State Consumer Disputes Redressal Commission
Shikha vs Jtpl Township Pvt. Ltd. on 8 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 274 of 2016
Date of Institution : 05.09.2016
Date of Reserve : 22.01.2018
Date of Decision : 08.02.2018
Ms. Shikha wife of Krishan Jaswal, resident of Flt No. 301, GH-23,
Sector-5, MDC, Panchkula.
....Complainant
Versus
1. JTPL Townships Private Limited, JTPL House, F-82, District
Centre, Shivaji Palace, Rajouri Garden, New Delhi-110027
2. Dewan Housing Finance Corporation Limited, SCO-62,
Madhya Marg, Sector-26, Chandigarh.
....Opposite parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Sh. Y.S. Dhillon, Advocate
For opposite party No.1: Sh. K.K. Jha, Advocate
For opposite party No.2: Sh. Sandeep Suri, Advocate
Consumer Complaint No. 274 of 2016 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that she booked a residential plot bearing No. 916-A (Ground Floor) on 24.7.2013 with Op No. 1 in their township under the name and style of JTPL City, Mohali situated in the revenue estate of Village Sante Majra and Khuni Majra, Kharar, District Mohali to be built up upon an area of approximately 138.77 sq. yards for a sale consideration of Rs. 32.06 lacs. At the time of booking, it was indicated by Op No. 1 that the floor would be consisting of 2 bedrooms with cupboards in each bedroom, one living and drawing room, lobby with a cupboard, modular kitchen and two toilets with modern bath fittings. It was shown in the layout plan supplied by Op No. 1 at the time of booking of the said floor. Both the bed rooms had access to the backyard. Complainant had opted for a corner residential ground floor. At the time of booking, the complainant paid a sum of Rs. 1,40,000/- vide cheque No. 504341 of Syndicate Bank, Panchkula. A sum of Rs. 60,000/- vide cheque No. 200613 drawn on Central Bank of India, Panchkula. On the asking of Op No. 1, complainant paid a sum of Rs. 70,000/- by cheque No. 200613 drawn on Central Bank of India, Panchkula and another sum of Rs. 30,000/- vide cheque No. 970148 of State Bank of Patiala, Panchkula on 14.10.2013. On 16.10.2013, Consumer Complaint No. 274 of 2016 3 complainant further paid a sum of Rs. 50,000/- vide cheque No. 504342 of Syndicate Bank, Panchkula, upon which Op No. 1 issued the allotment letter dated 6.2.2014 alongwith payment plan as per appendix 'A' as well as the layout plan and specifications of material to be used alongwith details of interiors of the floor. On 27.2.2014, the complainant paid a sum of Rs. 70,000/- vide cheque No. 000002 of Kotak Mahindra Bank, Chandigarh on 3.8.2014. She further paid a sum of Rs. 55,000/- vide cheque No. 054877 of Central Bank of India, Panchkula. Op No. 1 issued buyer's agreement to the complainant, which was undated. The Ops issued receipts in 2014 whereas the payment was received in the year 2013. The complainant got sanctioned a loan from Op No. 2 of a sum of Rs. 24.60 lacs and tripartite agreement was executed between the complainant, Op No. 1 and Op No. 2. It was under
subvention plan and under that Op No. 1 was to pay pre-EMI on behalf of the complainant to Op No. 2 from the date of disbursement of the loan till the delivery of the possession of the residential designer floor. Op No. 2 disbursed a sum of Rs. 22,14,000/- to Op No. 1 in installments as per the subvention plan till 18.1.2016. On 15.5.2016, Op No. 1 sent a letter for intimation of registration and for taking possession of the aforesaid residential floor alongwith demand of Rs. 3,79,152/-. After receiving the aforesaid letter on 21.5.2016, the complainant went to the site on 26.5.2016 and was shocked to see that the building was incomplete and external as well as internal work was going on at the site. Complainant had taken the photographs on 26.5.2016 and Consumer Complaint No. 274 of 2016 4 sent an email on 31.5.2016 raising her concerns. On 2.6.2016, Op No. 1 sent an email to the complainant that the possession of the residential floor is ready and the complainant is to come and take the possession. Op No. 1 also attached some photographs of the interior of the floor showing the interior work is complete but intentionally outer side was not shown and switches shown in the aforesaid pictures were without cover. Complainant again visited on 6.6.2016 and was shocked to see that the floor was not ready and construction work was still going on. On seeing the floor from inside, it was found that there were material changes made by Op No. 1 while constructing the floor, without the consent of the complainant. The changes were such, which would affect the living of the complainant, which has been referred as under:-
(i) "As per the lay out plan there was required to be excess towards the backyard from both the bedrooms, but in actual only excess has been given from one bedroom.
