Chandigarh

DF-II

CC/610/2015

Sushila Sharma - Complainant(s)

Versus

Omaxe Chandigarh Extension Developers Pvt. Ltd., - Opp.Party(s)

Gaurav Bhardwaj Adv.

29 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	610 of 2015
Date  of  Institution	:	20.10.2015
Date   of   Decision	:	29.07.2016

 

 

 

 

1]  Sushila Sharma w/o Sh.Ashwani Sharma, R/o #3450, Sector 23-D, Chandigarh.

 

2]  Anubhav Sharma, s/o Sh.Ashwani Sharma, R/o #3450, Sector 23-D, Chandigarh.

 

             …….Complainants

 

Versus

 

Omaxe Chandigarh Extension Developers Pvt. Ltd., SCO No.139-140, First Floor, Sector 8-C, Chandigarh through its Managing Director.

 

 ………. Opposite Party

 

BEFORE:  SH. RAJAN DEWAN           PRESIDENT

                                MRS.PRITI MALHOTRA        MEMBER

   

 

Argued By: Sh.Gaurav Bhardwaj, Counsel for the complainants

Sh.Nihal Singh, Proxy Counsel for Sh.Munish Gupta, Counsel for the Opposite Party

 

 

PER PRITI MALHOTRA, MEMBER

 

                                As per the case, the complainants were allotted a residential independent floor by the Opposite Party in its housing project ‘Silver Birch’ in Omaxe Chandigarh Extn. at Mullanpur, District SAS Nagar Mohali vide allotment letter dated 5.5.2011 (Ann.C-1 colly).  The total price of the unit was fixed at Rs.34,03,500/- and  later was enhanced to Rs.37,41,828/-.  It is averred that the Opposite Party was to handover the possession of the said unit to the complainants within 24 months from the start of the construction with six months grace period as per Clause 31(a) of the allotment letter.  It is also averred that the construction started in Sept., 2011 and the possession was to be delivered by 31.3.2014. Further, the complainants also paid the demand raised by the Opposite Party for Rs.2,62,406/- for delivering the possession and waited for the same, but the physical possession of the unit was not handed over to the complainants.  It is asserted that the complainants received a letter dated 17.7.2015 from the Opposite Party vide which it was acknowledged that the complainants have paid an amount of Rs.38,028,78.20Ps to the Opposite Party and they are under process of getting the conveyance deed registered and also mentioned that the complainants should coordinate for handover of the unit (Ann.C-8). Then, the complainants gave a letter to the Opposite Party on 17.8.2015 demanding the compensation @Rs.10/- per sq. ft. for the delayed period as per Clause 31(e) of the allotment letter, in response to which the OPs vide letter dated 31.8.2015 calculated the delayed possession penalty of Rs.45,863.01P for 93 days from 28.8.2014 to 29.11.2014, whereas the actual delay is from 1.4.2014 till handing over of the actual possession (Ann.C-9 & C-10).  Alleging the above act of the OPs as deficiency in service, hence this complaint has been filed. 

 

2]       The Opposite party has filed the reply and admitted the allotment of unit in question in the name of complainants as well as receipt of the amount thereof, as alleged by the complainants, as matter of record.  It is stated that as per Clause 31-A possession to the complainants was to be delivered by 28^th August., 2014, thus the offering of possession on 29.11.2014 was delayed by 93 days and not as alleged by the complainants.  It is also stated that despite issuing letter dated 17.7.2015 to the complainants to come forward and get the property registered, they did not turn up to get the same registered in their name.   It is pleaded that the possession of the unit was ready on 29.11.2014 when the letter offering possession was issued to the complainants and it is the complainants, who are not coming forward.  Pleading no deficiency in service and denying rest of the allegations, it is prayed that the complaint be dismissed.

 

3]       Rejoinder has been filed by the complainants thereby controverting the assertions of the OPs.

 

4]       Parties led evidence in support of their contentions.

 

5]       We have heard the ld.Counsel for the parties and have also perused the record.

 

6]       The submissions of the ld.Counsel for the complainants concluded in the form that the complainants were allotted a residential floor in the project of the Opposite Party against the total price of Rs.34,03,500/- and enchanced to Rs.37,41,828/-, against which the complainants made payment of Rs.38,028,78.20Ps (Ann.C-7), paid on different occasions, as per the demand of Opposite Party.

