STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

                                    (Additional Bench)

Sh.Kamal Kakkar son of late  Sh.B.S.Kakkar, aged about 55 years, resident of #356, Govind Vihar, Baltana, Zirakpur,  Punjab.                                                                                                                                           ...  Appellant.

                                               Versus

Punjab State Federation of Co-operative House Building Societies Ltd., through its Chairman, SCO No.150-152, Sector 34, Chandigarh.  

                                                                       ..... Respondent

Appeal under  the Consumer Protection Act against order dated 10.10.2022 passed by District Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.329/2019.

Argued by:      Sh.Varun Veer Chauhan, Advocate for the Appellant.

                         Sh.Naginder Singh Vashist, Advocate for the respondent

­­­­_________________________________________________________

The Punjab State Federation of Co-operative House Building Societies Ltd. (Housefed Punjab), through its Superintending Engineer.

                                                                                  ...  Appellant.

                                               Versus

Sh.Kamal Kakkar son of  Sh.B.S.Kakkar, resident of #356, Govind Vihar, Baltana, Zirakpur, District SAS Nagar, Punjab.

                                                                       ..... Respondent

Appeal under   the Consumer Protection Act  against order dated 10.10.2022 passed by  District   Consumer Disputes Redressal Commission-II, U.T. Chandigarh in Consumer Complaint No.329/2019.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       Mr.PREETINDER SINGH,MEMBER

Argued by: Sh.Naginder Singh Vashist, Advocate for the appellant.

                   Sh.Varun Veer Chauhan, Advocate for the respondent (Legal               Aid Counsel.)

  PER PREETINDER SINGH,MEMBER

                   This  order will dispose of aforementioned two appeals bearing Nos. 178 of 2022 titled as Kamal Kakkar  Vs Punjab State Federation of Cooperative House Building Societies Ltd  and 185 of 2022  titled as the Punjab State Federation of Cooperative House Building Societies Ltd Vs Sh.Kamal Kakkar both filed  against the common  order dated 10.10.2022 passed by the District Consumer Disputes Redressal Forum-II, U.T.Chandigarh   whereby complaint of the complainant was disposed with certain directions.  The facts are being taken from  appeal No.178 of 2022 titled as  Kamal Kakkar  Vs Punjab State Federation of Cooperative House Building Societies Ltd.  

2.               As per facts of the case, the complainant   applied for a flat under EWS category in the scheme floated by the Opposite Party vide Brochure Annexure P-1, having cost of Rs.5,98,000/- at Chandigarh Rajpura Highway, Banur and  deposited an amount of Rs.30,000/- along with application on 9.3.2009 (Annexure P-2). It is averred  that on being successful in draw of lots, the complainant was allotted EWS Flat by the Opposite Party  at a tentative cost of Rs.5,98,000/- at Cooperative Housing Complex, Banur, Distt.SAS Nagar Mohali.  It is further averred that the complainant made payment of Rs.3,59,000/- which was equivalent to the cost of the flat as per the terms & conditions of the flat and the remaining 40% amount of the flat i.e. Rs.2,39,000/-  was to be made after handing over the possession,  in 120 monthly installments, spreading over in a period of 10 years, along with interest @15% per annum which was equivalent to Rs.3,855/- per month. Copy of the Allotment letter dated 24.6.2009 is Annexure P-6 and the payment receipts of Rs.3,59,000/- are Annexures P-7 to P-15.   It is further averred  that the possession of the flat was to be handed over to the complainant in the last quarter of year 2011 as is clear from the  letter of  the Opposite Party  dated 17.9.2009 (Annexure P-5), but the possession of the allotted Flat No.3714, Floor No.III, Category III, at Cooperative Housing Complex, Banur, Distt. SAS Nagar, Mohali, was offered to the complainant in the year 2016 vide letter dated 5.11.2014 (Annexure P-16).  It is further averred that  to the surprise of the complainant, the Opposite Party vide offer letter Annexure P-16 raised the cost of the flat from Rs.5,98,000/- to Rs.9,55,000/-. The complainant requested the Opposite Party vide letters dated 12.1.2015 & 10.3.2015 to withdraw the enhanced amount of Rs.3,57,000/-, but the Opposite party did not take any action.  It is averred in the complaint  that the complainant being  a vegetable seller, earning an amount of Rs.6000/- per month  and is unable to pay the balance enhanced amount of the flat in question.  It is further pleaded that since the construction and possession of the flat was delayed by the Opposite party, therefore, escalation in the cost of the flat was due to the fault of the Opposite Party  and not due to complainant, as such the  complainant cannot be compelled to make the difference/revised cost of the flat, as demanded by the Opposite party.  Hence, alleging deficiency in service and indulgence into unfair trade practice  on the part of the Opposite party, a consumer complaint was filed before the District Commission. 

3.               Pursuant to issuance of notice, the Opposite Party contested the complaint before the District Commission. In its reply, the Opposite Party admitted the   factual matrix of the case inter-alia stating therein that   the cost of the Category-III Flat in Clause No.8 is clearly mentioned as “Tentative Cost of flat” as Rs.5.98 lacs and in Sub Clause (iv) of the Clause 8 it is mentioned that ‘Balance if any towards difference of final cost and tentative cost of flat shall be paid at the time of handing over of the possession of the flat.  It is also stated that the project was delayed due to many factors as the site is located on the Zirakpur-Patiala Highway, which was low lying area below the National Highway; there was scarcity of the building material due to mining problem in the State of Punjab; even a  number of writ petitions were filed in the Hon’ble High Court because of illegal sand mining without getting any clearance from the Ministry of Environment & Forest, Govt. of India.  It is further stated  that the draw of lots was held on 30.7.2014 and the complainant was allotted a Category-III Flat No.4012/2, Floor No.2, Block No.40. Therefore, the exact/final cost of the flat was worked out after the completion of Project but before handing over the possession of the flat, which as per the terms & conditions of allotment, the complainant was liable to pay.  It is also stated that vide letter dated 5.11.2014   (Annexure C-16), the opposite Party demanded a sum of Rs.5,96,000/- from the complainant towards the balance cost of the flat and he   was directed to pay the remaining amount before taking over the possession either in lump sum or in 120 installments along with interest @12% p.a.  It is further stated that after the completion of the project, the final calculations were got done by the Opposite party from a specialized team (Annexure.OP-20).  It is further stated that vide letter dated 18.11.2015 followed by another letter dated 15.2.2016, the complainant was intimated to take possession, otherwise his allotment shall be cancelled as per terms & conditions (Annexures OP-24 & OP-25) and still the complainant failed to take possession of the Unit and pay the due amount as per demand raised by OP.   Denying all other allegations and pleading no deficiency in service on the part of the Opposite Party, a prayer was made for dismissal of the complaint. 

4.                  On appraisal of the complaint, and the evidence adduced on record, Ld. Lower Commission disposed of the complaint of the  Complainant, in the following manner ;

“Taking into consideration the above facts & circumstances of the case, subject cited law, as well as in the interest of justice and the complainant, a poor person earning livelihood by selling vegetables, we deem it proper to dispose of the present complaint with directions to the OP to handover the possession of the flat in question to the complainant at the escalated price of Rs.9,55,000/- per demand raised by OP vide letter dated 5.11.2014 (Ann.P-16), subject to payment of balance amount of Rs.5,96,000/- (Rs.9,55,000 minus already paid amount of Rs.3,59,000/-) by the complainant.

                  The complainant shall make such payment within 90 days from the date of receipt of copy of this order and the OP shall handover the possession of the flat to the complainant within 45 days from the date of receipt of such payment from the complainant. In case the complainant failed to comply with the aforesaid direction in stipulated period, in that eventuality, the OP shall refund the amount of the complainant i.e. Rs.3,59,000/- along with interest @6% p.a. from the respective date of deposit till realization. There is no order as to cost and compensation. The complaint stands disposed of accordingly.”

5.                Dissatisfied with the aforesaid order passed by the Ld. Lower Commission, the complainant filed Appeal No.178 of 2022 seeking possession of the flat in question at the original cost of Rs.5,98,000/-  with no ward and watch charges or in the alternative refund the deposited amount of Rs,.3,59,000/- alongwith interest @18% p.a. besides compensation etc. on the ground that the delay in construction of the project was solely on the part of the respondent/opposite Party and he cannot be made liable for the same  whereas appeal No.185 of 2022 has been filed by the Opposite Party for setting aside   the impugned order on the ground that due to unavoidable circumstances, which otherwise were not in the hands of the opposite party, the project was delayed due to many factors and the total cost was worked out after the completion of the project. Further the Consumer Fora cannot go into the fixation of the prices of flats.   

