STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                         U.T., CHANDIGARH 

                                            (Additional Bench)

The Punjab State Federation of Cooperative House Building Society Ltd., through its Managing Director,  SCO No. 150-151. Sector-34A, Chandigarh.

                                                                                                            …Appellant

                                         V e r s u s

Joginder Lal,  S/o Saran Dass, R/o H.No. 83, Sector 57, Mohali, Punjab.

                                                                                                     ..Respondent

Appeal under Section 41 of the Consumer Protection Act, 2019 against order dated 12.02.2024 passed by          District Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.764/2021.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                        MR.PREETINDER SINGH,MEMBER

For the appellant:   Ms.Vertika H.Singh,   Advocate  

For the respondent: Sh.Harsharn Singh,  Advocate       

 PER PREETINDER SINGH, MEMBER

                       This appeal is directed against the order dated 12.02.2024, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it allowed the complaint bearing No.CC/764/2021  by directing the Opposite Party  as under ;

1. to refund  Rs.9,00,500/- with interest @9% P.A.from the date of deposit till onwards. However, it is clarified that upon receiving the entire amount awarded under this order, the ownership of the subject flat shall vest with the OPs, for all intents and purposes, and the complainant shall have no right, title or interest in the same in future.
2. to pay Rs.30,000/- to the complainant as compensation for causing mental agony and harassment to him;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

                        This order be complied with by the OPs within 45 days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.

2.      Before the Ld. Lower Commission, it was case of the complainant/respondent that  the  complainant  in response to an advertisement of the Opposite Party, applied for  allotment of a flat (category-II), vide application No 3941.  Vide allotment letter dated 23.06.2009, he was allotted Category-Il flat at Cooperative Housing Complex of Housefed Punjab at Banur, District Patiala for a total sale consideration of 14.92 lakhs. Out of the total amount, the complainant already paid Rs.8,98,000/- to the OP. The complainant received letter dated 17.10.2014 issued by the OP regarding intimation of  allotment of flat No.2506, second floor, Category-Il in the above scheme and for taking possession of the same by 15.2.2015. He was also asked to make payment of the balance outstanding amount of 15,76,119/-, though earlier it was quoted as Rs.5,97,000/-. Thus, the OP fixed the final price of the flat at 24.46 lakhs. This increase  of        Rs.9.54 lakhs was against the tentative price of Rs.14.92 lakhs.  It was averred that the complainant was unable to appreciate the arbitrary, inflated and totally unsubstantiated demand raised by the  OP.  Even the  detail regarding  inordinate increase of amount of Rs.9.54 lakhs was not mentioned in the letter dated 17.10.2014. The complainant showed his inability to pay the inflated price and requested for refund of the amount to the OP   vide Application dated 06.12.2020 but the OP refused to refund the same` vide letter dated 22.02.2021 by stating therein that as per clause-4 of the allotment letter and Clause 4(d) of the Brochure of the Scheme, no refund shall be made after the offer of the possession of the flat.  It was alleged that the OP neither refunded the deposited amount, nor cancelled the allotted flat as per the terms and conditions of the brochure and the allotment letter. Even the OP  failed to  deliver possession of the flat within the reasonable period of 2-3 years from the date of allotment letter, and latest by 2011-12. Hence, alleging deficiency in service and unfair trade practice on the part of the Opposite Party, a consumer complaint was filed before the Ld. Lower Commission.

3.                    Pursuant to issuance of notice, the  Opposite Party appeared before  the Ld. District Commission and contested the complaint    The Opposite Party in its reply while  admitting the factual matrix of the case stated that  the complaint is barred by limitation. The complainant had been intimated regarding allotment of the flat and offered possession of the said flat vide letter dated 17.10.2014. The complainant was requested to make payment of balance amount of                     Rs.15,76,119/- and he was requested to take  possession of the said flat by 15.02.2015. However, the complainant failed to take  possession of the flat and did not make  payment of the  balance amount despite affording several opportunities. It was clearly intimated vide letter dated 18.11.2015 that the date of taking possession was extended on the request of  allottees on several occasions. It was also recited therein that in case  possession is not taken by 15.12.2015 then the allotment of the  flat shall be cancelled as per the terms and conditions of brochure as well as allotment letter and the payment already made against the flat shall stand forfeited. It was alleged that the complainant did not  take  possession of the flat as he was not having adequate funds for making payment of the  balance amount. Request for  refund of the deposited amount was made by the complainant only on 6.12.2020 that too after 5 years when the OP had already offered  possession. Before that, the complainant never raised any kind of grievance before the OP pertaining to the said flat. It  was alleged  that the complainant himself was a defaulter in making payment of the  balance amount of the flat. The complainant was well aware of the terms and conditions that the cost of the flat in question was tentative and final price of the flat was to  be determined at the time of handing over possession of the flat and accordingly the same was fixed/worked out as Rs.24,46,000/- and the complainant was requested vide several letters to make  payment of the balance amount but he failed to do so. It was pleaded that  due to force majeure conditions, offer of possession was delayed.  Denying other allegations, a prayer was made by the Opposite Party  for dismissal of the complaint.

 4.                   On appraisal of the pleadings, and the evidence adduced on record, Ld. Lower Commission  allowed the Complaint of the Respondent/ Complainant, as noticed in the opening para of this order.   

5.              Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeal has been filed by the Appellant/Opposite Party.

6.                        We have heard Learned Counsel for the parties  and have gone through the evidence and record of the case with utmost care and circumspection.

7.               It is case of the appellant that the complaint filed by the complainant before the Ld. Lower Commission on 3.11.2021 was utterly time barred and could not have been adjudicated upon by the District Commission. It is contended that possession of the flat in  question had been offered to the respondent-complainant vide letter dated 17.10.2014 on making payment of the balance outstanding amount due towards the said flat. Further vide reminder/letter dated 18.11.2015(Annexure OP-1) the appellant had clearly stated that the date of possession had been extended from time to time on the request of the allottees to 15.3.2015, 31.3.2015 and 15.5.2015.  Once, the possession had already been offered vide letter dated 17.10.2014,  grievance, if any,  occurred to the respondent, he would have filed consumer complaint till 16.10.2016 as per the statutory provisions of the Consumer Protection Act, 2019. However, the learned District Commission did not give any finding regarding delay in filing the complaint.                It is further case of the appellant that the Ld. District Commission failed to appreciate the fact that the complaint filed before it was barred by the principle of res sub-judice. The respondent/complainant had stated in para 6 of the complaint that the Welfare Association of the Allottees, Banur, Punjab, where the respondent was also one of the allottees, had instituted  writ proceedings qua CWP No.25740 of 2014 titled “Housefed Banur Allottees Welfare Association Vs The Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) Punjab and others related to the same project of the appellant before the Hon’ble High Court which was decided vide order dated 6.10.2016.  Thereafter, again the Welfare Association filed CWP No.10991 of 2021 which is still pending. Since the respondent is a member of the Welfare association and the issue pertaining to enhancement in the cost of flat is pending before the Hon’ble High Court, the complaint filed before the Ld. District Commission was barred by law. It was further contended on behalf of the appellant that Rs.14.92 Lakhs was the tentative cost and final price of the flat was to be determined at the time of handing over of the possession of the flat, as such, cost of the flat was  rightly worked out at Rs.24,46,000/-. In Clause 7(a) of Terms & Conditions mentioned in the application form it was clearly stated that the difference of final cost and tentative cost of the flat shall be paid at the time of handing over of the possession of the flat. It was also contended that the possession of the flat was delayed due to dispute with the Punjab State Power Corporation Ltd with regard to the setting of 66 KVA sub-station and ultimately NOC was given vide letter dated 12.6.2014 in view of the order passed by the Punjab State Electricity Regulatory Commission dated 29.4.2014. The occupation certificate was also granted by the Nagar Council, Banur vide letter dated 28.11.2014. Further the construction of the project was delayed due to various reasons which were apparently beyond the control of the appellant as the site in question was a low line area by 8’/9’ below the highway road level and there was scarcity of building material due to mining problem in the State.  On the other hand, it was contended on behalf of the respondent that the complaint filed before the Learned Lower Commission was well within limitation as there was recurring cause of action and the order passed by the Learned Lower Commission allowing refund of the amount deposited is quite just and reasonable and does not call for any interference.

8.                  It is admitted case of the parties that the respondent was allotted 2BHK(Category-II) flat vide allotment letter dated 23.06.2009 for a total sale consideration of Rs.14.92 Lakhs. The possession of the flat was to be delivered within a reasonable period of 2-3 years but the appellant offered possession vide letter 17.10.2014 and asked the respondent to take possession by 15.2.2015 on depositing the balance outstanding amount of Rs.15,76,119/- which earlier was quoted as Rs.5,97,000/-. The respondent showed his inability to pay the inflated price and requested for refund of the deposited amount through personal visits, oral requests and application dated 6.12.2020. During the interregnum, Civil Writ Petition No. 25740 of 2014 was also filed before the Hon’ble Punjab & Haryana High Court  by the Housefed Banur Allottees Welfare Association against the Punjab State Federation of Cooperative House Building Societies Ltd. (Housefed) Punjab and Others in which the respondent was also a member of the Association. The said writ was filed challenging the enhancement in the price of the flat, which was disposed of on 6.10.2016. Thereafter, again CWP No. 10991 of 2021  was filed by the said Association on the same issue  which is still  pending for adjudication. The respondent alongwith other allottees also went to the Hon’ble NCDRC, New Delhi by filing a joint complaint bearing No.CC/1815/2018  on 9.8.2018 which was dismissed vide order dated 18.07.2019 being not maintainable as a joint complaint with the liberty to seek relief from appropriate forum.    Thus, liberty was granted by the Hon’ble NCDRC to seek relief from the appropriate Forum. Consumer complaint in the Ld. District Commission was filed on 3.11.2021. The impact of Corona virus (COVID 19) and other variants also started in Feb/March,2020. Even the respondent sought refund vide request letter dated 6.12.2020 but the same was rejected by the appellant vide letter dated 22.2.2021.  All this goes to show that there was recurring cause of action and the complaint filed before the Ld. Lower Commission was not barred by limitation. Further, in the Civil Writ Petition, the residents’ Association has challenged the hike in price of the flats whereas in the consumer complaint the respondent has requested for cancellation of allotment due to exorbitant hike in price of the flat and  sought refund of the amount paid.  Thus, the complaint filed before the Ld. Lower Commission seeking refund of the amount deposited was maintainable.