 

7]       It is submitted that as per the allotment letter, the Opposite Party was to deliver the possession of the said unit within 24 months from the date of start of the construction, with 6 months grace period, as per Clause 31(a) of the Allotment Letter.  It is the grouse of the complainants that the delayed possession was offered to the complainants and when a claim for the due compensation as per Clause 31 (e) of the allotment letter was asked for from the Opposite Party, the Opposite Party calculated the delay of 93 days i.e. from 28.8.2014 to 29.11.2014 only, whereas, as per the complainants, the Opposite Party is liable to pay the compensation for the delayed period of possession for the period from 1.4.2014 till the actual handing over of the physical possession of the unit. The Opposite Party claimed that the possession of the unit was to be delivered by 28^th August, 2014 and they offered the possession on 29.11.2014 and thus there was delay for about 93 days and not for the period, as alleged by the complainants. The Opposite Party further claimed that vide letter dated 29.11.2014, the complainants were offered possession and were asked to come forward for the registration of the unit in question. The Opposite Party claimed that the complainants themselves failed to come forward and get the property registered, thus the Opposite Party is not liable for payment of the penalty for delayed possession for the period the complainants failed to come forward for getting the said unit registered. 

 

8]       The term of the Allotment Letter  (Ann.C-1) needs to be looked into in order to resolve the matter in dispute. The Allotment Letter (Ann.C-1) for the unit in question ensures the handing over of the possession within 24 months vide Clause 31(a), in addition to an extended period of 6 months from the date of start of the construction.  Undisputedly, the Opposite Party failed to complete the project within the stipulated period and that entitles the complainants for compensation, which the Opposite Party committed to pay on account of delayed possession. 

 

9]       Now the question to be decided in the present complaint is the period of delayed possession for which the complainants are entitled for compensation, as per Clause 31(a) of the allotment letter. The complainants claimed that they are entitled for the compensation for delayed possession for the period from 1.4.2014 till the actual physical possession is delivered.  Whereas, the Opposite Party claimed that the complainants are entitled for the compensation for the period from 28.8.2014 till 29.11.2014 i.e. till the date the complainants were offered possession of the unit in question.  It is specifically pleaded by the complainants in their pleadings well supported by duly sworn affidavit that Opposite Party started construction in the month of Sept., 2011, so as per the Allotment Letter (Ann.C-1), they were entitled to get the possession on 31.3.2014. Since, there is no specific date mentioned by the OPs regarding the starting date of construction of the project in question, so that assertion of the complainants is believed that the construction of the project started in the month of Sept., 2011 and the period of 24 months with extended period of 6 months, was rightly expired on 31.3.2014.  Thus in our considered opinion, the complainants are entitled for the compensation for delayed period of possession as per Clause 31(a) of the allotment letter from 01.4.2014 till 17.7.2015 (Ann.C-8) i.e. when they were offered for provisional possession upon compliance of necessary formalities.  The plea of the Opposite Party that it offered the possession of the said unit on 29.11.2014 is not acceptable.  Hence, the deficiency in service on the part of the Opposite Party is writ large.

 

10]      It is observed that the Opposite Party, in order to calculate the period of delayed possession of 93 days for the period from 28.8.2014 till 29.11.2014 had foregone criteria of calculation, as mentioned in the above referred clause, as if the said criteria has been waived off.  So, while calculating the period of delayed possession afresh, the Opposite Party shall adopt the same criteria as adopted earlier. 

 

11]      In view of the above discussion, we are of the opinion that the deficiency in service on the part of the Opposite Party is proved and hence, the complaint deserves to be allowed.  Accordingly, the complaint is allowed and the Opposite party is directed as under:-

[a] To pay the amount @Rs.10/- per sq. ft. per month for the Built up area of the Unit for the period of delay i.e. from 1.4.2014 to 17.7.2015, as per Clause 31(e) of the Allotment Letter;

[b] To pay Rs.15,000/- as compensation to the complainants for causing them mental agony and harassment on account of deficient services.

[c] To pay Rs.5,000/- as costs of litigation.

         This order be complied with by the opposite party, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.(a) & (b) above shall carry interest @18% per annum from the date of filing of this complaint till actual payment, besides payment of litigation costs.

 

         The certified copy of this order be sent to the parties free of charge, after which the file be consigned.

Announced

29^th July, 2016                       

                                                                                                Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(PRITI MALHOTRA)

MEMBER