State Consumer Disputes Redressal Commission
Mr. Lokesh Vattas & Anr vs M/S Trishla Buildtech Pvt. Ltd & Anr. on 2 June, 2017
1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Consum er Complaint : 535 of 2 016
Date of Institu tio n : 01.09.2 016
Date of Decision : 02.06.2 017
1. Mr. Loke sh Va ttas son of Sh. Ja nak Raj, ag ed 4 2 years
2. Mr s.Anu Sharma wif e of Mr. Lokesh Vatt as, age d 36
ye ars
H.No.38 , Sarv Mangal Societ y, L ohgarh, Tehsil Dera
Bassi, Sahibj ada Ajit Singh Nagar, Punjab.
......Complain ants
Versus
1. M/ s T rishla Buildt ech Pvt. Ltd., havin g it s Regist ered Office
at 3109, S ector 32D, Chandigarh, through its Chairman /
Managing Dir ecto r/Director /Authorized sig natories.
2. M/ s Trishla Buil dt ech P vt. Ltd. , #2 57, T rishla Plu s Homes
peer Mushal la, PO Dhako li, District Mohali-16010 4
through i ts Managing Dire ctor/Dire ctor/A uthorized
Signatories.
.... .Opp osite Par ties
Complaint under Section 17 of the Consumer Protection Act, 1986.
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Sh. Dee pak Aggarwal, Advocat e fo r the co mplainant s. Sh. S. K. Jain , Advocate for th e O pposite Partie s. PER DEV RAJ, MEMBER The facts in brie f are tha t the co mplainants ar e husban d a nd wi f e and com plain a nt No. 1 is an E ngineer , working i n Merchant Na vy. The complain ants h ave t wo daught ers. W ith a dream to s ettle permane nt ly in or aroun d Chandigarh, along with t heir fam ily, bein g allure d b y the 2 facilities/ amen itie s sho wn in the brochure (A nnexure C-1) and acting o n va rious assur ances, and commitme nts of the opposit e parties, they vide application dated 29.09.201 1 applied for allot ment of fla t in t he int egrat ed residenti al to wnship launche d b y the Oppo sit e Parties, und er the name and st yle of "T rishla Cit y", Nabh a Sahib, Zirakpu r, Greater Mohali, Pu njab, by de positing an amount of Rs.12 lacs vide cheque dat ed 2 9 .09.201 1. Vide Buyer's Agre eme nt dat ed 29.09.2 011 (An n exure C-2), Flat No. 705-D, Fift h Floor, Tower Glor y, su p er area 2175 squ are feet, 4BH K-K ohinoor , was allott ed to t he complainan ts, total sale co nsideratio n whereof was fixed at Rs.59,4 0,000/-, be sides Rs.50,000 /-
to wards club me mbership char ges .
2. It wa s furthe r stated that as per Article 4(a)(i) o f the Bu yer' s Agr eement, t he opp osite parties we re legall y res ponsible to h and o ver physic al possession of the f la t wit hin a perio d o f 36 months from the date of e xe cution of the A greement i. e. lat est b y 2 8.09.2014. The c om plainan ts opted time linke d pa yment plan (Ann e xure C-3). It wa s further stated that no reasons, wh atsoe ver be yo nd their control or any f o rce majeure circumstances were faced b y the opposite par ties, which co ul d stop t hem t o complet e construction o f Flat No.7 05-D and offer po ssessi on thereof by the stipul ated date. It was furt her stat ed that n ot e ven a single let ter wa s sent b y th e opp osite parties for extension of time for const ruction a nd delivery of possession of the 3 flat, on acco unt of force majeu re circumst ances or any reasons beyond t heir control.
3. It was furth er stated that as p er statem ent of account/Led ger Account for the period f rom 01.0 4.2012 to 16.08.2 016 (A nnexure C-6 colly. ), and as pe r break-u p given in Para 10 of t he complaint , the opp osite parties had rec ei ve d an am ount of Rs. 55,53,300/- durin g the period 29.09.2 011 till 1 5.12.2013, again st total sale co nsideration of Rs.59,40,0 00/- . It was f urther stated t hat th e r emainin g amount of Rs.3, 86,700/ - was to be pai d at t he time of handing o ver possession of th e fla t.
4. It was furt her st a ted that t he Oppo site Parties did not offer possession b y th e st ipulated date i.e. 28. 09.201 4. Thereafter, when complai nant No .2 visite d the sit e in the ye ar 2015, she was shocke d a nd surprised to se e t h at it was put to halt/stand still and only a h alf constructe d skeleton of the T ower, in whi ch F la t No .705- D was allott ed was found at the sit e. I t was f urther st ate d t hat the basi c a menit ies were not e ven i n e xistence and there wer e no roa ds/approa ch road i n t he project. Complainant No.2 also visited the office of the op posit e p arties to inquire about the stat us regarding construction work of th eir fla t, in q uestion, an d de velopme nt of the site an d it was assur ed t hat pos session of the f lat would be delive red shortly. It wa s f urther stat ed th at complainant N o.2 kept on vi siting the office of the opposit e parties n umero u s times to in qu ire regard ing de livery of possession b ut the oppo site partie s linger ed on the matter. 4
5. It was further stated that reg ular f ollo w-up s of the complainants, t o start and complet e the const ructio n of Fla t No.705-D did n ot give an y fruitf ul result. In December 2 015 the oppo site part ies told that t hey wer e not in a position to complete the con struction of flats in the To wer Glo r y, where flat allo tted to the comp laina nts was situ ated on a ccount of some p ending litigation . Accord ingly, th e comp lainants request ed the opposit e parties to refund the amount deposit ed alo ng with int erest so that the y are able to bu y a flat in some oth er project for th eir resid ential pu rpose b ut the O pposit e Par ties informe d th at amo unt deposit ed wo uld be refun ded aft er deduction of 40% of the a mou nt paid. It was f urther stat ed th at t he opp osite parties t old that th e only optio n left wit h the complai nants was relocation to another To wer No.11 (A ster) a nd it was assu red tha t possession of th e flat in T ower No.11 (Aste r) would b e delivere d imme diately, as it was f ully read y f or po ssessio n. It was further st ated th at c om pla inant No.2 re quested the opposit e parties t o hold the matte r of relocation till arri val of complainant No.1 , as he wa s at Singapore, at the rele vant time, but to n o avail. It was further state d that opposit e parties bein g u nder dominating position, got signed fr om complainant No. 2, a pre -t yped letter d ated 19.12.2015 (Anne xure C-8) and Ad dend um to Apartmen t Bu yer's Agreement dated 19.1 2.20 15 (A nnexure C-9), regardin g relocation to flat No.110 5-A, T ower No.11 (Aster) f rom Flat No.705-D ori gina l allotte d flat. It was further sta ted that 5 complainant No. 1, being, co-all ot tee, was also re quired to sign the sam e and, there fore, at that stage, A ddend um Agreement dat ed 19.12.2 015 wa s incomplete, as it was yet to be signed b y complain ant N o.1.
6. It was f urth er st ated that o n 19. 12.201 5 itself, deman d of an am ount of Rs. 7,28,8 44/ - vid e let ter (Annexure C-10) was also r aised b y t he opp osite parties to wards las t installment, ser vice ta x, maint ena nce charg es, po we r back- up, refu ndable se curit y etc. against Flat No. 1105 , which was never due at t hat sta ge. It wa s furt her sta ted that complainant No .1 visit ed India in January 2 016 a n d before signing the Ad dendum to Apar t ment Bu yer' s A greeme nt dated 19. 12.2 01 5 and making paymen t of Rs. 7,28,844/- deman ded vide l etter ( Anne xure C-10), he visit ed the site, to see the st atus of relocat ed flat No.1105 -A, T ower No.1 1 (As ter). It was f urther sta ted tha t he was s hocked to see that construction of flat No.11 05- A was n ot complete an d the same was no t in a h abita ble conditio n. Basic a menities as promised wer e not mad e available at th e site, and e ve n the lift/ ele vat or (service lift), was not installed/fi tted an d only skeleton of f lat was found. It wa s stated that t his act of compelling t he complain ants for relocati on was an unf air trade practi ce o n the pa rt o f th e op posite parties. It was further state d th at the complain a nts were within t heir rig ht to seek refu nd of the a mount dep osited, when the oppos ite parties f ailed to offer/deliver t he originally allot ted flat b y the stip ulated da te and t herea fter showe d their i nabilit y to 6 deliver t he sam e . It was furt her stated th at till Februar y 2016, neit her po ssession of original Flat No.705-D nor of flat No.1 105-A was offere d to th e complainants an d on the other hand visits to the site re vealed that co nstruct ion at the site was still not compl ete a nd also basic ameniti es promise d. It was further st ated t ha t complainant No .2 again request ed the Opposit e Parties to make refun d of the deposit ed amount but to no avail.