(ii) No cupboards have been constructed by the Op No. 1 in any bedroom whereas the provision was shown to be in the walls for a cupboard in the layout plan. The Op No. 1 has not made any provisions for the cupboards whereas it is evident from the lay out plan that there was to be provisions for cupboards in both the bedrooms as well in lobby. Infact the cupboard are a very essential part of the bedrooms required for storage Consumer Complaint No. 274 of 2016 5 of articles without which it would not be possible for one to reside.
(iii) The both washrooms have also not been made as per the layout plan and moreover the internal fittings of the showers, taps and toilet fittings are placed very differently from the ones shown in the layout plan and because of the fittings made so awkwardly that it is not possible to sit in the bathroom as the western seat is placed in such a place that no one can take a shower by sitting in the bath room and moreover in the other bathroom the placements are made totally in contradiction to the lay out plan such as the washbasin is placed opposite to the door and provision of shower is given where washbasin has been shown in the layout plan. These are material defects in the floor constructed by OP No. 1.
(iv) There is no P.O.P. work in the living/dinning room. It is pertinent to mention here that at the time of booking of the floor the Op No. 1 has categorically stated that POP would be done in all the rooms.
(v) Infact, the construction of the whole residential floor is not as it figures in the layout plan of the project as the said floor is facing the fields whereas the whole township is on the other way around.
(vi) Furthermore there is no modular kitchen constructed by the Op No. 1 as only drawers are placed in the kitchen Consumer Complaint No. 274 of 2016 6 without there being any fitting without which it cannot be said to be a modular kitchen. The Op No. 1 was required to construct proper modular kitchen. But in place of modular kitchen only cup boards with drawers are provided without any fittings inside the drawers.
(vii) Another very astonishing fact also came to light as there was construction going on adjacent to the floor of the complainant. As mentioned earlier the complainant had paid PLC for a corner floor but here even after receiving the charges for the same the Op No. 1 were constructing another floor adjoining the floor of the complainant."
Complainant had also taken the photographs of the site on 6.6.2016. On 20.6.2016, complainant again visited the site and construction work was still going on. Complainant took the photographs on that day also. On 27.6.2016, complainant again sent an email to Op No. 1 raising the grievances as mentioned in earlier emails with regard to the construction and issues of location and it was specifically stated that she is not ready to take the possession of the floor as it being nothing but a paper possession and the floor was constructed in contravention of the layout plan and that the matter will be brought to the notice of Op No. 2 not to pay further payment to Op No. 1. The amount received from the complainant as well as from Op No. 2 should be refunded alongwith interest but no reply was sent by Op No. 1 to address the grievance of the complainant. A complaint was also sent to the Consumer Complaint No. 274 of 2016 7 Nodal Officer of Op No. 2 for not disbursing further payment to Op No. 1. On 9.7.2016, Op No. 1 sent email to Op No. 2 that pre-EMI should be charged from the complainant w.e.f. 1.7.2016 as intimation of possession has already been conveyed to the complainant on 15.5.2016. On 15.7.2016, Op No. 1 sent a letter through post as well as an email to the complainant and put a demand of Rs. 6,35,985/- and a sum of Rs. 5554/- was charged as interest on delayed payment. On 28.7.2016, the complainant again sent an email to Op No. 1 that her grievance sent to Op No. 1 have not been addressed to. Further Op No. 2 charged a sum of Rs. 19,742/- from the complainant on account of pre-EMI for the month of July, 2016 because pre-EMI was to be paid by Op No. 1 as the construction was not complete in all respects and possession was not delivered to the complainant. The complainant further charged a sum of Rs. 24,132/- on account of EMI for the month of August, 2016. Alleging unfair trade practice and deficiency in services on the part of Op No. 1, this complaint has been filed by the complainant against Op No. 1 to refund a sum of Rs. 26,89,000/- plus pre-Emi charged by Op No. 2 for the month of July and August, 2016 i.e. Rs. 19,742/- and Rs. 24,132/-, compensation to the tune of Rs. 10 Lacs and Rs. 1 Lac as litigation expenses.
