State Consumer Disputes Redressal Commission
Town Improvement Trust, Bathinda vs Seema Goyal on 13 January, 2017
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 459 of 2016
Date of institution: 14.06.2016
Date of decision : 13.01.2017
Town Improvement Trust, Bathinda, thorugh its Executive Officer.
.....Appellant-Opposite party No.1
Versus
Seema Goyal Wd/o Sh.Sham Lal Goyal, R/o H.No.19208, Street
No.7, Guru Teg Bahadur Nagar, Bathinda, Tehsil & District Bathinda.
..............Respondent / Complainant
First Appeal No. 494 of 2016
Date of institution: 29.06.2016
Date of decision : 13.01.2017
Seema Goyal Wd/o Sh.Sham Lal Goyal, R/o H.No.19208, Street
No.7, Guru Teg Bahadur Nagar, Bathinda, Tehsil & District Bathinda.
..............Appellant/Complainant
Versus
1. Town Improvement Trust, Bathinda, thorugh its Executive
Officer, Bathinda.
2. Principal Secretary, Local Government (Punjab) Room No.419,
4th Floor, Punjab Mini Secretariat, Sector -9, Chandigarh.
.....Respondents-Opposite parties
Appeal against the order dated 04.05.2016
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Vinod Kumar Gupta, Member
Present:-
For the appellant : Sh.R.S.Modi, Advocate For the respondent : Sh.Rishabh Gupta, Advocate VINOD KUMAR GUPTA, MEMBER
The present appeals filed separately, arise from the same impugned order dated 04.05.2016 passed by District Consumer First Appeal No.459 of 2016 2 Disputes Redressal Forum, Bathinda (in short, "District Forum"), and are being disposed by a common order.
2. The first appeal (F.A. No.459 of 2016) has been preferred by the opposite party for setting aside that impugned order whereas the other appeal (FA No.494 of 2016) has been filed by the complainant for the modification of the order. The complaint filed by the Seema Goyal (in short "complainant") was partly accepted with Rs.5,000/-, as cost and the opposite party was directed to pay Rs.10,000/- per month as compensation with effect from 27.10.2013 till the date of delivery of actual physical possession of the flat in question to the complainant after providing basic amenities. The compliance of the order was ordered to be made within 30 days from the date of receipt of the copy thereof.
3. The parties in these appeals hereinafter to be referred as they have been arrayed in the complaint.
4. Brief facts of the case are that the complainant, Seema Goyal, filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the opposite party on the averments that in the year 2010, the opposite party invited applications for the allotment of the flats to be constructed in Manmohan Kalia Enclave, Transport Nagar Scheme, Goniana Road, Bathinda. Her husband Sh.Sham Lal Goyal (deceased) applied for the allotment of HIG flat vide application Form No.377 by depositing the requisite amount. Draw for allotment of the flats was held by the opposite party on 13.12.2010 and being one of the successful applicant was allotted HIG flat No.B-22 on 6th Floor for total sale consideration of Rs.25,00,000/-. The flats which First Appeal No.459 of 2016 3 were offered for sale by them were having three bedrooms, drawing room, dining room, kitchen, store, three toilets, three balconies and car garage at the ground floor. They further undertook to provide the lift facility for the said flats. The brochure further stipulated that water supply, drainage, sewerage, street lighting, sanitary, garbage collection, roads and other civil services, would also be provide to flat owners. The possession of the flats were to be handed over to the buyers within a period of 2½ years. The opposite party issued allotment letter No.961 dated 27.04.2011 to him. The brochure of the scheme provided two modes of payment. Under the 2nd mode of payment, he had to pay remaining 75% of the amount in 10 equal half yearly instalment of Rs.1,95,000/- each. It was provided in the allotment letter that first five instalments would be paid without any interest and after handing over the possession of the flat after 2½ years, the remaining five instalments were to be paid alongwith 12% interest on reducing basis. He paid first five instalments but the opposite party failed to complete the construction of the flats and to deliver the possession alongwith above mentioned amenities within the stipulated period of 2½ years. He received a letter No.436 dated 21.02.2014 issued by the opposite party wherein it offered to deliver the possession of the flats in semi-finished conditions. It was also mentioned in the said letter that the work of lift etc. is still going on and in case he wants to take the possession of the flat in that condition, he can approach it for the same. After receiving the letter, he