7. T he opposite p arties vide letter dated 13.03.2 016 (Anne xure C-12) asked the co mplainants to take po ssessio n of t he flat as the same wa s ready i n all resp ects. O n receip t of afor esaid lett er, whe n complain ant No .2 visited the sit e, was ast onish ed t o see th at the sa me was not co mplete. The matter was a gain brought to t h e notic e of the opposite parties b ut to no avail. It wa s furth er stated t hat left wit h n o alternati ve, complainan t No.1 vide detailed email date d 22.03.2 016 (A nn exure C-13) aga in sought refund of the amount de posit ed alongwith interest. On g etting no res ponse, re mind er email dat ed 28.03.201 6 (A nnexure C-14 ) was se nt. Vi de email da ted 16.04 . 2016 ( Anne xure C-15) t he opposit e parties i nformed th e complainan ts that possessio n of flat No.1105-A , T ower No. 11 (A ster) was of fered to them vide lett er dat ed 13.03.2 016 and it was furt her writ t en in th e email dated 1 6.04.2016 tha t it was on th e re que st of the complainants that the y were re loca ted to anoth er fla t. It was further stat ed that this st and of the opposite parties was belied fro m their own document i. e . Addendum to A partmen t 7 Bu yer's Agreeme nt dated 19. 12.2 015 where in it was clearl y admitted b y the m that "de velop er has off ered to their res pecti ve buyer s to shift/cha nge their allotme nt of flat to another towers in same comple x". It was fu rther stated that no reason whatsoe ver was assign ed b y th e opp osit e parties for the said relocation. It was f urt her stated that r elocatio n was done by the opp osite parti es , as they, ju st with a view to ear n hu ge p ro fits, ha d un ilater ally con verted th e Tower, wherein original flat wa s allo tted, into 2 BH K un it s instead of 4 BHK units, which act of t he opposite p art ies also amount ed to unfair trade practice. Vide em ail dated 19.04.2 016 ( Ann exure C- 16) it was stated that co mplaina nt No.1 had ne ver issued an y let ter, requesting them to relocate from o riginally allotted Flat No. 705-D to flat No.1105-A. It was furth er sta te d that t hereafte r, lot of corresp onde nce (Ann exure C-17 (c olly. )) to ok place between the part ies and vari ous te lephonic calls we re made to the opposi te parties b y the complaina nts for re dressal of their gr ie van ce but nothing posit i ve came out. It wa s further stated th at left with no cho ice, vid e email d ated 1 9.08.201 6 (Anne xure C-20), the com plain ant s ga ve final noti ce to th e opposit e part ies, to refund t he amoun t paid along with interest. It wa s further state d that t o the utter surpri se of the complainants, t he o pposit e parties vide em ail dated 20.08.2 016 (Anne xu re C-21), inf ormed the complain ants that since th e y h ad of fered p ossession of the unit on 1 3. 03.201 6, as such, no w forfeiture clause would apply to their case an d 8 the dep osited a mount would b e refunde d after making deducti ons of 4 0 % on the same. It was further st ated that the act of r eceiving su bstantial amount of R s.55,53,300/- (more than 93%) out of sale consi deration of Rs .59,4 0,00 0/-, by 15.12. 2013 and not co mple ting the construction of the originally allotted Flat No.705- D by t h e stipulat ed date i. e. 28. 09.2014, thereafter forcibly tryi ng t o relocate t he complainan ts to flat No.110 5-A, T ower No.11 (As ter), and the reafter issuing pa per p os session of the said flat by the op p osite parties, a mounte d to def i ciency in service, negligen ce and unfair trad e practice on their part.
8. It was furt her st a ted that t he Oppo site Parties did not ha ve necessary p ermissi on when the project wa s launch ed in t he year 2011 and even toda y de livery of possession of f lat is not ready for wa nt of complet e construction and de velo pment at t he sit e as a lso n ecessar y permissions/certif icates/sanctio ns. I t was furt her stated th at the opposite parties failed to obtai n various permissions/sanc tions bef ore la unchin g the pro ject and selling unit s, such as Certificat e of Registrati on as Promoter to de velo p a colo ny and con struct apartme nt, Permission of Ministr y of De fence/Rak sha Mant rala ya, Ministry of W ater Resources, Cen tral Grou nd W ater Aut horit y, Punjab Pollutio n Control Board, Ministr y of Environm ent an d Fores t and oth ers, O ccupation and compl etion ce rtificat e.
9. It was furth er st ated t hat t he co mplaina nts ha ve spent their har d earned mone y/lif etime sa vings an d future 9 earning s, in a dr eam to g et roof abo ve t heir he ad so that they, could feel safe & secure and also the y could get rid of shifting houses, t ime and again, b ut were left helpless and disapp ointed , at t he ha nds o f the opposite p arties. It wa s further state d t ha t they can not be made to wait f or indefinit e period at th e whims and fancies o f the Oppo site P arties. I t was f urther st ate d tha t on account of act and co ndu ct of the opposit e parties in not delivering actual possession of th e flat, complain an t No.2 i. e. wif e of complain a nt No.1 alongwith two da ughters are suffe ring a lot of me nt al agon y and p h ysical h a rassmen t. It wa s furth er st ated that the opposit e parties have f ailed to claim a n y force maje ure circumst ances, as nothing has been inf ormed to th e complainants, in that regar d. It was further sta ted that the complainants are , thus, e ntitled t o the re fund of amount deposit ed wit h int erest an d co mpe nsation.
10. It was furth er st a ted th at th e af oresaid a cts o f the Opposit e P arties, amo unted to deficien cy, in renderin g service, a s also, indulgence int o unfair trad e practice. W hen the g rie va nce of the complain ant s, wa s not redre ssed, left wit h n o alternat i ve , a com plaint under Section 1 7 of the Consumer Protection Act, 1986 (h ereinaft er t o b e called a s the Act onl y), was filed, seeking directio ns to the Opposit e Parties to refun d the entire a mount of Rs.55,53,300/- alongwith in terest @18% per ann u m from the respe cti ve due dates of deposits till realization, compens ation in t he sum of Rs .10 lacs on acco unt of mental ago ny, physical 10 harassm ent, deficiency in service , unfair trade pr a ctice and financia l loss caused to the complain ants a nd cost of litigatio n to the tu ne of Rs.1 lac to the com plain ants.
11. The Opposite Pa rties, in t heir wri tten stat ement, have taken sole prelimin ar y o bjection th at t his Co mmission does not ha ve territorial jur isdiction to ent ertain and tr y the complaint. On me rits, receipt of Rs.12 L acs to wa rds earn est mone y has be en ad mitted. It was stated t hat th e complainant co mmitted def ault in makin g the balance paymen t as per t he payment sche dule. It was furth er stated that installments due in December, 2011, March, 20 12, June 2012, Septe mber 2012, December 2012, March 201 3 & June 2013 were pai d on 18.0 1.201 2, 01.05.2 012, 15 .09.201 2, 05.11.2 012, 01 .03.201 3, 16.1 2.2013 & 16 .12.201 3 res pecti vely. It was further sta ted that the flat, in questio n, was booked b y t he complainan ts for commercial purpose. Complainant No .2, in the mon th of Decembe r, 2015, approached the Opposit e Parties and requeste d to cha nge the location of t heir flat from T o we r No. 7 to To wer No.1 1 being bett er located, in orde r to find prosp ective bu yer easil y. It was further stated t hat a t the time o f e xe cution of buyer's agreem ent on 29. 09. 2011, the t otal sale conside ration of flat No.7 05D wa s Rs.5 9,40, 000/-, th e complainant had paid an amoun t of Rs.54 Lacs as per ledger acco unt fo r the period from 01.04.2 011 to 1 2. 09.201 6 and an amount of Rs.5, 40,00 0/- as bala nce consideration 11 and Rs. 50,0 00/- toward s club member ship f ee, totalin g Rs .5,90, 000/- , still remain ed pa ya ble b y t he compla inants.
12. It was furt her stated th at the to tal sale conside ration amount and t he pa yment received, is to be counted t o ward s flat No.1105A especially aft er e xe cution of adden dum to b uyers agre ement dated 1 9.12.2 015. It was further sta ted th a t the complainan t s have be en able to get a new flat No.11 05 A ha ving bett er l ocation wit hout payi ng an y extra cost f or t he sa me. I t wa s furth er st ated that th e complainants ha ve got no legal rig ht to make an y complain t, in this regard, after e xecution of the addend um t o bu yers agreement on 19.12.20 15. It wa s further state d that f lat No.1105A was f ully re ad y in al l respects along wit h its surroundings and approa ch alo ng wit h all a menitie s and th e Opposit e Parties had iss ued p os session offer l ett er date d 13.03.2 016 vide wh ich t he complainants were req uested to take po ssessi on of their flat b y m aking b alance payment a s per pa ym ent schedule. It was further stated that the complainants h a ve concoc ted a false story a nd ha ve anne xe d wron g photogra phs which are not pertaining to f lat No.1105A as the said flat was re ady in all respe cts. It wa s further st ated t hat the O pposit e Parties are entitled t o mainten ance cha rges along with i nterest & p enalt y on th e same, fro m the complain ants fr om the dat e of offer of possession. It was fur ther stat ed that the complainants are trying to wrig gl e out of the adden dum to t he bu yer agreement a nd le tter, bot h dat ed 1 9.12.20 15 (A nnexure C-9 12 & C-8 respectivel y). I t was f urther stated t hat the Opposit e Parties h ave all necessary p ermissi ons/ certificat es/ sanctio ns form t he competen t au th orities ( Anne xures OP-2 5 to OP-32). It wa s further st ated that the O pposit e Parties were ne ither deficient, in ren dering service nor they indulge d int o unfair t rade practice. The r emainin g averme nts, ma de in the complaint, were d enied.
13. The complain ant s, in su pport of their case, submitted their separat e affida vi ts, by way of evi dence alongwith whi ch a number of docu ments were annexed.
14. The complainant s filed rejoinder, wh erein, all the averme nts, conta ined in the com plaint were r eitera ted, and repudia ted the same, as containe d in t he written version of the Opp osite Part ies.
15. The Opposite P arties, in sup port of their case, submitted affida vit of Sh. Raj inder Kumar , thei r A uthorize d Signator y, al ong wit h which, a number of documen ts, b y wa y of evide nce, were anne xed.
16. The Opposi te Pa rties fl ed r epl y t o the rejoinder filed b y th e complainan ts, duly a ccompa nied b y supporting affida vit of sh. H arish Gu pta, it s Managing Directo r.
17. W e have h eard t he Counsel for t he part ies, and, have g one thro u gh the e vidence and record of t he case, carefully.
