State Consumer Disputes Redressal Commission
Dr. Amit Garg vs Improvement Trust Bathinda on 1 November, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.95 of 2016 Date of Institution : 22.03.2016 Order Reserved on : 23.10.2017 Date of Decision : 01.11.2017 Dr. Amit Garg s/o Sh. Krishan Lal Garg, R/o Garg Hospital, Muddki Road, Bahgapurana, District Moga, Punjab. ....Complainant Versus 1. Improvement Trust, Bathinda, through its Chairman, Bathinda. 2. Improvement Trust, Bathinda, through its The Executive Officer, Bathinda. 3. State of Punjab through Secretary Local Bodies, Mini Secretariat, Sector-9, Chandigarh. Opposite parties. Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date). Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt. Surinder Pal Kaur, Member.
Present:-
For the complainant : Sh. Karan Nehra, Advocate For opposite parties : Sh. R.S Modi, Advocate
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J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against OPs on the averments that he had applied for HIG Flat under the scheme of Manmohan Kalia Enclave Transport Nagar, Goniana Road, Bathinda, vide application form no. 186 and had paid booking amount of Rs.2,60,000/-, vide draft no. 002645 dated 15.11.2010 of HDFC Bank. On 13.12.2010, Flat no. C-12 3rd Floor along with parking was allotted to him for consideration of an amount of Rs.25.60 lacs and Rs. 1 lac respectively, vide allotment letter no. 926 dated 27.04.2011. He had taken a loan facility from Axis Bank on 20.01.2012 for a sum of Rs.19,50,000/- to pay the price of the flat. He had deposited entire amount of the allotted flat, as well as of parking fee to OPs, as per terms and conditions of allotment letter. He had purchased the flat to start his practice as a Doctor also. The OPs have failed to provide the basic amenities to him, as well as to other allotees of the flats. Besides this, the project work of the said flat is incomplete till date, the electricity cables have not yet been laid, lifts are not in working condition and electricity/water meters are also not installed. The OPs have violated the terms and conditions of the agreement and of scheme, as they have failed to complete the entire work of the flats within the stipulated time and same is still pending. Due to ignorance and apathy of OPs towards the said scheme, the said area is becoming dangerous one. The complainant approached OPs on various occasions and requested them to deliver him the possession of the flat along with basic amenities, as per the settled terms and conditions of the agreement, but they kept on lingering the matter on one pretext or the other. Instead of fulfilling the commitment of scheme, he had been asked to deposit more amounts. Due to irresponsible and careless behaviour of OPs, he has suffered mental and physical agony. The complainant has, thus, filed the complaint directing OPs to refund the amount of Rs.27,62,400/- which has been paid by him along with interest @ 24% per annum w.e.f. the date of making of payment till the date of refund, to pay interest on the loan amount obtained by him from Axis Bank i.e. Rs.5,79,301/- w.e.f. 01.04.2011 till 31.1.20215 till 31.12.2015, besides Rs.5,00,000/- as compensation for mental harassment and Rs.50,000/- as costs of litigation due to deficiency in service and unfair trade practice of OPs.
2. Upon notice, written statement on behalf of OPs no.1 and 2 was not filed. OP no.3 appeared and filed the written reply and contested the complaint of the complainant vehemently by raising legal objections that complaint is not maintainable. The complainant has not come to this Forum with clean hands. The present complaint is barred by time. The complainant is not a consumer of OP. On merits, it was averred that complainant approached the OP for purchase of flat and deposited the requisite amount and flat was allotted to him. At the time of purchasing the flat, no false promise was made by it to complainant. He was explained the terms and conditions of the allotment letter as well as agreement executed between the parties. The OPs never promised that the possession of the flat would be given within 30 months. It was averred that a number of alltotees have already taken the possession of their respective flats, as the flats are complete in all respects. The OPs have already completed the building according to the terms and conditions executed between the parties. OP has not violated any provisions of law. Rest of the averments were denied by OP as asserted by complainant and it prayed for dismissal of the complaint.
3. The complainant tendered in evidence his affidavit Ex.C-A along with copies of documents Ex.C-1 to Ex.C-8 and closed evidence. As against it; OPs tendered in evidence affidavit of Rajesh Kumar L.O Improvement Trust Bathinda District Bathinda Ex.OP-A and closed the evidence.
4. We have heard learned counsel for the parties and also examined the record of the case. We have to refer to evidence on the record, in addition to the pleadings of the parties to settle the controversy in this case. The complainant booked one HIG Flat under the scheme of Manmohan Kalia Enclave Transport Nagar Goniana Road Bathinda, vide application form no. 186 by paying booking amount of Rs. 2,60,000/- by virtue of draft no. 002645 dated 15.11.2010 of HDFC Bank to OPs. This fact is proved, vide acknowledgement no. 186 dated 15.11.2010 Ex.C-1 on the record. OPs allotted flat no. C-12 on IIIrd floor with parking to complainant on 13.12.2010 for sale amount of Rs.25,60,000/- and Rs.1 lac respectively, as per allotment letter no. 926 dated 27.04.2011. The allotment letter no. 926 dated 27.04.2011 Ex.C-2 is on the record to prove this fact that complainant took loan of Rs.19,50,000/- from Axis Bank on 20.01.2012 for payment to OPs as price of the flat and this fact is established on the record, vide Ex.C-3 and C-4 statements of accounts of complainant. The complainant deposited the entire amount of allotted flat inclusive of the parking with OPs, as per allotment letter and this fact is proved on record, vide Ex.C-4 on the file. The grievance of the complainant is that OPs have not delivered the possession of the flat to him, despite receipt of entire sale consideration amount. The case pleaded by the complainant is that the project launched by OPs is still incomplete, because the electricity cables have not been installed, lifts are not in operative condition, electricity and water connections have not been installed in the project as well. OPs have failed to complete the entire work of the flat within the stipulated period, as per version of the complainant. The version of the complainant is that OPs offered incomplete possession of the flat to complainant, which was not acceptable to him. He relied upon Ex.C-5 in this regard dated 24.02.2014 to the effect that OPs wanted to hand over the incomplete possession of the flat to him only. The complainant specifically pleaded in para no.15 of the complaint and also proved this fact by means of his affidavit Ex.C-1 and photographs Ex.C-8 (Colly) on the record to the effect that the paint work, flooring, toilets, other essentials and basic amenities are not still available in the project. OPs just want to offer incomplete possession to save their skin and to avoid responsibility of refunding the deposited amount of the complainant. Even completion certificate/occupancy certificate has not been obtained by the OPs, as mandated by Section 14 of Punjab Apartment and Property Regulation Act 1995. The case of the complainant is that the stipulated period for delivery of possession has already expired, but possession of flat was delivered only in an incomplete semi furnished condition to him despite receipt of entire sale consideration by OPs.
5. To rebut this evidence of complainant, OPs mainly relied upon their version that no such promise was ever made by OPs with complainant to deliver the possession of the flat in time bound manner. Only tentative period was given in the brochure for delivery of possession of the flat in a semi furnished condition to allottee. It was denied that OPs committed to deliver possession of semi furnished flat to complainant within 30 months from the date of allotment. OPs also denied this assertion of complainant that the amenities have not been completed in the project by them. They denied any deficiency in service or unfair trade practice on their part in this case. The OPs relied upon affidavit of Rajesh Kumar L.O Improvement Trust Bathinda. He testified in his statement that complainant deposited the requisite amount with OPs. The allotment of the flat is to be made in semi furnished condition and tentative period was prescribed in the brochure for delivery of possession thereof. This witness stated that possession of the flat has already been offered to complainant, but complainant has not received it. He further stated that other allottees have taken their respective possession and have been residing there also.
6. We have appraised the evidence on the record besides hearing counsel for the parties at considerable length. Clause 10 of the brochure is as under :-
10 HANDING OVER THE POSSESSION "The allottee shall be entitled to take possession of the flat in semi-furnished condition after he has completed all formalities and paid all dues payable up to that date and furnished/executed all documents as required/prescribed. The flat will be offered on "as is where is basis" after obtaining possession certificate from the Trust Engineer. The tentative period for completion of flat is estimated as two years and six months. No claim/complaint shall be entertained after the possession is accepted by the allottee with respect to construction of flat. No sale deed will be executed till entire payment is made."