went to the spot and found that the construction work of the flats was still going on. There was no provision of water supply, drainage, sewerage, street lighting, sanitary, garbage collection, roads First Appeal No.459 of 2016 4 and civil amenities at the spot. Moreover, there were no provision for electricity, fire fighting, lift and other amenities also which was necessary for taking possession and residing in that flat. He also paid 6th and 7th instalment of Rs.1,95,000/- each within the time but he did not pay any interest on the above mentioned instalments. As per brochure, the opposite parties were entitled for interest only on the condition when delivery of the possession of flat was to be given to him after 2½ years with all the above said necessary amenities. In this regard, he specifically mentioned in the covering letter that the opposite party was not entitled to any interest towards the above 6th & 7th instalments, as the work of the flat was still incomplete and possession of the flat was not delivered to him. They have also violated the provisions of National Building Code. It was alleged that the opposite parties illegally issued a letter No.2860 dated 07.11.2014 whereby it demanded interest of Rs.58,500/- on sixth instalment and Rs.46,800/- on seventh instalment alongwith further late interest within seven days. It was pleaded that non-completion of the flats as well as non-providing of the amenities as admitted by the opposite party in its letters No.1036 & 47 dated 03.04.2014 dated 15.09.2014 respectively. They also admitted the fact regarding the non-entitlement of charges of interest from the flat owners due to non-completion of the work, due to which the fact that the possession of the flats could not be handed over to the flat owners. It also moved resolution No.56 dated 07.11.2013 in this regard. It was alleged that the opposite party was illegally charging Rs.1,00,000/- alongwith interest towards stilt parking from the flat owners, including the complainant. It was against the terms and First Appeal No.459 of 2016 5 conditions of the brochure. This act of the opposite parties in charging interest on the 6th / 7th instalments and not delivering the possession of flat in time amounted to deficiency in service and unfair trade practice on their part. She prayed for issuance of the following directions to them:
(a) to set aside the impugned demand of Rs.58,500.00 on the sixth instalment and Rs.46,800.00 on seventh instalment vide their letter No.2860 dated 07.11.2014;
(b) not to claim interest of any outstanding amount only until handing over actual physical possession of fully completed flat.
(c) to pay Rs.10,000/- per month from 27.10.2013 till the date of handing over the actual physical possession of the flat to him being amount paid by him towards the rental accommodation alongwith interest at the rate of 12% on the amount deposited by him.
(d) to refund/not or to charge any amount towards the stilt parking and adjust payment schedule after taking the amount of Rs.1,00,000/- and interest charged on account of stilt parking.
(e) to pay compensation of Rs.1,00,000/- on account of mental tension and agony suffered by her.
5. Notice was sent to the opposite parties but none appeared on behalf of opposite party No.2 and as such it was proceeded against ex-parte vide order dated 08.01.2015 and vide order dated 04.02.2015 it was allowed to join the proceedings.
6. The complaint was contested by the opposite party No.1 by filing its written reply before the District Forum in which it had not disputed the fact that it invited the applications for the allotment of the flats in First Appeal No.459 of 2016 6 the locality as mentioned in the complaint in the year 2010. In the year 2010 the complainant vide application Form No.377 applied for the allotment of HIG Flat and he was successful in the draw held on 13.12.2010. It is also not denied that he was allotted the flat in question vide allotment letter No.961 dated 27.04.2011. The mode of payment as detailed by him was also not contraverted but it was stated that there were also other terms and conditions. One of the term and condition was that the cost was approximate and it could be increased. The increased amount was to be deposited prior to deposit of instalment prior to six months of the possession but he failed to deposit the increased amount within time. It averred that no cause of action did arise to her or locus standi to file the complaint. The complaint filed by the complainant was false, frivolous and fictitious. Other allegations contained in the complaint were denied and prayed for dismissal of the complaint with costs.
