State Consumer Disputes Redressal Commission
Improvement Trust Patiala vs K.K.Sachdeva on 29 September, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
1. First Appeal No.303 of 2017
Date of institution : 27.04.2017
Reserved on : 15.09.2017
Date of decision : 29.09.2017
1. Improvement Trust, Chotti Baradari, Patiala through its
Chairman.
2. The Executive Officer, Improvement Trust, Chotti Baradari,
Patiala.
.......Appellants- Opposite Parties
Versus
K.K. Sachdeva s/o Late Shri Amar Nath Sachdeva, r/o 161/3, Near
Shiv Mandir, Sunder Nagar, Patiala.
......Respondent-Complainant
2. First Appeal No.290 of 2017
Date of institution : 24.04.2017
Reserved on : 15.09.2017
Date of decision : 29.09.2017
K.K. Sachdeva s/o Late Shri Amar Nath Sachdeva, r/o 161/3, New
Shiv Mandir, Sunder Nagar, Patiala.
.......Appellant-Complainant
Versus
1. Improvement Trust, Chotti Baradari, Patiala through its
Chairman.
2. The Executive Officer, Improvement Trust, Chotti Baradari,
Patiala.
.......Respondents-Opposite Parties
First Appeals against the order dated
16.3.2017 of the District Consumer
Disputes Redressal Forum, Patiala.
First Appeal No.303 of 2017. 2
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President.
Mrs. Kiran Sibal, Member.
Present:-
For the appellants : Shri Neeraj Sharma, Advocate. For the respondent : Shri Deepak Aggarwal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Both the above mentioned First Appeals are directed against the order dated 16.03.2017 passed by District Consumer Disputes Redressal Forum, Patiala (in short, "District Forum"), vide which the complaint filed by K.K. Sachdeva, respondent/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "C.P. Act") was partly accepted and the appellants/opposite parties were directed as under:-
"i. to hand over physical possession of the flat in question, complete in all respects to the complainant, as per the scheme/brochure in question;
ii. to pay interest @ 12% per annum on the amount deposited by the complainant before 7.11.2012 w.e.f. 7.11.2012 till payment is made;
iii. to pay interest @ 12% per annum on the amount deposited by the complainant after 7.11.2012 from the respective dates of deposit till payment is made; and
iv) to pay ₹20,000/- as cost of litigation.
First Appeal No.303 of 2017 has been filed by the opposite parties for setting aside the impugned order, whereas First Appeal No.290 of 2017 has been filed by the complainant seeking direction against the opposite parties to execute the sale deed. A further prayer for First Appeal No.303 of 2017. 3 payment of rental value along with interest as awarded by the District Forum and also for enhancement of interest was made. Facts are being taken from FA No.303 of 2017.
2. It would be apposite to mention at the outset that hereinafter the parties will be referred as have been arrayed before the District Forum.
Facts of the Complaint:
3. Brief facts of the complaint are that the opposite parties advertised a Scheme; namely, Vikas Scheme in the leading newspapers to be operated from 12.9.2009 to 12.10.2009 and invited applications from the general public for the allotment of 15 HIG and 30 MIG flats i.e. HIG flats measuring 1978 square feet in the sum of ₹24.45 lakh for first floor, ₹24.35 lakh for second floor, ₹24.25 lakh for third floor, ₹24.15 lakh for fourth floor and ₹24.05 lakh for fifth floor and 30 MIG flats measuring 1600 square feet in the sum of ₹19.60 lakh for first floor, ₹19.60 lakh for second floor, ₹19.50 lakh for third floor, ₹19.50 lakh for fourth floor and ₹19.30 lakh for fifth floor, respectively. As per the said Scheme, 4% cess shall also be payable by the allottee at the time of allotment. Accordingly the complainant applied for the flat in MIG category and paid an amount of ₹1,97,000/- as earnest money. He was the successful allottee in getting the flat and he was allotted Flat No.14-A at the 5th Floor, vide allotment letter No.PIT/10/1501 dated 7.5.2010. In the said allotment letter, the Schedule for the payment of the entire amount of ₹19.30 lakh along with the payment of cess, after adjusting the payment of ₹1,97,000/- (already paid) by him was mentioned. The First Appeal No.303 of 2017. 