State Consumer Disputes Redressal Commission
Prem Pal Sharma vs M/S Primary Estates And Development ... on 19 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.181 of 2017
Date of Institution: 28.03.2017
Order reserved on: 18.01.2018
Date of Decision : 19.01.2018
1. Prem Paul Sharma son of Sh. Satya Prakash Sharma.
2. Smt. Bandana Sharma wife of Sh. Prem Paul Sharma, both
residents of JSQ-67, ACC colony, Barmana District Bilaspur
(HP).
.....Complainants
Versus
1. M/s Primary Estates and Developers Pvt. Ltd., through its
Director Samar Mohan Ranga, SCO 43, New Sunny Enclaves,
Sector-125, Mohali (Pb).
2. Samar Mohan Ranga, Director of M/s Primary Estates and
Developers Pvt. Ltd, SCO 43, New Sunny Enclaves, Sector-
125, Mohali (Pb).
3. Vijay Rana, Director of M/s Primary Estates and Developers
Pvt. Ltd., SCO 43, New Sunny Enclaves, Sector-125, Mohali
(Pb).
.....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 complainants : Sh. Kewal Singh, Advocate For the opposite parties : Sh. Sukhbir Singh, Advocate ..................................................................................Consumer Complaint No.181 of 2017 2
J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainants have instituted 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 they were allured by the advertisement of OP no.1 and applied for an independent floor consisting of 3 BHK, 3 toilets, drawing cum dining room and modular kitchen, vide application dated 01.01.2015 and paid the entire amount of Rs.30,40,000/- to OPs. The amount of Rs.3,04,000/- was paid by them through RTGS reference no.SBIN715036742476 dated 05.02.2015. They further paid Rs.3,04,000/- through RTGS reference no.SBIN61506916569 dated 25.02.2015 and paid Rs.24,00,000/- through home loan availed from HDFC bank including Rs.30,000/- as EDC and Rs.94,863/- as service tax, totaling to Rs.31,64,863/-. The OPs issued an allotment letter dated 19.03.2015 allotting them independent floor, first floor bearing no.729. Later on, they discovered that size of the proposed flat allotted to them was small in area, as per agreement. After objection, OP no.1 issued another allotment letter for flat no.741B vide allotment 07.10.2015. Agreement was executed on 07.10.2015 by OP nos.2 and 3, the directors of OP no.1. OP no.1 agreed to allot 1350 square feet, as super area and 1020 square feet covered area consisting of 3 BHK, 3 toilets, drawing-cum-dining room and modular kitchen. OP no.1 also undertook to provide water supply to each of the independent floor owner with underground water tank of the capacity of 1000 lts. alongwith an electrical motor with the switch in Consumer Complaint No.181 of 2017 3 the room of the allottee, besides a separate independent water tank of the same capacity on the roof top of each floor. OP no.1 also agreed to provide marked parking for each allottee. As per agreement, the complete floor in all respects was to be delivered to the complainants on or before 30-11-2015 and in case of delay in delivery of possession, a penalty/interest @Rs.7/- per square feet of the super are i.e.1350 square feet per month was agreed to be paid by OP no.1 till the date of delivery of possession. The OPs have constructed only one water tank for entire one set of floor owners i.e. ground floor to top floor. There are 54 flats and there are only place of parking for 20 vehicles only. The complainants have alleged deficiency in service on the part of OPs. The complainants have thus prayed for directions to OPs to refund the deposited amounts of Rs.30,08,000/- alongwith interest @24% from the date of deposit 05.02.2015 till realization; to pay Rs.5 lakhs as compensation towards physical and mental harassment; and to pay Rs.1,00,000/-
as litigation expenses.
2. Upon notice, OP nos.1-3 filed written reply and contested the complaint of the complainants vehemently. Preliminary objections were raised by OP nos.1-3 in the written version that complaint is false and misconceived. All the requisite approvals have been taken from the authorities by the OPs and they have taken all the necessary approvals from the competent authorities before venturing. The flat booked by the complainants is complete and families have started living therein as well. The date of offer of Consumer Complaint No.181 of 2017 4 possession was subject to various terms and conditions including timely payment of the money by the complainants and reasonable extension of time therein. The complainant remained irregular in making payments. The complaint is alleged to be an abuse of process of law. The dispute between the parties is of purely civil nature and can be adjudicated by the competent Forum of court, as it requires examination of witnesses at length. The delivery of possession contained in buyers agreement is subject to force majeure circumstances. The complaint is alleged to be bad for non- joinder and misjoinder of necessary parties. On merits, OP nos.1-3 also contested the complaint of the complainants. It was admitted that complainants booked the apartment. Most of the averments of complainants contained in complaint were admitted to be matter of record. The date of offer of possession was subject to various terms and conditions, as referred to above. It was subject to force majeure circumstances as well like infrastructure project in whole region were standstill due to ban on mining. There is non-availability of material, which caused a bit delay in delivery of possession. The reason for delay is justified due to force majeure circumstances. OP nos.1-3 have prayed for dismissal of the complaint.
3. The complainants tendered in evidence affidavit of Prem Paul Sharma complainant no.1 Ex.C-A alongwith copies of documents Ex.C-1 to C-6(a) and closed the evidence. In rebuttal thereto, OPs tendered in evidence affidavit of Vijay Rana, Director of Consumer Complaint No.181 of 2017 5 OPs Ex.OP-A alongwith copies of documents Ex.R-1 to R-11 and closed the evidence.
4. We have heard the learned counsel for the parties and have also examined the record of the case. Pleadings and evidence on the record has been carefully appraised by us with the able assistance of counsel for the parties. Prem Paul Sharma complainant no.1 has tendered his affidavit Ex.C-A. He deposed that OP no.1 issued brochure-cum-payment plan vide Ex.C-1. The complainants booked 3BHK with three toilets, drawing-cum-dining room and modular kitchen with OP no.1. The complainants paid the total amount of Rs.30,40,000/-. This witness has proved the receipts Ex.C-2 to C-4 on the record. He further deposed that OPs issued allotment letter dated 19.03.2015 allotting residential independent floor/flat no.729, 1st floor in above project to the complainant, vide Ex.C-5. This witness has further maintained in his testimony that since the area of this flat was small, hence OPs allotted the complainants alternate plot no.741B first floor, vide allotment letter dated 07.10.2015 Ex.C-6. He further stated that flat buyers agreement Ex.C-6(a) was executed between the parties and the date of delivery of possession was scheduled as 30.11.2015. There was a clause in buyers agreement by OPs to pay penalty @Rs.7/- per square feet of super area of 1350 square feet per month till the date of delivery of possession from the scheduled date. This witness has further deposed that complete water arrangement has not been provided by OPs, as agreed upon between the parties. Even parking Consumer Complaint No.181 of 2017 6 capacity is hardly of 20 vehicles, whereas there are 54 flats in the area. No provision has been made by OPs for independent water tank and parking space. He further stated that even the exterior of the building is not as per the design and picture shown by the builder. As against it, OPs tendered in evidence affidavit of Vijay Rana Director of OP no.1. He testified in his statement on oath that possession was subject to various terms and conditions including the timely payment of the amounts by complainants to OPs, reasonable extension of time for delivery of possession and non-availability of material and so on. He further stated that due to force majeure circumstances slight delay has taken place on the part of OPs in delivery of the possession to complainants. He further deposed that payments made by the complainants were irregular. He proved copy of demand notices Ex.R-1 and R-2 and accounts statement Ex.R-3. Copy of letter of possession is Ex.R-4 dated 25.02.2017. Ex.R-5 to R-11 are the photographs. It is evident from perusal of these photographs that OPs have completed the construction.
5. From perusal of above referred evidence and hearing the submissions of counsel for the parties, we find that agreed dated for delivery of possession was 30.11.2015. The complainants paid two installments of Rs.3,70,055/- on 27.02.2016 through cheque no.401514 and Rs.2,03,384/- on 15.03.2016 through cheque no.422790, through HDFC Bank, by obtaining loan to OPs, vide Ex.C-4. It is thus clear that complainants have paid the amount of Rs.21,78,561/- to OPs before the date of delivery of possession i.e. Consumer Complaint No.181 of 2017 7 30.11.2015. Only there is some slight delay in payment of the Rs.3,70,055/- and Rs.2,03,084/-, which was paid on 27.02.2016 and on 15.03.2016 to OPs. Even the OPs were duty bound to deliver the possession when these amounts were paid by complainants to them by 15.03.2016.
6. The photographs have shown that OPs have completed the constructions of the flats. The OPs also issued letter of offer of possession to complainant vide Ex.R-4 dated 25.02.2017, which is supported by the courier receipt on the record. We hold that delay is not inordinate in delivery of possession. The counsel for OPs strenuously contended that OPs are ready with delivery of possession and have completed the project. So far, the other grounds of the complainant except seeking refund of the amounts are that the OPs have not provided the water tank and marked parking space, as held in the buyers agreement. We have examined the buyers agreement Ex.C-6(a). The OPs agreed to provide 500 liters of underground water tank to each floor alongwith a motor electrical switch in the room of allottee and a separate water tank of same capacity on the roof top to each floor. The OPs also agreed to provide marked parking to each allottee(s). These are the deficiencies in service on the part of OPs, as per buyers agreement Ex.C-6(a), the OPs are bound to provide 500 litres of underground water tank to each floor alongwith a motor electrical switch in the room of allottee and a separate water tank of same capacity on the Consumer Complaint No.181 of 2017 8 roof top to each floor and to provide marked parking to each allottee. The OPs are deficient in service on this point.
7. For the reasons recorded above, we partly accept the complaint of the complainant and direct OPs to provide 500 litres of underground water tank to complainants alongwith a motor electrical switch in the room of them and a separate water tank of same capacity on the roof top to them and further to provide marked parking to the complainants. The OPs shall provide them within a period of two months from the date of receipt of certified copy of the order and on completion of the above facilities, the complainants shall make the payment of due amounts, if any, to OPs and on completion of above facilities, the OPs shall hand over the possession of the flat to complainants after receiving dues, if any. The OPs shall also provide compensation to complainants, as agreed upon in buyers agreement @ Rs.7/- per square feet of super area of 1350 square feet from the date of final payment i.e. 15.03.2016 by complainant till the date of delivery of actual possession. We also award compensation of Rs.1,00,000/- for mental harassment and Rs.30,000/- as cost of litigation to complainants payable by OPs to them within 45 days from the date of receipt of certified copy of the order. No order for refund of the amount can be issued in this case, when OPs have already completed the construction with slight delay in delivery of possession only.
Consumer Complaint No.181 of 2017 9
8. Arguments in this complaint were heard on 18.01.2018 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
9. 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 January 19, 2018.
(MM)