State Consumer Disputes Redressal Commission
Umesh Kumar vs Sushma Buildtech on 31 October, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 48 of 2013 Date of Institution : 12.07.2013 Date of Decision : 31.10.2013 Sh. Umesh Kumar Thakur son of Sh. Shiv Nandan Thakur resident of Flat No.39-A, Housing Board Colony, Sector 14, Panchkula, Haryana. Complainant. Versus 1] M/s. Sushma Buildtech Limited, Plot No.381, Industrial Area, Phase I, Chandigarh through its Managing Director. 2] IDBI Bank Limited, Bank Square, Sector 17-B, Chandigarh. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh.
J. P. S. Ahluwalia, Advocate for the complainant.
Sh. Mohinder Singh, Advocate for Opposite Party No.1.
Sh. T. K. Joshi, Advocate for Opposite Party No.2.
PER DEV RAJ, MEMBER The facts, in brief, are that complainant, on being explained by Opposite Party No.1, as regards their upcoming housing project, known as Sushma Urban Views located at Gazipur, NAC, Zirakpur, Tehsil Derabassi, District Mohali, vide his application dated 17.3.2010 agreed to purchase one 3 BHK apartment, in its (Opposite Party No.1) residential complex . He also paid an amount of Rs.3,17,500/- as earnest money, alongwith his application. It was stated that the complainant was allotted apartment No.C-402, on 4th Floor, in Wing C measuring 1680 sq. feet (super area) vide allotment letter dated 06.04.2010 (Annexure C-2). It was further stated that the basic price of apartment/flat was fixed at Rs.31,75,000/-. It was further stated that Opposite Party No.1, in addition to the basic price of apartment, was to charge car parking charges, power back up charges, club membership charges, service tax etc. It was further stated that Apartment Buyers Agreement dated 17.05.2010 (Annexure C-3) was executed between the complainant and Opposite Party No.1 at its Chandigarh Office. It was further stated that the complainant got financed the loan amount of Rs.26,53,000/- from Opposite Party No.2, which was to be repaid alongwith interest in 228 months. It was further stated that Opposite Party No.2, disbursed a sum of Rs.25,14,426/- to Opposite Party No.1, out of the sanctioned loan, and the original documents of the flat were submitted to it (Opposite Party No.2) vide letter dated 09.06.2010 (Annexure C-5). It was further stated that a Tripartite Agreement dated 27.05.2010 (Annexure C-4) was also entered into between the complainant, Opposite Party No.1, and Opposite Party No.2. It was further stated that as per Clause 15(d) of the agreement, the possession of apartment was to be given by Opposite Party No.1, within 24 months from the date of execution of the Agreement and in case, it failed to do so, within the aforesaid period, then it (Opposite Party No.1) was to pay compensation/penalty @Rs.5/- per sq. feet of the super built up area per month for the entire period of such delay. It was further stated that the Opposite Party had received all the installments, as on 10.06.2011, except the last installment, which was paid by the complainant on 18.04.2013. It was further stated that Opposite Party No.1 despite receipt of all the installments, within the scheduled time, failed to deliver the possession of flat within 12 months from the execution of the Agreement.
2. It was further stated that the complainant visited the site for taking physical possession from Opposite Party No.1, but was shocked to see that the tower, in which the allotted apartment was situated, had serious technical snags viz. the main entry of Tower C, was not having proper and sufficient height for free movement of inhabitants, the ground floor of the building was meant for parking of cars, the height of the points of entry towards the lift and stairs was not adequate and was much lower than the normal height, and the space of the main entry was inadequate in view of safety aspect of occupants. It was further stated that the lapse was so serious that one had to bow down while entering the side of lift and stairs, which showed structural and architectural defects in the building. It was further stated that the complainant made oral submission to Opposite Party No.1, for rectification of the defects, for handing over the possession of flat but it was deficient in service by ignoring to take any steps for removing the defects so pointed out, in the building. It was further stated that the complainant also sent letter dated 3.5.2013 to Opposite Party No.1, at its Chandigarh office, to rectify the defects immediately or to provide alternate accommodation in some other tower. It was further stated that Opposite Party No.1, keeping in view the grievances of the allottees, tried to rectify the defects, by demolishing a part of the beam, but suspecting severe risk to the building, stopped the work. It was further stated that on the beam, the Opposite Party No.1, had also subscribed the wording MIND YOUR HEAD, which itself showed that the structural and architectural defects in Tower C was permanent and serious in nature, which could not be rectified. It was further stated that the complainant lastly requested Opposite Party No.1 to refund the amount, alongwith interest or to provide alternative accommodation in some other tower free from such kind of defects but to no avail. It was further stated that the complainant, was constrained to stay in the rented accommodation on payment of Rs.15,000/- per month as rent. It was further stated that the aforesaid acts of Opposite Party No.1, amounted to deficiency, in rendering service, and also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing Opposite Party No.1, to pay Rs.34,09,657/- alongwith interest @18% P.A., from the respective dates of deposits, till the date of realization; or in the alternative, to allot some other flat of the same area in other tower free from any defect; pay an amount of Rs.1 Lac, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.21,000/-.
3. Opposite Party No.1, in its written version, took up certain preliminary objections, to the effect that the complaint was not maintainable as no cause of action arose, in favour of the complainant and that the complainant had approached the Commission with unclean hands, as he did not disclose the material facts. On merits, the factum of allotment of apartment No.C-402 to the complainant, execution of Apartment Buyers Agreement dated 17.5.2010, and Tripartite Agreement dated 27.05.2010 were admitted. It was stated that in the instant case, the Apartment Buyers Agreement was executed on 17.05.2010 and as per policy, the Opposite Party No.1 was bound to give possession of the flat up till 16.11.2012 but the same was offered to the complainant on 01.04.2013 and thus, admittedly, there was delay of four and a half months. It was further stated that the delay was not intentional but due to the non-availability of raw material, such as sand, and bricks on account of the policy of the Government. It was denied that the possession was to be delivered within one year from the date of execution of the Apartment Buyers Agreement or there was delay of 10 month in offering the possession. It was further stated that every time, the complainant was provided satisfactory answer as regards the status of the project.
4. It was further stated that there were no technical snags in Tower C as the main entry, which was built on pillar, was having proper and sufficient height for free movement of the inhabitants. It was further stated that the height of the points of entry towards the lift and stairs was adequate from the parking and one could easily go to the lift and stairs from the parking. It was further stated that the area, which the complainant had cited in the present complaint, was not the entry point, to lift and stairs and the same had already been closed by affixing a board by seeing the safety of inhabitants. It was further stated that the there was some other way to stairs and lift from the parking. It was further stated that since the construction was going on, at that point of time, that passage was not closed and the complainant was trying to take undue benefit of the board, which showed the words Mind Your Head.
5. It was further stated that there was a lot of work, which was to be carried out/completed by Opposite Party No.1 and it was trying to complete each and every thing as promised by it. It was further stated that the iron grill had been affixed on that passage (as per photographs Annexures R-1 to R-3) and the main passage was opened for the inhabitants. It was further stated that the structural and architectural design was very good. It was further stated that Opposite Party No.1, tried to rectify the defects by demolishing a part of the Beam but the value of the flat was not lowered due to these reasons. It was further stated that the completion certificate shall be issued only after the completion of all the construction work. It was further stated that, neither there was any deficiency, in rendering service, on the part of Opposite Party No.1, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. Opposite Party No.2, in its written version, stated that it had been wrongly and illegally arrayed as a party to the complaint. It was stated that there was no cause of action or relief sought against the Opposite Party No.2 and as such, the present complaint was not maintainable against it, and was liable to be dismissed. It was further stated that, neither there was any deficiency, in rendering service, on the part of Opposite Party No.2, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
7. The complainant filed replication, to the written reply of Opposite Party No.1, wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version.
8. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
9. Opposite Party No.1, in support of its case, submitted the affidavit of Sh. Pardeep Kumar, its authorized representative, by way of evidence, alongwith which, a number of documents were attached.
10. Opposite Party No.2, in support of its case, submitted the affidavit of Sh. Pankaj Gupta, its Operation Manager, by way of evidence, alongwith which, a number of documents were attached.
11. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
12. The Counsel for the complainant, submitted that the Apartment Buyers Agreement (Annexure C-3) was executed on 17.05.2010 and as per Clause 15(d) of the said Agreement, the possession was to be delivered within a period of 24 months, from the date of execution of this Agreement and six months grace period was permissible if the circumstances were beyond contemplation and control of Opposite Party No.1. It was further submitted that possession of the apartment was offered on 1.4.2013. It was further submitted that there was delay of more than 10 months, in offering possession of apartment. It was further submitted that there was no valid reason for such huge delay in offering the possession. It was also submitted that there were serious technical snags, as the main entry of Tower C, was not having proper and sufficient height thereby restricting the free movement of inhabitants. It was further submitted that the height of one of the passages was only 4 feet and Opposite Party No.1 had displayed board Mind your head. It was specifically submitted that this defect was only in Tower C, where the apartment was allotted to the complainant. It was further submitted that Opposite Party No.1 had fixed a grill and the complainant after parking his vehicle, shall have to take round of the complete tower, to have entry/access to his apartment. It was further submitted that closing of the entrance will also hamper the process of exit from the building in case of emergency. It was further submitted that there was danger to the safety of inhabitants. It was further submitted that either the money deposited with Opposite Party No.1 be refunded or he be allotted a flat of similar size in another tower.
13. The Counsel for the Opposite Party No.1, on the other hand, submitted that there had been scarcity of bricks and sand, which were not available, a fact which was beyond its control. It was further submitted that it was ready to compensate the complainant for the delay of 4 months, in handing over possession of apartment. It was further submitted that the project being big, it was not possible to complete the same within 24 months. It was further submitted that the passage was available along the grills fixed. It was further submitted that the parking area is an additional facility. It was further submitted that Opposite Party No.1 can remove the fixtures, if the complainant so wished.
14. The basic facts viz. allotment of apartment No.C-402 to the complainant, execution of Apartment Buyers Agreement dated 17.5.2010, execution of Tripartite Agreement dated 27.05.2010 and payment of Rs.34,09,657/-, the last installment of Rs.1,97,364/- being paid on 18.04.2013, are admitted.
15. The first question, which arises for consideration, is, as to whether, there was any delay in offering possession of apartment, in question, to the complainant. No doubt, the payment due was made by the complainant, and the possession was admittedly offered on 01.04.2013 (Annexure C-6). While as per the complainant, there was delay of more than 10 months, Opposite Party No.1 pleaded that there was scarcity of bricks and sand and taking into account the period of 24 months plus 6 months grace period, the delay was of 4 months and it was ready to compensate the complainant as per the terms of the Apartment Buyers Agreement. We are in agreement with the submission of the Counsel for the Opposite Party No.1, that there was delay of 4 months and not 10 months, in offering possession to the complainant because the Apartment Buyers Agreement was executed on 17.05.2010 and as per Clause 15(d) of the said agreement, the possession of apartment after adding the grace period of six months, was to be offered by Opposite Party No.1 by 17.11.2012. However, it offered the same on 01.04.2013 and, thus, there was a clear delay of 4 months, even after adding six months grace period. Not only this, the possession, so offered, remained a paper possession, as there were serious structural and architectural defects, in the building.
