State Consumer Disputes Redressal Commission
Ajit Kaur vs The Punjab State Federation Of ... on 19 December, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.1014 of 2017
Date of Institution: 24.11.2017
Order reserved on: 13.12.2018
Date of Decision : 19.12.2018
Ajit Kaur wife of Amerjit Singh Bhatia and Amerjit Singh Bhatia S/o
Sh. Hari Singh R/o Flat No.132, Housefed Society, Sector 79, S.A.S.
Nagar, Mohali.
.....Complainant
Versus
The Punjab State Federation of Cooperative Housing Building
Societies Ltd. (Housefed) Punjab, SCO No.150-151-152, Sector 34-
A, Chandigarh through its Managing Director.
.....Opposite Party
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. Kiran Sibal, Member.
Present:-
For the complainant : Sh. H.P.S. Ghuman, Advocate For the opposite party : Sh. N.S. Vashisht, Advocate .................................................................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has instituted this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act") against opposite party (in short the 'OP') on the premise that OP floated Co-operative Housing Scheme of built up flats for allotment of residential flats of different categories in Sector 79, SAS Nagar (Mohali) in two different pockets measuring 5.50 acres and 5.49 acres respectively in the year 2004. The last date for submission of application was 23.02.2004. The complainant applied for category-I Consumer Complaint No.1014 of 2017 2 flat costing Rs.17.15 lakhs for the purpose of residence. As per brochure Annexure C-1, the payment could be made in easy installments with salient features as promised, as underground water reservoir, landscaped lush green lawns, boosted water supply, walled complex etc. OP issued an allocation letter of the concerned flat to complainant. There were two options of making the payments of cost of the flat. The complainant opted option no.2, whereunder the allottee was to pay initial deposit and rebate of 5% was to be given to the allottee, who was to pay the entire tentative cost of the flat by 30.06.2014 and the difference of final cost, if any, to be worked out after the completion of the flats and the tentative cost at the time of handing over of possession of the flat. The complainant deposited the whole amount of Rs.16,29,250/-, as per brochure, upto 30.06.2004, after the grant of rebate of 5%, by obtaining loan from the bank. The OP was required to start the construction work on or before 30.06.2004, but OP kept silent about this aspect and kept on collecting the installments from the other allottees and the construction had not started during this time by OP. The OP issued letter on 27.06.2006 to complainant to the effect that court proceedings remained pending in Hon'ble Court and OP is unable to start the construction work and court proceedings could take unspecified time resulting in delay of execution of project and as such, the delay will cause a substantial increase in the cost of the flats due to considerable increase in the prices of building materials etc. The option was sought from complainant as to whether she Consumer Complaint No.1014 of 2017 3 wanted to withdraw the earnest money deposited towards the flat with interest @10% or to retain the flat at the enhanced cost, which would be intimated during the cost of construction after the construction of flats. The complainant gave his consent for retaining the flat at the enhanced cost as fixed by OP. Vide demand notice dated 14.07.2014, the OP demanded Rs.41,86,000/- as final cost as against the allotment price of Rs.17,15,000/-. It is further prayed that as per brochure, no specific/exact date was given for handing over the possession of the flats to the allottees, which is an unfair trade practice on the part of OP. In the alleged court proceedings, the construction of flats had not been stopped and it is further pertinent to mention here that qua complex no.1, where the flat was allotted to complainant, there were no court proceedings. As per letter dated 21.10.2009 Annexure C-13, there was no stay in court proceedings qua construction in category I & II pocket, but OP had made a wrong and misleading statement, while obtaining said undertaking to the effect that the allottee shall be bound to make payment of enhanced amount due to proceedings in the Hon'ble High Court leading to delay in completion of project. However, the possession was delayed for 8 years, now the difference of Rs.24,71,000/- vide letter dated 14.07.2014 was demanded within two months period, which was quite exorbitant towards price factor. The complainant paid the same by raising further loan from State Bank of India. The initial amount paid by complainant had been lying with OP, without any consequential benefits to him from the year 2004 to year 2014 and Consumer Complaint No.1014 of 2017 4 the said amount was towards construction, which did not start at least till the year 2012 and OP should be liable to pay the interest on the amount of Rs.16,29,250/- retained and used by them for eight years @18% interest, as OP also imposed penal interest @18% in the event of delay in making payment. The demand of enhanced amount by OP of Rs.24,71,000/- was unethical and unlawful. The complainant and other allottees brought to the notice of OP to pay the interest for non-construction period on the amounts collected by them and also to pay compensation for harassment, but to no effect.
