State Consumer Disputes Redressal Commission
Gulshan Kumar vs Opera Garden on 8 March, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.31 of 2015
Date of institution : 12.02.1015
Date of decision : 08.03.2017
Gulshan Kumar S/o Sh. Walaiti Ram R/o H.No.624, Street No.15,
Gobindsar Nagar, New Shimlapuri, Ludhiana, through his Special
Power of Attorney Sh. Walaiti Ram S/o Attar Chand R/o H.No.624,
Street No.15, Gobindsar Nagar, New Shimlapuri, Ludhiana.
....Complainant
Versus
1. Opera Garden, Village Kishanpura, N.A.C., Zirakpur, District
S.A.S. Nagar, Mohali, through its Authorized Signatory.
2. Chandigarh Colonizers Pvt. Ltd., N.A.C., Zirakpur, S.C.O. No.36,
Sector 3, Panchkula, through its Authorized Signatory.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. P.K. Longia, Advocate For the opposite parties: Sh. Jai Singh, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986.
2. Brief facts, as set out in the complaint, are that the complainant booked one residential apartment No.507, 5th Floor, measuring 1367 square feet in Springdale Tower, situated in OPERA GARDEN, NAC, Zirakpur, District S.A.S. Nagar, Mohali with the Consumer Complaint No.31 of 2015 2 opposite parties by paying booking amount of ₹3,00,000/-, vide cheque No.331269 dated 20.05.2008. He paid further amount of ₹3,63,000/-, vide cheque No.068478 dated 21.02.2008 to the opposite parties, as per their demand. On 08.03.2008, a provisional allotment letter Ex.C-1 was issued to the complainant, vide which he was allotted residential apartment No.507, fully described above. On the basis of provisional allotment letter, an agreement to sell Ex.C-2 was executed on 18.03.2008/25.04.2008. The complainant paid all the instalments, as and when demanded by the opposite parties as per the agreement and schedule of payments, according to which the cost of the apartment was ₹32,35,000/-; ₹75,000/- as cost of car parking; ₹60,000/- as PLC; ₹25,000/- as club membership; ₹55,000/- as power backup. Thus, the total cost of the apartment was ₹34,50,000/-. Out of the total cost of the apartment, the complainant paid ₹29,75,746/-, i.e. almost 90%, to the opposite parties. However, the opposite parties have not delivered the possession of the apartment to the complainant, which was to be delivered on 25.04.2011. The complainant visited the office of the opposite parties so many times, but they tried to avoid the matter on one pretext or the other. After September, 2012, the opposite parties did not demand any other payment and they have failed to complete the project till date. The complainant wrote letters on 12.06.2014 and 08.07.2014, asking the opposite parties to deliver the possession. The opposite parties, vide reply dated 25.08.2014, informed the complainant that the possession would be handed over in next 10-12 months approximately. The complainant served legal notice upon the Consumer Complaint No.31 of 2015 3 opposite parties on 03.11.2014, for violating the terms of the agreement to sell, but no reply was received on their behalf. Punjab Government has reduced the EDC charges in the year 2010, but the said amount has not been adjusted by the opposite parties, nor he was ever informed about such adjustment. The complainant has taken loan from the Bank for payment of instalments of the said apartment, which was purchased by him to settle down his parents, who are senior citizens. The complainant is residing in a rented accommodation at Ludhiana and due to non-delivery of possession of the apartment, he is suffering financial loss by paying interest on the loan amount as well as paying rent. The delay in delivery of possession amounts to deficiency in service and unfair trade practice on the part of the opposite parties. Accordingly, the complainant sought issuance of following directions to the opposite parties:
i) to hand over possession of residential apartment in dispute, complete in all respects (internal as well as external development) without any further delay with an occupancy certificate from the corporation to the effect that the apartment is fit for residential purpose;
ii) to pay interest at the rate of 9% per annum on the amount already paid by him with effect from 25.04.2011 till delivery of possession;
iii) to pay ₹4,00,000/- for causing mental torture, harassment and agony to the complainant; and
iv) to pay Rs.20,000/-, as cost of litigation. Consumer Complaint No.31 of 2015 4
3. Upon notice, opposite parties filed reply, raising certain preliminary objections that the complaint is not maintainable in the present form. This Commission has no jurisdiction to entertain and decide the complaint, because as per payment schedule/allotment letter, all the disputes are subject to Panchkula jurisdiction, as the co- office of the opposite parties is situated at Panchkula. As per schedule of payment/allotment letter, the complainant paid many instalments after a long delay. Instalment No.3 of ₹5,60,250/- was not paid by him, in-spite of issuance of letters dated 11.04.2008 and 10.05.2008. Again letter dated 10.06.2008 was sent to the complainant, but he failed to pay the instalment within time. The next instalment of ₹3,48,500/-, which was to paid at the time of start of first floor roof slab was also not paid, despite issuance of letters dated 24.07.2008 and 04.09.2008. The next instalment of ₹3,78,500/- was also not paid in time, despite issuance of letters dated 24.09.2008 and 22.10.2008. He was again reminded, vide letter dated 10.07.2009, that due date of payment of ₹3,23,500/- was 25.07.2009, but he failed to pay the same within time. The opposite parties sent notice dated 04.09.2010 regarding payment of ₹3,23,500/-, which was due on 15.09.2010, but he paid the same on 31.10.2010. He also deposited the instalment on 10.09.2012, which was due on 10.08.2012. The opposite parties are ready to give the possession of the flat in other building at the same place on the same conditions of earlier allotted apartment, which is ready for use within a week from the date of written approval by the complainant. The complainant has concealed the material facts. The parties entered Consumer Complaint No.31 of 2015 5 into an agreement to sell dated 25.04.2008 and clause 12 thereof reads as under:
"That in case of issuance of the completion certificate by Municipal Committee, release of sewerage connection, water connection and electric connection by concerned authorities are without delay, the possession of the said apartment will be delivered by the seller to the purchaser with in a period of 36 (thirty six) months from the date of commencement of construction of said unit or from the date of signing this agreement, whoever is later, subject to force majeure. The seller shall not incur any liability, if it is unable to deliver the possession of the said premises by the time aforementioned, if the completion of the building (s) is delayed by reason of non-availability of steel and/or cement or other material, or water supply or electric power or slow down strike or due to dispute with the construction agency employed by the seller, civil commotion or by reason of war, or enemy action, or earthquake or any act of God, delay in issue of completion certificate by Municipal Committee delay in release of sewerage and water connection by the concerned authority or if non-delivery of possession is as a result of any authority or for any other reason beyond the control of the seller and in any of the aforesaid events the seller shall be entitled to a reasonable extension of time for delivery of possession of the said premises."
Due to non-availability of steel, cement and water supply as well as some other reason, which were beyond the control of the seller, the seller is entitled to a reasonable extension of time for delivery of possession of the said premises, as per the above reproduced clause of the agreement. It was further pleaded that in reply dated 25.08.2014 Consumer Complaint No.31 of 2015 6 to the notice of complainant dated 12.06.2014, it was informed that the possession would be handed over in next approximately 10-12 months and the status of the flat was informed as under:
"Sr. No.3 Tower Springdale-2/Flat No.507
a) Structure completed
b) External plaster completed
c) Internal plaster in progress
d) Retaining wall for basement parking."
On merits, the opposite parties admitted that the complainant booked the flat, as mentioned in the complaint. It was denied that he deposited ₹3,00,000/- vide cheque dated 20.05.2008. However, they pleaded that the cheque of the said amount was dated 20.05.2006. They also admitted that the total cost of the apartment was ₹34,50,000/- and breakage of the same as mentioned in the complaint is also admitted. They did not dispute that the complainant paid ₹29,75,746/- i.e. 90% of the cost of the apartment. They further pleaded that the complainant has not paid the instalments on demand and on due dates. The delay in delivery of possession is not on the part of the opposite parties and the complainant is not entitled to any interest, as alleged. Similar other pleas, as raised in preliminary objections, were reiterated and dismissal of the complaint with costs was prayed.
4. Replication was filed by the complainant, in which he reiterated the averments of the complaint and controverted the version of the opposite parties as given in their reply.
Consumer Complaint No.31 of 2015 7
5. To substantiate his claim, the complainant tendered in evidence affidavit of Sh. Walaiti Ram Ex.CW-A, along with documents Ex.C-1 to Ex.C-24. On the other hand, the opposite parties tendered affidavit of Sh. Mukesh Sharma, their Authorized Person, Ex.OP-A along with documents Ex.OP-1 to Ex.OP-17.
6. We have heard learned counsel for the parties and have gone through the record carefully.
7. Learned counsel for the complainant has vehemently contended that the complainant booked residential apartment No.507, 5th Floor, measuring 1367 square feet in Springdale Tower, situated in OPERA GARDEN, NAC, Zirakpur, District S.A.S. Nagar, Mohali with the opposite parties by paying booking amount of ₹3,00,000/-, vide cheque No.331269 dated 20.05.2008. He also deposited further amount of ₹3,63,000/- with them and Provisional allotment letter dated 08.03.2008 Ex.C-1 was issued regarding the same. Against the total cost of the apartment of ₹34,50,000/-, the complainant paid almost 90% i.e ₹29,75,746/-. The possession of the apartment was to be delivered within 36 months from the date of agreement to sell i.e. 25.04.2008. However, the possession of the apartment was not delivered to him within that period. He wrote many letters to the opposite parties in this regard and vide letter dated 25.08.2014, Ex.C15, they informed that the possession would be delivered within next approximately 10-12 months. Even thereafter, the possession was not delivered within the agreed time. The complainant took loan from the Bank for paying the instalments towards the price of the apartment Consumer Complaint No.31 of 2015 8 and he is paying interest to the Bank. As such, the complainant is entitled to possession of the plot and is also entitled to interest on the amount deposited for the delayed period of delivery of possession.
8. Per contra, learned counsel for the opposite parties contended that the possession of the apartment in question could not be delivered to the complainant within the agreed time, due to force majeure circumstances i.e. due to non-availability of steel, cement and water supply as well as some other reasons, which were beyond the control of the opposite parties. Otherwise, the complainant has also failed to pay the instalments on the due dates and has deposited the instalments with considerable delays. Thus, he is not entitled to any interest on the deposited amount. As per clause 12 of the agreement to sell, the opposite parties are entitled to reasonable extension of time for handing over of possession. The complainant has himself admitted that he deposited 90% of the cost of the apartment and, as such, he is liable to pay the remaining amount before taking the possession of the same. The complainant is not entitled to any compensation or interest.
9. We have thoughtful consideration to the arguments advanced by learned counsel for the parties and have minutely perused the record.
10. Admittedly, the complainant was allotted the apartment in question, vide provisional allotment letter dated 08.03.2008 Ex.C-1. Price of the apartment was ₹32,35,000/- and after adding ₹75,000/- as car parking, ₹60,000/- as PLC, ₹25,000/- as club membership and ₹55,000/- as power backup, the total cost of the apartment came to Consumer Complaint No.31 of 2015 9 ₹34,50,000/-. The payment of instalments was to be made, as per the payment schedule mentioned in the above said letter. Admittedly, the complainant deposited ₹29,75,746/- i.e. 90% of the total cost of the apartment with the opposite parties. Agreement to sell dated 25.04.2008 Ex.C-2 was duly executed between the parties and as per clause 12 thereof, the possession of the said apartment was to be delivered within 36 months from the date of commencement of construction or from the date of signing the agreement; meaning thereby that the possession was to be delivered by 25.04.2011. However, the possession of the apartment was not delivered by that date. The opposite parties have taken shelter of this clause for not delivering the possession within the agreed period and contended that due to force majeure circumstances, as mentioned in this clause, they are entitled to reasonable extension of time.
11. The question arises, whether the opposite parties have been able to prove on the record that the non-delivery of possession of the apartment to the complainant within the period of 36 months was on account of force majeure circumstances or circumstances beyond their control?
12. The word "force majeure" has been defined in Concise Law Dictionary by P. Ramanatha Aiyar as "irresistible force or compulsion; circumstance beyond one's control". It was held by the Hon'ble Apex Court in AIR 1961 SC 1285 (M/s Dhanrajamal Gobindram v. M/s Shamji Kalidas and Co.) that force majeure means act of God, war, insurrection, riot, civil commotion, strike, earthquake, tide, storm, tidal Consumer Complaint No.31 of 2015 10 wave, flood, lightning, explosion, fire and any other happening which the lessee would not reasonably prevent or control.