16. It was next submitted by the Counsel for the complainant that tower, in which the apartment, allotted to the complainant, was situated, was having serious technical snags/defects viz. the main entry to Tower C was not having proper and sufficient height for free movement of inhabitants and height of entry point towards stairs and lift was not adequate. It was also submitted that Opposite Party No.1 had even displayed a board there stating MIND YOUR HEAD. This entry point was closed by fixing grills. The Counsel for the complainant categorically asserted that due to this serious defect, the complainant had to take round of the entire tower to have access to passage to his apartment. He, therefore, vehemently pleaded that since the complainant had made the entire payment as per the payment schedule, the possession of apartment, offered by the Opposite Party No.1, when there were serious structural defects in the main entry of the tower, was of no use to him. Undoubtedly, the aforesaid serious defect, is a source of major obstruction, in having easy entry/access to the apartment. It was submitted by the Counsel for the complainant, that either another apartment, free from such defect, be allotted to the complainant, in any other tower or else, the money deposited by him, alongwith interest @18% per annum from the date of respective dates of deposit, should be refunded to him. Although the Counsel for Opposite Party No.1, during arguments, offered to remove the grills/fixtures yet he did not come forward to agree to allot an alternative apartment, to the complainant, in some other tower, which was one of the two alternatives requested for by the complainant. Admittedly, the construction viz. the height of entry point towards stairs and lift was not adequate, obstructing easy access to the apartment, as such delivery of possession offered remained a paper possession. This structural and architectural defect could not be rectified by Opposite Party No.1. Opposite Party No.1 could not retain the hard earned money, deposited by the complainant, for an indefinite period. Opposite Party No.1 miserably failed to deliver possession of the flat, in question, complete in all respects, without any structural and architectural defect, referred to, in the foregoing paras. Thus, we find merit in the argument of the Counsel for the complainant, that the entire money deposited by the complainant deserves to be refunded alongwith interest. By not refunding the amount deposited, by Opposite Party No.1 with interest, it was deficient in rendering service.
17. In Paramvir Singh Vs P. H. Houses Pvt. Ltd. Revision Petition No.2779 of 2010 decided on 11.5.2011 by the National Consumer Disputes Redressal Commission, New Delhi, in similar circumstances, when possession of the plot, was not given by the builder, to the complainant, for a long period, refund of the amount deposited by him, with interest and compensation were granted. The observations made in Paramvir Singhs case (supra) are fully applicable to the facts of the instant case. By not delivering the possession on time, free from serious structural and architectural defects in the Tower, or refunding the amount, Opposite Party No.1 was certainly deficient in rendering service. The complainant, thus, suffered immense physical harassment and mental agony, at the hands of the Opposite Party No.1, for which, he is entitled to interest and compensation simultaneously.
18. No other point, was urged by the Counsel for the parties.
19. For the reasons recorded above, the complaint is partly accepted, qua Opposite Party No.1, only, with costs, in the following manner:-
i. Opposite Party No.1 is directed to refund the amount of Rs.34,09,657/-, to the complainant, alongwith interest @12% per annum, from the respective dates of deposits, within two months, from the date of receipt of a certified copy of this order.
ii. Opposite Party No.1 is further directed to pay compensation, in the sum of Rs.1,00,000/- for causing mental agony and physical harassment, to the complainant, within two months from the date of receipt of a certified copy of this order.
iii. Opposite Party No.2 shall have the first charge on the amount to be refunded to the complainant by Opposite Party No.1, to the extent, the amount is due to it against the complainant as it (Opposite Party No.2) advanced loan in his (complainant) favour for payment of installments of apartment, in question, under the Tripartite Agreement dated 27.05.2010.
iv. Opposite Party No.1 is further directed to pay cost of litigation, to the tune of Rs.10,000/-, to the complainant.
v. In case the payment of amounts, mentioned in Clauses (i) and
(ii), is not made, within the stipulated period, then Opposite Party No.1 shall be liable to pay the amount mentioned in Clause (i) with interest @15% P.A., instead of 12% P.A., from the respective dates of deposits till realization and interest @15% P.A., on the amount of compensation, mentioned in Clause (ii), from the date of filing the complaint, till realization, besides payment of costs, to the tune of Rs.10,000/-.
20. However, the complaint qua Opposite Party No.2 i.e. IDBI Bank Limited, is dismissed, with no order as to costs, as neither any allegation has been made against it, in the complaint, nor any relief has been sought against it.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.
Pronounced.
31st October, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (Consumer Complaint No.48 of 2013) Argued by: Sh.
J. P. S. Ahluwalia, Advocate for the complainant.
Sh. Mohinder Singh, Advocate for Opposite Party No.1.
Sh. T. K. Joshi, Advocate for Opposite Party No.2.
Dated the 31st day of October, 2013 ORDER Vide our detailed order of the even date, recorded separately, this complaint, filed by the complainant, has been partly accepted with costs qua Opposite Party No.1 only. However, the complaint qua Opposite Party No.2 has been dismissed with no order as to costs.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad