Chandigarh

StateCommission

A/243/2023

THE PUNJAB STATE FEDERATION OF COOPERATIVE HOUSE BLDG SOCIETY LTD - Complainant(s)

Versus

SUKHWINDER KAUR - Opp.Party(s)

VERTIKA H. SINGH

13 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	243 of 2023
Date of Institution	:	21.09.2023
Date of Decision	:	13.08.2024

 

 

 

 

 

The Punjab State Federation of Cooperative House Building Society Ltd. through its Managing Director, SCO No.150-151, Sector 34-A, Chandigarh.

 

• Appellant/opposite party

 

V e r s u s

 

Sukhwinder Kaur wife of Sh.Raman Sinduria, resident of House No.1372, Sector 68, SAS Nagar-Mohali.

 ….Respondent/complainant

PRESENT:-

Ms.Vertika H.Singh, Advocate for the appellant. Sh.Pyare Lal Sinduria, authorized representative of the  respondent.

===============================================================

 

Appeal No.	:	244 of 2023
Date of Institution	:	21.09.2023
Date of Decision	:	13.08.2024

 

 

 

 

 

The Punjab State Federation of Cooperative House Building Society Ltd. through its Managing Director, SCO No.150-151, Sector 34-A, Chandigarh.

 

• Appellant/opposite party

 

V e r s u s

 

Pyare Lal Sinduria son of Late Sh.Pannu Ram, resident of House No.1372, Sector 68, SAS Nagar-Mohali.

 ….Respondent/complainant

PRESENT:-

Ms.Vertika H.Singh, Advocate for the appellant. Sh.Pyare Lal Sinduria, respondent in person.

===============================================================

BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.PREETINDER SINGH, MEMBER.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

                   Since common questions of facts and law are involved in these appeals, as such, we are going to dispose of the same, by passing a consolidated order. 

 

M.A. No.718 of 2023 and M.A. No.720 of 2023 (condonation of delay):-

2.           Alongwith these appeals, respective applications have been filed by the applicant/appellant/opposite party for condonation of delay of 10 days (as per the office 15 days) in filing the same. Arguments of the parties on these applications were heard.
3.           For the reasons stated in these applications, we are of the considered view that the applicant/appellant has been able to satisfy that there had been a sufficient cause for not preferring the appeals within the stipulated period. In this view of the matter, these applications stand allowed and the delay of 10 days (as per the office 15 days) in filing the respective appeals is condoned. Accordingly, these applications stand dispose off. 

