Chandigarh

StateCommission

A/135/2015

Ansal Lotus Melange Projects Pvt.Ltd. - Complainant(s)

Versus

Navdeep Rahil - Opp.Party(s)

Gaurav Chopra,Adv.

22 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

                                                                 

First Appeal No.	:	135 of 2015
Date of Institution	:	11.6.2015
Date of Decision		22.06.2015

1. Ansal Lotus Melange Projects Pvt. Ltd., Registered Office at 1/18B, Asif Ali Road, New Delhi 110002, through its Authorised Signatory.
2. Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh, through its Authorised Signatory.

……Appellants/Opposite Parties.

Versus

Navdeep Rahil w/o Sh. Shaminder Rahil r/o 253, Defence Colony, Jalandhar.

              ....Respondent/Complainant.

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE SHAM SUNDER (RETD.), PRESIDENT.

                SH. DEV RAJ, MEMBER.

                SMT. PADMA PANDEY, MEMBER.

               

Argued by: Sh. Gaurav Chopra, Advocate for the appellants.   

 

PER DEV RAJ, MEMBER

       This appeal is directed against the order dated 1.5.2015 rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it partly allowed the complaint in the following manner:-

“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.”

2. The facts in brief are  that  the complainant with an intention to settle down near Chandigarh and to own a residential flat for her family, booked a residential flat measuring 1225 sq. ft. in the pre-booking offer on 22.11.2006 by paying a sum of Rs.3,00,000/- and she 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 Opposite Parties but the area of the flat was changed from 1225 sq. ft. to 1324 sq. ft. @ Rs.2350/- per sq. ft. and Opposite Parties also charged an additional sum of Rs.300/- per sq. ft. as Preferred Location Charges (PLC) for AC flat and park facing.  It was stated that the total price of the flat was Rs.35,08,600/-. It was further stated that the allotment letter was not in consonance with Section 6 of the Punjab Apartments and Property Regulation Act, 1995.  It was further stated that the Opposite Parties 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). It was further stated that the complainant paid a total amount of Rs.36,66,456/- vide receipts Annexure C-7 (colly.) in a hope that she would get possession of the flat at the earliest, but the Opposite Parties offered possession vide letter dated 19.3.2012 i.e. after about 4 years from the date of signing of the application form.  It was further stated that 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 was further stated that the Opposite Parties also illegally charged the complainant an amount of Rs.1,00,000/- for car parking. It was further stated that the aforesaid act of the Opposite Parties amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
3.    Opposite Party No.1 was proceeded against exparte vide order dated 20.10.2014 by the District Forum as none appeared on its behalf despite due service. 
4. In its reply the Opposite Party No.2 took a number of preliminary objections including that the complaint was not maintainable; that the District Forum got no territorial jurisdiction; that disputed questions of facts and law are involved in the complaint which could not be decided in summary proceedings; that the complaint was time barred. It was admitted that the complainant agreed to purchase a 2BHK flat.  It was stated 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  was further stated 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 correctness on the said allotment letter on 12.3.2008. It was denied that the agreement (allotment) letter was not in consonance with Section 6 of the PAPRA Act, 1995.  It was further denied that the answering Opposite Party while acting very cleverly 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 was further 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 was further stated that the complainant till date had not paid the payment punctually as per the agreed terms and conditions and had also not made the complete payment till date in spite of repeated requests and demands made through written requests/letters/e-mails. It was further stated that the complainant was also liable to pay holding charges in terms of the letter dated 3.3.2014 till the delivery of the actual possession.  It was further stated that there was no defect or discrepancy in the flat as alleged by the complainant in para 11 of the complaint.   It was further stated that neither there was any deficiency, in rendering service, on the part of the answering Opposite party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. In the rejoinder the complaint reiterated her stand taken by her in the complaint.
6. The parties led evidence, in support of their case.
7. After hearing the Counsel for the complainant and Opposite Party No.2 and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, as stated above in the opening para.
8.        Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

 

 