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

7.                      The core question that falls for consideration before us, is as to whether, the Ld. Lower Commission has rightly passed the impugned order by appreciating the entire material placed before it. 

8.                   Undisputedly the appellant/complainant applied for allotment of Category III(EWS) flat and paid an earnest money of Rs.30,000/- alongwith his application dated 9.3.2009. The tentative cost of the flat was Rs.5.98 Lakhs. The draw of lots was held on 3.7.2014 and  the appellant/complainant was allotted a Category-III Flat  bearing No.3714, Floor No.III,  in Cooperative Housing Complex, Banur. The appellant made the payment of Rs.3,59,000/- and remaining 40% of the amount was to be made after handing over the possession of the flat.   Subsequently, vide letter dated 5.11.2014, the allottee was asked to deposit the balance amount of Rs.5,96,000/- towards the final cost of the flat. He was asked to pay the said amount before taking over the possession either in lump sum or in 120 installments alongwith interest @ 12% p.a. The last date for deposit of balance cost of the flat was extended from 15.2.2015 to 15.3.2015 and limit of loan was enhanced for all categories. The  respondent/Opposite Party has also pleaded  that during the pendency of the complaint before the Ld. Lower Commission, letter dated 7.7.2022 was issued to the complainant/appellant that such allottees who had not taken over the possession of the flats, were given benefit of One Time Settlement on watch and ward charges and penal interest. Thus, till 30.06.2022 an amount of Rs.16,57,311/- was outstanding against the allottee but the respondent at its own  gave a rebate of Rs.4,24,000/- towards watch and ward charges and rebate of Rs.1,27,462/- towards penal interest totaling of Rs.5,51,462/-. In this way, according to the respondent, a huge waiver of Rs.5,51,462/- out of Rs.16,57,311/- was given to the appellant. On  the other hand,  the appellant contended that all the delays and extensions in the construction were caused by the actions/lapse of the respondent and it is wholly unfair to pass on the buck of payment on the appellant   for which  he   is not liable to be burdened.

9.         The Ld. Lower Commission has rightly quoted the judgment of  Hon’ble National Consumer Disputes Redressal Commission, New Delhi in First Appeal No.999 of 2015 titled as Satish Kumar vs. Managing Director, Housefed, decided on 14.11.2017,  wherein it has categorically been  held  that 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. 

10.               The Learned Lower Commission though observed that the initial cost of the flat in question was tentative cost and final cost was to be worked out by the respondent  only after completion of the flat, yet it held that charging of interest on balance amount in case of delayed payment as well as forfeiture of already paid amount, was not justified. It also rightly observed that the respondent has neither cancelled the allotment of the flat in question nor refunded the amount of Rs.3,59,000/- so paid by the appellant  qua the flat, hence waived of its right and when the respondent failed to exercise its own right, the appellant is not under obligation to pay interest on the balance amount.   Moreso, when there is admittedly delay on the part of respondent in the completion of the project due to many factors, then the clause of cancellation of the allotment and forfeiture of the deposit amount would not be applicable being unjustified.

11.               The Ld. Lower Commission after considering all the aspects rightly issued directions to the respondent to handover the possession of the flat in question to the appellant  at the escalated price of Rs.9,55,000/- as per demand raised by  the respondent vide letter dated 5.11.2014, subject to payment of balance amount of Rs.5,96,000/- (Rs.9,55,000 minus already paid amount of Rs.3,59,000/-) by the appellant.  It also ordered that in case the appellant failed to comply with the aforesaid direction in stipulated period, in that eventuality, the respondent shall refund the amount of the  appellant i.e. Rs.3,59,000/- along with interest @6% p.a. from the respective dates of deposit till realization. We find no infirmity in the order passed by the learned Lower Commission.

 12.                 In view of the above discussion, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The order passed by the Ld. Lower Commission being based on the correct appreciation of evidence and law does not suffer from any illegality or perversity. Consequently both the appeals are   dismissed, and the order of the Ld. Lower Commission is upheld.

13.                  All the pending applications in both the appeal  also stand disposed off accordingly

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

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