13. To take refuge under the force majeure circumstances, it was incumbent on the part of the opposite parties to prove that the alleged circumstances were beyond their control. There may be non- availability of steel, cement or water supply, but the opposite parties were bound to fulfil their commitment under the agreement for developing the Project and delivering the possession of the apartment to the complainant within the agreed time. These were the circumstances, which could have been foreseen and should have been kept in mind while agreeing upon the terms and conditions mentioned in the agreement. If these are to be taken as an excuse to wriggle out of the condition imposed in the agreement, then in every case such a plea would be taken as an excuse for not performing their part of the contract, by the builders/developers. Moreover, the opposite parties have not produced any evidence on the record to prove that there was actually shortage of steel, cement or water shortage at the relevant time. No amount of any correspondence for supply of the same has been brought on record, from which it can be inferred that the opposite parties had been communicating with some concern regarding the supply of aforesaid material.
14. Vide clause 12 of the agreement to sell Ex.C-2, the opposite parties committed to deliver possession of the apartment within 36 months from the date of signing of the said agreement, which was signed and executed on 25.04.2008. In other words, the Consumer Complaint No.31 of 2015 11 possession was to be delivered by 25.04.2011, but the opposite parties failed to deliver the same by that period, despite repeated request of the complainant. The opposite parties, vide their letter dated 25.08.2014 Ex.OP-16 further agreed that the possession would be delivered in next (approximately) 10-12 months. In the said letter, they also informed the status report of the apartment in question as under:
"Tower Springdale-2/Flat No.507
a) Structure completed
b) External plaster completed
c) Internal plaster in progress
d) Retaining wall for basement parking."
Keeping in view the above said letter, the possession was further committed to be delivered up till 25.08.2015, but that date has also elapsed. However, the complainant is still without possession of the apartment allotted to him. The aforesaid letter also proves that the apartment has not been fully completed. In this way, the contention of the opposite parties that the complainant is not entitled to any interest as he paid the instalments with delay is not tenable. When the opposite parties themselves failed to honour its commitment within the agreed period, then the complainant cannot be said to be at fault for not making payments in time; especially when he has paid considerable amount of 90% out of the total cost of the apartment. The fault on the part of the opposite party is very much apparent from their pleading in the reply that they are ready to give possession of the apartment in other building on the same place, as per the conditions earlier agreed Consumer Complaint No.31 of 2015 12 upon between them. This shows that the apartment allotted to the complainant has not been completed so far by the opposite parties and that is why they offered some other apartment to him. In these circumstances, the complainant cannot be said to be at fault in any manner.
15. The opposite parties had been collecting huge amounts from the buyers for the development of the project. The amount received from the complainant-buyer was required to be deposited in the schedule Bank, as per Section 9 of Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA") and we wonder where that amount had been going. They are not to play the game at the cost of others. When they insist upon the performance of the promise by the consumers, they are to be bound by the reciprocal promises of performing their part of the Agreement. Thus, the delay in not delivering the possession of the apartment within the agreed period of 36 months amounts to deficiency in service on the part of the opposite parties, for which the complainant is to be suitably compensated.
16. The Consumer Protection Act came into being in the year 1986. It is the benevolent piece of legislation to protect the consumers from exploitation. The spirit of the benevolent legislation cannot be overlooked and its object is not to be frustrated. There is not an iota of evidence led by the opposite parties to rebut the averments made in the complaint by way of authenticated documentary evidence. The complainant has made payment of substantial amount to the opposite parties with the hope to get the possession of the unit in a reasonable Consumer Complaint No.31 of 2015 13 time. The circumstances clearly show that the opposite parties made false statement of facts about the goods and services i.e. allotment of land and construction in a stipulated period and ultimate delivery of possession. The act and conduct of the opposite parties is a clear case of misrepresentation and deception, which resulted in the injury and loss of opportunity to the complainant. Had the complainant not invested his money with the opposite parties, he would have invested the same elsewhere. There is escalation in the price of construction also. The complainant has suffered loss, as discussed above. The builder is under obligation to deliver the possession of the apartment within a reasonable period. It is the settled principle of law that compensation should be commensurate with the loss suffered and it should be just, fair and reasonable and not arbitrary. The amount paid by the complainant is a deposit held by the opposite party in trust of complainant and it should be used for the purpose of building the flats, as mentioned in Section 9 of PAPRA. The builder is bound to compensate for the loss and injury suffered by the complainant for failure to deliver the possession within the agreed period, so has been held in catena of judgments by the Hon'ble Supreme Court and the Hon'ble National Commission. To get the relief, the complainant has to wage a long drawn and tedious legal battle. As such, the complainant was at loss of opportunities. In such circumstances, ever increasing cost of construction and the damages for loss of opportunities caused which resulted in injury to the complainant, are also required to be taken into consideration for awarding compensation. The complainant Consumer Complaint No.31 of 2015 14 is entitled the apartment, complete in all respects, subject to payment of remaining amount. In addition to that he is also entitled to the compensation for the harassment, mental agony and wasting of time and money in litigation for redressal of grievance suffered by him.
17. The objection of the opposite parties that all the disputes shall be subject to jurisdiction of Panchkula Courts, is not tenable because opposite party No.1 is having its branch at NAC, Zirakpur, District S.A.S. Nagar, Mohali. Moreover, the dispute in the present case is with regard to the apartment in question, which is situated in Springdale Tower situated in Opera Garden, NAC Zirakpur, District S.A.S. Nagar, Mohali. In these circumstances, it cannot be said that this Commission has no jurisdiction to try this complaint.
18. So far as the question of awarding interest on the amount deposited by the complainant is concerned, it is relevant to mention that as per the agreement Ex.C-2, the possession was to be handed over by 25.04.2011, but the same has not been delivered by that time. The complainant is also entitled to the interest at the rate of 12% per annum on the deposited amount with the opposite parties with effect from 25.04.2011 till the actual date of delivery. In similar circumstances, the Hon'ble National Commission in case Capt. Gurtaj Singh Sahni & Anr. Vs. Manager, Unitech Limited & Anr. Consumer Complaint No.603/2014, decided on 02.05.2016, directed the opposite party/builder to pay interest on the deposited amount for the period of delay till delivery of possession of the unit. The relevant para thereof is reproduced as under:
Consumer Complaint No.31 of 2015 15
"10. For the reasons stated hereinabove, the complaints are disposed of with the following directions:
1) xxxxxxxx
2) The opposite party shall pay compensation in the form
of simple interest @ 12% per annum from the expected date of possession till the date on which the possession is actually offered to the complainants after completing the construction in all respects and obtaining the requisite completion certificate."
19. In view of our above discussion, we have come to the conclusion that the act and conduct of the opposite parties, in not delivering the possession of the apartment in question within the agreed period amounts to deficiency in service and unfair trade practice. The opposite parties are not entitled to further extension of time for delivering the possession, as already a period of about six years has elapsed since committed date of delivery i.e. 25.04.2011. The complainant is entitled to possession of the apartment in question, subject to payment to remaining amount towards price of the apartment. For the delay in delivering the possession, he is also entitled to interest on the amount deposited with the opposite parties with effect from the committed date of delivery till realization, besides compensation and litigation expenses.
20. Accordingly, the complaint is allowed and following directions are issued to the opposite parties:
i) to hand over the possession of the residential apartment in question, complete in all respects, within a period of two months from the receipt of the certified copy of the order, after obtaining Consumer Complaint No.31 of 2015 16 occupation and completion certificate from the competent authorities, on receipt of the remaining amount from the complainant towards the cost of the apartment;
ii) to execute and get registered the sale deed in respect of the apartment in question in favour of the complainant within two months from the date of handing over of the possession;
iii) to pay interest at the rate of 12% per annum on the deposited amount i.e. ₹29,75,746/- with effect from the committed date of delivery i.e. 25.04.2011 (36 months from the date of agreement Ex.C-2) till delivery of possession;
iv) to pay compensation of ₹2,00,000/- for causing mental agony
and harassment to the complainant; and
v) to pay Rs.11,000/-, as litigation expenses.
21. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER March 08, 2017.
(Gurmeet S)