4 complainant was directed to make the payment of ₹3,65,200/- within 30 days from the issuance of the allotment letter and he deposited the same with the opposite parties, vide receipt No.41164 dated 31.5.2010. As per the allotment letter, the complainant was required to deposit the amount of ₹7,29,750/- in five six-monthly instalments of ₹1,44,750/-, each, starting from 25.9.2010 to 25.9.2012 and the remaining instalments were to be deposited with 12% interest. The delivery of possession was to be given on 25.9.2012 i.e. within two and a half years from the date of allotment. The complainant deposited the entire amount in time, vide receipts dated 23.9.2010, 21.3.2011, 21.9.2011, 21.3.2012, 18.9.2012, 20.3.2013, 23.9.2013, 20.3.2014, 22.9.2014 and 19.3.2015. Although he was not required to pay interest on the remaining instalments after the payment of five instalments as the possession was not delivered but still he made the payment with interest @ 12% per annum. He was surprised to receive letter No.PIT/14/1728 dated 10.6.2014 wherein he was asked to obtain possession at the site on 17.6.2014. After receipt of the letter he went to the site and was shocked to see that flats were totally incomplete i.e. no amenities such as water, electricity, sewerage, gate parking etc. were provided there. However, he took the possession under protest and under the apprehension that the opposite parties will provide complete basic amenities within a short time, he applied for the execution of the sale deed, vide his letter dated 26.5.2015 and submitted indemnity bond. The complainant also purchased stamp papers in the sum of ₹1,73,700/- for the said purpose. After receipt of the application from him, the opposite First Appeal No.303 of 2017. 5 parties got deposited a sum of ₹9,968/-, as enhancement fees, vide receipt No.51380 dated 27.7.2015. Thereafter, the opposite parties executed an agreement in his favour, for the execution and registration of the sale deed. However, the opposite parties on one pretext or the other are not getting the sale deed registered. He despite being an old man visited the office of the opposite parties a number of times and made a number of requests but did not yield any result, as a result of which he suffered financially, mentally and physically. Alleging deficiency in service on the part of the opposite parties, the complainant filed the present complaint before the District Forum for directing the opposite parties to provide complete facilities as per their offer letter to the complainant immediately and further to make payment of rental value of ₹15,000/- p.m. from 25.9.2012 onwards till providing of basic required amenities to enable him to live in the flat. A further direction was sought against the opposite parties to pay ₹2,00,000/- as compensation/cost on account of mental pain, agony and harassment and ₹2,00,000/- as litigation charges. A further direction was sought against the opposite parties to get the sale deed executed and registered in favour of the complainant.
Defence of the Opposite Parties:
4. In their written version the opposite parties took preliminary objections that the complaint is not maintainable. The complainant is not a 'consumer' under the C.P. Act. The District Forum has no jurisdiction to try the complaint and the complainant can approach the Principal Secretary, Local Bodies, Punjab, Chandigarh, who is First Appeal No.303 of 2017. 6 competent to hear the matter in question. On merits, the averments made in para nos.2 to 5 and 7 to 9 were admitted being matter of record. It is, however, denied that the flats have not been provided with water supply, sewerage facilities so far but the said facilities shall be available on the availability of electricity to be granted by the P.S.P.C.L. and the Trust is going to deliver the possession of the flat after providing necessary amenities of the life including electricity.
Denying all other averments, a prayer for the dismissal of the complaint was made.
Finding of the District Forum:
5. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly allowed the complaint, vide impugned order. Hence, FA No.303 of 2017 has been filed by the opposite parties for setting aside the impugned order and FA No.290 of 2017 has been filed by the complainant for execution of sale deed, as aforesaid.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
Contentions of the Parties:
7. It was vehemently argued by the learned counsel for the appellants-opposite parties that the allotment of the flat was made on 7.5.2010 and in the allotment letter there was no specific time prescribed for possession. As per the brochure Ex.C1 the possession was to be handed over on the completion of construction within two and a half years and it was nowhere provided that the First Appeal No.303 of 2017. 7 possession shall be handed over with all the facilities. In the allotment letter it was provided that the possession of the flat will be offered on "as is where is" basis. The other facilities were to be provided but after the payment of balance five instalments with interest i.e. from 25.3.3013 to 25.3.2015. District Forum has not considered that it was not possible under the Self-Financing Scheme to provide the possession with all the facilities after two and a half years of allotment and that too with five instalments without interest.
It was further argued by the learned counsel that the District Forum issued directions to hand over the physical possession of the flat in question complete in all respects but has not considered the letter dated 5.4.2016, vide which the possession was offered to the complainant during the pendency of the complaint with all the facilities and as such 5.4.2016 ought to have been taken as the date of possession, if possession offered on 11.6.2014 was not to be considered as possession with complete facilities. It was further argued that the District Forum has awarded interest @ 12% per annum on the amount deposited by the complainant before 7.11.2012 till payment is made. The first five instalments from the date of allotment letter dated 7.5.2010 were without interest paid upto 25.9.2012. The grant of interest at the rate of 12% per annum on the amount deposited without interest is unjustified. Moreover, the possession was to be provided on the completion of the construction i.e. 21.5.2013 as per the completion certificate submitted before this Commission in compliance of the directions issued, vide order dated 9.5.2017. District Forum further committed First Appeal No.303 of 2017. 8 an error by directing the payment of interest at the rate of 12% w.e.f. 7.11.2012 till payment is made as the interest, if any, is to be paid till the date on which the possession is actually offered to the complainant. District Forum has further awarded interest @ 12% per annum on the amount deposited after 7.11.2012 from the respective dates of deposit till payment is made. The possession was offered initially on 11.6.2014 and thereafter on 5.4.2016. The complainant refused to take the possession, therefore, interest at the rate of 12% on the amount deposited is unjustified. Lastly, it was argued that the normal rate of interest upon fixed deposits is around 7% and interest upon loan is around 8%. Therefore, the opposite parties being a public body the award of interest at the rate of12% interest is on the higher side. In these circumstances, the impugned order passed by the District Forum is not sustainable and is liable to be set aside.
8. Per contra it was argued by the learned counsel for the complainant that the District Forum has passed a well reasoned order after duly appreciating the averments of both the sides and the evidence produced on record in support of those averments. There is no illegality or infirmity in the impugned order passed by the District Forum to the extent of allowing of the complaint. However, in FA No.290 of 2017 it was argued that the District Forum has not taken into consideration the prayer of the complainant for execution of the sale deed in respect of the Flat in question and has failed to grant this relief. The District Forum also failed to grant the relief of rental value of the flat. The cost of litigation to the tune of ₹20,000/- awarded by the District Forum is also not appropriate and the same First Appeal No.303 of 2017. 9 is liable to be enhanced. The rate of interest is also liable to be enhanced. Hence, a prayer for modification of the impugned order was made.
Consideration of Contentions:
9. We have given our thoughtful consideration to the contentions raised by the learned counsel for both the sides.
10. Admittedly the opposite parties launched self-financing scheme and invited applications from the general public for allotment of semi- finished HIG and MIG flats, vide publication Ex.C-1. Under the said Scheme, Flat No.14-A was allotted to the complainant, vide letter dated 7.5.2010, Ex.C-2. According to the complainant, he paid the entire sale consideration amount qua the said flat to the opposite parties. From clause 11 of the brochure, Ex.C-1, the opposite parties were to handover the possession of the flat in question within two and a half years from the date of start of construction.
11. The learned counsel for the complainant contended that the opposite parties were to handover the possession of the flat on 25.9.2012 i.e. within two and a half years from the date of allotment. This contention of the complainant has not been rebutted by the opposite parties. The opposite parties neither in the written version have disclosed the date of start of construction nor have produced any document to show what is the actual date of commencement of construction. Since neither the opposite parties have disclosed the date of start of construction nor it was anywhere made clear in the scheme in question as to when the construction would be started, therefore, the District Forum has rightly held that the opposite parties First Appeal No.303 of 2017. 10 were to deliver the possession of the flat within two and a half years from the date of allotment and that since the allotment was made on 7.5.2010, therefore, the possession was to be delivered upto 7.11.2012 and not upto 25.9.2012 as alleged by the complainant. From the perusal of the letter dated 10.6.2014, Ex.C-14, it is evident that the opposite parties have asked the complainant to take the possession of the flat. From the said letter it is apparent that the opposite parties have not handed over the possession of the flat to the complainant till 10.6.2014. However, the complainant took the possession on 17.6.2014 under protest there being lack of basic amenities at the site. On the application dated 13.10.2016 of the opposite parties for spot inspection of the site, the District Forum, vide order dated 7.11.2016 directed the opposite parties to place on record documents pertaining to providing of basic amenities at the site. The opposite parties placed on record before the District Forum the copies of the documents regarding providing of water supply and sewerage connection only on 12.1.2017. However, no document with regard to supply of electricity at the site has been provided by the opposite parties. Electricity is a basic necessity and the opposite parties have failed to establish that it had supplied the electricity at the site. Therefore, it was rightly held by the District Forum that without electricity, which is a basic necessity, the possession cannot be handed over and that the possession letter dated 10.6.2014, Ex.C-14/Ex.OP-1 is just a paper possession and the opposite parties are yet to provide the basic amenities. The District Forum has also First Appeal No.303 of 2017. 11 rightly relied upon the judgments of Hon'ble Supreme Court and Hon'ble National Commission mentioned in the impugned order.
12. In compliance of the order dated 22.8.2017 passed by Hon'ble National Commission in R.P. No.2383 of 2017 the opposite parties deposited the 50% of the awarded amount and also filed completion certificate issued by Trust Engineer, Improvement Trust, Patiala, dated 6.6.2017, which reads as under:-
" OFFICE OF THE IMPROVEMENT TRUST PATIALA COMPLETION CERTIFICATE As per office record construction of flat No.14-A, MIG Block-A allotted in the name of Shri K.K. Sachdeva in Shaheed Sewa Singh Thikriwala Nagar Development Scheme has been completed by the Trust on dated 30.10.2013 under the self-financing scheme. The Water Supply Completion date 24.7.2015, Sewerage Line Completion date 30.9.2015, Parking Completed dated 30.9.2015, Electricity Completion date 10.11.2015, Lift Completion date 20.10.2016 have been provided. The possession has been offered to the occupant on date 5.4.2016. The complainant has accommodate the possession.
Sd/- Trust Engineer Improvement Trust, Patiala."
A perusal of the above said Completion Certificate makes it clear that the amenities were provided only upto 20.10.2016. Therefore, First Appeal No.303 of 2017. 12 there is no illegality or perversity in the impugned order passed by the District Forum.
13. In view of our above discussion, we do not find any merit in this appeal (FA No.303 of 2017) and the same is hereby dismissed.
14. The appellants/opposite parties had deposited a sum of ₹25,000/- at the time of filing of the appeal. They deposited another sum of ₹4,71,745/-, vide receipt dated 24.8.2017 in compliance of the order dated 9.5.2017. Both these sums, along with interest which has accrued thereon, if any, be remitted by the registry to the District Forum, after the expiry of 45 days of the sending of certified copy of the order to the parties. The complainant may approach the District Forum for the release of the above amounts and the District Forum may pass the appropriate order in this regard, in accordance with law.
FA No.290 of 2017:
15. This appeal has been filed by the complainant seeking direction against the opposite parties to execute the sale deed. A further prayer for payment of rental value along with interest as awarded by the District Forum and also for enhancement of interest was made.
16. So far as the prayer of the complainant for a direction to the opposite parties to execute the sale deed in his favour is concerned, the opposite parties shall send in writing to the complainant about the needful and other formalities, which are required for the execution of the sale deed to be completed by the complainant within a period of 30 days from the date of receipt of copy of this First Appeal No.303 of 2017. 13 order and thereafter the complainant shall complete those formalities within 30 days of the receipt of such letter from the opposite parties. Thereafter the opposite parties shall execute the sale deed in favour of the complainant within next 15 days. So far as the payment of rental value along with interest is concerned, the same has rightly been rejected by the District Forum. The interest at the rate of 12% per annum has also rightly been awarded by the District Forum.
17. This appeal (FA No.290 of 2017) is partly accepted and the impugned order passed by the District Forum is modified to the extent stated above.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (MRS. KIRAN SIBAL) MEMBER September 29, 2017 Bansal