The complainant also suffered loss i.e. rent of Rs.19,20,000/- for eight years (Rs.20,000/- per month). It is further averred that land in question was allotted to OP by PUDA, vide agreement dated 11.03.2003 Annexure C-10. As per conditions of the agreement, 75% of the amount was to be paid within 60 days without interest and in three years with interest. The OP were to take possession within 30 days of the issuance of allotment letter. Building plan was to be deposited within 60 days of the taking over of the possession and construction was to be started within 30 days of the approval of building plan. The conveyance deed was to be executed within three months of the payment of the entire consideration of money. OP delayed the execution of sale deed, though it was required to be done within three years of the allotment at the maximum, as per allotment letter and the conveyance deed was executed on 01.06.2015 and OP charged an excess amount of Rs.4,00,000/- per unit. The OP accepted the genuine demands of the allottees and Consumer Complaint No.1014 of 2017 5 admitted their negligent act in not getting the conveyance deed executed in given time and agreed to refund the excess amount collected from them qua conveyance deed. Accordingly, an amount of Rs.3,58,000/- was refunded, vide cheque dated 20.10.2015 without interest thereupon. As per letter dated 20.10.2009 annexure C-13, there was no stay for construction in complex no.1 by the Hon'ble High Court and OP is solely responsible for delay in making construction and is responsible for the enhanced prices due to its own mistake. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs and prayed for following directions:
(i) OP be directed to transmit the entire record of the case to this Commission.
(ii) OP be directed to pay interest @18% per annum on the amount of Rs.16,30,000/- from 01.04.2006 to 15.09.2014 to complainant.
(iii) to pay rent loss of Rs.19,20,000/- (Rs.20,000/- per month) for eight years on account of delay in construction to complainant.
(iv) to pay interest @18% per annum on the refund amount of Rs.3,58,000/- from 14.07.2014 to 20.10.2015 to complainant.
(v) to pay Rs.5,00,000/- as compensation for mental harassment to complainant.
(vi) to pay Rs.1,00,000/- as cost of litigation to complainant. Consumer Complaint No.1014 of 2017 6
2. Upon notice, OP appeared and filed written reply by raising preliminary objections that housefed was allotted two pieces of land measuring 5.50 acres and 5.49 acres by PUDA, vide memo no.5076 dated 11.03.2002 in Sector 79 SAS Nagar Mohali. It is admitted that OP framed a scheme and offered super deluxe flat of 5 different categories in Sector 79 Mohali. The scheme was partially self financed and the balance amount was to be paid in easy installments. It is admitted that the complainant applied for category I flat in above project on 21.02.2004 and allocation letter was issued on 24.03.2004 to her. Due to stay order passed by the Hon'ble High Court, PUDA could not deliver the possession of the allotted land to OP. Thereafter, the Board of Directors of Housefed passed a resolution on 19.05.2006 giving an option to the allottees either to seek the refund of the earnest money deposited by them alongwith interest @10% per annum or send their consent to retain the flat at the enhanced cost, which will be intimated during/after the construction of the flats. The complainant exercised the specific option to retain the flat, vide registered post dated 11.07.2006 and copy of the same is attached as Annexure OP-2 to this reply. Draw of specific flat and floor number was held in June 2014 and letters of allotments were sent to the allottees on 14/15.07.2014 with the request to deposit the balance amount of their respective category by 15.09.2014 and take the physical possession of the flat. The last date for deposit was extended upto 31.10.2014 and in the meantime, the instant complaint has been filed by complainant. The cost of the Consumer Complaint No.1014 of 2017 7 flat was determined at Rs.41,86,000/- and complainant had already paid Rs.17,15,000/- and before taking possession; complainant was required to pay Rs.24,71,000/-. It is admitted that demand notice dated 14.07.2014 was issued by OP to complainant demanding Rs.24,71,000/- towards the final cost after completion of flats, because the final cost was to be assessed only after completion of the project. The initial deposits of complainant have been utilized to pay the land costs and other heads to various departments such as erstwhile PUDA (now GMADA), Water and Sanitation Departments, Electricity Department Etc. It is further averred that at the time of submission of application for allotment of flat, the complainant was living in Patiala and thereafter from 2006 to 2016, her communication address was New Delhi and Ghaziabad, as she was in service with State Bank of India and there was not urgent need of complainant to stay in Patiala. Vide resolution dated 19.05.2006, the Board of Directors of the Housefed decided to inform the allottees about the status and accordingly the allottees were informed through registered post as well as public notices that PUDA has directed the Housefed not to undertake any construction work at site due to the litigation pending in the Hon'ble High Court, but despite that the complainant gave an undertaking to pay enhanced cost after completion of the project and determination of the price after he had exercised the option to retain the flat, the complainant cannot raise the issue regarding enhancement of price or the payment of installments, as she could have withdrawn the deposited amount. In Consumer Complaint No.1014 of 2017 8 view of allotment letter dated 11.03.2003, housefed was to construct the flats within four years provided PUDA would have handed over the possession of the land and allowed the construction. After allotment of plot, Housefed wrote various letters for permission to start the construction on above lands, but Estate Officer of GMADA and Engineering Wing of GMADA reported that due to stay granted by the Hon'ble High Court in the area falling on Sector dividing road between Sector 79-80, the Sewer Line could not be installed through and such permission for construction of flats could not be granted. The OP raised the construction of flat within reasonable time and in July 2014, the possession of the flat was offered to complainant after determining the final cost as Rs.41,86,000/-. OP raised the demand of Rs.24,71,000/- on 14.07.2014 from the complainant and she paid the amount on 11.09.2014 and took the possession on 15.09.2014 hence the complaint is not within limitation and is barred by time. The OP has controverted the other averments of complainant by denying any deficiency in service and unfair trade practice on its part and prayed for dismissal of the complaint.
3. The complainant tendered in evidence affidavit of Amerjit Singh Ex.C-A alongwith copies of documents Ex.C-1 to Ex.C-14 and closed the evidence. As against it, OP tendered in evidence affidavit of Rajinder Singh, Officiating Superintendent Engineer Ex.OP-A alongwith copies of documents Ex.OP-1 to Ex.OP-17 and closed the evidence.
Consumer Complaint No.1014 of 2017 9
4. We have heard the learned counsel for the parties and have also examined the record of the case. Pleadings of parties have been carefully perused by us in this case. The complainant has already been delivered the possession of the allotted flat by OPs in this case. The complainant does not seek refund of the amount in this case, but has already received the possession and seeks only payment of interest on the refund amount of Rs.3,58,000/- @18% per annum from 14.07.2014 to 20.10.2015 and on the deposited amount of Rs.16,30,000/- from 01.04.2006 to 15.09.2014. The OP floated this scheme for construction of the flats and allotment thereof to the allottees and brochure is Ex.C-1 on the record. No specified time for delivery of possession of the allotted flat has been prescribed in the brochure Ex.C-1. Under PAPRA Act, 1995, the builder/promoter is required to specify the time in writing for delivery of possession to the allottee in the project to be developed by the promoter. Since some litigation remained pending in the Hon'ble High Court Chandigarh, which could have taken unspecified time and as such OP gave offer to the allottees to seek refund of their deposited earnest money with interest @10% per annum or alternatively to send their consent to retain the flat at the enhanced cost. This fact is proved on the record by virtue of registered notice sent by OP to complainant dated 28.06.2006 vide Ex.C-4 on the record. The complainant furnished undertaking Ex.C-5 to OPs giving her consent to retain the allotted flat and agreed to pay remaining balance amount towards enhanced cost, as fixed by Housefed Consumer Complaint No.1014 of 2017 10 during the course of construction. The undertaking has been exhibited by the complainant himself on the record, which is Ex.C-5. This document has, thus, proved it on the record that complainant willingly consented to retain the allotted flat at the enhanced cost to be fixed by OP during the course of construction. The OP allotted flat of Category I to complainant at final cost of Rs.41,86,000/-, vide letter dated 14.07.2014 Ex.C-7. This allotted flat was retained by the complainant by furnishing undertaking Ex.C-5 at the enhanced cost to be fixed by OP. The OP determined the cost of the flat as Rs.41,86,000/- and balance payment has been shown as Rs.24,71,000/-. The complainant wrote letter Ex.C-9 (colly) dated 04.07.2013, 20.08.2013 and 20.07.2016 to Managing Director of OP demanding interest on the amount retained by OP. Ex.C-10 is the allotment of land for the construction of multistoried flats to OPs by PUDA Mohali on 11.03.2003. The OP was to raise the construction over the land promoted by PUDA. On account of some litigation, PUDA could not offer the possession of the land to OP for raising the construction, which was allotted to different persons. The Estate Officer GMADA accorded the permission for raising the construction at own risk of OP on 21.10.2009, vide Ex.C-13 and Ex.C-14 is the copy of postal receipt thereof. This is the evidence brought on record by complainant.
5. To counter this evidence of complainant, the OP relied upon affidavit Ex.OP-A of Rajinder Singh, Officiating Superintending Engineer of OP. He stated that OP was allotted two pieces of land Consumer Complaint No.1014 of 2017 11 measuring 5.50 acres and 5.49 acres by PUDA, vide memo no.5076 dated 11.03.2003 in Sector 79 SAS Nagar Mohali. The scheme was partially self financed and the balance amount was to be paid in easy installments. Due to stay order passed by the Hon'ble High Court, Chandigarh, PUDA could not deliver the possession of the allotted land to OP. This witness further testified that Board of Directors of Housefed passed a resolution on 19.05.2006 giving an option to the allottees either to seek the refund of the earnest money deposited by them alongwith interest @10% per annum or to send their consent to retain the flat at the enhanced cost, but the complainant exercised the option to retain the flat. The complainant was allotted flat no.132, 3rd floor, category-I at Cooperative Housing Complex, Sector 79, Mohali, vide letter dated 14.07.2014 and the cost of the flat was determined at Rs.41,86,000/- and complainant had already paid Rs.17,15,000/- and before taking possession and complainant was required to pay Rs.24,71,000/- upto 15.09.2014. This witness denied any fault/deficiency in service on the part of OP. After issuing of allotment letter dated 11.03.2003 to housefed of the above land, Housefed wrote various letters for permission to start the construction on above lands, but Estate Officer of GMADA vide letter dated 27.03.2008 Ex.OP-12 informed that the Engineering Wing of GMADA reported that due to stay granted by the Hon'ble High Court in the area falling on Sector dividing road between Sector 79-80, the Sewer Line could not be put through and such permission for construction of flats could not be granted. The permission was Consumer Complaint No.1014 of 2017 12 accorded vide letter dated 21.10.2009 Ex.OP-14. Thereafter, the OP raised the construction of flat within reasonable time and in September 2014, the possession of the flat was given to complainant after determining the final cost as Rs.41,86,000/-.
6. We have come to this conclusion after hearing the respective submissions of counsel for the paties that complainant has not sought the refund of the deposited amount on account of any unfair trade practice on the part of OPs. The complainant has been delivered the possession of the allotted flat in September 2014 and hence the controversy for refund of the amounts comes to an end thereafter. The complainant seeks interest on the deposited amount of Rs.16,30,000/- for the period of eight years from 01.04.2006 to 15.09.2014 for delay in completing the construction by OP and also sought interest on the refunded amount of Rs.3,58,000/- @18% per annum and loss, compensation and cost. We have come to this conclusion that complainant herself exercised the option to retain the allotted flat at the enhanced cost vide undertaking Ex.C-5 on the record, instead of seeking refund of her deposited amount with interest @10% per annum. In the presence of undertaking furnished by complainant, she is now estopped from arguing to the contrary. The undertaking is duly signed by complainant, who is an educated person and it cannot be said that it has been maneuvered by keeping her in dark. The forceful submission of counsel for complainant is that there was no stay order by the Hon'ble High court with regard to the area, where the allotted flat was located. The OP Consumer Complaint No.1014 of 2017 13 stated this fact in the affidavit of Rajinder Singh Officiating Superintending Engineer that there was stay order and the GMADA duly intimated to OP that no such development activities could be carried out thereat. The complainant filed her own affidavit on this point and there was no copy of order of the Hon'ble High Court on the record, wherefrom it could be ascertained. Whatever the case may be, the GMADA wrote letters to OP in this regard. Permission was not granted to OP by GMADA for construction of flats in above lands in Sector 79, vide Ex.OP-12 and Ex.OP-13. Due to stay order of Hon'ble High Court and direction of GMADA, the OP remained handicapped in completing the project within time. The OP has not kept the complainant in dark and duly intimated her and gave option to seek refund of her amount with interest @10% per annum and complainant gave voluntary undertaking vide Ex.OP-3 to retain the allotted flat at the enhanced cost. So far as the point of enhanced cost of the allotted flat is concerned, this is a pricing factor, which is beyond the competence of Consumer Commission to decide. The Consumer Commission cannot look into the pricing factor involved between the allottee and allotter in such matter. It is for the Civil Court to determine these types of matters pertaining to pricing factor only. The counsel for complainant relied upon laws laid down in "Atul Maheshwari & others Vs. Yamuna Expressway Industrial Development Authority" 2016(2)CPJ-623, "Huda Vs. Parveen Kumar Jain" 2017(2)CLT-231, "Punjab Urban Planning and Development Authority Vs. Darshana Devi" 2017(3)CPJ-134, Consumer Complaint No.1014 of 2017 14 "Kumaon Mandal Vikas Nigam Ltd. Vs. Pooran Lal" 2015(2)CPR- 601, "Sangeeta Jain and others Vs. Yamuna Expressway Industrial Development Authority & others" 2016(1)CPR-599 by the National Commission. In all the above referred authorities, the Hon'ble National Commission held that where possession has not been delivered within agreed period, it is deficiency in service justifying the refund of the deposited amount. The matter challenging the enhanced cost of the allotted flat in the project has already been rejected by this Commission in consumer complaint no.772 of 2017 titled as "Dr. Jasveer Kaur Ghuman Vs. The Punjab State Federation of Cooperative Housing Building Societies Ltd. (Housefed)" decided on 24.04.2018. This Commission has held in C.C.767 of 2017 titled as "Vinod Kashyap Vs. The Punjab State Federation of Cooperative Housing Building Societies Ltd. (Housefed)" decided on 24.04.2018, that allottee is entitled to interest @12% per annum on the amount of Rs.3,34,000/- from the date of charging this amount till refund of the same to complainants. The amount of loss of income as claimed by complainant has not been agreed upon anywhere between the parties. In the absence of any agreement to that effect, the prayer of the complainant cannot be accepted on this point. The relief of complainant in seeking interest on the deposited amount of Rs.16,30,000/- for the period of eight years from 01.04.2006 to 15.09.2014 for delay in completing the construction by OP is not acceptable in presence of his undertaking to retain the flat at the enhanced cost of the flat. Consumer Complaint No.1014 of 2017 15 Consequently, the complainant is not entitled to any interest on the already deposited amount of Rs.16,30,000/-.
7. As a result of our above discussion, we partly accept the complaint of the complainant by directing OP to pay the interest @12% per annum on the amount of Rs.3,58,000/- from the date of its charging till refund of this amount to complainant. We further direct OP to pay Rs.40,000/- as compensation for mental harassment and Rs.20,000/- as cost of litigation. These amounts shall be payable by OP to complainant within 45 days from the date of receipt of certified copy of this order.
8. Arguments in this complaint were heard on 13.12.2018 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 (KIRAN SIBAL) MEMBER December 19, 2018.
(MM)