18. It is evident from record that vide Bu yer's Agreement d ated 29.09. 2011 ( Anne xure C-2), A partmen t bearing No. 705-D, Flo or Fift h, Tower Glor y, in Trishla Cit y at Nab ha Sahib, High Grou nd Road, Tehsil Dera bassi an d Distt. Mohali, Pu njab, measu ring 2175 sq. ft) was purchased by t he co mplain ants from t he O pposite Parties, the sale 13 conside ration whereof was Rs.59, 40,000/ - as dep ic ted in the said ag reem ent. As per Articl e 4(a)(i) of the ag reement , possession of th e flat wa s to b e hande d o ver wit hin thre e ye ars provided all amounts d ue and pa yable by the complainants h a d been pai d to t he Opposite Part ies within the stip ulated pe riod. As per S ub Clause (ii), th e Opposit e Parties were furt her entitl ed to reasonable extensi on of si x months in d eliver y of posses sion of the flat, in qu estion, on account of an y default or negligence attrib utabl e to t he purchaser(s)' ful fillment of con ditions of t he Ag reement . Further as p er A rticle 4(b)(i), t he Opposite P artie s were to give notice for possession to th e complainants about t he date on which t he Opp osite Pa rties wo uld b e affectin g possession, only in ca se all the payment s d ue wer e rec ei ve d on time. As p er Payment Plan (Anne xure C-3), th e total co st pri ce of the fl at, in que st ion, inc luding CMF & PLC was Rs. 59,90, 000/-. It is a lso evi dent from Led ger Accoun t (Anne xure C-6 colly), that t he c omplaina nts made pa yment in the sum of Rs. 54,00,0 00/- to t h e Opposite Parties during the period fr om 01.04.20 11 t o 15. 12.201 3. Vide let ter dat e d 19.12.2 015 (A nn exure C-8 ), the complain ant No. 2 ga ve her will ingn ess to shift to flat No.1105 A in T ower No.11 (Aster) Category from the origin all y all ott ed flat No.70 5-D in Tower No.7 (Gl or y) Cat egory. An adden dum to Apart me nt Bu ye r Agreement (An n exure C-9) was executed o n 19.12.20 15, whereb y Flat No. 1105A was allott ed to th e comp lainants. No objectio n certifi cate for cha nge of propert y was als o issued 14 by t he Opp osite Parties to th e co mplainants on 19 .12.201 5 (at Pag e 101 of the file).
19. As regards pre liminar y o bjecti on raise d qu a territorial juris diction of this Commission, no doub t Bu yer' s Agreement was exec uted at Zirakpur but vide letter dated1 0.06. 2013 (Ann exure C-5 ), the Op posit e Parti es asked t he complainant to remit the due installment of Rs .12,4 4,52 0/- in their Ac count bearing No.324 36132 763 through cheq ue/D D or throu gh RTGS Code No.S BI N0011 705 maintai ned with SBI B ank, B ank Sq uare, S ector 1 7, Chandigarh. It is ap parent fro m the Le dger Account (Anne xure C-6 colly) t hat on 05. 11.2012, t he complaina nt remitted p ayme n t in the sum of Rs.6,00 ,000/ - in the aforesaid SBI Account No.3 24 36132763 vide chequ e No.178392 of IC I CI Bank ag ainst Receipt No.697. Thus, a part of caus e of action accrued to the complainants, to file a complaint, within the territorial jurisdicti on of this Commissi on. The submission of t h e Opp osite Partie s, in t his regard, th erefore , being de void of merit, must fail, and the same stands r ejected.
20. The core ques tio n, which falls f or consideratio n, is as to wh ether there is d ela y in offering possession of the unit, i n q uesti on, and wh ether the comp laina nts ar e enti tled to ref und of the deposited am ou nts wit h i nterest. In th e instant ca se, Buyer's/Pur chas er(s ) Agreeme nt in respect of originally all otted Apart ment bea ri ng No .705- D, fif t h Floo r, in Tower Glo r y i n Comple x C alled T rishla City a t Nabha 15 Sahib, Hig h G rou nd Road, T ehsil Deraba ssi & Distt . Moh ali, Punjab, was e xe cuted bet ween t he complainants and the Opposit e Parties at #3109, Sect or 32-D, Ch andi garh on 29.09.2 011 (A nn exure C-2). A s per Article 4(a)(i) of the Agreement, possession of t he u nit, in q uestion, was to be hande d o ver within thr ee years provide d all amo unts du e and pa yable by the complainan ts had be en paid to th e Opposit e Partie s within the stipulated period. As has bee n specificall y state d by th e Opposit e Parties in their writt en stateme nt an d as discussed in Par a 11 af oresa id, t here wa s dela y in remittin g number of i nstallments. As per sub Clause (ii) of Article 4(a) of the Agreement, the Opp osite Parties were entitled to reasonabl e extension in deliver y of possession of the flat, in question , on accoun t of an y def ault or neglig ence att ributable to the complainants, wh ich shall be to the e xt ent of 6 mont hs. Admittedly, ag ainst the total sale con siderati on of Rs. 59,90, 000/-, th e com plainan ts made pa yme nt of Rs. 55,5 3,3 00/- which me ans th at complainants had made p a ymen t o f 93% sale consideratio n. Clearly, there wa s d ela y in offering/ deli ve ring of possession o f t he unit, in q ue stion, by the Opposit e Parties, which was to be offe red/deli vered within the stipulat ed date i.e. b y 28.03. 201 5. Before the po ssessio n could be of fered by the Opposite Parties, Com plainant No.2 vide letter dated 19.1 2.201 5 (A n ne xure C-8) requ ested the Opposit e Parties for chang e of flat. The said lett er reads thus:-
16
"T his is to info rm you tha t I ha ve allot ment of a flat in you r project Trishla Cit y, fla t No.705-D, To wer No.7 (Glor y) cat egor y and now I wa nt t o sh ift m y flat to 110 5-A T ower No.11 (Ast er) ca tegory. Ki ndly ackno wle dge the req uest."
21. In pursu ance t o aforesai d req ues t, Adden dum to Apartment Bu ye r Agree ment was also e xecu t ed on 19.12.2 015 ( Anne xu re C-9 ), which complai nant No.2 signed.
22. The area/ super-are a of pre viousl y allott ed flat in Tower No.7 (Glor y)/ Kohin oor a nd shifted flat in To we r No.1 1 (As ter) as is e vident from last para of Adde ndum A greeme nt remaine d sa me. T he Opposit e P arties also issued NOC to the compl ainant s for change of propert y in "Tris hla Cit y"
vide lett er dat ed 19.12.2 015 ( Page 101 of file). On t he same day i. e. 1 9.12. 2 015, t he Opp osit e Part ies issue d demand letter t o th e co m plainants to de po sit the amount, which was due on issue of possession off er against Flat No. 1 105A at Trishla Cit y, High Gro und roa d, Villa ge Nabh a Sahib, Zirakpur, in th e sum of Rs. 7,28 ,844/-. Com plain ant No.1 who at t hat time wa s in Singa pore vis ited I ndia in Januar y, 2016. B efore si gning A dden dum Agreement a nd making paymen t in the sum of Rs. 7,28, 844/-, he visited th e site an d was sh ocke d to see that c onstru ction b eing not complet e, flat was not in h abitable con ditio n. It has been st ated th at Photographs (An ne xure C-11 colly.) had been clicked b y the com plainant s in Janu ary, 2016. It is case of the complainants t h at the Op posite Parties inst ead of completing con st ruction of fla t a nd also providin g basic ameniti es, vide letter dat ed 13.03.2016 (Ann e xu re C-12) 17 asked the m (com plainants) to take possessi on of th e flat as the same was read y in all re sp ects. On receipt of this commun icatio n, o n visiting the sit e, the complaina nts found that the fla t wa s not co mplet e an d brought th e same to t he notice of t he O p posite Parti es. Content s of ema ils dat ed 22.03.2 016 and 1 6.04.20 16 (Anne xu res C -13 & C- 15), se nt by complainant s and responded to by OPs, being rele vant , read as unde r:-
Anne xu re C-1 3 "T his is with re f erence to our la st meetin g wit h you in your office in Jan' 20 16 whil e m y visit to In dia.
Since we ha ve n ot got any repl y from your
side, we would like to sta te that your
compan y has allotte d/executed Buyer
agreement for a 4 BHK Fla t registration
No.705 D in Block : G lor y, Categor y:
Kohinoor at 5 t h Floor admeasuring 2395 sq . ft. (Inclusive car Parking) on 2 9.09.2011. T hat possessio n of flat was ot be handed over within 3 yea rs i.e. b y 28.09.2 014. That yo ur compan y has failed to han dover possession of the allotted fla t as per agreement and h ave d elayed it, despite we have bee n pa yin g a huge am ount of appro x. Rs.55,4 1,57 0/-. That we have been l eft in lurch as the allotted flat has not b een offered for p ossession till dat e. That we does not want to stay in vested in our pr oject further as compa ny has failed to a bide by its promise s.
T hat it is r eque st ed th at the ref und of entire amount paid b y us alo ng wit h @18% p. a. be 18 made in f a vour of us withi n 7 da ys from the date of this email."
Anne xu re C-1 5 "In respon se to your e- mail date d 22.03.2 016, we wo uld like to bring to your kind noti ce that yo u, vide your l etter dated 19.12.2 015, had request ed t o shif t your flat from 70 5D T ower No.7 (Glory) to Flat No.1105A T ower No.11 (Aster ). Consid ering yo ur said req uest, flat allot ment wa s change d to Flat No.1105A, Towe r No.11 (Aster) which was a better l ocat ed flat in comparison to yo ur e arlier all ot ted f lat.
Accordi ngl y, an addend um to apartment
buyer agreeme n t dated 19. 12. 2015 was
executed vi de which you were co mpensated for dela y of con struction by offe ring you a prefere nce location on very nominal charges. As per the s aid add endum to apartme nt buyer agreem ent you were offered possession of th e F lat No.11 05A vide o ur letter dated 13.3.2016 sen t to you by registered p ost b ut you ha ve not turned up to take th e p ossession of the sa id flat till date. As such you are req uested to immediately t ake the po ssessi on of the said flat by making the b alance payment and enjo y your flat."
23. The complain ants ha ve stated that th e Opposit e Parties were forcibl y trying t o re locate t hem to fl at No.1105- A, Tower No. 11 and that complai nant No.1 did no t sign the adden dum t o Ag reement but it i s a fac t that co mplaina nt No.2 sign ed the same (add endu m) and had m ade re quest o n 19.12.2 015. Nevertheless, finding the unit to be in complet e 19 and l ackin g in b asic amenit ies, t he y (complainan ts) did n ot deposit the amo unt to war ds demand raise d on 19.12.201 5 . Ho wever , peru sa l of conte nts of email dat ed 22.03.201 6 wherein deficiencies in flat were p ointed out, were qua the original allott ed flat. V ide ema ils date d 15.8.2 016 and 19.8.20 16, the complain ants wrot e to the OP s in dicating conditio n of flat and lack o f b asic amenities at the site and gave fin al no tice to them(OPs) t o refun d the am ount pa id alongwith int ere st. T he compla inants point ed out tha t despite co mmitment made to refund the amo unt, O Ps through t heir of ficial, Mr.K aran refused to honour th e commitment earl ier made. It may be state d h ere that adden dum t o A greeme nt was n ever sig ned b y the first applica nt/Co mpla inant No. 1. Since complai nant s also did not d eposit th e s um of Rs.7,28, 84 4/- d eman ded by OPs, due to chan ge of unit , the relo catio n was not c omplet e. Nothing pre vent ed the OPs to get t he addendum to Agreement signed f rom Complainan t No.1 .
24. As alread y stated abo ve, as p er Purchas e Agreement date d 29. 09.2 011, possess ion was to be delivere d withi n t hree ye ars an d t he Opp osite Part ies were also entitled to reasonab le e xt ension of 6 months. It, therefore, mea ns that poss ession wa s to be de live red b y 28.03.2 015 but t he Op posite Parties faile d to abid e b y t heir commitment an d instead r elocat ed another apart me nt to the complainants. T herefore, for th e period 2 8.03. 2015 till execution of a dd endum to Agr eem ent o n 1 9.12. 2015/offer of 20 possession on 13 .3.2016 , there wa s clear dela y a ttributable to the OP s. The area of t he origi nal f la t a nd the relocate d flat was same. By offe ring relocat ed flat, c omplain ant s were asked to pay a sum of Rs.7,2 8, 844/- as against balance paymen t of Rs. 3, 86,700/ - p ayable for the original fl at. The complainants ha d deposited huge sum of Rs.55, 53, 300/- but OPs did not delive r the unit wit hin the p eriod stipulated in the Agreement. T he OPs ha ve pl eaded tha t af ter execution of t he addendum to Bu yer's Agree ment b y compl ain ant No.2 on 19.12.20 15, seeking refund wo uld amo unt to r escindin g the cont ract.
25. It is case of the co mplainan ts t hat when due t o dela y in deliver y of possession, they sought r efund, OPs threate ned to forf eit 40% of the de posited amou nt. Perusal of Annexure C-21 reveal s that OPs clearly t old the complainants, "- -------your d emand for refun d of deposit ed amount can be accepted b y dedu cting 40% a mou nt as per Bu yer's Agree me nt----"
26. It may b e stated here that clau se (f) of Purchaser(s) Agreement rela ting to Earnest Mo n ey re ads thus :
"The payme nt o f Earn est mone y is t o e nsure fulfillmen t of th e terms an d con diti ons as co ntained in the appl ication and this agre ement. An amou nt equi valent to Rs.12,00, 000/- (T welve Lakhs only) payabl e as per clause 2(b ) abo ve shall always be deeme d to ha ve been paid by the Purchaser(s) as and b y way of Earnest Mone y. In case of violation of an y o f the terms and co nditions of thi s agreement or t he appli catio n b y t he P urchaser(s), the earn est money paid b y the P urchase r(s) shall stand forfeited a nd the P urcha ser(s) shall h ave n o lien o ve r the sam e."
Thus as against the forfeiture of earnest m one y a s abo ve, telling the co mpl ainants th at in c ase of refun d, 4 0% of the 21 amount would be deducted is nothing but indul gence into unfair trade practice. Such cond u ct of OPs whereby t he y told the complai nant that 40% of the amount wo uld b e forfeited make s u s to belie ve th at OPs got the re location for another u nit afte r taking reque st from C omplainan t No. 2 b y using t heir d omin ating p osition. In all fair ness, to make th e relocation le gal and proper, reques t from the first applica nt/complai nant No. 1 was necess ar y and so also signing of adden dum to Agree men t.
27. Thus, t he pos sessio n of fered was beyon d the d ue date stipulate d in the Purchase r's Agreem ent for de livery of possession i.e. 28.3.2015. No doubt, addendum to Bu yer' s Agreement was exe cuted b ut the same was signed b y Complainant No. 2 only. As st at ed abo ve, adde ndum to Bu yer's A greeme nt in the abse nce of signatu res o f the first applica nt/Co mpla inant No.1 was not proper. It is also t he case of the complaina nts that OPs being in d ominating position got signed from com plain ant No.2 a pre-t yped letter dated 19.12.201 5 (Ann exure C-8) and adden dum to Apartment Bu yer Agreeme nt dat ed 19.12.201 5 regardin g relocation of Fla t No.110 5-A. I n a case titl ed as Aas hish Oberai Vs. E maa r MGF Lan d Li mi ted, Con sume r Case No. 70 of 2015, decid ed o n 14 Sep 201 6, un d er similar circumst ances, wh ere there was dela y in d elivering possession, the Hon'ble National Commissio n negated the plea taken b y the builder, while ho lding as und er:-
"I am in agre e ment with the learned se nior counsel f or the complai nants t ha t conside ring the default on th e part of opp osit e parties No.1 and 2 in p erforming its co ntractual obli gation, the complai nants cannot be comp elled t o accept 22 the offe r of poss ession at this bel ated st age a nd therefore, is enti t led to refu nd the entire am ount paid by him along with reasonable compen satio n, in the form of int erest."
