Chandigarh

StateCommission

A/109/2015

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

Versus

Raminder Singh - Opp.Party(s)

Gaurav Chopra,Adv.

29 May 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	109 of 2015
Date of Institution	25.05.2015
Date of Decision	29.05.2015

 

Ansal Lotus Melange Projects Pvt. Ltd., Regional Office at SCO No.183-184, Sector 9-C, Chandigarh, through its Authorised Signatory.

                                        …..Appellant/Opposite Party.

                                Versus

1. Raminder Singh s/o Shri Gurmit Singh
2. Mrs.Manpreet Kaur w/o Shri Raminder Singh.

Both residents of 521/1, Indian Oil Flats, Sector 44-A, Chandigarh.

                                        …..Respondents/Complainants.

BEFORE:    SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh.Gaurav Chopra, Advocate for the appellant.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 15.04.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it partly allowed Consumer Complaint bearing No.133 of 2014, filed by the complainants, with the following directions:-

“18.        For the reasons recorded above, we find merit in the complaint and the same is partly allowed.  We do not find any deficiency in service except for the fact that there was unreasonable delay in handing over of the possession of the flat to the complainants.  Accordingly, the OP is directed as under :-

i)      To pay a compensation of Rs.40,000/- to the complainants for the deficiency in service and causing mental agony and harassment to them.

ii)     To also pay an amount of Rs.10,000/- towards litigation expenses to the complainants.

19.           This order be complied with by the OP within one month from the date of receipt of its certified copy failing which it shall make the payment of the compensation amount at Sr.No.(i) above with interest @ 12% from the date of filing of the present complaint till realization. “

2.                    The facts, in brief, are that the Opposite Party advertised in various newspapers (Annexure C-1) the construction of residential apartments in the proposed Palm Grove Luxury Apartments with assured possession within 24 months.  The complainants booked one apartment on 12.06.2009 and they were allotted Flat No.21 on the ground floor in Tower No.21 in Palm Grove, Sector 115, Mohali, having a super built-up area of 1525 sq. ft. @ Rs.2213.12 per sq. ft. total amounting to Rs.33,75,000/- vide allotment letter dated 26.09.2009 (In fact 26.06.2009) (Annexure C-2). It was stated that the Opposite Party failed to complete the construction work in time, despite various visits, letters and emails sent by them.  The Opposite Party finally handed over possession of the flat to the complainants vide letter dated 15.09.2012 (Annexure C-3) and at the same time, the Opposite Party intimated them (complainants) that the area of the flat was 1678 sq. ft. instead of 1525 sq. ft. and, thus, there was an increase in the super built-up area by 153 sq. ft., for which, total amount of Rs.3,49,070/- was demanded, which was paid by them.  It was further stated that in addition to that, the Opposite Party also illegally charged a sum of Rs.60,000/- as open car parking charges and Rs.25,000/- as interest free maintenance and security deposit.

3.         It was further stated that possession of the flat had been handed over to them without proper infrastructure, without proper roads, without lifts, no sufficient parking place, sub-standard quality of construction, water seepage on the walls and water logging in the basement. It was further stated that the Opposite Party had also not executed Seller-Buyer Agreement with the complainants, for the reasons best known to it. Even the promised amenities like club, tennis court, badminton and basket ball grounds, swimming pool, jogging track etc. had not been provided.  It was further stated that the Opposite Party also demanded maintenance charges @ Rs.2/- per sq. ft. in favour of M/s Star Facilities Management Ltd., a sister concern. Ultimately, the complainants served a legal notice dated 30.9.2013 (Annexure C-5) upon the Opposite Party, but to no avail.   It was further stated that the Opposite Party was deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainants 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.

4.              In its written statement, the Opposite Party took a number of preliminary objections including that of disputed questions of fact and law, which could not be decided in summary proceedings ; that the complainants had got no locus standi to file the complaint. It was stated that since all the payments had been made and possession had been taken by the complainants, after duly satisfying themselves, and, as such, they (complainants) were estopped from filing the complaint.  It was further stated that Clause 10 of the Allotment Agreement contemplated that possession was likely to be completed within 24 months and no definite period was mentioned. It was further stated that terms and conditions of allotment Agreement were binding upon the parties. It was further stated that possession of the unit had been offered to the complainants on 15.09.2012 and there was negligible delay of a few months, which could arise in any high rise construction.  It was further stated that as per Clause 8 & 9 of the allotment letter, the Opposite Party was entitled to charge the amount for the increased area and there was no illegality. Further, as per Clause 8 & 9 of the Agreement, the complainants had given their unconditional consent to any variation and modification in the area. It was further stated that nothing was charged by the Opposite Party, which was beyond the terms and conditions of the allotment Agreement.  It was further stated that the replying Opposite Party was neither deficient, in rendering service nor indulged into unfair trade practice.

5.             The parties led evidence, in support of their case.

6.             After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, partly allowed the complaint, as stated above. 

7.             Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.

8.             We have heard the Counsel for the appellant/Opposite Party, and have gone through the evidence and record of the case, carefully. 