It is, thus, plain from perusal of Clause 10 of brochure that estimated time or tentative time for completion of flat was within two years and six months, which would count from the date of allotment of the flat. The allotment of the flat was made in this case by OPs to complainant on 27.04.2011, vide Ex.C-2 on the record. Time fixed for delivery of possession of two years and six months has already passed by now. The complainant has paid the entire sale consideration amount to OPs even by taking loan from Axis Bank in this regard, which fact is duly proved by the loan statement Ex.C-4 on the record. It was the corresponding duty of the OPs to develop the project simultaneously with the receipt of the payments. The builder or projectors is not expected to utilize hard earned money of the allottees without performing its own part. OPs have not rebutted the evidence of the complainant by proving it on the record that electricity lines have been installed in the project, sewer connection has been laid, water connection has been installed in the premises and other basic amenities have been provided therein by them. There is mere affidavit of Rajesh Kumar L.O of Improvement Trust Bathinda Ex.OP-A, which is not sufficient to rebut the above evidence of the complainant. Even no occupancy certificate, as mandated by Section 14 of the Punjab Apartment of Property Regulation Act, 1995 has been obtained by OPs so far. No such completion certificate has been shown to us even during the arguments of this case by counsel for OPs. The letters relied upon by OPs to offer possession, vide Ex.C-5 dated 24.02.2014 and Ex.C-7 dated 01.02.2016 are just an eyewash to avoid their solemn obligation. How incomplete possession of flat could be offered by OPs to complainant is not explained by them, when they have received the entire sale consideration amount of the flat from allottee. Even from photographs Ex.C-8 (colly), we find that there is no evidence of consummate completion of project by OPs. We have come to this conclusion after appraisal of above-referred evidence on the record that OPs just misutilzied the hard earned money of the complainant and sat over the matter nonchalantly without developing the project of flats simultaneously. This is sheer unfair trade practice on the part of OPs. The possession was to be delivered by OPs to complainant by the end of October 2013. Now the year 2017 is about to come to an end and there is no completion certificate obtained by OPs of this project, as mandated by Section 14 of Punjab Apartment and Property Regulation Act 1995. We find that, as per Section 12 of the Punjab Apartment and Property Regulation Act, if promoter failed to give possession in accordance with terms of agreement of plot or apartment for reasons beyond his control by the appointed date, the promoter shall refund the amount already received by him in respect of that flat to the allottees. Section 12 of the Punjab Apartment of Property Regulation Act, 1995 is also attracted in this case. As per Section 3 of Punjab Apartment of Property Regulation Act 1995, the duty of the promoter is to develop the colony within the prescribed period and obligations have been cast on the promoter by this provision of law.
7. The complainant sought a direction to OPs to pay the interest paid by him to Axis Bank due to the above unfair act of OPs. The complainant has been burdened with interest by Axis Bank and loan amount was remitted to OPs, but OPs failed to develop the project accordingly. Consequently, complainant suffered a loss of interest due to deficient service of OPs. The complainant can be duly compensated by awarding 12% interest p.a. on the entire deposited amounts from the date of deposits till actual payment. The amount, if paid by complainant exceeds beyond 12% p.a interest to Axis Bank for the above period for loan amount, then it is liable to be recovered by him from OPs. The OPs are held liable to pay interest exceeding 12% to complainant, if already paid by complainant to Axis Bank in this regard.
8. Taking an overwhelming view of entire evidence on the record, we are of this view that OPs are proved to be guilty of unfair trade practice and deficiency in service to complainant. We accept the complaint of the complainant and direct OPs to refund the entire deposited amounts of complainant with them along with interest @ 12% p.a from the date of their deposits till actual payment. It is further made clear that whatever interest has been paid by complainant to Axis Bank for repayment of loan amount to OPs exceeding 12% p.a shall be paid by OPs to complainant and not beyond that. The complainant is also awarded Rs.30,000/- as cost of litigation and Rs.1 lac as compensation for mental harassment.
9. Arguments in this complaint were heard on 23.10.2017 and the order was reserved. Certified copies of the order be communicated to the parties under rules.
10. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER November 1, 2017 (ravi)