STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                                    U.T., CHANDIGARH 

                                    (Additional Bench)

SkyLark Housing Development Pvt. Limited,  Office at Eco Homes, Sector-115, SAS Nagar, Mohali, through its Authorized Representative Pawandeep Singh

                                                                                  ...  Appellant.

                                               Versus

1. Roop Singh Maan son of Jagraj Singh Maan, Resident of H.No.07, Vill. Silwala Khurd, Tehsil Tibbi, District Hanumangarh (Rajasthan). presently at Bank of Baroda, regional Office, Opposite Deventure Hotel, Namaste Chowk, Karnal, Haryana.

2. Amrik Singh s/o Kuldeep Singh,  SkyLark Housing Development Pvt. Limited, 1-4, Commercial Complex SkyLark Enclave, Kharar – Ambala Highway, Sector 115, Mohali.

3.  Surinder Pal Singh,  SkyLark Housing Development Pvt. Limited,        1-4, Commercial Complex SkyLark Enclave, Kharar – Ambala Highway,Sector-115,Mohali.   

                                                                        ..... Respondents

Appeal under Section 15 of the Consumer Protection Act, 1986 against order dated 09.09.2022 passed by       District       Consumer Disputes Redressal Commission-I, U.T. Chandigarh in Consumer Complaint No.752/2017.

BEFORE:       MRS. PADMA PANDEY, PRESIDING MEMBER

                       Mr.PREETINDER SINGH,MEMBER

Argued by:      Sh.Ankush Rampal, Advocate for the Appellant.

                         Sh.Varun Bhardwaj, Advocate for respondent No.1

 PER PREETINDER SINGH,MEMBER

                   This appeal is directed against the order dated 09.09.2022, rendered by the District Consumer Disputes Redressal Commission-I, U.T. Chandigarh (hereinafter to be referred as “the Ld. Lower Commission”), vide which, it partly allowed the complaint bearing No.CC/752/2017 and directed the Opposite Parties jointly and severally  in the following terms;-

“10.    In view of the foregoings,  we are of the opinion that the present complaint must succeed. The same is accordingly partly allowed. OPs are, jointly & severally, directed as under ;

[a]      To compensate the Complainant @ Rs.5/- per sq. ft. of the super area per month for the delay in completing and handing over the possession with effect from 1.5.2012 till the date of possession;

[b]      To pay Rs.5,000/- as compensation on account of deficiency in service and causing mental and physical harassment to the Complainant; 

[c]       To pay Rs.5,000/-  to the complainant as cost of                        litigation;

11.          The above said order shall be  complied  within 30 days of its receipt by the Opposite Parties; thereafter,they shall be liable for interest @12% per annum on the amounts mentioned in  sub-para [a] & [b] above from the date of institution of this complaint, till it is paid, apart from complying with the direction as contained in sub-para [c] above. “

2.       Before the Ld. Lower Commission, it was case of the complainant/respondent No.1 that  he booked a 3 Bedrooms Flat bearing No.1103, 1st floor, having super area of 1901 sq. ft. (approx.) with the Opposite Parties on 15.06.2010 and paid booking amount of Rs.1,00,000/- vide Cheque dated 15.06.2010. As per clause 14 of the application/booking form (Annexure C-1), the construction of the allotted Unit was to be completed within 21-24 months from the date of allotment, failing which, the Opposite Parties were liable to pay a penalty to its customers @ Rs.5/- sq. ft. of super area per month for a delay in completing the construction, beyond the committed period. The Flat Buyer’s Agreement/Allotment Letter was executed between the Complainant and the Opposite Parties on 21.07.2010 (Annexure C-2). As per the allotment letter, the basic sale price of the aforesaid Unit was Rs.37,21,237/-.  After the allotment, the complainant deposited the installment of the flat as per payment plan.  As per Clause-11 of the application form, and as per the assurance given by the opposite parties, the construction of the flat was to be completed within 24 months.  Since the possession of the Unit was not handed over to the Complainant though the period of 24 months had expired, the Complainant approached the Opposite Parties several times for giving possession of the flat.  Ultimately, the Sale deed was executed on 17.4.2015 and possession of the flat was handed over to the Complainant on 16.05.2015.   It was  further averred that as the delivery of possession had been delayed, Opposite Parties vide letter dated 17.04.2012 (Annexure C-3) agreed to compensate the complainant @ Rs.5/-  per sq. ft i.e. Rs.9505/- per month from 1.5.2012 till handing over possession. The complainant kept on requesting the Opposite Parties umpteen number of times to compensate him for the delay in possession of the flat in question, but there was no reply. Eventually, complainant got served legal notice dated 21.8.2017 (Annexure C-6) upon the Opposite Parties, but to no avail.   Hence, alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, a consumer complaint was filed before the Ld. Lower Commission.

3.                  Respondents No.2 & 3 /Opposite Parties No.2 & 3  did not appear before the Learned Lower Commission despite  service, hence, they were proceeded against ex parte vide order 4.1.2018. Subsequently, appellant/Opposite Party No.1 was also proceeded against ex parte vide order dated 16.10.2018.

  4.              Vide order dated 22.1.2019, initially the consumer complaint was partly allowed ex parte by the Learned District Commission. The matter was carried in appeal(Appeal No.50 of 2020) by Opposite Party No.1(appellant)  to the Hon’ble State Commission, U.T.Chandigarh. Under order dated 21.3.2022 of the Hon’ble  State Commission, the case was remanded back to the  Ld. Lower Commission  with a direction to decide afresh expeditiously after giving opportunity to opposite Party No.1 to file reply and lead evidence.

5.                   However, the Appellant/Opposite Party No.1 contested the consumer complaint and filed reply by stating it “reply on behalf of respondents No.1 & 2” but as Opposite Party No.2 was ex parte, so the said reply was treated only on behalf of the appellant/Opposite Party No.1.  In the written reply, the answering OPs did not dispute the facts with regard to the booking of the flat in question, signing of the agreement and executing of sale deed etc.. However, it was pleaded that the complainant failed to maintain financial discipline as an amount of Rs.1,02,000/- was due from him. It was denied that the possession of the flat was delayed for about three years and it failed to provide amenities to the complainant. The maintainability of the complaint in the District Commission was questioned and pleaded that there was no deficiency in providing service and indulgence into unfair trade practice. A prayer was made for dismissal of the complaint. 

6.                  On appraisal of the complaint, and the evidence adduced on record, Ld. Lower Commission allowed the complaint of the  Complainant/Respondent No.1, as noted in the opening para of this order.    

7.                Aggrieved against the  aforesaid order passed by the Ld. Lower Commission, the instant Appeal  has been filed by the Appellant/Opposite Party No.1  for setting aside the impugned order.   

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

9.                      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. 

10.                  In the appeal, the ground taken by the appellant is that the possession of the flat was handed over to the respondent No.1/complainant on 16.05.2015 but the claim was filed on 26.10.2017 which is beyond the period of limitation.  Further, at the time of taking possession, no objection was raised by the complainant. The other ground  taken by the appellant is that the Ld. District Commission was not having the territorial jurisdiction to try and adjudicate the complaint as no cause of action arose within the territorial jurisdiction of the District Commission, Chandigarh.  It is also contended on behalf of the appellant that even till date an amount of Rs.1,02,000/- is due from the complainant which he failed to pay. 

 11.                  There is no denying the fact that the flat in question was booked on 15.6.2010 and as per Clause 11 of the terms and conditions of the Opposite Parties, the possession of the flat in question was to be handed over within 21 to 24 months from the date of allotment, failing which the Opposite Parties  had to pay penalty to its customers @ Rs.5/- per sq. ft. of super area per month for the delay in completing the construction beyond the committed period.  It is a matter of record that  the Opposite Parties have issued letter dated 17.04.2012 (Annexure C-3) to the Complainant with the promise to pay him an amount of Rs.9505/- per month with effect from 01.05.2012 till the possession of the flat in question. Ultimately the possession was handed over to the complainant on 16.5.2015.  Before executing the sale deed, the complainant had been requesting the Opposite Parties to pay compensation at the rate of Rs.5/- per sq.ft of the super area per month as per Clause-11 of the application/booking form. According to the complainant, it was assured by the representative of the Opposite Parties that the penalty/compensation as stipulated in clause-11 shall be adjusted at the time of execution of sale deed. The Sale deed was executed on 17.4.2015 but still the aforesaid amount was not adjusted/paid. The complainant then sent letter dated 1.3.2016 (Annexure C-5) through registered post. Even legal notice dated 21.8.2017 (Annexure C-6) was served upon the Opposite parties. When nothing was heard, consumer complaint was filed on 26.10.2017. Thus, there was continuing cause of action and the complaint filed was within the prescribed period of limitation.

12.                  As regards territorial jurisdiction, the registered office of Opposite Party No.1 is situated in House No.1707, Sector-43-B, Chandigarh. A perusal of  Annexure C-4,  copy of the Sale deed registered on 16.4.2015 reveals that  Amrik Singh son of Sh.Kuldeep Singh, who is  Director  of M/s Skylark Housing Development Pvt. Ltd.  situated at House No.1707, Sector-43-B, Chandigarh has signed as Seller. Thus, it proves that the registered office of Opposite Party No.1 is at Chandigarh, and as such the District Commission at Chandigarh has the territorial jurisdiction to entertain and adjudicate the complaint.

13.             The Appellant/ Opposite Party No.1 has not denied execution of Annexure C-3, letter dated 17.4.2012,addressed to the complainant Roop Singh Maan,  which reads as under ;

“On behalf of the company, we regret that due to unforeseen circumstances, the possession of the above said unit is delayed.

  As per our Application form, Clause No.14, and all these clauses are covered in our Agreement i.e. we are not in position to give the possession of he said unit in 21-24 months from the date of Agreement, we are ready to compensate @Rs.5/- per sq.ft. as Rent of the above said unit to the buyer i.e. Rs.9505/- per month from 1.5.2012 till possession of the said flat is handed over.”

Thus, the appellant itself has acknowledged the delay in handing over the possession of the flat to the respondent No.1/complainant who has suffered a lot of mental harassment for which he has sought compensation.  Inspite of time and again approaching the appellant, compensation amount  has been delayed on one pretext or the other. Respondent No.1/complainant cannot be made to wait indefinitely for possession of the flat. It would be reasonable, just and fair that the respondent gets compensation for the delayed possession. Therefore, the Ld. Lower Commission rightly ordered the Appellant and respondents No.2 & 3/ Opposite Parties No.2 & 3  to compensate the complainant @Rs.5/- per sq.ft. of the super area per month for the delay in completing and handing over possession w.e.f. 1.5.2012 till the date of possession alongwith  Rs.5000/- on account of  compensation for deficiency in service and harassment besides Rs.5000/- on account of costs of litigation, which appears to be justified and adequate. We find no case made to interfere in the order, under challenge.

 14.                   In view of the above discussion, we are dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeal, being bereft of merit, is accordingly dismissed, and the order of the Ld. Lower Commission is upheld.

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

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