7. Both sides produced evidence in support of their respective averments before the District Forum. After going through the same and hearing learned counsel District Forum partly allowed the complaint, vide aforesaid order.
8. Aggrieved with the order the appellant/opposite party has filed the F.A. No.459 of 2016 on the ground that the appellant/opposite party No.1 had given the payment schedule in the allotment letter, which shows that five instalments were to be paid by the respondent/complainant without interest and remaining five instalments were to be paid with interest. This clause was misinterpreted by the District Forum. It was the policy/decision of the First Appeal No.459 of 2016 7 Trust that it will not charge the interest on first five instalments and interests will be charged on the remaining instalments. There was no concern with the handing over the physical possession of the flat. The District Forum did not have jurisdiction to decide the issue as it exceeds the pecuniary jurisdiction of the District Forum and no finding was given by the District Forum on this aspect. It was specifically mentioned in clause 15 (2) of the brochure that the amount deposited with the Trust will not earn any interest. Moreover, it was nowhere mentioned that the Trust would be liable to pay any rental value of the flat in case there is delay in handing over the possession of the flat but this fact was ignored by the District Forum. The flats were sold on as is where basis and were to be handed over in semi-finished condition. Hence the claim of the complainant regarding handing over of fully completed flat was against the terms of allotment letter, brochure and agreement. The complaint is time bared but no finding was given by the District Forum. It was no where declared or agreed that possession would be given by 27.10.2013. It prayed that the appeal be accepted and order of the District Forum be set aside. First Appeal No.494 of 2016
9. Aggrieved with the order of the District Forum, the complainant has also filed an appeal for modification of the order on the following grounds:
That the District Forum failed to take into consideration that the terms and conditions mentioned in the brochure cannot be changed unilaterally to the disadvantage of allottee" The District Forum failed to appreciate the fact that as per the letter of allotment read with the First Appeal No.459 of 2016 8 terms and conditions mentioned in the brochure, the interest was to be charged from sixth instalments onwards. It was also mentioned in the condition that the possession of the flat would be given within the stipulated period of time. In the brochure it was no where mentioned that stilt parking would be given to the allottees having flats on 6th floors. The Trust is illegally charging the amount of Rs.1,00,000/- on account of stilt parking, whereas there was no provision for the same. She prayed that the appeal be accepted and the order of the District Forum be modified.
10. We have heard learned counsel for both the sides and have carefully gone through the records of the District Forum.
11. It is an admitted fact by the parties that the flat in question was allotted to the applicant (deceased) vide letter dated 27.04.2011 Ex.C- 5 in pursuance of the application given by the applicant(deceased). It is also admitted that the opposite party was to construct semi-finished flats and the husband of the complainant had applied for the same under partial self-financing scheme. This fact is very much clear from the application exhibited as Ex. C-4 which was given by applicant(deceased) for the allotment of the flat. The first question to be determined is, as to when the possession of semi-furnished flat was to be delivered to the complainant? The perusal of Clause 10 of the brochure issued by the opposite party regarding the scheme deals with the handing over of the possession, is reproduced below:
"10 HANDING OVER THE POSSESSION The allottee shall be entitled to take possession of the flat in semi-finished condition after he has completed First Appeal No.459 of 2016 9 all formalities and paid all dues payable upto that date and furnished/executed all documents as required/prescribed. The flat will be offered on "as it 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 accepted by the allottee with respect to construction of flat. No sale deed will be executed till entire payment made."
No doubt, in this clause the said period was mentioned as tentative period for the completion of the Flat but if that clause is read with the other clauses of the brochure, it becomes crystal clear that there were two modes of payment; one for self-financing Scheme and the other for partial self-financing Scheme.
12. Under the partial self-financing Scheme the applicant(deceased) was required to pay the remaining 75% of the amount in 10 equal half yearly instalment of Rs.1,95,000/- each. The accommodation includes car parking at stilt floor and car garage at Ground Floor for residents of other floors. This document also contained condition No.14 mentioned as 'General' and as per this condition, terms and conditions are to be followed in General but the opposite party reserves the right to add or alter any of these if and when considered necessary. It can be safely inferred that salient features mentioned in the brochure were not final terms and conditions and these were subject to alterations. The flat in question was allotted to the applicant(deceased) on the basis of allotment letter dated 27.04.2011. First Appeal No.459 of 2016 10 As per this document, the price of the flat was Rs.25,00,000/- and stilt parking for Rs.1,00,000/- was separately mentioned. As per brochure the tentative time for completion of flat was estimated as 2½ years. There is nothing to show that in case of delay in handing over the possession, the complainant would be entitled to any interest on the paid amount as claimed by the complainant. There is also nothing to show that in case of delay in delivery of possession complainant would not be liable to pay interest on the remaining instalment. Therefore, she is not entitled to the relief regarding the interest as claimed by her.
13. The next question to be decided is, whether the offer of possession of flat made to the applicant(deceased), vide letter dated 21.02.2014 was a valid offer? That very letter was proved by the complainant on the record as Ex.C-6, in which it has been mentioned in the letter itself that the work of installing the lifts is still not complete. He was asked whether he was still ready to accept that offer of possession without the completion of that work. Therefore, it cannot be said that it was a valid offer of possession.
14. The complainant has also proved on record copy of letter No.1036 dated 03.04.2014 Ex.C-8 which was written by its Executive Engineer to the Regional Deputy Director, Local Government Department. In that letter he gave the details regarding the flats which were being constructed in that Scheme. He also mentioned therein that the work regarding the H.T. and L.T. lines and Electricity work, fire fighting, lifts and land scaping work was still incomplete. The opposite party itself had admitted that works were still incomplete, First Appeal No.459 of 2016 11 whereas as per terms and conditions agreed between the parties the possession of complete semi-finished flats was to be delivered to the complainant upto 26.10.2013. The opposite party cannot escape from its liability by sending the letter dated 21.02.2014 (Ex.C-7) allegedly offering the possession of the flat to the applicant(deceased) which was not complete in all respects. Thus, the offer made by the opposite party was not a valid offer. In these circumstances, it is to be held that the findings recorded by the District Forum are correct and there is no scope for interfering with the same. The District Forum allowed compensation to the complainant at the rate of Rs.10,000/- per month with effect from 27.10.2013 till the date of actual possession of the flat after providing all the basic amenities. Sound reasons were recorded by the District Forum while allowing the compensation at that rate. In these circumstances, we do not find any ground to interfere with that findings recorded by the District Forum and the same are upheld.
15. When the compensation has been awarded at the said rate by the District Forum from the date the possession, when it was to be delivered to him. It can easily be held that District Forum took care of the loss or injury caused to her on account of deficiency in service on the part of the opposite party. The harassment or mental agony of the complainant started only from the date and, as such, when possession was not given to him and no separate compensation is payable for the harassment or mental agony suffered by her.
16. The only question, which remains to be answered is, as to whether the complainant was entitled to interest on the amount so deposited by the applicant(deceased) with the opposite party? The First Appeal No.459 of 2016 12 complainant would have certainly been allowed interest if the compensation of Rs.10,000/- per month had not been awarded to him. Therefore, she cannot have dual benefit i.e. Rs.10,000/- per month and also interest on the amount deposited by her. Therefore, we do not find any ground to modify the order so passed by the District Forum.
17. In the result, both the appeals are dismissed and the order passed by the District Forum is upheld.
18. The arguments were heard on 13 01.2017, and order was pronounced in the Open Court.
19. The sum of Rs.25,000/- was deposited by the appellant in F.A.No.459 of 2016 at the time of filing of the appeal. It deposited another sum of Rs.3,10,000/- in compliance of the order dated 04.07.2016. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to it.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (VINOD KUMAR GUPTA) MEMBER January 13, 2017 pka