Mahesh (none) 06 December 2011

District forum directs handover of flat worth rs. 1.3 crores

I am truly impressed by the consumer protection agencies namely the district forum and the state commission in Chandigarh. The agencies in chandigarh have made it a point to decide the matter expeditiously and have truly encted the consumer protection act in spirit. I attach a judgment where a complainant was awarded damages and the OP in that case, a builder, was directed to handover the flat. The flat in this question is worth 1.36 crores. There are several instances where a distirct forum after keeping the case pending dismisses the case on the ground that the flat/house in question is worth more than 20 lacs (the pecuniary limit for district forum). The forum in those cases have misinterpreted the pecuniary jurisdiction definition by mistake or they just want to get rid of the case. The pecuniary jurisdiction is determined by the claim made in the complaint and not by the cost of the subject matter. The complainant in such cases has to suffer more harrasment as he would then have to file the case fresh in a state commission. Please find below the judgment.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No: 285 of 2010]

Date of Institution : 11.05.2010

Date of Decision : 04.04.2011

1. Dr. Prithipal Singh S/o S. Inder Singh, resident of 25627, Elena Road, Los Altos Hills, CA 94022 (USA).

2. Mrs. Rajinder Kaur w/o Dr. Prithipal Singh resident of 25627, Elena Road, Los Altos Hills, CA 94022 (USA).

Through their duly authorized representative Sh. Navjit Singh r/o H. No.706, Sector 25, Panchkula.

---Complainants.

V E R S U S

Uppal’s Marble Arch, Pocket No.3 & 3, Manimajra, Chandigarh.

---Opposite Party.

BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT

SHRI ASHOK RAJ BHANDARI MEMBER

SMT. MADHU MUTNEJA MEMBER

Argued By:Sh. Gunjan Rishi, Advocate for the complainants.

Sh. Vikas Bector, Advocate for the OP.

PER LAKSHMAN SHARMA, PRESIDENT

Dr. Prithipal Singh and his wife Mrs. Rajinder Kaur have filed this complaint under Section 12 of the Consumer Protection Act, 1986 praying for the following reliefs:-

i) The physical possession of the apartment be ordered to be handed over immediately complete in all respects in accordance with promised specifications and standards as per Annexure II of the Agreement and also facilities promised under the Agreement and Specification Brochure;

ii) Interest @24% on already paid Basic Sale Price and allied charges w.e.f. 1.1.2009 till the date of handing over of possession.

iii) Rs.5 Lacs as compensation for harassment and callous and indifferent attitude of the OP.

2. In brief the case of the complainants is that they are Non-resident Indians. They wanted to buy a luxury apartment for themselves in India for their peaceful abode at the time of return to India. The complainants came across the news letter issued by the OP. Allured by the said advertisement made by the OP, the complainants approached it for fulfillment of their desire of having a flat at Chandigarh. The complainant paid a sum of Rs.11,20,700/- as registration fee on 12.4.2006. A Buyer’s Agreement was executed on 25.11.2006 whereby the OP agreed to sell them a 4 Bed Room Apartment (No.C-14, First Floor, Block C) having a super area of 2450 Sq. ft @ Rs.5,490/- per sq. ft. The complainants paid the total price of the flat as per the details given below: -

Sr. No.	Amount (Rs.)	Particulars
1	11,40,700	Booking Amount paid vide Cheque No.449401 dated 29.03.06. Receipt dated 12.04.06.
2	2,05,050	Cheque No.016424 dated 29.11.06. Receipt dated 05.01.07.
3	20,00,000	Receipt dated 05.01.07
4	50,00,000	Receipt dated 05.01.07
5	20,00,000	Receipt dated 05.01.07
6	14,45,425	Receipt dated 05.01.07
7	7,00,000	Receipt dated 05.01.07
8	13,00,000	Receipt dated 05.01.07
Total	1,37,91,175

It has further been prayed that as per Clause 8.1 of the Agreement, the possession was to be delivered within 30 months from the date of start of construction of the residential complex. In the news letter (Annexure C-1), the OP has represented that the possession will be delivered by the end of 2008. According to the complainants, the OP did not adhere to its commitment for delivery of possession in the year 2008. So, the complainants wrote a letter to the OP to enquire about the date of delivery of possession. In response to the letter, the OP intimated the complainants vide letter (Annexure C-3) that the expected time of completion of the project was 2009. However, no offer of possession was received in the year 2009. So, the complainants wrote a letter enquiring about the possible date of delivery of possession. Vide letter dated 14.11.2009 (Annexure C-4), the complainants were informed that the date of possession will be intimated only after receipt of completion certificate of the project. Another letter dated 21.12.2009 was received from the OP whereby the complainants were apprised of the fact that the OP had applied for completion certificate and the possession shall be delivered as soon as the completion certificate is issued. It has further been averred by the complainants that in order to cross check the version given by the OP, the complainants sought information from the Chandigarh Administration regarding the status of the completion certificate. To their utter surprise, the Chandigarh Administration told the complainants that the application for issuance of completion certificate has been rejected due to several discrepancies in the construction work. A copy of the letter has been annexed as Annexure C-5/A. Thereafter, the complainants visited India in the month of February 2010. They visited the site and were surprised to see that the construction work at the site was very slow. Thereafter, they visited the office of OP and expressed their grouse. However, the OP assured to deliver the possession by 31.3.2010. They also made commitment to this effect in their E-mail (Annexure C-6). According to the complainants, despite the above said commitments and despite the fact that the whole sale consideration was paid as far back as on 5.1.2007, the OP has failed to deliver the possession, which amounts to deficiency in service.

In these circumstances, the present complaint has been filed seeking the reliefs mentioned above.

3. In the reply filed by the OP, the factum of execution of Buyer’s Agreement on 25.11.2006 and payment of a sale consideration have been admitted. The case of OP is that it never committed to deliver the possession on any specific date. So, all the averments to this effect are absolutely wrong and false. It has been pleaded that the construction work was completed as far back as March 2009 but the possession could not be delivered because of non issuance of the completion certificate by the Chandigarh Administration. So, according to the OP, the delay in delivery of possession of the flat in question is not on account of any deficiency in service on the part of OP. Rather, it is on account of external factors, which are beyond the control of OP. According to the OP, the delay has occurred due to the lethargy on the part of Chandigarh Administration. It has further been averred that now the Estate Office, U.T., Chandigarh has issued the completion certificate, copy of which is Annexure OP-II and now the possession will be delivered shortly. It has further been pleaded that the OP had offered for the refund of the amount to the complainant along with the normal banking rate of interest but the complainants did not accept the same. In these circumstances, according to the OP, there is no deficiency in service on its part, so, the complaint deserves dismissal.

4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc and the written arguments filed by the parties.

5. Exhibit C-2 is the Buyer’s Agreement dated 25.11.2006. Vide this agreement, the OP agreed to sell 4 Bed Room Apartment No.C-14, First Floor, Block C having a super area of 2450 Sq. ft @ Rs.5,490/- per sq. ft. to the complainants. Admittedly, the complainants have paid the entire sale consideration. As per Clause 8.1 of the agreement (Annexure C-2), the possession was to be delivered within 30 months from the date of start of the construction of the residential complex. This clause has been very cleverly and smartly drafted. The OP has not given any commitment regarding the specific date of delivery of possession. However, in the Advertisement (Annexure C-1), it has represented to deliver the possession by the end of the Year 2008. Later on, vide letter dated 29.3.2008 (Annexure C-3), the OP intimated the complainants that the OP was expecting that the project shall be completed in 2009. However, the project was not completed as committed in letter (Annexure C-3). Annexure C-5 is the E-mail sent by the OP to the complainants whereby it was intimated to the complainants that the OP has applied for the completion certificate and possession shall be delivered as soon as the same is received. Annexure C-5/A is the letter written by the S.D.O (Buildings) to the OP whereby the completion certificate was denied as there were number of discrepancies in the construction of the building by the OP.

6. Thus from the above documents, it is apparent that the OP is putting of the date of delivery of possession on one pretext or the other and the possession has not been delivered so far. As mentioned above, the entire sale consideration was paid by the complainants on 5.1.2007. So, they cannot be allowed to wait for unlimited period for the delivery of possession. In such circumstances, non delivery of possession within a reasonable time, amounts to deficiency in service on the part of OP.

7. In view of the above discussion and in view of the fact that the completion certificate has already been issued by the Chandigarh Administration, the present complaint is allowed and the OP is directed as under: -

(i) to deliver possession of the flat to the complainants within a period of three months from the date of receipt of certified copy of the order;

(ii) to pay a compensation of Rs.1 Lac for mental agony and harassment;

(iii) to pay an amount of Rs.7,000/- as litigation costs.

8. The above order be complied with by the OP within three months from the date of receipt of its certified copy, failing which OPs shall pay interest @18% per annum on the total amount of Rs.1,37,91,175/- deposited by the complainant plus the amount of compensation of Rs.1 Lac from the date of filing of the complaint i.e.11.5.2010 till the date of compliance of the order.

9. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.