F.A. No.243 of 2023 and F.A. No.244 of 2023:-

4.           The appellant in both these appeals has assailed the order dated 13.07.2023 passed by the District Consumer Disputes Redressal Commission-I, U.T., Chandigarh, whereby the consumer complaints bearing no.322 of 2020 titled as Sukhwinder Kaur Versus The Punjab State Federation of Cooperative House Building Society Ltd.  and also 321 of 2020 titled as Pyare Lal Sinduria Versus The Punjab State Federation of Cooperative House Building Society Ltd. were partly allowed and the appellant was directed to  refund the respective amounts deposited by the respective complainants alongwith interest, compensation and litigation expenses. 
5.           Since only minor variations in facts and law are contained in the respective cases, therefore, facts are being culled out of consumer complaint bearing no.322 of 2020 titled as Sukhwinder Kaur Versus The Punjab State Federation of Cooperative House Building Society Ltd. Before the District Commission it was the case of the complainant that she had applied for allotment of built-up house in general category-II with the opposite party, under application form- Annexure C-1 and deposited an amount Rs.75,000/- as initial payment. She was allotted a flat vide allotment letter dated 23.06.2009 (Annexure C-2). Thereafter she continued to make payments in installments as per schedule and paid total amount of Rs.8.95 lakhs to the opposite party. However, the opposite party without any justification increased the price of the unit by 62% and entire amount was asked to be paid in lumpsum at the time of possession. Because neither possession of the unit in question was offered in time nor the complainant was in a capacity to pay the increased price, as such, she sought refund of the amount paid but instead of doing that, the opposite party cancelled the allotment of the said unit and thereafter forfeited the entire amount paid by her. 
6.           Similar is the case of the complainant-Pyare Lal Sinduria in consumer complaint 321 of 2020 titled as Pyare Lal Sinduria Versus The Punjab State Federation of Cooperative House Building Society Ltd. In this case, the complainant had paid an amount of Rs.12.11 lacs to the opposite party, which stood forfeited by it, after cancellation of the unit therein. Hence, in those circumstances, the consumer complaints were filed before the District Commission.
7.           The opposite party contested both the consumer complaints; filed its separate written replies and stated that the present complaints were barred by limitation. The complainants had been offered the flats in question and were requested to take the possession thereof but they failed to do so, for want of funds. Even requests for the refund of the deposited amount were made by the complainants after huge delay of 4 years. Rather the complainants were time and again given extension for making payments and when they failed to do so, their allotment was cancelled and amounts paid by them stood forfeited as per terms and conditions of the brochure as well as the allotment letter. Remaining  averments made in the consumer complaints were denied being wrong.
8.           Respective rejoinders were filed by the complainants whereby the averments made in the consumer complaints were reiterated.
9.           The parties led evidence by way of affidavits and documents in support of their cases.
10.           Alongwith the consumer complaints, applications for condonation of delay if any in filing the respective consumer complaints had also been filed by the complainants, which stood allowed by the District Commission.
11.           Finally, after hearing the contesting parties, both the consumer complaints were partly allowed by the District Commission in the manner stated above,  vide separate orders dated 13.07.2023. Hence these appeals have been filed by the appellant/opposite party against the orders dated 13.07.2023.    
12.           We have heard the rival contentions of the contesting parties and also gone through the material available on the record, including written arguments.
13.           Following grounds have been taken by the appellant in these appeals:-
    1. that the District Commission failed to take note of the fact that though the consumer complaints were highly time barred, as possession of the respective units stood offered as far as back on 21.10.2014, yet,  the consumer complaints were decided on merits and were partly allowed, without condoning the delay;
    2. that the District Commission also failed to give any finding qua the reasons of delay in delivery of possession of the units, explained by the appellant
    3. that the District Commission failed to appreciate that the complainants were well aware of the fact that the rates of the units in question were tentative and final price thereof was to be determined at the time of delivery of possession thereof; and that as per terms and conditions of the allotment letter dated 23.06.2009, Annexure C-2, the complainants were not entitled to seek refund of the amount paid, after offer of possession of the units in question.

 