2. Upon notice, Ops appeared and filed their respective written statement. Op No. 1 in its written statement took the preliminary objection that there is no cause of action for the complainant to file this complaint as he has already been intimated vide letter dated 15.5.2016 to take the possession; construction Consumer Complaint No. 274 of 2016 8 was carried out within the knowledge of the complainant and she had been making the payments in installments based on the development of the construction and had never raised any objection to any deviation from the approved map; the complainant has concealed the material facts that she had booked the floor under subvention scheme and till the construction is complete/ intimation letter is issued to the complainant to execute the sale deed, Op No. 1 was paying the pre-EMI interest to Op No. 2; the complaint is not maintainable as parties are governed by the terms and conditions of the agreement and that complaint is not maintainable being vexatious in nature, therefore, it be dismissed with costs. In parawise reply, it is admitted that complainant booked the floor built on floor of 138.77 sq. yards vide application dated 24.7.2013. At the time of booking a sum of Rs. 2 Lac was paid and at later date some payments were made. It was strongly denied that the complainant was ever promised that cupboard will be given in every bed room or any sort of wooden work. In fact it was a booking of a simple flat with simple kitchen work like cabinets for utensils and drawers fitted with SS framework. It was denied that any layout plan was attached with the allotment letter. In fact allotment letter alongwith Appendix 'A' of payment plan was issued in favour of the complainant. Then buyer's agreement was executed between the parties. It was denied that it was undated. Further the complainant had raised a loan of Rs. 24,60,000/- from Op No. 2 and tripartite agreement was executed between the complainant, Op No. 1 and Op No. 2. It is also admitted that a sum Consumer Complaint No. 274 of 2016 9 of Rs. 22,14,000/- was disbursed by Op No. 2 to Op No. 1 during the course of construction. Vide letter dated 15.5.2016, a notice was also issued to the complainant to pay a balance payment of Rs. 3,79,152/- to be paid by the complainant and Rs. 2,46,000/- was to be paid by Op No. 2. It was denied that the flat was not ready in all respects. After delivery of the flat, occupancy certificate was applied for and it was obtained by Op No. 1 on 14.6.2016. Further Op No. 1 had sent an email dated 2.6.2016 alongwith photographs showing the completion of the construction. In response to the email dated 31.5.2016 issued by the complainant, it was denied that any material changes have been made in the layout of the floor. The cupboards were not within the ambit of contract and fittings of the kitchen were also SS fittings as agreed. It was denied that there was any unfair trade practice or any deficiency in service on the part of Op No. 1. Complaint is without merit, it be dismissed.
3. Op No. 2 in its reply stated that the dispute is inter-se between the complainant and Op No. 1; the builder stated that offer of possession has been made to the complainant, therefore, this Op has rightly demanded the amount from the complainant against the pre-EMI. On merits, it was stated that on the basis of tripartite agreement between the complainant, Op No. 1 and Op No. 2 loan of Rs. 24.60 lacs was sanctioned to the complainant. Other allegations in the complaint are pertaining to Op No. 1 and no relief has been sought against this Op. Therefore, complaint against this Op be dismissed.
Consumer Complaint No. 274 of 2016 10
4. The parties were allowed to lead their respective evidence in support of their contentions. Complainant in her evidence has tendered her affidavit as Ex. CA and documents Exs. C-1 to C-29. On the other hand, Op No.1 has tendered affidavit of Mandeep Singh, Manager as Ex. OP1-A and documents Ex. Op- 1/1 to Op-1/8.
5. We have heard the counsel for the parties, gone through the pleadings of the parties, evidence and documents on the record and have also carefully considered the oral arguments submitted by the counsel for the complainant, Op No. 2 and written arguments submitted by counsel for Op No. 1.
6. As per the pleadings of the parties, it is an admitted fact that the complainant had applied for a residential floor with Op No. 1 and floor No. 916-A (Ground Floor), built up on a plot measuring 138.77 sq. yards with two sides roads in the project of Op No. 1 was allotted to the complainant. Alongwith that payment plan was given and layout plan of the apartment constructed over an area of plot measuring 138.77 sq. yards was given to the complainant and then buyer's agreement was executed between the parties. Complainant had raised a loan from Op No. 2 under the subvention scheme. In this regard, tripartite agreement was executed between the complainant, Op No. 1 and Op No. 2. With regard to the payment, Op No. 1 had issued a statement alongwith the offer of possession letter Ex. C-14 and demand notice and according to that a sum of Rs. 4,75,000/- was paid by the complainant and a sum of Rs. 22,14,000/- was disbursed by Op Consumer Complaint No. 274 of 2016 11 No. 2. However, with regard to the possession various points of difference have arisen between the parties. The first point is the deviation in the construction of the floor by Op No. 1. It has been stated by the complainant in para No. 1 that at the time of booking of the floor, Op No. 1 stated that it will be consisting of two bedrooms with cupboards in each bedroom, living and drawing room, lobby with a cupboard, modular kitchen, two toilets with modern bath fittings and the same was shown in the layout plan supplied by OP No. 1. The complainant has placed on the record the copy of the layout plan as Ex. C-8, according to which there is cupboard in both the bedrooms and both the bedrooms open in the balcony in the rear side. It has cupboard in the lobby. The seat of the toilet attaching to the lobby is not properly fixed, the modular kitchen has not been provided. Whereas Op No. 1 in its written statement has denied any deviation from the site plan. However, they have admitted that the floor was built upon the plot area 138.77 sq. yards, however, it was denied that it was promised to give cupboard in every bedroom. It was promised to give simple kitchen and that no layout plan was attached with the allotment letter.
