State Consumer Disputes Redressal Commission
Dr. Savina Bansal vs Town Improvement Trust Bathinda on 13 April, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.569 of 2017
Date of Institution: 17.07.2017
Order reserved on: 12.04.2018
Date of Decision : 13.04.2018
Dr. Savina Bansal w/o Dr. Rakesh Kumar Bansal,
Address: H.No.#P-15, Staff Colony, Giani Zail Singh Campus
College of Engineering & Technology Complex, Dabwali Road,
Bathinda (Punjab)-151001.
.....Complainant
Versus
1. Town Improvement Trust Bathinda through its Executive
Officer (EO) (Address: Bathinda, Improvement Trust, Goniana
Road, Bathinda (Pb)-151001).
2. Principal Secretary/Secretary of Government of Punjab,
Department of Local Government, Chandigarh. (Address:
Punjab Municipal Bhawan, Department of Local Government
Punjab, Dakshin Marg, Plot no.3, Sector 35-A, Chandigarh-
160022)
.....Opposite Parties
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. R.K. Bansal, Authorized representative For opposite party no.1: Sh. Neeraj Sharma, Advocate For opposite party no.2: Sh.P.S. Pandher, Advocate .................................................................................. Consumer Complaint No.569 of 2017 2 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 opposite parties (OPs) on the averments that originally complaint was filed before District Forum Bathinda and it was returned by that Forum on account of lack of pecuniary jurisdiction and thereafter it was presented before this Commission. It is further averred that OP no.1 invited applications for allotment of 96-HIG Multistoreyed Apartments to be constructed by it as Manmohan Kalia Enclave in Transport Nagar at Goniana Road Bathinda. Official brochure issued in this regard i.e. Floor 1st Floor 2 nd 3rd Floor 4th Floor 6th 4th Floor Floor 5th Floor Floor 5th Floor Cost ₹26 25.80 25.60 25.40 25.20 25 lakh lakh lakh lakh lakh lakh Car At stilt Car car car car car Parking floor garage at garage at garage at garage at garage at Facility ground ground ground ground ground floor floor floor floor floor Further 4% extra cess of total flat cost was to be charged for each flat at the time of deposit of 1/4th of total flat cost. No other cost or charges were payable. It is also mentioned that no interest was payable on the Earnest Money Deposited (hereinafter to be called as 'EMD') but there is no clause in the allotment letter or brochure that if there is delay in handing over the possession by the Trust, the allottees are not entitled to interest on the paid amount. It is also not mentioned that separate charges were payable for the stilt parking. It is further averred that the Chief Town Planner, Department of Local Government, Punjab on 12.7.2010, vide letter No.CTP(LG)- 2010- 828 accorded technical approval to the proposed layout plan and flat Consumer Complaint No.569 of 2017 3 design subject to:- a) approval of building design of proposed community centre; b) exhibiting in the layout plan sewerage disposal arrangement and rain water harvesting; and c) exhibiting in building plan provision of necessary Firefighting equipment as per National Building Code of India NBC-2005 norms. It is further averred that the complainant being successful in the draw of lots was allotted HIG Flat No.D-14 4th floor under self financing scheme, vide letter no.3078 dated 31.12.2010 for total sale consideration of Rs.25.40 lakhs. Allotment letter number 943 dated 27.04.2011 was issued to complainant. As per schedule of payment, complainant paid Rs.5,01,600/-, vide receipt no.335/29 dated 26.05.2011 to OP towards 15% of total flat cost alongwith 4%. Thereafter the complainant paid the amounts of Rs.3,96,000/- on 17.10.2011, 26.04.2012, 22.10.2012, 23.04.2013, 24.10.2013 vide different receipts totaling Rs.27,41,600/-. He paid the total cost of the flat by 27.10.2013 to OP no.1. The complainant submitted documents on non-judicial stamp papers on 11.11.2013 to OP for execution of agreement in the prescribed format with two witnesses to OP no.1 within 30 days of the last payment, which was received back from OP Trust duly signed by OP no.1. Vide Agenda item no.3 of its resolution number 56 passed by it on 17.11.2013, OP trust admitted that the possession of the flat was to be given to the allottee by 26.10.2012 and that the works were not complete in all respects.