Not onl y this, in a case titled as Brig A jay Raina (Retd.) and a nother Vs. M/s Unitech Limite d, C onsume r Complai nt No.59 of 2016, decide d on 24.05.2 016, wher ein possession wa s o ffered aft er a long dela y, thi s Commission, while r elying upo n the judg ments rendere d b y the Hon`ble Nationa l Commission, ordered ref und to t he comp lainants, while h olding as under:-
"Further, e ve n if , it is assum ed for the sake of argume nts, that offer o f p ossessi on, was made to the compl aina nts, in July 2015 i. e. after a del ay of about thre e years, from the stipulate d date, even t hen, it is n ot o blig atory upon the complainants to accept the same. It was so hel d by the National Commission in Emaar MGF Land Limit ed and anoth er V s. Dilshad Gill, III (2015) CPJ 329 (NC). Rece ntly al so, under similar circu msta nces, in t he case of M/s. Emaar MGF Lan d Ltd. & Anr. Vs. Dr. Manuj Ch habr a, First Ap peal N o.1028 of 2 015, decided on 19.04.2 016, t he Natio nal Commission, held as under:-
"I am of the prim a facie vie w t hat even if the s aid offer was gen uin e, yet, the comp lainant was n ot obliged to acce pt such an off er, made after a lapse of more tha n two years of co mmitted da te of deliver y" .
In vie w of t he a b ove, co mplainant s are entitle d to refund of the dep osite d amount.23
28. T he ne xt question tha t falls for co nsid eration is as to what rate of interest o n t he amount depo sited b y them, they ( co mplainants) are entitled to. Th e amount deposit ed by t he complainants has been u sed b y the OPs for the ir be nefit. In vi ew of th e facts a nd circumstances of the case, in tere st at t he Fixed Depos it rat e b y SBI, if granted would ser ve the ends of justice . The amount deposit ed b y the complainant s re mained with OP s durin g the perio d from September,2 011 on wards . Consid ering the pre valent SBI Fixed Dep osit rate during th e aforesaid period and at pr esent, th e complainants are held entitled t o get r efund of amount deposited b y them al ong with inter est @ 7.5% p. a.
29. The next qu estio n wh ich falls for consi deration is as to wheth er complaina nts are e ntitled t o co mpen sation for mental agon y and physical h arassment. The com plainan ts deposit ed t heir hard earne d m o ne y i n th e hope that the y would g et a unit to live in. On account of n on-d eli very o f possession of the Unit wi thin the stipulat ed perio d, the OPs were deficient in rendering se r vice, on accou nt of which, complainants ha ve suffe red physic al har assme nt an d ment al agon y, fo r which the y deser ve to be suitably compensat ed.
The compe nsatio n in the sum o f Rs.one lac, if grant ed would b e ad equat e to serve the ends of justice.
30. In vi e w of the aforesaid discuss ion, it is clear that the OPs were def icient in renderin g service. The complain t 24 is, therefore, pa rtly acc epte d. T he OPs are direct ed in the followin g man ner:
(i) To refund t he amount depo sited by the
complainants in the sum of Rs.55,5 3,30 0/-
alongwith intere st @ 7.5% p.a.(simple) from th e
respecti ve dat es of depo sit till r ealization.
(ii) T o pa y c ompensa tion in the sum of Rs.one lac on account of me nt al agon y, ph ysical harassment , deficien cy in service, unfair t rade practice , financia l lo ss a n d cost of litig atio n in the sum of Rs.35,0 00/-.
(iii) The payment of awarde d amount s mentioned a t Sr. Nos.(i ) & (ii), shall b e made b y t he O pposit e Parties to th e co mplaina nts, with in a period of 0 2 (two) mo nths fr om the date of receipt of a certified copy of this order, faili ng which, t he amount mentio ne d at Sr. No. (i) shall carry penal interest @9% p.a . (simpl e), i nstea d of @ 7.5% p.a. (simple), from th e date of f iling this comp laint and interest @ 7.5% p.a. (simple), o n the amounts of compen satio n an d litigatio n cost mention ed at Sr. No.(ii), fr om t he date o f filin g of t his complaint , till realization.
31. Certified C opies of this order be sent to the parties, f ree of c harge.
32. The file be consigned to Record Room, after completion.
Pronounced. S d/-
02.06.0 17 [JUST ICE J ASBIR S INGH (RETD.)]
PRESIDENT
Sd/-
(DEV RA J)
MEMBE R
Sd/-
(PAD MA PAND EY)
AD/Js ME MB ER
25
ST AT E COM MISSION
(Consumer Comp laint No.535 of 2 016)
Argued b y:
Sh. Dee pak Aggarwal, Advocat e fo r the co mplainant s.
Sh. S. K. Jain , Advocate for th e O pposite Partie s. Dated th e 2nd J une,2017 ORDER Vide our detailed order of t he e ve n date, recorded separat ely, this complai nt has been partl y a cce pted with costs, as per dire ctions c ontain ed t herein.
(DEV RA J) (JUSTICE JAS BI R SINGH (RET D. ) (PAD MA PAND EY) MEMBE R PRESIDENT MEMBE R Js 26 27 28