7. Whether Ex. C-8 is the layout plan of the floor booked by the complainant with Op No.1? Counsel for the complainant has referred to the letter of allotment wherein the area of the plot has been mentioned as 138.77 sq. yards and the same as mentioned in the layout plan Ex. C-8. Certainly, the layout plan was approved by the Competent Authority i.e. GMADA. However, no sanctioned Consumer Complaint No. 274 of 2016 12 layout plan has been placed on the record by Op No. 1. For that Section 6 (3)(a) of the PAPRA i.e. the particulars in the case of apartment are as under:-
"6(3). Contents of Agreement of Sale:-
(a) the particulars in the case of apartment,-
(i) if the building is to be constructed, the liability of
the promoter to construct the building according to the plans and specifications approved by the authority which is required so to do under any law for the time being in force;
(ii) the date by which the possession of the apartment is to be handed over to the allottee;
(iii) the area of the apartment including the area of the balconies which should be shown separately:
(iv) the price of the apartment including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the allottee of the apartment and the intervals at which the instalments thereof may be paid;
(v) the precise nature of the association to be constituted of the persons who have taken or are to take the apartments;
(vi) the nature, extent and description of the common areas and facilities and the limited common areas and facilities, if any;
(vii) the percentage of undivided interest in the Consumer Complaint No. 274 of 2016 13 common areas and facilities and in the limited common areas and facilities, if any, appertaining to the apartment agreed to be sold, such percentage shall be the ratio of the built-up area of the apartment to the total built-up area of all the apartments;
(viii) the statement of the use for which the apartment is intended and restrictions on its use, if any;"
The first point deals with the liability of the Promoter to construct the building according to the plans and specifications approved by the authority, which is required so to do under any law for the time being in force. Therefore, apartment is to be constructed according to the specifications approved by the Competent Authority whereas Op No. 1 has not placed on the record the specifications of the floor as approved by the Competent Authority. Mere denial of Op No. 1 in the written statement is not sufficient. He has withheld the material documents and certainly, its adverse inference shall be taken against Op No. 1. When Op No. 1 has failed to rebut Ex. C-8 placed on the record by the complainant then it is admitted that Ex. C-8 is the layout plan giving specifications of the floor.
8. The next point arises whether Op No. 1 has committed deviation in construction of the floor. He has specifically mentioned non-existence of the cupboard in both the rooms, doors of both the bedrooms opening in the balcony, cupboard in the lobby, change of seat of toilet attached to the lobby and non-providing of modular kitchen. In case we go through the written statement filed by Op Consumer Complaint No. 274 of 2016 14 No. 1, they have specifically denied with regard to provision of cupboard or the modular kitchen, which is against the specifications given in Ex. C-8. Therefore, we are of the opinion that there is deviation committed by Op No. 1 in the specifications given by them in Ex. C-8.
9. As per the allotment letter dated 6.2.2014 in Clause No. 1, it has been mentioned that location of the plot is two side road and it has been specifically mentioned by the counsel for the complainant in the complaint and that Op No. 1 has charged a sum of Rs. 50,000/- on account of PLC, which is clear from the statement of account given by the Op alongwith letter of possession of offer No. JTPL/RDF-II/2007 dated 15.5.2016 Ex. C- 14 but in fact the floor is not having two sides road, it is only front road and there is no side road. He has drawn the attention of this Commission towards the photographs Ex. C-15 (Colly) where construction is going on the side road. Counsel for Op No. 1 stated that one road is on the back side that is why PLC was taken. However, back side road will be abutting to the floors on the back side and from the back side the building is closed and there is no direct access to the backside road, therefore, this plea taken by the Op No. 1 that back side road will make provision of two roads is not acceptable. In fact Op No. 1 charged Rs. 50,000/- on account of PLC but in fact the floor is offered to the complainant is not having two side roads.