Vide letter no.459 dated 21.02.2014, OP no.1 made an invalid offer asking him to take possession of the incomplete flat without Consumer Complaint No.569 of 2017 4 operative lifts. The complainant has alleged that OP no.1 has not completed the flat, despite payment of substantial amounts of sale consideration to OP. The complainant has alleged deficiency in service on the part of OPs in this regard and in not completing the flats for delivery of possession of allotted property. Even the Vigilance Officer visited the flat on 07.03.2017 and found various deficiencies in flat's construction, which have not been removed by OP no.1. The complainant has, thus, prayed that OP no.1 be directed to refund the entire flat cost; he further prayed for interest @36% on the paid amount for the delayed period; to refund Rs.One lakh for stilt parking alongwith interest @36%; Rs.5,00,000/- as compensation; and Rs.10,000/- towards costs.
2. Upon notice, OP no.1 appeared and filed written reply by raising preliminary objections that this complaint on new facts is not maintainable viz.a.viz. earlier complaint no.98 of 2016. There is an arbitration clause in the allotment letter and hence consumer complaint is not maintainable. As per clause 2 of the allotment letter, the plot was sold on 'as is where is basis', which has been duly accepted by the complainant. The complainant's remedy lies before Civil Court not before Consumer Forum. Vide letter number 459 dated 21.02.2014, the possession was offered to complainant by OP no.1 with completion of flats and the process for completing the lifts were under process. As clause 10 of brochure allottee was to take the possession of the flat in semi finished condition, which was to be made within the tentative period for completion of flats estimated as Consumer Complaint No.569 of 2017 5 two years and six months. It is nowhere mentioned in the offer of possession, vide letter dated 21.02.2014 that fully finished flat shall be handed over. It was stated in letter dated 08.03.20-16 in continuation to the letter dated 21.02.2014 that complainant was offered the possession of flat clearly stating therein that despite the earlier offer for possession, the complainant had not taken the possession and now again possession is being offered with all the complete basic facilities, despite that complainant did not take the possession. The complainant is not consumer of OP no.1. On merits, it is averred that the approval for above project was granted by the Chief Town Planner, Local Government, vide letter dated 12.07.2010. It is denied that OP no.1 has committed any deficiency in service. OP no.1 controverted the other averments of the complainant and prayed for dismissal of the complaint.
3. OP no.2 filed its separate written reply by raising preliminary objections that complaint is bad for misjoinder of OP no.2. The complaint is not maintainable in the presence of arbitration clause, contained in clause no.16 of the allotment letter. The complainant failed to take the possession of the flat despite offering it firstly on 21.02.2014, vide letter no.459 and thereafter vide letter dated 08.03.2016. The tentative period for completion of flat was mentioned as two years and six months. It was mentioned in clause 10 of brochure that flat will be offered in semi finished condition on 'as it is where it is basis'. The complaint was resisted by OP no.2 on Consumer Complaint No.569 of 2017 6 merits by denying any deficiency in service vehemently and prayed for dismissal of the complaint.
4. The complainant tendered in evidence her affidavit Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-36 and closed the evidence. As against it, OP no.2 tendered in evidence affidavit of Balbir Singh, Under Secretary Ex.OP2/A and copy of brochure Ex.R2/1 and closed the evidence. OP no.1 tendered in evidence affidavit of Ankur Goyal, Assistant Trust Engineer Ex.OP1/A alongwith copies of documents Ex.OP-1 to Ex.OP-7 and closed the evidence.
