataria, R/o House No.752, Sector-38, Gurugram-122001, Haryana.

                                                                                       .….Complainant

Through counsel Mr. Pardeep Solath, Advocate

 

Versus

 

Army Welfare Housing Organization through its Managing Director, registered office at: South Huntments, Kashmir House, Rajaji Marg, New Delhi-110011, E-mail:awho@vsnl.com

….Opposite party

Through counsel Mr. Karanvir Kathuria, Advocate

 

CORAM:   S.P.Sood, Judicial Member.

                   S.C. Kaushik, Member.

 

Present:-    Mr. Pardeep Solath, Advocate for the complainant.

Mr. Karanvir Kathuria, counsel for opposite party.

 

O R D E R

S. P. SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that opposite party (‘OP’) is an organization and duly registered as a society under the Societies Registration Act, 1860 and providing dwelling unites to serving and retired Army personnel as well as their widows all over the country. Complainant applied for a deluxe apartment in housing project of OP under the name and style of “Turnkey Group Housing Project” at Sector-95, Gurugram (Haryana). On 03.11.2011, letter of allotment was issued to the complainant against an advance payment of Rs.5,90,000/- on account of registration. Thereafter, on 21.03.2012, booking letter was issued to complainant vide which it was informed that a Deluxe Apartment has been booked for him. Total sale price of said apartment was Rs.46,20,000/- and the complainant had paid an amount of Rs.42,34,500/- to the OP organization. Complainant also availed loan facility of Rs.29,00,000/- from State Bank of India against which Tripartite Agreement was also executed between the parties. It is alleged that no Buyer Agreement was executed by the OP. However, as per the terms and conditions specified in booking letter, OP was supposed to offer possession of the apartment in question to complainant in December, 2015, but OP failed to do the needful. Thereafter, complainant got served a legal notice dated 20.09.2017 upon the OP for offering possession of apartment, but later did not pay any heed to the same. Thus, there was gross deficiency in service on the part of the Op. Hence, this complaint and complainant prayed that OP be directed to deliver possession of apartment in question complete in all respect at the earlier, to pay interest as compensation @ 12% p.a. on the entire deposited amount from the date of deposits till realization on account of delay in possession and other reliefs as prayed for.

2.                Notice of the complaint was issued the OP, upon which it appeared and filed its written statement alleging interalia that the complainant vide his application dated 02.09.2011 applied for a Type DXA apartment in the project of OP and he agreed to abide by all the terms and conditions of the Master Brochure and OP vide letter dated 03.11.2011 has accepted said application. Thereafter, vide booking letter dated 21.03.2012, complainant was allotted a deluxe apartment. It was submitted that tentative cost of the flat was Rs.46,20,000/- and the probable date of completion was December, 2015. Booking letter also intimated complainant that the tentative schedule of payment was between 15.05.2012 to 30.11.2016 and also subject to change as construction of the project progressed. It was further submitted that various terms were unconditionally accepted by complainant vide his letter dated 13.05.2012. It was further submitted that during the end of year, 2014, it was seen that project started lagging behind and work force at the construction site was reduced by the contractor and during the end of year, 2015 it was realized that the contractor had run into financial difficulty and thus was not infusing necessary funds required for progress of the project. Moreover, penalty of Rs.3 crores was also imposed upon the contractor as per the provisions of contract and ultimately, the OP vide its letter dated 05.01.2018, terminated the agreement with said contractor. Further it was submitted that allottees were given an option to withdraw from the said project and seek transfer to some other ongoing projects if they so desired. Other allegations raised in the complaint were denied. Thus, there was no deficiency in service on the part of the OP. So, the complaint deserves to be dismissed.

3.                When the complaint was posted for recording evidence of the complainant, learned counsel for complainant tendered into evidence affidavit of Hony. Capt. (Retd.) Joginder Singh Kataria as Ex.CA, vide which he reiterated all the averments taken in the complaint and further tendered various documents Ex.CW/A-1 to Ex.CW/A-2 and CW/B to Ex.CW/H and closed the evidence.

4.                On the other hand, learned counsel for OP tendered into evidence affidavit of Co. Sameer Baldoi as Ex.RA. Further he sought reliance on some other documents Ex.R-1 to Ex.R-27 and closed its evidence.

5.                The arguments have been advanced by Mr. Pardeep Solath, learned counsel for the complainant and Mr. Karanvir Kathuria, learned counsel for OP.  With their kind assistance entire record including documentary evidence as well as whatever other material has been led during proceedings of the complaint have also been properly perused and examined.

6.                As per the basic averment raised in the complaint including the contentions put forth by the learned counsel, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get physical possession of the apartment in question or not? 

7.                While unfolding his arguments, it has been argued by Mr. Pardeep Solath, learned counsel for the complainant that as far as the booking of Deluxe Apartment for total sale price of Rs.46,20,000/- (Ex.CW/A-2) is concerned, the same has not been disputed. It is also not in dispute that the complainant had in all paid an amount of Rs.42,34,500/- (Ex.CW/B colly) to the OP. It is also not disputed that complainant also availed loan facility of Rs.29,00,000/- from State Bank of India(Ex.CW/C) for purchase of apartment in question and Tripartite Agreement stood also executed amongst the parties. As per the terms and conditions incorporated in allotment letter, possession of the apartment was to be handed over by OP complete in all respect by December, 2015. However, the OP has failed to offer the possession of apartment in question on the promised date despite the fact that the complainant had already deposited an amount of Rs.42,34.500/- i.e. 90% of the total agreed cost of the apartment.  He further argued that complainant lives in a rented accommodation with his family while paying a handsome amount every month simply for the reason that OP did not provide the possession in time. In these circumstances, the complainant had no other option, but, to knock the door of this Commission for getting the possession of apartment in question.

8.                On the other hand, learned counsel for OP has argued that complainant was allotted a deluxe apartment for a tentative cost of Rs.46,20,000/- and its probable date of completion was December, 2015. However, towards the end of year, 2014, this project started lagging behind and work force at the construction site was reduced by the contractor and during the end of year, 2015 it was realized that the contractor had run into financial difficulty and thus was not infusing necessary funds required for the progress the project. Penalty of Rs.3 crores was also imposed upon the contractor as per the provisions of contract and ultimately, the OP vide letter dated 05.01.2018, terminated the agreement with said contractor and this was the sole reason for delay in completion of project. He further argued that allottees were given an option either to withdraw from the said project or seek transfer to some other ongoing projects of OP.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the OP, an apartment was booked by the complainant for total cost of Rs.46,20,000/- against which an amount of Rs.42,34,500/- was paid. Allotment letter dated 03.11.2011 was issued by the OP to complainant and confirmed the booking of deluxe apartment. As per said allotment letter, the possession of the apartment was to be delivered by December, 2015, complete in all respect. However to the utter surprise of this Commission and is very pity that inspite of the fact that OP despite having received 90% of the total cost of apartment in question, failed to deliver the possession of the same even after approximately five years of the expiry of stipulated period.  As such, there was a clear breach of terms and conditions of the allotment letter on behalf of the OP. It is the normal trend of the developers that  developer would collect hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project was delayed as has happened in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there was deficiency in service of OP and thus, complainant is well within his legal rights to get the physical possession of the apartment in question. Even otherwise also there is a strong element of the physical and mental agony caused to the complainant for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, they had to knock the door of this Commission even for seeking their legitimate relief.  In such like cases, the Commission had to deal with the developers with severe hands who are misusing the funds of the individuals. As such, the question is answered in the affirmative.

10.              In the light of the above observation and discussion, there are sufficient grounds to accept the complaint and while accepting the complaint, the OP is directed to hand over the physical possession of deluxe apartment to the complainant allotted vide registration No.JCO/DXA/155229/AR/G95/2011, in the residential project of OP namely “Turnkey Group Housing Project” situated at Sector-95, Gurugram (Haryana) complete in all respect, within a period of 45 days from the date of issuing the copy of this order from the date of receipt of this order and before taking over the possession of the apartment, the complainant shall pay the entire outstanding dues to the OP/developer. Further, the OP is directed to pay 9% interest on amount which the complainant has already deposited on account of delay in offering the possession of apartment in question and adjust that amount in outstanding dues of complainant. The complaint stands allowed in the manner indicated above.

11.              It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P.Act  would also be attractable.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for the perusal of the parties.

13.              Application(s), pending, if any, stands disposed off in terms of the aforesaid order.

14.              File be consigned to record room alongwith a copy of this order.

 

Pronounced on 21^st March, 2023

 

                                                                                                            S.P.Sood

                                                                                                            Judicial Member                                                                                                                 Addl. Bench           

 

 

 

S.C Kaushik,

Member        

Addl. Bench

 

 

R.K