14.           First coming to the ground taken by the appellant that the District Commission failed to take note of the fact that though the consumer complaints were highly time barred, as possession of the   respective units stood offered as far as back in 21.10.2014, yet,  the consumer complaints were decided on merits and were partly allowed, without condoning the delay, it may be stated here that we have through the orders impugned and found that the District Commission has condoned the delay in filing respective complaints and only thereafter decided the same on merits. In this view of the matter ground taken by the appellant being devoid of merits, stand rejected.
15.           Now coming to the ground taken by the appellant that the District Commission also failed to give any finding qua the reasons of delay in delivery of possession of the units, explained by the appellant, it may be stated here that the District Commission has fairly given its observations in para nos.10 and 11 of the order impugned to the effect that when possession of the unit is offered after delay of about three years from the stipulated date, then it is not obligatory on the part of allottee/complainants to  accept the same and on the other hand, they can seek refund of the amount paid by them. These observations of the District Commission, also find support from the principle of law laid down by the Hon’ble Supreme Court in the case titled as Pioneer Urban Land & Infrastructure Ltd. Vs. Govindan Raghavan, Civil Appeal No.12238 of 2018, decided on 02.04.2019, wherein  it was held that the flat Purchaser could not be compelled to take possession at a belated stage i.e. after expiry of stipulated period of possession.
16.           Though in order to wriggle out of the situation,  the appellant has taken various pleas qua delay in delivery of possession of the units in question like the project site got flooded due to low lying area; there was scarcity of building material due to mining problems in the State; NOC qua electricity was not issued by the competent authorities etc., yet, in our considered view, if the appellant itself had itself launched the project in the alleged low lying area, now they have to blame themselves and cannot seek any immunity therefrom. Similarly, if the appellant had chosen to sell the units in its project before obtaining necessary NOCs from various departments including the electricity department/PSPCL as such now they cannot claim any immunity  if there was delay in release of NOC in the matter.
17.           Now coming to the plea regarding shortage of material like sand etc. on account of ban on mining in the State, it may be stated here that except newspaper cuttings, no convincing evidence has been placed on record by the appellant to prove that  it was unable to procure the said material, in adequate quantity, on account of the alleged ban on mining. There is no evidence of the opposite party having invited tenders for supply of material and there being no response to such tenders. A similar plea with regard to shortage of building material as a cause for delay in delivery of possession of the plots/units was taken by a builder before the Hon`ble National Consumer in Consumer Case No.347 of 2014, titled as Swaran Talwar & 2 others v. M/s Unitech Limited (along three connected complaints),  decided on 14 Aug 2015,  which was rejected and the complaint was allowed in favour of the complainant therein. In this view of the matter ground taken by the appellant in this regard also, being devoid of merits, stand rejected.
18.           As far as ground taken by the appellant to the effect  that the District Commission failed to appreciate that the complainants were well aware of the fact that the rates of the units in question were tentative and final price thereof was to be determined at the time of delivery of possession thereof, it may be stated here that this ground has adequately been dealt with by the District Commission in para no.9 of the orders impugned, while placing reliance on the judgments of the Hon’ble National Commission and as such needs no interference therein. 
19.           Now coming to the last ground taken by the appellant to the effect that that the District Commission also failed to appreciate that as per terms and conditions of the allotment letter dated 23.06.2009, Annexure C-2, the complainants were not entitled to seek refund of the amount paid, after offer of possession of the units in question, it may be stated here that this condition in the allotment letter, Annexure C-2 is wholly one sided, harsh, oppressive and unconscionable. In our considered opinion, the act of thrusting the said one sided, harsh, oppressive and unconscionable conditions upon the complainants, amounts to imposing upon the complainants unreasonable charge, obligation and condition which had put them to disadvantage. The case of the complainants thus fall under Section 2 (46) (vi) of CPA 2019.  This  act and conduct of opposite party also amounts to effect of permitting them to assign the contract to the detriment of the complainants, without their consent and also imposing upon them unreasonable charge, obligation and condition to put them to disadvantage, which is covered under the provisions of Section 2 (46) (v) and (vi) of CPA 2019, which gives reason to this Commission to say that it is also an ‘unfair contract’. In this view of the matter, ground taken by the opposite party in this regard also stands rejected, especially in the face of the principle of law laid down by the Hon’ble Supreme Court in Pioneer Urban Land & Infrastructure Ltd.s’ case (supra), wherein  it was held that the flat Purchaser could not be compelled to take possession at a belated stage i.e. after expiry of stipulated period of possession and therefore he will be entitled to seek refund of the amount paid.
20.           Keeping in view the above discussion, we are of the considered view that the impugned orders dated 13.07.2023 passed by the District Commission, allowing the consumer complaints ordering refund of the respective amounts paid by the respective complainants, alongwith interest, compensation and litigation expenses, being based on the correct appreciation of evidence and law on the point, does not suffer from any illegality or perversity, and did not need interference of this Commission. 
21.           Consequently, both these appeals are dismissed with no order as to cost.
22.           Pending application(s), if any, stands disposed of, accordingly.
23.           Certified Copies of this order be sent to the parties, free of charge, forthwith and one copy thereof be placed in the connected file. 
24.           The appeal files be consigned to Record Room, after completion and the record of the District Commission concerned, after annexing the additional documents, if any, submitted before this Commission in these appeals, be sent back immediately.

 

Pronounced.

13.08.2024

 

Sd/-

 [JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

 (PREETINDER SINGH)

 MEMBER

 Rg.