Chandigarh

StateCommission

A/97/2021

Asha Sharma - Complainant(s)

Versus

The Nirvana Co-Op House Building (First)Society Ltd. - Opp.Party(s)

Vipin Kaushal & Harsh Nagra Adv.

06 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T. CHANDIGARH

[Additional Bench]

 

[1]

Appeal No.	:	A/97/2021
Date  of  Institution	:	15/11/2021
Date   of   Decision	:	06/02/2023

 

 

 

 

 

Asha Sharma W/o Sh. Harish Sharma, Resident of Flat No. 1722 (Membership No. 355), The Nirvana Coop. House Building (First) Society, Sector 49-B, Chandigarh.

….Appellant

 

Vs.

 

 

The Nirvana Coop. House Building (First) Society Limited, Plot No. 48, Sector 49-B, Chandigarh, through its President/Secretary.

…. Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Sh. Harsh Nagra, Advocate for the Appellant.
	:	Sh. Kamal K. Sharma, Advocate for the Respondent.

 

[2]

Appeal No.	:	A/07/2022
Date  of  Institution	:	14/01/2022
Date   of   Decision	:	06/02/2023

 

 

 

 

 

The Nirvana Coop. House Building (First) Society Limited, Plot No. 48, Sector 49-B, Chandigarh, through its President Sh. Sarbjeet Kumar Mishra.

….Appellant

 

Vs.

 

 

Asha Sharma w/o Sh. Harish Sharma, Resident of Flat No.1722, The Nirvana Coop. House Building (First) Society, Sector 49-B, Chandigarh.

 

…. Respondent

 

BEFORE: MRS. PADMA PANDEY   PRESIDING MEMBER

                PREETINDER SINGH      MEMBER

 

PRESENT	:	Sh. Kamal K. Sharma, Advocate for the Appellant.
	:	Sh. Harsh Nagra, Advocate for the Respondents.

 

PER PADMA PANDEY, PRESIDING MEMBER

 

 

1.         This order shall dispose of two appeals i.e. A/97/2021 filed by the Appellant/Complainant (Mrs.Asha Sharma) and Cross Appeal i.e. A/07/2022 filed by the Appellant/Respondent (The Nirvana Coop. House Building (First) Society Limited), against the order dated 01.09.2021, rendered by the Ld. District Consumer Disputes Redressal Commission-II, U.T., Chandigarh (for brevity, ‘Ld. Lower Commission), vide which it allowed the Consumer Complaint bearing No. CC/674/2018, filed by the Complainant (Mrs. Asha Sharma), qua Opposite Parties (The Nirvana Coop. House Building (First) Society Limited), by passing the following order: -

“9]     In the light of above observations, we are of the considered view that the Opposite Parties are found deficient in rendering proper service to the Complainant and having indulged in unfair trade practice. Hence, the present Complaint of the Complainant deserves to succeed against the Opposite Party. Accordingly, the Complaint stands allowed with direction to Opposite Party to pay an amount of Rs.10,000/- per month with effect from July, 2009 (after issuance of No Dues Certificate) till the date of delivery of possession i.e. upto Oct., 2017. The OP is also directed to pay a lumpsum amount of Rs.One Lakh towards compensation for causing her mental agony and harassment as well as litigation expenses.

          The above said order shall be complied with by the Opposite Party within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.25,000/- apart from the above awarded amount.”   

 

2.          Since, the issues involved in the above-said cases, except minor variations, here and there, of law and facts are the same, as such, we are of the considered opinion that these appeals can be adjudicated by passing a consolidated order.

 

3.         Before the Ld. Lower Commission, it was the case of the Appellant /Complainant that being Member of OP-Society, she deposited an amount of ₹1,60,725/- on 31.01.2008 towards principal cost of land and lease money upto the year 2008 and then, cleared all dues amounting to ₹17,77,100/- upto 31.12.2019 with OP-Society.  The OP-Society also issued No Dues Certificate on 24.06.2009.  Despite receipt of all the dues and issuance of No Due Certificate in 2009, the OP-Society demanded another amount of ₹1,20,712/- on 28.11.2016, which the complainant, under compulsion, paid by way of Cheque No.275838.  No justification for the said amount of ₹1,20,712/- has been given to the Complainant.  It has been alleged that the OP-Society partly constructed the Flat, against the terms & conditions of the allotment, so the Appellant/Complainant under compulsion, has to carry out the construction work in the Flat from her own pocket and spent an amount of ₹7 lacs. approx., which otherwise was to be carried out by the OP-Society. The complainant kept on demanding the possession of the Flat, but the Respondent/OP-Society opened their office at her flat and remained therein illegally from 01.08.2008 till 01.01.2011, without paying any rent or charges to the Complainant and delayed the delivery of possession.  Thereafter, the complainant sent legal notice to OP-Society on 05.07.2018, but to no avail. Hence, the aforesaid Consumer Complaint was filed before the Ld. Lower Commission, alleging deficiency in service and unfair trade practice on the part of the Respondent/OP-Society.

 

4.         In the reply filed before the Ld. Lower Commission, while admitting the factual matrix of the case, the Respondent/Opposite Party pleaded that the arrears of dues were paid on 31.12.2009, whereas the full and final payment was paid by the Complainant on 25.10.2016 and on the same day, the possession of the Flat was handed over to her, whereby the permission for mortgage was given.  It was asserted that no permission to mortgage is given without clearing the dues of the Society and without possession of the flat.  The complainant was a defaulter and was liable to pay the arrears of society dues, which she cleared only on 25.10.2016, whereupon promptly, the possession of the flat, as well as permission to mortgage was given, as such the complainant cannot claim any rent, as alleged, from OP-Society from 01.08.2008 to 01.01.2011, as the flat remains the property of the Society, till the possession is given to a member.  Further, the OP-Society had given possession of the flat in question to the complainant completed as per the specifications given by the Society and the said flat was at par with other flats. The Complainant has concocted a false story to claim that she had spent ₹7 lacs on construction of the flat out of her own pocket and that an allottee is at liberty to spend as much money as he or she wants to spend on renovation of the flat. On these lines, the cause was sought to be defended and a prayer for dismissal of the Complaint was made.

 

5.         On appraisal of the pleadings of the parties and the evidence adduced on the record, Ld. Lower Commission accepted the Complaint and issued directions to the Respondent/Opposite Party as noticed in the opening para of this order.  

 

6.         Aggrieved against the aforesaid order passed by the Ld. Lower Commission, the instant Appeals have been filed by the Appellant/Complainant (Mrs.Asha Sharma), as well as by the Appellant/Respondent (The Nirvana Coop. House Building (First) Society Limited) in Cross Appeal i.e. A/07/2022.

 

7.         We have heard the Learned Counsel for the Parties and have gone through the evidence and record of the case with utmost care, along with the written arguments advanced on behalf of the parties.

 

8.         After giving our thoughtful consideration, to the contentions raised and material on record, we are of the considered opinion, that the instant Appeals are liable to be dismissed for the reasons to be recorded hereinafter.

 

9.         A meticulous scanning of the records placed before us makes a clear pointer towards the malpractices and deficiency in service on the part of OP-Society, in as much as, despite issuance of ‘No Dues Certificate’ in favour of the Appellant/Complainant on 24.06.2009, the possession of the flat in question was not delivered to her; the OP-Society illegally opened its Office in the said flat. It has come on record that the OP-Society also demanded additional dues from the Appellant/Complainant in the year 2016 and issued a second ‘No Dues Certificate’, which in no way justify the stand of the Respondent/OP-Society that there has not been any delay in delivering the possession of the flat in question to the complainant and that there has been no deficiency in service on their part. The Ld. Lower Commission has, therefore, rightly held that the OP- Society remained grossly deficient in their services and also indulged into unfair trade practice by belatedly delivering the possession of the flat in question bearing No.1722 in the year 2016, despite issuance of ‘No Dues Certificate’ in the year 2009 and unlawfully used the said flat as their office during said period and then again raised an additional demand just to cover-up their deficient act.

 

10.         By means of present appeal, the Appellant/ Complainant has claimed interest at the rate 12 per cent from 28.11.2016 to Nov. 2018 and also further interest at the rate 12 per cent till the actual realization upon the amount allowed as claimed in the complaint with exemplary costs. However, per material available on record, we are not inclined to accede to the prayer of the Appellant/Complainant, for the sole reason that for whatever deficiency the Respondent has committed, the Ld. Lower Commission, after recording a categorical finding, held Respondent/OP-Society guilty of deficiency in service and rightly ordered it to pay an amount of ₹10,000/- p.m. with effect from July, 2009 (after issuance of No Dues Certificate) till the date of delivery of possession i.e. upto Oct., 2017, along with lumpsum amount of ₹1,00,000/- towards compensation for causing her mental agony and harassment as well as litigation expenses. To our mind, no case is made out for any interference in the impugned order. The prayer of the Appellant/Complainant in the present appeal, therefore, does not merit consideration and is hereby declined.  In nutshell, it is safe to deduce that nothing more is payable to the Appellant/Complainant.

 

11.         Now coming to the cross appeal bearing No.07 of 2022 filed by Appellant/Opposite Party (The Nirvana Coop. House Building (First) Society Limited), it may be stated here that the record transpires that the Appellant/ Opposite Party was highly negligent in rendering proper services to the Complainant, inasmuch as, the Complainant/Respondent to have a comfortable life and having paid her hard earned money to have a flat in any eventuality cannot remotely be supposed to kept on waiting for long especially after making payment and issuance of No Dues Certificate.  The deficiency in service as well as unfair trade practice resorted to by Appellant/OP-Society is thus clearly established, which not only caused financial loss to the Complainant/ Respondent, but also caused her immense harassment & mental agony. In these precincts, the Ld. Lower Commission rightly passed the order impugned before us. Under above circumstances, no case is made out, in favour of the Appellant/OP-Society. Consequently, the appeal bearing No.A/07/2022, filed by the Appellant/OP-Society is lame of strength and therefore, the same is hereby dismissed with no order as to cost.

 

12.         No other point was urged by the Counsel for the Parties.

 

13.         It is demonstrable from a reading of the impugned Order of the Ld. Lower Commission that it is certainly not an order passed without reasons or without applying the judicious mind. The facts and circumstances of the case have been gone into, weighed and considered, and due analysis of the same has been made.
14.         In the wake of the position, as sketched out above, we do not see any strain of perversity discernible from the order which may occasion to vitiate the same. We are, therefore, dissuaded to interfere with the impugned order rendered by the Ld. Lower Commission. The appeals being bereft of merit are accordingly dismissed. The order of Ld. Lower Commission is upheld.

 

15.         Certified copy of this order be placed in Cross Appeal No.07 of 2022 titled as “The Nirvana Coop. House Building (First) Society Limited Vs. Asha Sharma”.

 

16.         In view of the present Appeals being dismissed, the pending application(s), if any, also stands disposed of accordingly.

 

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

 

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

Pronounced

06^th February, 2023                                                                   

                                         Sd/-                         

                                                                (PADMA PANDEY)

PRESIDING MEMBER

 

 

Sd/-

(PREETINDER SINGH)

MEMBER

“Dutt”