9.             The Counsel for the appellant/Opposite Party submitted that the District Forum ignored and overlooked the fact that the respondents/complainants had taken possession of the demised premises on 15.09.2012, without any demur or protest and their loud silence for a period of more than 1 year thereafter, speaks volumes about the fact that the complainants were not aggrieved by any act/omission of the appellant/Opposite Party and, thus, as per law, they were estopped in law from seeking to fasten liability on it on account of the alleged delay in handing over possession of the demised premises. He further submitted that the District Forum while interpreting Clause 10 of the allotment letter, had observed that a period of 3 years would be a reasonable period for delivery of possession from the date of the Agreement. He further submitted that admittedly, while the allotment letter was issued on 26.09.2009, the possession of the demised premise had been handed over to the complainants on 15.09.2012 i.e. within a period of 3 years and, as such, there was no warrant for awarding the amount of compensation to the respondents and, prayed for setting aside the impugned order.

10.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellant/Opposite Party, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded, hereinafter.

11.            The core question, that falls for consideration, is, as to whether, there was any delay on the part of the appellant/Opposite Party in handing over possession of the unit to the complainants. The answer, to this, is in the affirmative.  Admittedly, the complainants booked a residential apartment in the project of the Opposite Party and it (Opposite Party) allotted Flat No.21, Ground Floor, Tower No.21, Sector 115, Mohali, super built-up area of 1525 sq. ft., total price whereof was Rs.33,75,000/-, as stipulated in the allotment letter dated 26.06.2009 (Annexure C-2). The Opposite Party increased the area of the flat from 1525 sq. ft. to 1678 sq. ft., for which, they (complainants) paid an amount of Rs.3,49,070/-. It is also an admitted fact that possession offered by the Opposite Party of the unit, in question, to the complainants vide letter dated 15.09.2012 (Annexure C-3) was taken over by them (complainants) on 29.09.2012.  The Counsel for the complainants, before the District Forum, contended that vide allotment letter dated 26.06.2009 (Annexure C-2), possession of the said flat was to be delivered by the Opposite Party within a period of 24 months from the date of Agreement i.e. by 26.06.2011, whereas, possession of the same was actually offered/handed over by the Opposite Party on 15.09.2012/29.09.2012 and, as such, Opposite Party was liable to pay compensation for inordinate delay in delivering possession and also causing mental agony & physical harassment to them.  On the other hand, the Counsel for the appellant/Opposite Party submitted that as per Clause 10 of the allotment letter, possession was likely to be delivered within 24 months from the date of Agreement and no definite period was mentioned. Clause 10 of the allotment letter dated 26.06.2009 (Annexure C-2) reads as under :-

 “10.   THAT the possession of the said premises is likely to be delivered by the company to the apartment allottee within a period of 24 months 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 bare perusal of afore-extracted Clause 10 of the allotment letter clearly reveals that possession of the said premises was likely to be delivered by the Company to the complainants, within a period of 24 months from the date of Agreement i.e. 26.06.2009. Even if it is accepted that there was no definite commitment by the Opposite Party for delivering possession of the premises to the complainants, within 24 months of the date of allotment/Agreement, in our considered opinion, the District Forum rightly held that a period of three years would be a reasonable period for delivery of possession from the date of the Agreement i.e. by 26.06.2012 but in this case, possession of the flat was not handed over to the complainants even within a period of 3 years from the date of allotment letter. Moreover, the appellant/Opposite Party also mentioned in para No.7 of its appeal that the District Forum, while interpreting Clause 10 of the allotment letter, had observed that a period of 3 years would be a reasonable period for delivery of possession from the date of the Agreement and in the instant case, admittedly, the allotment letter was issued on 26.09.2009, possession of the demised premises had been handed over to the complainants on 15.09.2012 i.e. within a period of 3 years and, as such, there was no warrant for awarding the amount of compensation to the respondents/complainants. This contention of the appellant/Opposite Party has no force being devoid of merit because the appellant/Opposite Party wrongly counted three years from 26.09.2009 whereas, in fact, the allotment letter was issued on 26.06.2009 (Annexure C-2) and not on 26.09.2009, as mentioned by it, in the appeal and if we accept that 3 years were the reasonable period to deliver the possession of the unit to the complainants, even then the Opposite Party failed to deliver the same, within a period of three years and the same was offered/handed over to them (complainants) on 15.09.2012/29.09.2012 i.e. after about a further delay of three months and, thus, itilized the hard earned money of the complainants. We are, therefore, of the considered opinion that there was delay in handing over possession of the flat to the complainants, for which, the District Forum rightly granted compensation to the complainants for the harassment and mental agony, which they suffered at the hands of the Opposite Party.

12.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in awarding compensation to the tune of Rs.40,000/- and litigation expenses to the tune of Rs.10,000/- in the complaint, as stated above. In our considered opinion, the appeal filed by the Opposite Party deserves to be dismissed.  Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.

13.            For the reasons recorded above, the appeal, filed by the appellant/Opposite Party, being devoid of merit, must fail, and the same stands dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.

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

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

Pronounced.                                          

29.05.2015                                                                                                                                                       Sd/-

(DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER