State Consumer Disputes Redressal Commission
Gurdial Singh vs Housefed Punjab on 12 May, 2017
2ND ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.269 of 2016
Date of institution : 26.08.2016
Reserved on : 08.05.2017
Date of decision : 12.05.2017
Gurdial Singh S/o Sarwan Singh, R/o 83, Gandhran, Tehsil Nakodar,
District Jalandhar.
....Complainant
Versus
Housefed Punjab, The Punjab State Federation of Cooperative House
Building Societies, SCO 150-152, Sector 34-A, Chandigarh, through its
Superintendent Engineer.
....Opposite Party
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the complainant : Sh. G.S. Virk, Advocate For the opposite party : Sh. D.V. Sharma, Sr. Advocate with Sh. Sukhbir Singh, Advocate.
JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
The complainant has filed this complaint, under Section 17 of the Consumer Protection Act, 1986.
2. Brief facts, as set out in the complaint, are that Housefed Punjab-opposite party launched a scheme for allotment of super deluxe flats at Kapurthala to the general public. The complainant applied to the opposite party for allotment of such a flat under the said scheme. Ultimately, he was allotted flat No.320, Floor No.V, Block Consumer Complaint No.269 of 2016 2 No.II, at Cooperative Housing Complex, Kapurthala, vide allotment letter dated 23.01.2009. The price of the flat was fixed as ₹28,75,000/-; out of which the complainant is alleged to have paid ₹23,37,839/-. As per the terms and conditions of the allotment, the possession of the flat was to be delivered by the opposite party on or before 2015. However, instead of handing over the possession of the flat in question, the opposite party issued notice dated 28.07.2015 to the complainant, demanding a sum of ₹18,28,828/-. The complainant gave reply to the said notice on 08.12.2015, through his counsel, stating that as per the terms and conditions of the brochure and allotment letter dated 23.01.2009, it was a "Construction Linked Plan" and the tentative price was fixed as ₹28,75,000/-, against which he has already deposited ₹23,37,839/-. Thereafter, no satisfactory answer was received from the opposite party. It was averred that the complainant has already paid huge amount and is still ready to make the balance payment of the said flat, as per the terms and conditions of the agreement, but the above amount claimed by the opposite party is excessive, illegal, null and void. The act and conduct of the opposite party amounted to deficiency in service, unfair trade practice and negligence on its part, due to which the complainant has been unnecessary harassed. Accordingly, the complainant has sought issuance of following directions to the opposite party:
i) to withdraw the notice of demand of exaggerated amount and to hand over the possession of the flat in question; Consumer Complaint No.269 of 2016 3
ii) to pay ₹50,000/-, as damages on account of mental tension and harassment; and
iii) to pay ₹22,000/-, as litigation expenses.
3. Upon notice, opposite party appeared and filed reply to the complaint, raising preliminary objections that it had launched a partially self financing housing scheme at Kapurthala of 216 flats, which included 72 category-I, 24 category-II and remaining were EWS flats. It issued a brochure, which contained detailed terms and conditions. The scheme was launched on 17.11.2008 and was closed on 16.12.2008. The complainant was issued allotment letter No.Hfed/TW/2662 dated 23.01.2009 of Super Deluxe flat at Cooperative Housing Complex of Housefed, Punjab at Kapurthala. The price of the flat was tentative and the final cost was to be calculated, after the completion of the project and the complainant is bound to pay the balance of the tentative price and final price. The complainant has challenged the determination of the final cost of the flat demanded by the opposite party after completion of the project. No date of delivery of possession was committed by the opposite party, which was delivered vide letter No.Hfed/TW/4911 dated 28.07.2015. The time was not the essence of the contract. Exact/final price was to be determined after completion of the project and before handing over the possession of the flat, as is evident from clause-7 of the Brochure and clause-8 of the allotment letter. The detailed reasons, due to which the cost of the price/construction of the flat was increased, are given in Paras No.5 to 9 of the reply. On merits, it was pleaded that the complainant has no Consumer Complaint No.269 of 2016 4 cause of action to file the complaint, particularly when he has entered into a contract to pay the difference of the tentative cost and the final cost, which was determined after the completion of the project. The complainant is a defaulter and his flat is liable to be cancelled and the amount is liable be forfeited, in view of the terms and conditions of the allotment. It was further pleaded that the complainant has been given the concession of paying the difference of amount, along with 40% balance amount in 120 monthly instalments, for which even the facility of loan to the extent of ₹19 lacs at the rate of 12% per annum has been extended by the opposite party, as per its loaning policy. There is no unfair trade practice on the part of the opposite party and everything was open to the complainant at the time he had applied for allotment of the flat. Other allegations of the complaint were denied and it was prayed that the complaint be dismissed.