9.        We have heard the Counsel for the appellants, and have gone through the evidence, and record of the case, carefully.
10.        The Counsel  for the appellants has submitted that the District Forum erroneously partly allowed the complaint without adjudicating upon the issue of maintainability of the consumer complaint before  the District Forum which lacked both territorial and pecuniary jurisdiction to try and adjudicate the same. He has further submitted that as per Clause 39 of the allotment letter the courts at Delhi alone had the jurisdiction in respect of all the matters arising out of or in connection with the allotment letter.  He has further submitted that no part of cause of action accrued within the territorial jurisdiction of the District Forum at Chandigarh. He has further submitted that the District Forum overlooked the fact that the possession of the demised premises was admittedly offered to the respondent/complainant vide letter dated 19.3.2012, after clearance of the outstanding dues. He has further submitted that the amount paid by the complainant was less than the amount due but the District Forum wrongly held that the complainant paid full payment. He has further submitted that the allegation regarding the poor quality of construction  and poor workmanship of the demised premises are false and frivolous being not supported by any documentary evidence. He has further submitted that the complainant opted for construction linked installment plan and thus, if at all, any reasonable delay occurred in offering possession of the demised premises it did not cause any loss to the respondent/complainant. He has further submitted  that  the  order of the District Forum was based on surmises and conjecture and the same is liable to be set aside.
11.        Admittedly the respondent/complainant  was allotted apartment No. 204, having a super area of 1324 sq. ft  for a total consideration of Rs.35,08,600/- by the appellants/opposite parties vide allotment letter dated 23.2.2008 and the complainant paid a sum of Rs.36,66,456/- vide receipts annexure C-7 (colly).
12.        The first issue to be determined is as to whether the District Forum at Chandigarh had territorial jurisdiction to try and decide the complaint or not? No doubt the apartment allotted to the complainant is situated within the jurisdiction of Mohali and as per terms and conditions of allotment letter Annexure C-5 it  has been mentioned that the Courts at Delhi alone shall have the jurisdiction on all the matters arising out of or in connection with the agreement but at the same it is evident from Annexure R-37  the email message of the Opposite Parties wherein they had specifically asked the complainant to transfer the amount towards the part payment of the apartment through RTGS in their account at Chandigarh bank i.e. Axis Bank, Madhya Marg, SCO 41-42, Sector 8-C, Chandigarh and as per the complainant she had made most of the payment through cheques which were credited in the Chandigarh Branch account of the Opposite Parties. On the other hand the Opposite Parties did not rebut this contention of the complainant by way of filing an affidavit that most of the cheques were not credited at their account at Chandigarh. As far as the jurisdiction of Delhi Courts is concerned, in Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to consumer complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which a para material to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of jurisdiction. In the instant case, a part of cause of action accrued to the complainant at Chandigarh as she had paid some consideration towards the apartment at Chandigarh, which was not disputed by the Opposite Parties. The principle of law laid down in the aforesaid case is fully applicable to the instant complaint and, as such, finding of District Forum that it had the jurisdiction to try and decide the complaint, is correct.
13. As regards delay in offering/delivering possession and whether there were defects on account poor quality, construction and poor workmanship of apartment, in question, the District Forum has dealt with these issues, in minute details, in Paras 15, 16 and 19 of its order, which are reproduced below:-

“15.  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. 

 

16.  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. 

 

19.  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.”

 

