Chandigarh

DF-I

CC/621/2022

Sandeep Gupta - Complainant(s)

Versus

M/s Innovative Housing & Infrastructure Pvt. Ltd. - Opp.Party(s)

Vipul Goel

05 Dec 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/621/2022
Date of Institution	:	24/06/2022
Date of Decision	:	05/12/2023

 

Sandeep Gupta, aged about 52 years, w/o Sh. Rakesh Kumar Gupta, r/o House No.149, Block-C, Panjab University Campus, Sector-14, Chandigarh.

… Complainant

V E R S U S

1. M/s Innovative Housing & Infrastructure Pvt. Ltd., SCO No.198, Sector 7-C, Chandigarh, through its Managing Director.
2. The Authorised Signatory, M/s Innovative Housing & Infrastructure Pvt. Ltd., SCO No.198, Sector 7-C, Chandigarh.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                               

ARGUED BY	:	Sh. Vipul Goel, Advocate for complainant
	:	Ms. Pooja, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sandeep Gupta, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that OPs had issued an advertisement in various newspapers and represented that they are in the business of developing and selling real estate projects and also published advertisement for making allotment of residential plots in the project named as “PCL Gateway” in Sector 17 & 18, New Chandigarh in the revenue estate of village Togan and Pera, District SAS Nagar, Mohali (hereinafter referred to as “subject project”). Allured by the representations of the OPs, vide application dated 11.11.2020 (Ex.C-2) complainant applied for advance registration of residential plot No.1245 measuring 184 sq. yards (hereinafter referred to as “subject plot”) @₹23,500/- per sq. yard in the subject project by depositing ₹2,00,000/-.  Thereafter the complainant made payment of ₹36,24,000/- by cheque dated 8.12.2020 for allotment of subject plot which was duly acknowledged by the OPs vide receipt (Ex.C-3).  On receipt of the subject payment, OPs executed an agreement to sell (Ex.C-4) on 8.12.2020 in favour of the complainant by further acknowledging the payment of ₹38,24,000/- and balance amount of ₹5,00,000/- was to be paid by the complainant at the time of offer of possession. Through the aforesaid agreement, OPs agreed to deliver possession of the subject plot, free from all encumbrances, on or before 30.9.2021 with grace period of three months after completing all development works (MEPs) with all necessary permissions from the concerned Govt. authorities.  It was further agreed upon by the OPs that in case they fail to deliver possession within the stipulated period, they are liable to pay penal interest @ SBI bench mark lending rate + 2% from the date of delivery of possession i.e. 31.12.2021.  As the OPs failed to deliver possession of the subject plot to the complainant within the stipulated period, she approached the OPs with balance amount of ₹5,00,000/-, but, they failed to deliver the actual possession of the subject plot as per terms and conditions of the agreement.  As the OPs neither delivered the possession of the subject plot nor made payment of the penal interest at the agreed rate, complainant issued a legal notice dated 5.4.2022 to the OPs on which she received a letter dated 4.5.2022 (Ex.C-5) from the OPs asking her to visit their office. On 4.5.2022, complainant again visited the office of the OPs and requested them to deliver possession, but, with no result and since then she is running from pillar to post to get possession of the subject plot.  The complainant has already paid a huge amount to the OPs after withdrawing the same from provident fund, but, till date OPs have failed to hand over possession of the subject flat and pay penal interest agreed upon by them and the aforesaid said acts amount to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and also that the complainant has not approached the Commission with clean hands.  On merits, it is alleged that, in fact, parties have entered into oral compromise and as per the compromise, complainant has agreed to withdraw the legal notice dated 5.4.2022 issued to OP-1.  The complainant had visited the office of OP-1 on 6.5.2022 and it was explained to her that due to outbreak of COVID-19 and imposition of lockdown in the country, again and again, there is delay in the delivery of possession and at that time it was agreed between the parties that the OPs will hand over the possession of the subject plot by December 2023. Further on merits, facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication/rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had booked the subject plot with the OPs by submitting application for advance registration (Ex.C-2) after depositing an amount of ₹2,00,000/- and later on has further paid an amount of ₹36,24,000/- to the OPs and the total amount of ₹38,24,000/- was duly acknowledged by the OPs vide payment receipt dated 8.12.2020 (Ex.C-3) and further agreement (Ex.C-4) was executed between the parties, through which the OPs had also acknowledged that an amount of ₹38,24,000/- had already been received by them and the complainant had agreed to pay the balance amount of ₹5,00,000/- at the time of offer of possession and, till date, possession has not been handed over to the complainant, the case is reduced to a narrow compass as it is to be determined if the aforesaid act of the OPs amount to deficiency in service and unfair trade practice and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the consumer complaint, being premature, is liable to be dismissed as is the defence of the OPs.
   2. Perusal of application for advance registration of residential plot (Ex.C-2) clearly indicates that the complainant had booked the subject plot with the OPs by paying an amount of ₹2,00,000/- on 11.11.2020.  Ex.C-3 further indicates that an amount of ₹36,24,000/- was further paid by the complainant and the entire payment of ₹38,24,000/- made by the complainant to the OPs till 8.12.2020 was acknowledged by the OPs. Ex.C-4 is agreement (Developer - Purchaser) which further indicates that the OPs had agreed to sell the subject plot to the complainant for total sale consideration of ₹43,24,000/-, out of which she had paid an amount of ₹38,24,000/- and the balance amount of ₹5,00,000/- was agreed to be paid by the complainant at the time of offer of possession by the OPs.  Clauses 5, 6 & 7 of the said agreement further indicates that in case of default by either party to the terms of the agreement, the defaulting party shall be penalized.  The aforesaid clauses 5, 6 & 7 are reproduced below for ready reference :-

“5.   That it is agreed between the parties that any delay in the making payment of above installments by the Purchaser shall attract penal interest on the defaulted amount @ SBI benchmark lending rate +2% from date of default. And that in case of default lasts more than three installments, the Developer shall have the right to cancel the Booking of the Plot and refund the Amount by deducting the 10% of the Amount deposited till that time without assigning any reason thereof.

6.     That the DEVELOPER agrees to put the purchaser in absolute, vacant and encumbrances free possession of the schedule property on or before 30/09/2021 (with grace period of Three months), after completing all the development works (MEPs) and with all necessary permissions from the Govt./Authorities concerned at the same location as shown in the map. In the event of any force on the Letter Head of Innovative Housing & Infrastructure Private Limited majeure situations (including but not limited to inordinate delay in issuance of NOCs/ connections/ approvals/ licenses from the competent local authorities and/or judicial or regulatory orders), the date of such possession for Unit/Plot shall stand extended accordingly.

7.     That if the DEVELOPER offer the possession of above said plot/Unit to the purchaser prior to the above mentioned delivery date then the PURCHSER has to clear the balance sale consideration at that time to take the possession of the said unit of 184 sq.yds., and if the DEVELOPER fails to provide the possession of the said plot as per the above said schedule then he is liable to pay penal interest @ SBI benchmark lending rate+2% from the said date of delivery i.e. 31/12/2021.”

3. Thus, one thing is clear from the aforesaid clauses that, in case of delay in making payment of the installments by the purchaser, he/she shall be penalized on the defaulted amount @ SBI benchmark lending rate +2% from date of default. Similarly it was also agreed upon by the OP (seller/developer) that the purchaser shall be put in absolute vacant and encumbrance free possession of the scheduled property on or before 30.9.2021 with grace period of three months after completing all the development works with all the necessary permissions from the competent authorities and if the developer fails to provide possession of the subject plot as per the above said schedule, it is liable to pay penal interest @ SBI benchmark lending rate +2% from the said date of delivery i.e. 31.12.2021.
4. Though the OPs have come with the defence that the complainant had orally agreed with the OPs that the possession of the subject plot will be delivered by the OPs by December 2023, and the complainant had also agreed to withdraw the legal notice dated 5.4.2022, but, since there is no cogent evidence on record in order to dislodge the contents of the agreement to sell (Ex.C-4) through which the period for actual delivery of possession of the subject plot was given to the OPs till 31.12.2021, it is unsafe to hold that the complainant ever accepted the said request of the OPs that the possession will be delivered to her by 31.12.2023.
5. As it stands proved on record that, in case of failure to provide possession, OPs themselves had agreed to pay penal interest @ SBI benchmark lending rate+2% from the date of delivery i.e. 31.12.2021 and nothing has come on record that due to force majeure circumstances the development work in the subject project was ever halted, the complainant, in addition to the relief of actual physical possession of the subject plot, is also entitled for delayed compensation from the OPs, especially as it is an admitted case of the parties that, till date, the OPs have not offered or handed over the actual physical possession of the subject plot to the complainant from the committed date i.e.  31.12.2021.
6. In view of the aforesaid discussion, it is safe to hold that the complainant has successfully proved the cause of action set up in the consumer complaint and the present consumer complaint deserves to succeed.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. To deliver actual physical possession of the subject plot to the complainant, complete in all respects i.e. after providing all the basic amenities and execute the sale deed, on receipt of balance sale consideration from the complainant.
2. To pay the agreed penal interest @ SBI benchmark lending rate +2% from the committed date of delivery i.e. 31.12.2021 till the date of actual physical possession of the subject plot in all respects.
3. To pay ₹50,000/- to the complainant as compensation for causing mental agony and harassment to her and also deficiency in providing service and adoption of unfair trade practice;
4. To pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within two months from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(ii) & (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 05/12/2023 hg		Sd/- [Pawanjit Singh] President
		Sd/- [Surjeet Kaur] Member