5. We have heard the authorized representative of complainant and counsel for OPs and have also examined the record of the case. The first point raised by OP is that there is an arbitration clause in the buyer's agreement between the parties and hence consumer complaint is not maintainable. We find no force in this submission of OP. The matter has been settled by larger bench of Hon'ble National Commission in consumer complaint no.701 of 2015, decided on 13.07.2017 titled as "Aftab Singh Vs. EMAAR MGF Land Limited and another". The National Commission has held in this authority that an arbitration clause in the afore-stated kind of Agreements between the complainants and the builder cannot circumscribe the jurisdiction of a Consumer Forum, notwithstanding the amendments made to Section 8 of the Arbitration Act, 1996. Against this order of the National Commission, Civil Appeal nos.23512-23513 of 2017 titled as EMAAR MGF Land Consumer Complaint No.569 of 2017 7 Limited and another Vs. Aftab Singh" was filed by OP before the Top Court, which has been recently dismissed by the Apex Court, vide order dated 13.02.2018. Consequently, the existence of an arbitration clause is not a bar to resolution of this dispute by the Consumer Forum. Even otherwise, the Apex Court has also so held in "National Seeds Corporation Limited Vs. M. Madhusudhan Reddy and another" 2012(2)CLT-382/383 and in Fair Air Engineers (P) Ltd. vs. N. K. Modi (1996) 6 SCC 385 that Section 3 of C.P. Act gives additional remedy to consumers to avail of his remedy as per his choice. In view of Section 3 of C.P. Act conferring the additional remedy on the consumers, we find no force in this submission of OP and repel the submission of OP.
6. The complainant seeks refund of the entire deposited amount with interest and further seeks for other compensation. The short plea of the complainant in this case is that he was allotted flat by OP in above project. There is no mention in the brochure for charging extra amount for stilt parking. OP no.1 agreed to provide water supply, drainage system and so on in the project. The possession of flat was to be handed over within 2½ years on or before 28.10.2013 by OP no.1. The offer of possession by OP no.1 to deliver the possession after expiry of scheduled time of delivery of possession is inconsequential, because complainant is not bound to take the possession of incomplete flat. The complainant has deposited the substantial amount on targeted date 27.10.2013 and OP no.1 has been using the money of the complainant and he has Consumer Complaint No.569 of 2017 8 been deprived of flat benefit from 27.10.2013. The Chief Vigilance officer was deputed by Department of Local Government of Punjab, who gave report after visiting the spot and found the below noted deficiencies therein:
i) The firefighting system has not been installed in the flats.
ii) The lifts are not under working condition. iii) In the brochure issued there is mention of a car garage but at
the spot there is no car garage but common parking.
iv) The floor of the stilt parking has not been constructed/finished properly.
v) There is no harvesting well at the spot for rain water.
vi) The earthing pits have not been covered. vii) The lightening arrester has not been installed.
viii) Small wooden pieces are used in the making of the frame of doors and windows. Apart from this the quality of the wooden doors is also not upto the mark.
ix) There is no working slab in the kitchen and neither tiles are installed. The work of toilets is also not complete.
x) In order to reach the floor above the parking floor the required head way which should be 7 feet 6 inches was not there.
OP no.1 also admitted in letter to Chief Engineer of Local Government of Punjab that lifts are closed on account some fluctuation in the voltage in operating the lifts. The above deficiencies indicate poor quality of material used in the housing project. The complainant has, thus, sought the refund of the deposited amount Consumer Complaint No.569 of 2017 9 because OP no.1 failed to deliver the possession within agreed time to complainant and failed to complete the project as well.
7. The plea taken by OP is that as per clause 2 of allotment letter, the flat was sold 'as is and where is basis' and this condition was duly accepted by the complainant. As per clause 10 of brochure, the allottee shall be entitled to take possession of flat in semi finished condition after completing the formalities. The complainant was offered possession of flat in semi finished condition, but the same was refused. It was nowhere mentioned in Clause 10 that fully finished possession of the flat shall be handed over. Vide letter dated 08.03.2016 in continuation of letter dated 21.02.2014, the complainant was offered the possession of flat stating that earlier offer of possession had not been taken by complainant and possession was being offered with complete basic facilities thereafter.