4. To prove his claim, the complainant tendered in evidence his affidavit Ex.CW-1/A, along with documents Ex.C-1 to Ex.C-3. On the other hand, the opposite party tendered into evidence documents Ex.OP-1 to Ex.OP-3.
5. We have heard learned counsel for the parties, perused the written arguments submitted on behalf of the parties and have gone through the record carefully.
6. Learned counsel for the complainant vehemently contended that the complainant has paid ₹23,37,839/- towards the price of the flat i.e. ₹28,75,000/-, as per the terms and conditions of the allotment letter dated 23.01.2009. However, the opposite party has Consumer Complaint No.269 of 2016 5 raised the excessive demand ₹18,28,828/- towards price of the flat, vide letter dated 28.07.2015, Ex.C-2. The interest of ₹6,19,667/- was also calculated on higher side. He further contended that the possession of the flat is not being delivered, as per the terms and conditions of the brochure. The opposite party adopted unfair trade practice by demanding the amount more than the already fixed price of the flat. It was prayed that the complaint be allowed and all the directions, as prayed for in the complaint, be issued to the opposite party.
7. Per contra, learned counsel for the opposite party contended that perusal of clause-7 of the brochure Ex.OP-1 shows that the price of the flat was tentative and the final price thereof was to be determined at the time of completion of the project and the difference was required to be paid at the time of handing over the possession thereof to the complainant. Allotment letter also contains similar condition No.8. After determining the final costs, the opposite party, vide notice dated 28.07.2015, Ex.C-2, demanded a sum of ₹18,28,828/-, before handing over the possession to the complainant and he is bound to pay the same. It is well settled law that the determination of the price cannot be gone into by the Consumer Fora. In support of his arguments, learned counsel relied upon the following authorities:
i) Premji Bhai Pramar & Ors. v. Delhi Development Authority & Ors. 1980 (2) SCC 129;Consumer Complaint No.269 of 2016 6
ii) Bareilly Development Authority & Anr. v. Ajai Pal Singh & Ors. AIR 1989 SC 1076; and
iii) Gujarat Housing Board v. Datania Amrit Lal Phulchand & Ors. III (1993) CPJ 351 (NC).
8. We have given a thoughtful consideration to the arguments addressed by the learned counsel for the parties and perused the record.
9. The question to be determined in this case is, whether this Fora/Commission has power to go into the pricing of the flat?
10. Admittedly, the initial price of the flat was fixed as ₹28,75,000/-, as per allotment letter dated 23.01.2009, against which the complainant has already paid ₹23,37,839/-, as per the statement Ex.C-1. The possession of the flat was to be delivered in the year 2015. As per clause-8 of the allotment letter dated 23.01.2009, the exact/final cost of the flat was to be worked out after the completion of the flat, but before handing over the possession of the flat. The same reads as under:
"8. The exact/final cost of the flat shall be worked out after the completion of the flat but before handing over the possession of the flat. The cost of difference due to allotment of floor, change in covered area of flat or due to any other reason whatsoever, the same shall be payable by the allottee at the time of the possession. The price is liable to increase due to variation in plinth area, scope of work, change in specification, design, increase in cost of land, rate of interest, Consumer Complaint No.269 of 2016 7 amount of interest, increase in the cost of raw materials or for any other reason and the same shall be binding upon you."
11. The opposite party, vide letter dated 28.07.2015 Ex.C-2, raised a demand of ₹18,28,828/- and directed him to deposit the same, along with other charges, before taking the possession of the flat. Details of tentative cost of the flat, final cost of the flat, difference between final cost and tentative cost, interest upto 31.07.2005, if any, payment already made, are duly given in the said letter. This demand raised by the opposite party has been challenged by the complainant, stating it to be exaggerated one. The complainant sent reply/notice, Ex.C-3, to the opposite party, through his counsel, on 08.12.2015, but no reply to the same was given by the opposite party. Be that as it may, but the fact remains that the tentative price was fixed at the time of allotment of the flat in favour of the complainant. Clause-7 of the brochure issued by the opposite party, Ex.OP-1, is to the same effect as that of clause-8 of the allotment letter. Once the complainant has entered into an agreement in the shape of allotment letter, after going through the contents of the brochure Ex.OP-1, he is bound by the same and now he cannot challenge the said clause.
12. The possession of the flat in question has been offered to the complainant, vide letter dated 28.07.2015 Ex.C-2, subject to payment of the amount mentioned therein.
13. Regarding the determination of the final cost of the flat, as demanded by the opposite party, after completion of the project, Consumer Complaint No.269 of 2016 8 Hon'ble Supreme Court in case Premji Bhai Pramar & Ors. v. Delhi Development Authority & Ors. 1980 (2) SCC 129 held as under:
"There is no suggestion that there was a mis-statement or incorrect statement or any fraudulent concealment in the information supplied in the brochure published by the Authority on the strength of which they applied and obtained flats. How the seller works out his price is a matter of his own choice unless it is subject to statutory control. Price of property is in the realm of contract between a seller and buyer. There is no obligation on the purchaser to purchase the flat at the price offered."
14. Similar proposition of law was laid down by the Hon'ble Supreme Court in case Bareilly Development Authority & Anr. v. Ajai Pal Singh & Ors. 1989 (2) CPSC 107.
15. Further in case Bangalore Development Authority v. Syndicate Bank 2007 (1) CPC 729 (SC) under the head "The Principles" in Para No.10 observed as under:
10. Where a Development Authority forms layouts and allots plots/flats (or houses) by inviting applications, the following general principles regulate the granting of relief to a consumer (applicant for allotment) who complains of delay in delivery or non-delivery and seeks redressal under the Consumer Protection Act, 1986 ('Act' for short) - [vide : Lucknow Development Authority vs. M. K. Gupta - 1994 (1) SCC 243, Ghaziabad Development Authority vs. Balbir Consumer Complaint No.269 of 2016 9 Singh - 2004 (5) SCC 65, and Haryana Development Authority vs. Darsh Kumar - 2005 (9) SCC 449, as also Ghaziabad Development Authority vs. Union of India -
2000 (6) SCC 113]:
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(f) Where the plot/flat/house has been allotted at a tentative or provisional price, subject to final determination of price on completion of the project (that is acquisition proceedings and development activities), the Development Authority will be entitled to revise or increase the price. But where the allotment is at a fixed price, and a higher price or extra payments are illegally or unjustifiably demanded and collected, the allottee will be entitled to refund of such excess with such interest, as may be determined with reference to the facts of the case."
16. Hon'ble National Commission in case Gujarat Housing Board v. Datania Amrit Lal Phulchand & Ors. III (1993) CPJ 351 (NC) observed that question of pricing cannot be gone into by the Consumer Forums since the price of the flat is not fixed by any law and that even if any excess charge has been collected by way of price that will not constitute a ground for contending that there is a deficiency in service on the part of the opposite party.
17. In view of the ratio of the law laid down by the Hon'ble Supreme Court and the Hon'ble National Commission in the above Consumer Complaint No.269 of 2016 10 noted authorities, the Consumer Fora cannot go into the pricing of the flat in question and the complainant is bound to pay the revised cost of the flat to the opposite party, as he entered into the contract for purchasing the flat in question after duly reading and understanding the terms of the brochure Ex.OP-1 and allotment letter dated 23.01.2009.
18. It is relevant to mention here that the complainant shall be entitled to receive the possession of the flat in question, if not already taken, subject to deposit the outstanding amount towards the price of the flat with the opposite party.
19. In view of our above discussion, the complaint is disposed of with the observation that the complainant is liable to pay the revised price of the flat in question and he will be entitled to the possession of the flat in question, if not already taken, subject to deposit of the entire outstanding/balance amount with the opposite towards the price of the flat.
20. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER May 12, 2017.
(Gurmeet S)