State Consumer Disputes Redressal Commission
Gurinder Singh Mann vs M/S Collage Group Infrastructure Pvt. ... on 4 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
Consumer Complaint No.52 of 2013
Date of institution : 08.05.2013
Date of decision : 04.06.2014
Gurinder Singh Mann s/o Balbir Singh Mann, r/o 51, Oakland
Avenue, LE4 7SG through Special Power of Attorney holder
Monisha Mahajan, d/o Davinder Mahajan r/o 60, Sector 4, Mansa
Devi Complex, Panchkula-134 109.
.......Complainant
Versus
1. M/s Collage Group Infrastructure Pvt. Ltd. through its
Managing Director Collage Windsor Apartments Heritage City,
Airport Road, Village Heir, Amritsar, Punjab.
2. M/s Collage Group Infrastructure Pvt. Ltd. through its
Managing Director 56-58, Community Centre East of Kailash,
New Delhi-110 065.
3. Vivek Srivastava M/s Collage Group Infrastructure Pvt. Ltd. 56-
58, Community Centre, East of Kailash, New Delhi-110 065.
4. Ashish Sethi M/s Collage Group Infrastructure Pvt. Ltd. 56-58,
Community Centre, East of Kailash, New Delhi-110 065.
5. Navneet Sandhu M/s Collage Group Infrastructure Pvt. Ltd. 56-
58, Community Centre, East of Kailash, New Delhi-110 065.
6. Avatar International Properties Limited through its Managing
Director, Civvals 5th Floor, Marble Arch House, 66-68 Seymour
Street, London, W1H 5AF.
Consumer Complaint No.52 of 2013. 2
7. Baljit Sodhi, Avatar International Properties Limited through its
Managing Director, Civvals 5th Floor, Marble Arch House, 66-
68 Seymour Street, London, W1H 5AF.
(The complainant was not allowed to proceed against opposite
parties Nos.6 and 7 vide order dated 8.7.2013).
...... Opposite Parties
Consumer Complaint under Section
17(1)(a)(i) of the Consumer Protection Act,
1986.
Quorum :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. Vinod Kumar Gupta, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the complainant : Shri Rajesh Sood, Advocate. For the opposite parties: Shri A.K. Kundal, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
The complainant, Gurinder Singh Mann, has filed this complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986, through his Special Attorney Monisha Mahajan for the issuance of following directions to the opposite parties:-
i) to refund the sum of Rs.20,37,445/-, along with interest at the rate of 15% per annum from the date of payment till realization;
ii) to pay Rs.25,00,000/- as damages for deficiency in service on their part;
iii) to pay Rs.50,000/- as litigation expenses and for hiring services of the advocate for issuance of the legal notice and for filing the complaint.Consumer Complaint No.52 of 2013. 3
He alleged therein that in pursuance of the advertisement of opposite parties No.6 and 7 he applied for allotment of apartment in Collage Windsor Apartments situated at Heritage City, Airport Road, Village Heir, Amritsar. In pursuance of the application made by him opposite party No.2 allotted Flat No.A 2/501, which was a 2 Bedroom Type D on the 5th Floor having a covered area of 1292.13 square feet, for a total consideration of Rs.34,94,825/-, subject to the terms and conditions contained in the allotment letter and the Buyer's Agreement. He was asked to pay Rs.10,48,447/- towards the first instalment, which was duly deposited by him, vide receipt dated 29.3.2008. The second instalment of Rs.9,88,998/- was deposited immediately, which was acknowledged by opposite party No.7, vide receipt dated 19.6.2008. In all, he has already deposited Rs.20,37,445/- as on 19.6.2008. At the time of confirming the allotment it was disclosed to him that the plans had already been sanctioned and the construction of the building was definitely to be completed and possession to be handed over by December 2009. He was informed by the opposite parties that due to some reasons the completion could be delayed by a year but he would be compensated in terms of added facilities in the Apartment. In 2010 when he enquired about the date of completion and handing over of the possession, he was informed that due to some permissions from the Government, the completion would be sometime in late 2011. Since November 2011 he had written several letters and sent e- mails and also made phone calls to the opposite parties but the Consumer Complaint No.52 of 2013. 4 possession was not handed over to him. Thereafter he served a legal notice upon them but no reply was given. He is resident of England and had purchased the Apartment to have a place for residence for himself and his family members, as the same was near to Golden Temple. To ensure timely payments he had taken loan from his family and friends and invested his hard earned money in the Apartment believing the representations of the opposite parties. On his last visit to India, he was shocked to learn that there was no progress in the construction activity even after the passage of more than 4 years of the allotment. There is no possibility of the completion of the building in near future. Thus, the service provided by the opposite parties is inadequate, imperfect and faulty and the same amounts to deficiency in service. They have acted illegally and with a mala fide intention to injure his rights.
2. Opposite parties Nos.1 to 5 filed joint written reply, in which they admitted that the complainant applied for the Apartment, vide his Application dated 13.12.2007 and the Apartment so mentioned in the complaint was allotted to him. They also admitted that the allotment letter was so issued and the Buyer's Agreement was also entered between them. They also admitted that the construction has not been completed. While denying the other allegations made in the complaint, they pleaded that opposite parties No.1 and 2 is a reputed Company and is carrying on construction activities in the Real Estate sector. The construction at the project site is going at rapid pace and they are likely to complete the same very shortly and Consumer Complaint No.52 of 2013. 5 thereafter the possession would be offered immediately to the complainant. The complainant made only part payment and the remaining amount of the sale consideration is still due from him. In fact, he invested the money with speculative motive to acquire some gain in future with the rise in the price of the property and the real estate. All the permissions and clearances had already been obtained by them before the start of the project. They faced shortage of construction material; like sand, bajri etc. and the delay in the completion of the project was due to certain factors, which were beyond their control. They never acted illegally or in a mala fide manner. The construction quality is of world class and there is no deficiency in service on their part. The complaint has been filed through the attorney and the allegations made therein are based upon personal knowledge of the complainant, about which the attorney could not have deposed. Therefore, the complaint is not maintainable. No cause of action has accrued to the complainant to file the same. The complainant belongs to U.K. and he could not have filed the complaint before the District Forum in India. The same is bad for mis-joinder of the parties. It involves disputed questions of facts, which require elaborate evidence for deciding the same and such questions can only be raised before the Civil Court of competent jurisdiction. They prayed for dismissal of the complaint.
3. In proof of the allegations made in the complaint, the complainant proved the affidavit of his attorney Ex.CA and documents Ex.C-1 to Ex.C-8. On the other hand, the opposite Consumer Complaint No.52 of 2013. 6 parties proved on record the affidavit of Charu Chander Nirmal, Ex.OP-1/A and the photographs Ex.OP-1/1.
4. We have carefully gone through the averments of the parties, the evidence produced by them in support of those averments and have also heard learned counsel on their behalf.
5. It was submitted by the learned counsel for the complainant that from the oral and documentary evidence produced on the record, it stands proved that the amount payable under the Agreement in respect of the consideration of the Apartment before delivery of the possession was duly paid by the complainant within the prescribed time. As per the terms of the Agreement, the possession of the Apartment was to be delivered to the complainant by December 2009 but the opposite parties failed to do so thereby committing the breach of the Agreement. The complainant waited for a long time to enable the opposite parties to complete the Apartment and to deliver the possession thereof but the way the construction progress is going on at the spot it is not possible for the opposite parties to deliver the possession even in near future. In all these circumstances the complainant is entitled to the refund of the amount so paid by him and for the deficiency in service on the part of the opposite parties he is entitled to compensation, as claimed in the complaint.
6. On the other hand, it was submitted by the learned counsel for the opposite parties that the complaint has been filed by the complainant through his Special Attorney, which cannot be said to Consumer Complaint No.52 of 2013. 7 have personal knowledge of the allegations made therein and that itself is a ground for dismissal of the complaint. From the evidence, it stands proved that the total amount payable under the Agreement was not paid by the complainant; which amounts to breach of the terms of contract on his part and he cannot make a prayer for the refund of the amount. He further submitted that from the evidence produced by the opposite parties, it also stands proved that the construction could not be completed for the reasons beyond their control and as per the terms of the Agreement the complainant could not have claimed the possession by December 2009 where completion had been delayed on account of factors beyond the control of the opposite parties. In these circumstances he is not entitled to the refund of the amount so paid by him nor he is entitled to any compensation, as there is no deficiency in service on the part of the opposite parties.
7. The complaint has been filed by the complainant through his Special Attorney and that Special Power of Attorney was proved on the record as Ex.C-1. The Attorney was specifically authorized by the complainant to file cases in competent courts and to act in all the cases in his behalf and to sign verifying the petition etc. By virtue of this Special Power of Attorney, Monisha Mahajan, through whom the complaint has been filed, was competent to file the complaint. The complaint was not required to be in the form of an affidavit and that negatives the plea of the learned counsel for the opposite parties that the Special Power of Attorney could not have deposed about the Consumer Complaint No.52 of 2013. 8 facts stated in the complaint from her personal knowledge. The complainant cannot be dismissed on the ground so raised by the learned counsel for the opposite parties.
