State Consumer Disputes Redressal Commission
Subash Sharma vs Shivalik Infrastructure & Developers ... on 11 May, 2016
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
Consumer Complaint No. 109 of 2014
Date of institution: 22.7.2014
Date of Decision:11.5.2016
1. Subash Sharma son of Sohan Lal
2. Mrs. Parveen wife of Sh. Subash Sharma
Both resident of House No. 91, Friends Colony, Majitha Road,
Amritsar, Punjab.
Complainants
Versus
Shivalik Infrastructure & Developers Pvt. Ltd., H. O. S.C.O. 510, Sector 70,
S.A.S. Nagar, Mohali through its Director (Operations) Daljit Singh.
Opposite Party
Consumer Complaint under the Consumer
Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. Paramjit Batta, Advocate
For the opposite party : Sh. Munish Kapila, Advocate with
Sh. Ghansham Sharma, Director
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
Consumer Complaint No. 109 of 2014 2 Complainants have filed this complaint under the Consumer Protection Act, 1986 (for short 'Act') against opposite party(hereinafter referred as Op) on the averments that complainant agreed to buy a flat from Ops in their Paradise Apartment with super area approximately 1625 sq. ft. and covered area 1425 sq. ft. for a price of Rs. 38 lacs and accordingly, buyer's agreement was executed between the parties on 15.8.2011 for flat No. E-36, Shivalik City, Sector 127, Greater Mohali. At the time of agreement, a sum of Rs. 18 lacs was paid to Op vide receipt No. 1479 and 1482 dated 15.8.2011 and 29.8.2011. As per Clause 10.1 of the buyer's agreement, the possession of the apartment was to be delivered within a period of 12 months from the date of execution of the agreement, unless there is a delay due to reasons mentioned in Clauses 11.1, 11.2, 11.3 and 38. According to Clause 11.4 of the agreement, in case there was delay in possession then Op was required to compensate the complainant @ Rs. 5/- per Sq. Ft. per month of the covered area beyond the period of 12 months. As per payment plan, the complainant had paid the balance payment of Rs. 20 lacs also as under:-
Date Amount Amount of S. Total Amount
Tax & Cess
1.1.2012 487448.00 12552.00 5,00,000.00
1.3.2012 487448.00 12552.00 5,00,000.00
1.6.2012 487448.00 12552.00 5,00,000.00
1.9.2012 487448.00 12552.00 5,00,000.00
Total 1949792.00 50208.00 20,00,000.00
Consumer Complaint No. 109 of 2014 3
However, despite agreement, Op did not deliver the possession till date. Complainant personally visited the office of Op number of times in order to know the status of the construction and made several requests to Op to construct the flat as early as possible as promised by them. Even request letter were sent through post on dated 3.10.2013 and 5.11.2013 but with no result. Then the complainant approached Op with a written request to refund their amount of Rs. 38 lacs, which was paid to Op, alongwith interest @ 18% but they declined the said amount. Hence, the complaint with the direction to Op to pay a sum of Rs. 38 lacs alongwith interest @ 24% p.a. from the date of deposit till payment, pay Rs. 5 lacs as compensation, a sum of Rs. 1,50,000/- approximately on account of delay in possession @ Rs. 5/- per sq. ft. p.m. and cost of Rs. 50,000/- on account of cost of forced and avoidable litigation.
2. Complaint was contested by Op, who filed their written reply taking preliminary objections that the complaint is false, frivolous and misleading and filed to derive undue gain, undue benefits by adopting pressure tactics. In fact in the State of Punjab there was ban on mining material otherwise Op had no reason to delay the same, which otherwise led to the escalation in the construction. In case complainants have grievance regarding delivery of possession and they were required to comply with the terms as envisaged in Clause 11.3 of the buyers agreement; the complainants have not availed their remedy as available under Clause 50 of the Buyer's Agreement by referring the matter for Arbitration; the complaint was not maintainable for non-compliance of statutory terms Consumer Complaint No. 109 of 2014 4 of buyer's agreement as agreed between the parties; complaint is hopelessly time barred as cause of action had accrued to the complainant in the year 2012 and that Op is making sincere efforts to complete the construction in time but cost of the construction are to flow only from the flat buyers. Since the construction of flat is joint venture and some of the allottees have not paid consideration amount due to worldwide recession in the market, the buyers were not coming forward to invest in the real estate. Even the persons, who booked the flats were not paying the due instalments in time. On merits, it was admitted that the complainant booked flat No. E-36, Shivalik City, Sector 127, Greater Mohali with Op having super area 1625 sq. ft. and covered area 1425 sq. ft. for a cost of Rs. 38 lacs and buyers agreement was executed between the parties on 15.8.2011. It is correct that according to the agreement, Ops were required to deliver the possession of the flat by December, 2012 but construction could not be completed due to the reasons as stated above in the preliminary objections. There was no intentional deficiency in service on the part of Ops but due to circumstances beyond the control of Op. Therefore, complaint is without merit, it be dismissed.
3. The parties led their respective evidence in support of their contentions.
4. In support of his allegations, the complainant had tendered into evidence affidavit of Subash Sharma Ex. CW-1, agreement Ex. C-1, receipts Ex. C-2 to C-7, letters Exs. C-8 to 10, Order dt. 1.4.2015 Ex. C-11 of Punjab State Commission. Op had Consumer Complaint No. 109 of 2014 5 tendered into evidence affidavit of Ghansham Sharma, Director Ex. Op-A and resolution Ex. Op-1.
5. We have heard the counsel for complainants Sh.Paramjit Batta, Advocate and counsel for Op Sh. Munish Kapila, Advocate with Sh. Ghansham Sharma, Director.
6. Some preliminary objections have been taken by Op, those are necessary to be addressed before discussing the case of the parties. On merits, it has been stated that according to Clause 50 of the Buyer's Agreement, in case of any dispute arising out or touching upon or in relation to the terms of this agreement, the matter shall be settled through arbitration proceedings under Arbitration and Conciliation Act, 1996. No doubt that such a Clause is there in the Buyers Agreement but after appearance of Op, no such application as required under Section 8 of the Arbitration and Conciliation Act, 1996 was filed by Op to refer the matter of Arbitration. Moreover, under Section 3 of the Act, additional remedy has been provided under which complaint is maintainable under this Act. During the course of arguments, counsel for Op was unable to convince how the complaint under the Act is not maintainable, therefore, we are of the opinion that complaint filed by the complainant is maintainable whereas Op failed to move any application to refer the matter for arbitration.
7. It is also alleged that the complaint is time barred as cause of action had accrued to the complainant in December, 2012 when the possession of the flat was not delivered to the complainant. In case possession of flat was not delivered, complainant was Consumer Complaint No. 109 of 2014 6 pursuing the matter with Op and he had written some letters also to Op to complete the construction and to deliver the possession i.e. letter dated 15.11.2013 (Ex. C-9), another letter dated 3.10.2013 (Ex. C-9 Colly) and 10.1.2014 (Ex. C-10) vide which the payment was demanded. In case they were unable to make the payment and then legal notice was also served upon Op. Even in the written statement, a plea has been taken by Op that they are making sincere efforts to complete the construction, therefore, till the construction is complete and possession is delivered to the complainant and or in the alternative refund of the amount paid by the complainant is made by Op, complainant is recurring cause of action, therefore, it cannot be said that complaint is barred by time. On this point also, the counsel for Op was unable to say anything how the complaint filed by the complainant is barred by limitation, therefore, we are of the opinion that the complaint filed by the complainant is within limitation.
8. It is an admitted fact between the parties that one flat E-36 was booked by the complainant with Op in their Shivalik City in their Paradise Apartment for a total sale consideration of Rs. 38 lacs. Buyer's agreement was executed on 15.8.2011 and at that time a sum of Rs. 18 lacs was paid. Whereas the balance payment of Rs. 20 lacs was paid through instalments of Rs. 5 lacs each on 1.1.2012, 1.3.2012, 1.6.2012 and 1.9.2012. Payment has been admitted by Op. Execution of Buyer's Agreement is there and according to Clause 10.1 of the Buyer's Agreement possession was to be delivered within a period of 12 months from the date of execution of this agreement, which was executed on 15.8.2011. However, it was subject to Clause Consumer Complaint No. 109 of 2014 7 No. 11.1, 11.2, 11.3 and Clause 38. Clause 11.1 deals with delay beyond the control of the company. It has been stated in the reply that due to ban on building material by the State of Punjab, the construction could not be completed and that due to recession in the market and non-payment of instalment by some of the applicants, the project could not be completed. So far as ban on the building material in the State of Punjab, no such letter/notification has been placed on the record by Ops that how and during which period, there was any ban on the building material, therefore, without any specific evidence, it cannot be said that the construction could not be completed due to ban upon the building material by the State of Punjab. Similarly, with regard to another plea that some of the applicants did not pay their instalments in time, again Ops have not given any detail i.e. name of the applicant and defaulter instalments, therefore, it is just a plea and without any corroborating evidence on the record, it cannot be said that some of the applicants have not paid their due instalments, which resulted delay in completion of the project.
9. Clause 11.2 deals with failure to deliver possession due to Government Rules/Orders, Notifications but no such plea has been taken by Op in their written reply. Clause 11.3 deals with the remedy available to the allottee in case of failure to deliver the possession by the Company. According to this Clause, in case the possession of the flat is not delivered within 12 months or within any extended period, allottee shall be entitled to give notice to the Company within 90 days from the date of expiry of the said period to terminate the agreement. In that event, the Company shall be at liberty to sell or dispose of the Consumer Complaint No. 109 of 2014 8 said apartment to any other party and after that within a period of 90 days from the date of full realisation of the sale price, refund the amount alongwith interest to the allottee. Clause 11.4 deals with failure to deliver the possession within the stipulated period. In that eventuality, the Company shall be entitled to terminate the agreement and Company shall be liable to refund the amount paid by allottee with simple interest of 12% p.a. for the period such amounts were lying with the Company or for the delayed period, the allottee can be compensated @ Rs. 5/- per sq. ft. of the covered area. Article 38 deals with force majure i.e. the act of God, fire, floor, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy, labour, equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, action of labour unions or any other cause (whether similar or dissimilar to the foregoing) not the reasonable control of the Company. Again no such circumstances have been pleaded by the Op. Only two circumstances were pleaded i.e. ban on the building material and non-payment of due instalments by some of the allottees, have been discussed in detail above and in the absence of any specific evidence on the record, both the points were answered against Ops. Therefore, after expiry of 12 months period, the complainant was entitled to possession of the flat alongwith compensation as referred in Clause 11.4 of the agreement or in the alternative for refund of the amount paid by the complainant to Op alongwith interest. It was argued by the counsel for the complainant that similar order was passed by the Principal Bench in Consumer Complaint No. 78 of 2013, decided on 1.4.2015 titled as Consumer Complaint No. 109 of 2014 9 "Adarsh Bhandari versus Shivalik Infrastructure and Developers Pvt. Ltd.". Keeping in view the circumstances and evidence referred above, we are of the opinion that Op was deficient in service for not providing the possession of the flat after receiving the full payment from the complainant. Accordingly, complaint is accepted with the direction to Ops as under;-
(a) deliver the possession of the flat complete in all respect including completion certificate from the competent authority within a period of six months from the date of order passed by this Commission;
(b) pay compensation of Rs. 5/- per sq. ft. of the covered area w.e.f. 1.9.2012 till the date of delivery of possession;
(c) pay Rs. 2 lacs as compensation; and
(d) Rs. 11,000/- as litigation expenses.
OR
(i) in the alternative, refund the amount of Rs. 38 lacs
alongwith interest @ 12% p.a. as agreed in the
agreement from the date of receiving of the payment till the date of payment;
(ii) pay Rs. 2 lacs as compensation; and
(iii) Rs. 11,000/- as litigation expenses.
10. The arguments in this consumer complaint were heard on 5.5.2016 and the order was reserved. Now the order be communicated to the parties as per rules. Consumer Complaint No. 109 of 2014 10
11. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
May 11, 2016. (Harcharan Singh Guram)
as Member