14. The contention of the respondent/complainant was that at the time of booking of the apartment the Opposite Parties told that possession would be delivered within a period of 30 months from the date of booking. Even in the application form the time for possession was stipulated 24 to 30 months. Whereas the Opposite parties offered possession vide letter dated 19.3.2012 i.e. after a period of four years. In rebuttal to that, the appellants/Opposite Parties have submitted that the complainant opted to purchase the apartment on construction linked plan and the demands were raised from time to time, hence the date of completion of the apartment was not relevanct. It was further contended by the appellants/Opposite Parties that time was not essence of the contract for delivering the possession because as per the allotment letter dated 23.2.2008 the possession of the apartment was to be delivered within a reasonable time from the date of the agreement. It was further contended by the appellants/Opposite Parties that since offer of possession was given to the complainant vide letters dated 19.3.2012 and 10.4.2012, there was no delay in delivering possession of the flat.  After giving our thoughtful consideration to the contentions of the respondent/complainant raised in the complaint before the District Forum and the contention of the appellants/Opposite parties, we are of the considered opinion that as held above, the terms and conditions of the allotment letter dated 23.2.2008 were binding upon the complainant and as per the said allotment letter the possession of the apartment was to be delivered within a reasonable time period from the date of agreement. The Opposite Parties, failed to produce any cogent evidence to the effect that the construction of the apartment could not be completed within a period of 30 months due to force majeure circumstances.  Thus, it is held that the Opposite Parties should have offered possession of the apartment, in question, within a period of three years from the date of allotment i.e. by 23.02.2011. However, they offered the same on 19.3.2012/10.4.2012 i.e. after a period of four years without explaining any justified reasons for the same, hence, the Opposite Parties were deficient in rendering service and indulged into unfair trade practice and they were liable to pay compensation to the complainant and the District Forum rightly held so.     
15. While the appellants/Opposite Parties have contended that the complainant did not clear the dues demanded from her, on the other hand the contention of the complainant was that she cleared all the dues. In this regard we concur with the reasoning given by the District Forum in para No. 18 of the impugned order wherein it held that the complainant paid a sum of Rs.36,66,456/- during the period 21.11.2006 to 4.1.2013 to the Opposite Parties against the total consideration of Rs.35,08,600/- and that the Opposite Parties vide letter dated 02.04.2012 (Annexure R-32) asked the complainant to pay an amount of Rs.4,22,427/-+ Rs.26,000/- towards interest free maintenance and security deposit and the complainant paid a sum of Rs.4,21,487/- on 4.1.2013 but later on the Opposite Parties vide email Annexure 37 informed the complainant that an amount of Rs.21,352/- was still outstanding. Similar messages were sent on 24.4.2013 and 4.5.2013. However, it is revealed from the email dated 17.4.2013 of the husband of the complainant who was working in Singapore that he met Mr. Gaurav and Mr. Amit and at that time 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. In another email dated 4.5.2013, he asked Ms. Manjari and Mr. Gaurav that if they could not do their vetting and clearance properly, he was not responsible for that. In rebuttal to the   aforesaid emails of the husband of the complainant, the Opposite Parties, did not produce on record any affidavit of Mr. Amit and Gaurav to the effect that the complainant was not told in January 2013 that the payment made by her in January, 2013 was full and final.  Hence the District Forum righty came to the conclusion that the complainant made full and final payment towards consideration of the apartment.
16.        As regards defects on account of poor quality and construction and poor workmanship of apartment, we endorse the findings of District Forum in para No. 19 of the impugned order. It is evident from email dated 17.4.2013, that husband of the complainant mentioned to the Opposite Parties that he had made a list of repairs/amendments and works to be done in his apartment and asked Ms. Manjari, official of the Opposite Parties to advise if the same had been done or not. But no reply to the email was given by the Opposite parties that the flat was defect free and it did not require any repair. Even no certificate to this effect of an architect/engineer was produced on record by the Opposite Parties. Hence, the respondent/complainant rightly did not take possession of the apartment on account of shortcomings and, as such, the complainant was not liable to pay any holding charges for not taking possession and the finding of the District Forum to this effect also does not require any interference. Clearly the complainant suffered mental agony and harassment due to delay in possession and defects/shortcomings in the flat. The appellants/Opposite Parties were, thus, deficient, in rendering service, and indulged into unfair trade practice, for which, the District Forum rightly awarded compensation in the sum of Rs.2 Lacs besides costs of litigation to the tune of Rs.21,000/- to the complainant.
17. No other point, was urged, by the Counsel for the appellants.
18. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
19. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
20. Certified copies of this order, be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.

Pronounced.

June 22, 2015.

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

[DEV RAJ]

MEMBER

 

Sd/-

[PADMA PANDEY]

MEMBER

MP