8. For proving the allegations made in the complaint the affidavit of said attorney has been proved on the record as Ex.CA. In the verification of the affidavit, she has stated that the contents thereof are true and correct to the best of her knowledge. She might have been told about all the facts by the complainant and in case the opposite parties wanted to controvert her on that aspect, they should have cross-examined her by making a prayer to this Commission. No such right was availed of by them. In these circumstances, the reliance is to be placed upon the deposition made by the attorney in the affidavit Ex.CA. Even if the same is ignored, the controversy involved in the complaint can well be decided on the basis of the other evidence produced by the parties and in view of the admitted facts.
9. Admittedly the Apartment in dispute was allotted by the opposite parties to the complainant, vide allotment letter Ex.C-3, after he made an application and thereafter the Buyer's Agreement Ex.C-2 was entered into between the parties. As per this Agreement, the total price of the Apartment was Rs.34,94,825/- and as per the Payment Plan, 30% of that price was to be paid at the time of signing of the Agreement, 30% by way of second instalment within 90 days of the allotment and the balance 40% was by way of second instalment on Final Notice of Possession. It is the case of Consumer Complaint No.52 of 2013. 9 the opposite parties themselves that the Apartment is still not complete and offer of possession has not been made to the complainant. Therefore, only 60% of the price was to be paid by the complainant and that fact stands admitted by the opposite parties in their written reply. In addition to that, there are Receipts Ex.C-4 and Ex.C-5, vide which 60% of that price was paid. Thus, the complainant had performed his part of the contract by paying that amount.
10. The relevant clause of the Agreement Ex.C-2 regarding the time of the delivery of possession of the completed Apartment is reproduced below:-
"3.5 Subject to force majeure, the Company shall hand-over possession of the said Apartment by December 2009. If, however, the completion of construction of the said Apartment is delayed due to force majeure, as described herein, and the possession thereof is delayed, the Company shall be entitled to reasonable extension of time for handing over possession of the said Apartment to the Allottee."
Learned counsel for the opposite parties has taken the defence of force majeure, as he has tried to contend that the construction could not be completed for the reasons beyond the control of the opposite parties. That reason as given in the written reply is that the construction material, such as, sand and bajri was not available. Consumer Complaint No.52 of 2013. 10 Whether such an excuse can be said to be a reasonable cause and whether this is covered under force majeure. The relevant clause of the Agreement under the heading "Force-Majeure' is reproduced below:-
"6. FORCE-MAJEURE The completion of the Said Apartment/Said Project in all respects is subject to force-majeure, which includes delay for any reason beyond the control of the Company like strikes, civil commotion, war or enemy action or natural calamities such as earthquake, flood or any act of God. In case of delay in possession as a result of any notice, order, rule, notification of the Government/Public/Competent Authority or any restriction so imposed or any other reason beyond the control of the Company and any of the aforesaid events, the Company shall be entitled to a reasonable extension of time. In case of non- availability of materials at reasonable cost including those materials mentioned in the specification, the Company will be entitled to use of the same or better quality materials without any claim from the Purchasers/Allotees."
A minute perusal of this clause makes it clear that the non- availability of the construction material or the availability thereof at Consumer Complaint No.52 of 2013. 11 higher price is not a factor, which can be said to be beyond the control of the party. The possession was to be delivered by December 2009 and even at the time of arguments the opposite parties have not come up with the plea that they are ready with the Apartment for delivering the possession thereof to the complainant. If such a position is continuing for more than four years, how can it be said that the opposite parties will be in a position to offer the possession of the Apartment to the complainant in near future. By not delivering the possession as per the terms of the Agreement, they committed the breach thereof and indulged in unfair trade practice and were deficient in service, for which the complainant is entitled to receive the compensation; as he has specifically averred in his complaint, on the basis of the facts stated therein, that he suffered harassment etc. The complainant is also entitled to the refund of the amount so paid by him, along with interest; as he was deprived of the use of this money for all this period.
11. Accordingly the complaint is allowed and the opposite parties are directed to refund the sum of Rs.20,37,445/-, along with interest at the rate of 12% per annum from the date of deposit of that amount till the date of payment thereof. They are directed to pay compensation of Rs.1,00,000/- for the harassment suffered by the complainant and Rs.11,000/- as the litigation expenses. They are directed to pay all these amounts within 30 days of the receipt of the copy of this order.
Consumer Complaint No.52 of 2013. 12
12. The arguments in this case were heard on 30.5.2014 and the order was reserved. Now, the order be communicated to the parties.
13. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 04, 2014.
Bansal