8. We have heard the submissions of authorized representative of complainant and counsel for parties and on perusal of evidence on the record, we proceed to decide this complaint. It is an undisputed fact in this case that complainant was allotted the above HIG flat no.D-14 at 4th floor by OP in its project. The complainant has paid the amount of Rs.27,41,600/- to OP being the price of flat. The possession was to be delivered within a period of 2½ years from the allotment by OP no.1. The possession has not been delivered complete in all respect by OP no.1 to complainant, because many discrepancies and deficiencies have been noticed Consumer Complaint No.569 of 2017 10 therein in his report by Chief Vigilance Officer appointed by Department of Local Government Punjab. There is no reason to discard this report of this Officer on the record in this case. We rely upon the report of Chief Vigilance Officer, who pointed out the discrepancies and deficiencies in service by OP no.1. The report has proved that OP no.1 has not completed this project, so as to deliver the possession of the flat to complainant. OP vide letter dated 13.06.2017 addressed to Chief Secretary Local Government Department, Punjab, Chandigarh regarding non-completion of flats by it, has sent progress report to him and the relevant part of the same, when translated into English, reads as under:-
i) The lifts of the flats are in working condition at the spot.
However, it has been brought into notice by the Company that due to fluctuation in the voltage a difficulty is being faced in operating the lifts and PSPCL is being coordinated for removing this difficulty. The work of annual maintenance of the same has been allotted to Thyssen Krupp Co.
ii) Necessary repairs of the doors and windows due to closure of the flats for more than four years have been carried out.
iii) ............
iv) ............ v) ............ vi) The sewer of these flats has been connected with the main line
of the sewer scheme, whose disposal is arranged in the Dairy Development Scheme of the Trust. The work of installation of STP is Consumer Complaint No.569 of 2017 11 also being started shortly in the Dairy Scheme itself after taking land from the Municipal Corporation, Bathinda. Internal sewer lines of the flats have been completely cleaned. The main sewer of the Scheme has also been got cleaned from the Punjab Water Supply and Sewerage Board and the sewer is working smoothly at the spot. Besides the above, it is brought to the notice that apart from the construction of the flats, the following works are also in operation at the spot:-
i. The work of fire-fighting has been allotted and approximately 70% work is complete at the spot.
ii. Approximately 60% work of rainwater harvesting is complete." A perusal of the above reveals that upto 13.06.2017, the lifts were not functioning properly due to fluctuation in the voltage. The work of installation of S.T.P. is being started shortly after taking land from the Municipal Corporation, Bathinda in the Dairy Scheme itself. A further perusal of the same reveals that work of firefighting is complete upto 70% and approximately 60% work of rainwater harvesting is also complete. It cannot be said that all the facilities have been provided by it even in the month of June 2017. A perusal of sub-clause 9 of the amendment made in Punjab Town Improvement (Utilization of Land and Allotment of Plots) Rules, 1983, notified vide No.GSR46/PA-4/1922/S.73/Amd. (6)/2016 dated 28.6.2016, reveals that in case the Trust fails to handover the possession of the sold/allotted plot/property to the buyer/allottee within the stipulated time mentioned in the allotment letter because of some court case or Consumer Complaint No.569 of 2017 12 otherwise, it shall communicate the same within a period of 90-days of the allotment/auction to the said buyer/allottee, who may make an application for taking his earnest money or any other amount deposited with the Trust back within a period of three months from the date of such intimation. No completion or partial completion certificate of the flats have been placed on record by OP no.1 in this case. Consumer cannot be made to wait for an indefinite period for delivery of possession, when he has made the payments towards sale consideration to developer. We are fortified in this regard by law laid down by this Commission in "Sunil Singla Vs. Town Improvement Trust Bathinda' in CC No.728 of 2017 decided on 15.02.2018.
9. As a result of out above discussion, we have come to this conclusion that OP failed to deliver the possession complete in all respect in the scheduled time, where flat has been located of complainant. We accept the complaint and the complainant is held entitled to below noted reliefs:
(i) OP no.1 is directed to refund the entire deposited amounts of complainant with interest @12% per annum from the date of their deposits till actual payment;
(ii) to pay Rs.50,000/- as compensation for mental harassment.
(iii) to pay Rs.20,000/- as costs of litigation.
The above amounts shall be payable by OPs to complainant within two months from date of receipt of certified copy of this order. Consumer Complaint No.569 of 2017 13
10. Arguments in this complaint were heard on 12.04.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
11. 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 April 13, 2018.
(MM)