10. Now with regard to the possession letter, it was offered on 15.5.2016 and after that the complainant had gone at the spot Consumer Complaint No. 274 of 2016 15 and had taken the photographs, which are Ex. C-15. These were taken by him on 26.5.2016 and it clearly shows that work on the floor is still going on, therefore, as on 15.5.2016, the flat was not complete. It has not been denied that the photographs Ex. C-15 are not dated 26.5.2016 and that still the floor was incomplete. The complainant had given the email Ex. C-16 on 31.5.2016 giving all the details and pictures were attached to the Op No.1. Then Op No. 1 replied in email dated 27.6.2016 Ex. C-20 in which they have stated that the work was going on in other flats. But in the rebuttal they have not denied the photographs. In reply to that email, the complainant again gave email dated 27.6.2016 Ex. C-21 in which it was stated that there adjoining flat was still under construction, pictures were attached, therefore, it was not feasible to shift in such a residential area and it has been further stated that she was charged for PLC and now other building is coming up. Therefore, at the time of offering the possession, the flat in question was not complete and offer of possession was delivered just to save the pre-EMI payments to Op No. 2. No doubt that Op No. 2 has taken the partial completion certificate of this plot only and not of the project, therefore, simple partial completion certificate of this flat is not acceptable because it does not refer to completion of other amenities attached to the project/floor. It has been further stated that there is no POP work in the living room. It was so undertaken by them in the specifications alongwith the layout plan Ex. C-8 and in the first line, it has been stated that POP in living/drawing room and OBD on fine surface in bed rooms and lobby. The counsel for Consumer Complaint No. 274 of 2016 16 Op No. 1 has not placed on the record any photograph showing POP work in living/dining room. Therefore, we are of the opinion that there is deviation in the construction by Op No. 1 for not giving opening to rear balcony from both the bedrooms. It is provided only in one bedroom. No cupboard in both the bedrooms. No cupboard in lobby. Instead of modular kitchen only simple kitchen has been provided and the wash rooms have not been made as per the layout plan. The showers taps and toilet fittings have been placed differently than what has been shown in the layout plan, therefore, it is practically not possible to sit in the bathroom as the western seat is placed in such a place that no one can take a shower. No POP work in the living/dining room. PLC was charged for two roads to the flat but it is only one road and PLC charges were wrongly charged. Instead of giving road to the corner, they have started raising construction. Whether in such a situation, the complainant is bound to accept the possession. Certainly, its reply will be in negative. In the written arguments, what have been stated in the written reply the same have been repeated in the written arguments. In case Op No. 1 has not raised the construction as per the layout plan and the specifications given at the time of booking of the flat then complainant is not bound to accept such a flat. Then completion certificate is only with regard to one flat only and not of the project and till the amenities attached to the project are not complete then completion of the construction of one flat is meaningless because it is a township and not a single flat. In that situation, the complainant is entitled for the refund of the amount Consumer Complaint No. 274 of 2016 17 paid by him directly and on his behalf by Op No. 2. With regard to the payment of Rs. 26,89,000/-, it stands admitted because Rs. 4,75,000/- was paid by the complainant from his own pocket and Rs. 22,14,000/- was paid by Op No. 2 on behalf of the complainant to Op No. 1. Since the flat was not complete as on 15.5.2016, therefore, the payment of pre-EMI of Rs. 19,742/- and Rs. 24,132/- paid by the complainant to Op No. 2 is also required to be paid by Op No. 1 to Op No. 2.
11. The next question with regard to the rate of interest. Under Rule 17 of the PAPRA, following provisions has been made:-
"17. Rate of interest on refund of advance money upon cancellation of agreement.- The promoter shall refund full amount collected from the prospective buyers under sub- section (1) of section 6 together with interest thereon at the rate of twelve per cent per annum payable from the date of receipt of amount so collected till the date of re-payment."
Therefore, in case of refund, the complainant will be entitled to interest @ 12%.
12. Sequel to the above, we accept the complaint and direct Op No. 1 as under:-
(i) pay Rs. 26,89,000/- + Rs. 19,742/- + Rs. 24,132/-
= Rs. 27,32,834/- to the complainant alongwith interest @ 12% p.a. from the various dates of payment minus the pre-EMIs interest paid by Op No. 1 to Op No. 2. It is further observed that first payment due to Op No. 2 will Consumer Complaint No. 274 of 2016 18 be cleared first and then to the complainant.
(ii) Op No.1 is further directed to pay Rs. 1,00,000/-
as compensation for mental harassment and inconvenience suffered by the complainant.
(iii) pay Rs. 21,000/- as litigation expenses. The above directions be complied by Op No.1 within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant shall be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against Op No.1.
13. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
14. The counsel for the parties/parties are directed to collect free certified copy of the order from the office of the Commission within a period of 15 days from the date of pronouncement.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER February 08, 2018.
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