National Consumer Disputes Redressal
M/S. Baba Estates And Colonizers & Anr. vs Vishal Singh on 24 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 2502 OF 2017 (Against the Order dated 30/10/2017 in Complaint No. 377/2016 of the State Commission Punjab) 1. M/S. BABA ESTATES AND COLONIZERS & ANR. THROUGH ITS PARTNER. SCO NO.87, 2ND FLOOR, SECTOR-44 C. CHANDIGARH. 2. RAVNISH SHARMA,PARTNER, BABA ESTATES AND COLONIZERS. S/O. B.D. SHARMA. SCO NO.87, 2ND FLOOR, SECTOR-44 C. CHANDIGARH. ...........Appellant(s) Versus 1. VISHAL SINGH S/O. BALDEV SINGH. R/O. HOUSE NO.R10/6C, NEW NAVY NAGAR, COLABA. MUMBAI-400005 MAHARASHTRA. ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE,PRESIDING MEMBER
For the Appellant : Mr. Siddharth Mittal, Advocate For the Respondent :
Dated : 24 May 2018 ORDER
This appeal is directed against the order of the State Commission, Punjab dated 30.10.2017 in CC/377/2016.
2. Briefly put, facts relevant for the disposal of the appeal are that the respondent filed consumer complaint in the State Commission alleging that vide allotment letter dated 13.2.2015 he was allotted flat No.137 (2nd Floor) having super area 1050 sq. ft. in the development project "Shivjot Apartment" undertaken by the opposite party. As per the terms and conditions of allotment total consideration payable was Rs.23 lakhs to paid in instalments as per payment plan on demand of instalment due by the opposite party. The opposite party had agreed to deliver possession of the subject flat to the complainant on or before May, 2015. It is the case of the complainant that he had been paying instalments regularly and in all he had paid a sum of Rs.21,05,114/- in instalments against the agreed consideration. The said payments were paid by availing housing loan of Rs.18,40,000/- from HDFC Bank @10.15% per annum on variable rate basis. It is alleged that despite having received substantial amount against the agreed sale consideration the opposite party has failed to deliver possession within the stipulated period although the grace period of two months has long expired. Being aggrieved the complainant raised the consumer dispute in the State Commission.
The opposite parties upon notice filed joint replies taking a stand that actually the consideration price of the flat was Rs.26 lakhs and Rs.3 lakhs discount was given if the entire amount was paid within four months without any default. The opposite parties have admitted payment of Rs.21,05,114/- inclusive of service tax to the tune of Rs.45,114/-. According to the opposite parties the consideration amount was payable in instalments as per the payment plan. The complainant defaulted in the payment of respective instalments. Therefore, he is liable to pay interest @ 24% p.a. for the period of default in payment of the instalments. According to the opposite parties the complainant is still required to pay Rs.2,40,000/- against balance consideration amount besides the interest on the delayed payment and also the balance service tax. As the complainant failed to make payment in time the opposite parties had no option but to cancel the allotment of the flat of the complainant. It is further alleged that the construction is at full swing and the complainant with mala-fide intention to harass the opposite parties has approached the State Commission.
The State Commission on consideration of pleadings and the evidence of the parties came to the conclusion that the opposite party has committed deficiency in service by failing to deliver possession of the subject flat to complainant within a reasonable period. The State Commission accordingly allowed the complaint and directed the appellant/opposite party as under: -
"In view of the above discussion, the complaint is allowed and the following directions are issued to the opposite parties: -
to refund the amount of Rs.21,05,114/- along with interest at the rate of 12% per annum from the different dates of deposit of different amounts till the date of actual payment.
to pay Rs.1,00,000/- as compensation for the harassment and mental agony suffered by him; and to pay Rs.22,000/- as cost of litigation."
Learned counsel for the appellant has assailed the impugned order on the ground that the State Commission has failed to appreciate that there was no deficiency in service on the part of the opposite parties. On the contrary the complainant himself is a defaulter as he has failed to pay the instalments against the consideration amount as per the payment plan as also the interest for the delayed payments.
The application form submitted by the complainant is OPI-2/A. Alongwith the application form the payment plant is annexed. On perusal of the said document it transpires that the allottees were given option between two payment plans, namely, down payment (Plan A) and construction linked payment (Plan B). Down payment (Plan A) is struck off. Therefore, it is evident that the complainant had agreed to construction linked payment (Plan B) which is as under: -
CONSTRUCTION LINKED PAYMENT (PLAN B) Due Date 4 Month Plan Initial booking amount alongwith application 13/1/15 Rs.1,00,000/-
Within 30 days from date of booking 20% of BSP (Inc. Initial booking amount) Within 90 days from date of booking 20% of BSP Within120 days from date of booking 20% of BSP Within 270 days from date of booking 15% of BSP Within 360 days from date of booking 10% of BSP Within 450 days from date of booking 10% of BSP Om Possession 5%+ Stamp Duty + Service Tax + any other charges if applicable On bare reading of the above it is evident that the aforesaid plan is misleading because at the top there is heading construction linked plan but in the body of the plan it is mentioned that the instalments are required to be paid within stipulated period from the date of booking. From this it appears that the opposite party gave an impression to the complainant that he would complete the construction of the flat in a time bound manner as per time schedule given in the payment plan reproduced above. However, undisputedly the opposite party has failed to complete the construction and handover possession of the subject flat to the complainant despite having received a substantial amount against the total consideration agreed between the parties. This, in my view, amounts to deficiency in service.
Learned counsel for the appellant has further contended that there is no deficiency in service on the part of the appellant as the construction of subject flat is complete but the complainant has deliberately not taken possession as the rates of real estate in the market have fallen down. In order to test the correctness of the version of the opposite party, vide proceedings dated 10.1.2018 the appellant was directed to place on record completion-cum-occupation certificate pertaining to the requisite project. Pursuant to the directions, the appellant has filed copy of a communication dated 3.5.2018 addressed by the Executive Officer, Municipal Council, Kharar to the opposite party builder which is claimed to be the completion certificate. Aforesaid communication is reproduced as under: -
"To M/s Baba Estates & Colonizers C/o Shivjot Enclave Kharar No.645 dt. 3.5.2018 Subject: To obtain the completion certificate of Flat situated in the group housing project of Shivjot Developers Pvt. Ltd., Kharar In the above stated subject it is informed that you have applied for a completion certificate of Flat No.1387, 2nd Floor which is the part of group housing project of Shiv Jot Developer Pvt. Ltd. Because of this reason you cannot be issued a completion certificate for single flat even though the construction of such flat has been completed. Regarding this, the same is to be applied by the concern builder for the whole project along with passed map plans according to the govt. rules/regulations after providing the basic amenities and by submitting the complete drawings accordingly.
Executive Officer Municipal Council, Kharar"
On bare reading of the above it is clear that completion certificate in respect of the subject project has not been given by the Municipal Authorities and they have communicated to the appellant builder that completion certificate in respect of single flat which is part of a group housing project cannot be given and the builder has to apply for completion certificate of the whole project alongwith the sanctioned plans according to the rules and regulations, after providing basic amenities for the project. From this it is evident that till date there is no completion certificate issued in respect of the project of which the subject flat is the part. Therefore, even if any offer of possession was given by the builder without obtaining completion certificate it cannot be taken as genuine offer for delivery of possession. Thus, it is clear that even after the expiry of almost three years from the promised date of delivery of possession the appellant has failed to deliver the possession, therefore, the impugned order of the State Commission holding the appellant to be deficient in service and allowing the complaint cannot be faulted.
In view of the reasons discussed above, I do not find any merit in the appeal. It is accordingly dismissed in limine with no order as to cost.
......................J AJIT BHARIHOKE PRESIDING MEMBER