9.                    The respondent sought refund of the amount paid to the appellant because the cost of the flat was increased inordinately by more than 60% and the possession was also not offered within the reasonable time.  It is true that in the allotment letter, only the tentative price of the flat was mentioned. It is expected that the final price would be somewhere near the tentative price and even may increase by 10-20%,  but the price has increased by 60%. Every customer has his capacity to pay and in this case the complainant had given offer to purchase a flat with tentative price of Rs.14.92 lakhs. He might be arranging this amount, but if he is told that the final price is 60% more than the original price, then, his capacity to pay is definitely affected. As the possession was also not given in time, the appellant was  clearly deficient in terms of not offering the possession in time. The clause 11 of  the allotment letter states that if the possession is not  taken by the last date of offer, holding charges will be levied and finally allotment will be cancelled after forfeiting the money deposited.  This clause would be applicable when  the possession is handed over in time which is not the case in the present matter. The appellant  has itself admitted that there was  delay in  the implementation of the project due to several reasons which were beyond its control.  The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a similar case of the same project  titled as Satish Kumar Vs Managing Director, Housefed, Chandigarh First Appeal No.999 of 2015 (decided on 14.11.2017)held as under;

“It is true that the tentative price was given in the allotment letter and final price was to be given at the time of offer of possession. Considering from the point of view of consumer, if the final price is told to be 62% higher than the tentative price, then what a consumer can do except to withdraw from the project if it is beyond his means to pay the increased price and pursue for the refund.  In my opinion, it is appropriate to allow the refund of the deposited amount with OP.  Moreover, the Consumer Protection Act, 1986 states that it is an Act to provide for better protection of the interests of the consumers. Thus, if the arguments of the OP are accepted, then the complainant is neither entitled to refund nor he will be able to get the possession of the flat as he will not be able to pay for the increased price of  the flat  because the price of the flat has increased to a level which is beyond his capacity to pay. Obviously, interest of the consumer  is to be protected under the Consumer Protection Act, 1986.

                     Based on the above discussion, the appeal is allowed and the order dated 4.11.2015 of the State Commission is set aside.  The respondent/OP is directed to refund the amount deposited by the complainant with interest @ 9% per annum from the date of deposit till actual payment. The OP should also pay Rs.10,000/- as cost of litigation to the complainant/appellant. The order to be complied with within a period of 45 days, failing which the OP will be liable to pay additional interest of 5% per annum from the date of this order till the actual payment.”                      

                       The Hon’ble NCDRC also held that Clause 11 of the allotment regarding levying of charges and forfeiting of deposited amount after cancellation of the flat would be applicable if the appellant had offered possession in time but it was admittedly delayed due to the reasons beyond  it control. Thus,  refund of the deposited amount was ordered alongwith interest and costs.  However, the Hon’ble National Commission allowed interest @ 9% p.a.  only and did not allow any compensation.

10.                In view of the foregoing discussion, we are of the view  that the order passed by the Ld. District Commission is based on correct appreciation of   evidence and law on the point.   However, it warrants interference of this Commission  only towards grant of compensation of Rs.30,000/-  as we feel that grant of interest @ 9% p.a. on the deposited amount ordered to be refunded would take care of the compensation part on account of mental agony and harassment  and no separate compensation is required to be paid on that count.  Thus,  the  order of the Learned Lower Commission   is  modified to that extent. The rest of the order of the Ld. Lower Commission shall remain intact.                  

11.                   For the reasons recorded above, the appeal is partly accepted and the impugned order is modified to the extent as stated in para-10 of this order.   

12.                 Pending interlocutory  application, if any, also stands disposed of.

13.                 Certified copies of this order be sent to the parties free of charge.

14..               The file be consigned to Record Room, after completion.