State Consumer Disputes Redressal Commission
Rajiv Kapur vs 1. Chandigarh Overseas Private Limited on 2 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 25 of 2014 Date of Institution : 12.03.2014 Date of Decision : 02/06/2014 Rajiv Kapur Son of Sh. Ashwani Kumar, residing at D-104, Alaknanda Housing Society, Sector 56, Gurgaon, Haryana. Complainant V e r s u s 1. Chandigarh Overseas Private Limited, Fashion Technology Park, Opposite Lakhnour Cold Storage, Sector 90, S.A.S. Nagar, Mohali, Punjab, through its Director. 2. Sh. Hardyal Singh Mann, Director, Chandigarh Overseas Private Limited, Fashion Technology Park, Opposite Lakhnour Cold Storage, Sector 90, S.A.S. Nagar, Mohali, Punjab. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
Argued by: Sh. Sandeep Bhardwaj, Advocate for the complainant.
Opposite Parties exparte.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that the complainant wanted to have a residential house, in his own name. He applied for a residential flat, to the Opposite Parties, vide application dated 12.12.2009 Annexure C-1. The price of the flat was Rs.27 lacs. The complainant paid an amount of Rs.1 lac, through cheque bearing No.647504 dated 12.12.2009. The Opposite Parties, received an undertaking, from the complainant, wherein, it was specifically mentioned that the provisional allotment letter, would be issued, only after signing the Buyer-Developer Agreement. It was stated that the complainant agreed to pay the amount of Rs.24 lacs, on or before 14.12.2009, and the balance amount of Rs.2 lacs, on or before 01.01.2010. The complainant paid a sum of Rs.24 lacs, vide cheque no.150423 dated 14.12.2009, copy of the receipt whereof is Annexure C-4. The remaining amount of Rs.2 lacs, was paid by the complainant, vide cheque No.647512 dated 31.12.2009, copy of the receipt whereof is Annexure C-3. The complainant paid the entire sale consideration, to the tune of Rs.27 lacs. Flat No.601, Tower 1 was allotted to the complainant, vide provisional allotment letter, Annexure C-7. Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, was executed between the parties. According to Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, the agreed date of completion of the project/flat was 31.03.2011. It was also mentioned, in this Agreement that, in case, the Developers failed to hand over possession of the flat, by the due date, they would be liable to pay to the buyer, a sum of Rs.1000/- per day, for the period of delay. It was stipulated, in the Agreement, that this condition was not applicable, in case of natural disaster/Govt. or Court ruling, strikes and any other reasons, beyond the control of the Developer, under force majeure conditions.
2. It was further stated that since the Opposite Parties, without any reason, beyond their control, failed to complete the construction of flat, by the stipulated date, they were liable to pay a sum of Rs.1000/- per day, to the complainant, for the period of delay. It was further stated that the Opposite Parties, were many a time asked to complete the construction of flat, handover possession thereof, to the complainant, as also pay Rs.1000/- per day, as per Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as 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 the Opposite Parties, to handover physical possession of the flat, in question, immediately; pay interest @18% P.A., on the amount of Rs.27 lacs, from the respective dates of deposits, till realization; Rs.1000/- per day w.e.f. 30.03.2011, till handing over possession of the flat, in question; compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.51,000/-.
3. Notice sent through ordinary post for the service of Opposite Party No.1, was received back with the report left. Fresh correct address of Opposite Party No.1, was ordered to be furnished by the complainant, on or before 21.04.2014. On furnishing of the correct address of Opposite Party No.1, notice was sent for its service. However, despite deemed service, no authorized agent/ representative, on behalf of Opposite Party No.1, put in appearance, as a result whereof, it was proceeded against exparte, vide order dated 23.05.2014
4. However, notice sent through ordinary post for the service of Opposite Party No.2, at correct address, furnished by the complainant, was received back with the report refused. Refusal was a good service. Neither Opposite Party No.2, nor any authorized representative, on his behalf, put in appearance, as a result whereof, he was proceeded against exparte, vide order dated 17.04.2014.
5. The complainant, in support of his case, submitted his own affidavit, by way of evidence, alongwith which, a number of documents were attached.
6. We have heard the Counsel for the complainant, and have gone through the evidence and record of the case, carefully.
7. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint. No doubt, the flat, in question, for the allotment whereof, the complainant submitted an application, is situated in Fashion Technology Park, Sector 90, S.A.S. Nagar, Mohali, Punjab. The application form copy whereof, is Annexure C-1, was, however, submitted by the complainant to Chandigarh Overseas Private Limited, SCO 196-197, Top Floor, Sector 34-A, Chandigarh, which was duly signed by him, as also by an authorized signatory of the Opposite Parties, on 12.12.2009, at Chandigarh. Not only this, it is evident from the copies of receipts Annexures C-3 to C-5 that Rs.1 lac, vide cheque No.647504 dated 12.12.2009, Rs.24 lacs, vide cheque no.150423 dated 14.12.2009, and Rs.2 lacs, vide cheque no.647512 dated 21.12.2009, towards the entire sale consideration, were paid by the complainant, at Chandigarh, and the same (receipts) were issued by the Opposite Parties, at Chandigarh. Thus, a part of cause of action arose to the complainant, within the territorial Jurisdiction of Chandigarh. Under these circumstances, this Commission has got territorial Jurisdiction, to entertain and decide the complaint.
8. Admittedly, the complainant applied for the allotment of a residential flat, measuring super area 2075 square feet, vide application form, copy whereof is Annexure C-1. He was issued a provisional allotment letter, copy whereof is Annexure C-7, in respect of the residential unit no. 601, Tower 1. Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, was also executed between the parties. According to Clause 14 of this Agreement, the agreed date of completion of the project/flat was 31.03.2011, and, in case, the Developers failed to hand over possession of the flat, by the due date, they were liable to pay to the buyer, a sum of Rs.1000/- per day, for the period of delay. As per the said Agreement, this condition was not applicable, in case of natural disaster/Govt. or Court ruling, strikes and any other reasons, beyond the control of the Developer, under force majeure conditions. Construction of the flat, in question, as is evident from the record, was not completed by 31.03.2011. Even by the time, the complaint was filed, construction of the flat, had not been completed. Since, the Opposite Parties were exparte, the question of production of any evidence, to the effect, that construction could not be completed, on account of the reasons/circumstances, beyond their control, did not at all arise. The entire sale consideration, in the sum of Rs.27 lacs, as is evident from the copies of receipts Annexures C-3 to C-5, was paid by the complainant, to the Opposite Parties, as and when the payments fell due. There was, therefore, no default, on the part of the complainant, in abiding by the terms and conditions of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6. The Opposite Parties, by making misleading representation, to the complainant, duped him of his hard earned money and utilized the same, for a long time, but failed to complete the construction of flat, allotted in his favour, by 31.03.2011, as committed in the aforesaid Agreement.
Thus, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice.
9. The next question, that falls for consideration, is, as to whether, the complainant is entitled to physical possession of the flat, in question, as also a sum of Rs.1000/- per day, as per Clause 14 of the Agreement aforesaid, from 01.04.2011, or not. As stated above, physical possession of the flat, in question, which was allotted, in favour of the complainant, despite making payment of the entire sale consideration, has not been delivered to him, till date. Since, the Opposite Parties failed to complete the construction of flat, by 31.03.2011, and deliver possession thereof, to the complainant, by that date, they were liable to pay a sum of Rs.1000/- per day, for the period of delay i.e. from 01.04.2011. The parties, being bound by the terms and conditions of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, were required to act according to the same. By not delivering possession of the unit, in question, by the stipulated date, as also by not making payment of the amount of Rs.1000/- per day, as specified in Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice. It is, therefore, held that the complainant is entitled to the possession of flat no.601, Tower 1, complete in all respects. He is also entitled to the amount @Rs.1000/- per day, from 01.04.2011, till the possession is delivered.
10. The complainant has also claimed compensation, on account of mental agony and physical harassment. No doubt, the complainant was not delivered possession of the unit, in question, by the stipulated date, as provided in Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, yet, sufficient safeguard was provided, in the said Clause, by burdening the Opposite Parties, to pay a sum of Rs.1000/- per day, for the period of delay. A sum of Rs.1000/- per day, to be paid by the Opposite Parties, for the period of delay, could be said to be sufficient, to take care of the compensation, which would have otherwise been granted to the complainant, for mental agony and physical harassment. It is settled principle of law, that the Consumer Foras are not meant to enrich the consumers, at the hands of the service providers, by awarding unfair, unjust and excessive compensation. In these circumstances, no separate compensation, for mental agony and physical harassment, can be granted to the complainant, as claimed by him.
11. No other point, was urged, by the Counsel for the complainant.
12. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
(i).
The Opposite Parties are directed to hand-over the legal physical possession of flat No. 601, Tower 1, complete in all respects, to the complainant, within a period of 60 days, from the date of receipt of a certified copy of this order.
(ii).
The Opposite Parties are further directed to pay @ Rs.1000/- per day, to the complainant, as provided in Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, from 01.04.2011 [the stipulated date for completion and handing over the possession being 31.03.2011].
(iii).
The Opposite Parties are further directed to pay, to the complainant, cost of litigation, to the tune of Rs.20,000/-.
(iv).
The amount @ Rs.1000/- per day, as stated in Clause (ii) above, which has already fallen due, to the complainant, from 01.04.2011 to 31.05.2014, shall be paid by the Opposite Parties, to him, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall carry interest @7% P.A., from the date of default till the delivery of possession.
(v).
The amount accruing due, to the complainant @ Rs.1000/- per day, w.e.f. 01.06.2014, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @7% P.A., from the date of default, till the delivery of possession, besides payment of costs.
13. Certified Copies of this order be sent to the parties, free of charge.
14. The file be consigned to Record Room, after completion Pronounced.
June 2, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg