State Consumer Disputes Redressal Commission
Bhajan Singh Through Spa Pratap Singh vs Greater Mohali Area Development ... on 20 November, 2024
ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.58 of 2024
Date of institution : 25.09.2024
Reserved on : 06.11.2024
Date of decision : 20.11.2024
Bhajan Singh S/o Nazar Singh, R/o House No.792, Ward No.05,
Tangian Wali Gali, Basti Gobindgarh, Moga through Special Power of
Attorney Holder Pratap Singh aged about 40 years son of Sh. Amrit
Pal Singh, R/o House No.14, Inder Nagar, opposite Verka Plant,
Ferozepur Road, Ludhiana, Punjab.
Mobile:7009731478 Email: [email protected]
....Complainant
Versus
1. Greater Mohali Area Development Authority, through its Chief
Administrator, PUDA Bhawan, Sector-62, S.A.S. Nagar(Mohali),
160055.
2. Estate Officer (H), Greater Mohali Area Development Authority,
PUDA Bhawan, Sector-62, S.A.S. Nagar- Mohali, 160055.
Email: [email protected]
....Opposite Parties
Consumer Complaint under Section 35
(1) (a) r/w Sections 47 (1) (a), 47(1)(b)
and 49 of the Consumer Protection
Act, 2019.
Quorum:-
Mr. Harinderpal Singh Mahal, Presiding Judicial Member
Mrs. Kiran Sibal, Member Argued By:-
For the complainant : Sh. Partap Singh, SPA KIRAN SIBAL, MEMBER
The complainant has filed this complaint through special power of attorney, under Section 35 (1) (a) r/w Sections 47 (1) (a), 47(1)(b) and 49 of the Consumer Protection Act, 2019, (in short "C.P. Act") seeking following directions to the opposite parties:-
(i) To handover possession of Apartment, to complainant complete in all respects as per Clause 2 page 9 of Brochure and clause 3(II) of LOI and in conformity with the Consumer Complaint No.58 of 2024 2 sanctioned plans and layout plans and specifications and with all additional facilities and as per quality standards promised, and an independent third party audit as per Brochure may be directed to ensure that specifications and quality specifications are adhered and to get by independent firm or agency calculated the total land in acres in which flats are built in towers and total land in acres remaining for facilities, green areas and open spaces by the Respondent;
(ii) To set aside the unfair terms and conditions of Allotment Letter and offer of Possession dated 21.07.2016 on account of being an 'unfair contract' as defined under Section 2(46) of the Consumer Protection Act, 2019;
(iii) To pay delayed period interest as per proviso to Section 18(1) of RERA Act read with Rule 16 of Punjab State Real Estate (Regulation and Development) Rules, 2017 @ SBI Highest MCLR Rate plus two percent on the total amount deposited by the Complainant w.e.f. date of promised possession as per LOI i.e. 21 May 2015 till 30.05.2018 i.e. the date when the possession slip for fit-out was given to the complainant;
(iv) To refund Total Maintenance amount of Rs.6,60,024/- and "Corpus towards Welfare Society" amount of Rs.1,38,000/-
along with interest @ 9% per annum from the date of payments till realization and not to claim "Maintenance Charges" and "Corpus towards Welfare Society" unless all additional facilities promised in the brochure are provided along with CC and OC of entire project;
(v) To refund to the complainant, an amount of Rs.15 lakhs on account of reduction in 92.33 Sq. feet Total Covered Area of Apartment (26.33 Sq. feet carpet area 66 sq. feet servant quarter balcony area) and car parking area deficit of 465 Sq. feet from 690 Sq. feet to 225 Sq. feet as per recent earmarking and undivided proportionate deficit share in common areas;
(vi) To refund 15 percent of Total amount paid of the Apartment along with 12 percent interest from date of promised possession i.e. 21.05.2015 until realization on account of change in Preferential location of project as shown in layout plan vide Brochure from 150 feet to 80 feet approach road to main entrance of project and 80 feet to 40 feet for entry from the back gate, and no access from other two sides instead of 200 feet and 100 feet respectively on account of unilateral revision of layout plan on 15.03.2017 causing depreciation of flat price; Consumer Complaint No.58 of 2024 3
(vii) To pay interest @9% per annum on the Total amount deposited by the complainant with the respondent from 31.05.2018 i.e. date when fit-out possession was takn till the date actual valid possession as per clause (i) above is handed over by the respondent, along with CC and OC of entire project along with complete amenities and facilities;
(viii) To refund the Service Tax amount of Rs.2,58,750/-
charged on 23.08.2016 inclusive of any additional penalty/higher rate levied by Service Tax authorities on account of not paying the service tax at an earlier time;
(ix) To refund illegal penal interest of Rs.9,805/- on last installment of Rs.3,45,000/- paid in contravention to Clause 2 page 9 of Brochure and Clause 3(II) of the LOI on 23.08.2016 along with interest at the rate of 9% per annum from the date of deposit till the date of refund;
(x) To provide the third party audit and independent agency or firm report to ascertain/measure accurate area in which flats are built and percentage reduction in open areas and common spaces;
(xi) To pay an additional sum of Rs.3 lacs towards undue hardship and injury both physical and mental caused to the complainant due to the acts of omission/commission on the part of the respondent;
(xii) To pay a sum of Rs.50,000/- to the complainant, towards litigation costs;
AND
(xiii) To take action under Section 89 of the CPA for giving false and misleading advertisement.
2. Brief facts culminating to the institution of the present complaint are that the OPs in the month of December 2011, announced a scheme to develop a group housing project under the name 'Purab Premium Apartments' in Section 88, Mohali and advertised its Brochure promising lot of amenities and facilities. Keeping in view the alluring project advertised by the OPs, the complainant applied for residential apartment Type III i.e. 3 rooms apartment measuring 1931 Sq. ft with super area of 2221 Sq. feet in the said project, vide application form No.27844 and paid 10% earnest money i.e. Rs.6,90,000/- on 21.01.2012 by availing loan from SBI Consumer Complaint No.58 of 2024 4 Bank. The basic sale consideration of the unit was fixed as Rs.69,00,000/-. The complainant was successful in draw of lots held by OPs on 20.03.2012 and letter of intent dated 22.05.2012 was issued by the OPs. Pursuant to the said letter of intent, the complainant deposited an additional amount of Rs.13,80,000/- on 15.06.2012 to complete 30% of payment and allotment letter had to be issued on the said date as per 'Clause 1 page 8' of Brochure on receipt of 30 % payment of apartment, but the same was not issued by the OPs. Thereafter, the complainant paid 95% of the amount inclusive of 65% with 12% interest, in installments, as per the payment schedule under plan-B within the stipulated period i.e. until 21.05.2015. The OPs neither delivered the possession within 36 months nor intimated him that there was delay in the project. The OPs issued a letter titled as "Allotment letter and offer of possession" dated 21.07.2016 for flat No.103 Tower-4, Block-B, GF, which was issued with a delay of more than 4 years, whereas the same had to be issued on 15.06.2012. The said allotment letter with offer of possession was issued by raising illegal demands under various heads without any compensation to the complainant for delay. The OPs made conditional offer of possession on "as is where is basis" to compel for possession of inhabitable flats without completion of project as promised. The complainant paid the balance 5% of apartment i.e. Rs.3,45,000/- on 23.08.2016 as per clause 3 of the allotment letter that balance 5% of apartment shall be payable within 30 days from issue of the allotment letter and further if amount is not paid within time, then 12 % interest would be charged. However, the OPs charged an amount of Rs.9805/- as penal interest Consumer Complaint No.58 of 2024 5 instead of Rs.345/-, which is in contravention to clause 2 page 9 of Brochure. The OPs have violated Section 54 of Indian Contract Act as balance 5% sale consideration had to be paid only after the OPs offered legal valid possession. The OPs also charged Rs.2,58,750/- as service tax on 23.08.2016 without showing any service tax receipt or break up of tax paid or higher service tax paid on account of non- payment to service tax authorities. The complainant further alleged that the project was incomplete and the construction work was going on at a very slow pace and was at its initial stage in July 2016, when the allotment letter was issued. The material used in construction was of substandard and even none of the facilities mentioned in Brochure were provided at the project site. The possession of underground car parking, measuring 690 Sq. feet, has not been made available till date. Further as per recent earmarking, Car Parking area has been reduced from 690 Sq. feet to 225 Sq. feet. The surrounding/common area of the premises were not developed and the facilities even the basic ones including potable water, street lighting, proper entry/exit gate, boundary wall were not available. The OPs have also revised the original layout plan outlined in the Brochure on page (v) at the time of launching the project. The layout plan prepared vide drawing No.2151/13 dated 24.10.2013 was superseded/revised on 15.03.2017 without intimation. The OPs assured on various occasions that project would be completed and Chief Administrator, GMADA, issued a letter dated 20.09.2016 addressed to all the allottees, regarding constituting various committees to look into the issues highlighted by the allottees's association. The OPs gave possession slip of fit-out on 30.05.2018 Consumer Complaint No.58 of 2024 6 and physical possession was given of raw unfinished flat after charging Rs.1,38,000/- under the head corpus fund on 31.05.2018 and under threat of levying holding charges if possession is not taken. The complainant further alleged that even after more than 8.5 years from the stipulated date of possession, construction is still incomplete at the site and sanctioned and layout plans have been revised twice without intimation and consent. The OPs have failed to deliver possession of the flat or made a valid offer of possession as per the Brochure and LOI, despite various reminders and visits by the complainants. Further, the OPs have illegally charges Rs.6,32,000/- on 03.04.2023 claiming it to be maintenance money without showing any calculation sheet or break up. The OPs further charged maintenance charges of Rs.9,012/- on 20.07.2023 and 19.10.2023 respectively. The said maintenance amount has been charged by illegal enhancement of super area and wrong calculations and without valid offer of possession along with CC & OC of the entire project. As per clause 2 page 10 of Brochure and Clause 4(II) of letter of intent, payment of maintenance charges was to be made to the cooperative society for initial 3 years and not to GMADA, but no such society has been formed by the OPs. The OPs have made illegal demand of maintenance charges even after completion of 3 years in July 2019 and have not formed the Cooperative Society till date. The complainant alleged that the OPs have failed to handover or make a legal/valid offer of possession after completion of entire development works. However, the complainant got the sale deed executed in his favour regarding flat No.103, Tower- 4, Block-B, GF on 10.04.2023 by paying stamp duty of Rs.3,45,000/- Consumer Complaint No.58 of 2024 7 and registration fee of Rs.75,000/- under duress and pressure of any further illegal demand of money by the OPs. Alleging deficiency in service on their part, the complainant filed the present complaint and sought the reliefs as mentioned above.
3. We have heard the counsel for the complainant at the stage of admission and have carefully gone through the documents available on the file.
4. Before we proceed to decide the complaint on merits, the preliminary question of maintainability of the complaint is required to be decided, for which the sequence of events would be relevant. As per the version of the complainant, on being successful in draw of lots held by the OPs on 20.03.2012, a letter of intent dated 22.05.2012 was issued in favour of the complainant and on 15.06.2012 he deposited an amount of Rs.13,80,000/- to complete 30% payment of the apartment in question. As per Clause 1 page 8 of the brochure, the allotment letter had to be issued by the OPs on date of receipt of 30 % price of the apartment i.e. on 15.06.2012, but the allotment letter and offer of possession has been issued to the complainant for flat No.103 Tower-4, Block-B, GF on 21.07.2016 i.e. after an excessive delay of more than 4 years from the stipulated date. The complainant further alleged that he paid the entire sale consideration of the said apartment but the project was incomplete and the construction work was going on at a very slow pace and at its initial stage in July, 2016, when the said allotment letter was issued. He further agitated his grievance under various heads as mentioned in the complaint. Be that as it may, it is pertinent to mention here that the complainant himself placed on Consumer Complaint No.58 of 2024 8 record Possession Slip dated 30.05.2018 (Ex.C-9) and from the bare perusal of the same, it reveals that the possession of the apartment was taken by him on 30.05.2018 as the said possession slip was duly signed by the complainant. Though, the complainant alleged in his complaint that physical possession of unfinished apartment was handed over to him and he was compelled to take possession under threat of levying holding charges, but nothing has been placed on record by the complainant that he was not satisfied at the time of taking the possession of the apartment on 30.05.2018. Moreover, the complainant has got registered the sale deed in his favour on 10.04.2023 without showing any protest. The main cause of action had accrued to the complainant on 30.05.2018, when he took the possession of the apartment. If he was not satisfied with the construction work of the apartment in question, he could have raised his grievance with the OPs but no cogent evidence in the shape of any representation/letter has been placed on record by the complainant to show that he ever raised his grievance with the OPs after taking the possession of the apartment. Even the complainant has not approached this Commission within the limitation period from the date of accruing the cause of action i.e. till 30.05.2020. As prescribed under Section 69 of the Consumer Protection Act, 2019, the limitation period in filing the complaint is within two years from the date on which the cause of action has arisen. The relevant part of Section 69 of the Act is reproduced as under:-
"(1) The District Commission, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.Consumer Complaint No.58 of 2024 9
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Commission, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the District Commission or the State Commission or the National Commission, as the case may be, records its reasons for condoning such delay."
In view of the above Section, the delay in filing the complaint is condonable, if the consumer satisfies the District Commission, State Commission or the National Commission that due to unavoidable reasons, he/she could not file the complaint within limitation period. Perusal of record also reveals that complainant has not filed any application with the complaint for condonation of delay in filing the complaint mentioning the reasons for delay. Even the limitation of filing the civil suit is of three years. As such, the complaint filed the complainant on 25.09.2024 before this Commission is beyond the period of limitation and the same is not maintainable being time barred.
5. In view of our above discussion, the present complaint is hereby dismissed in limine being time barred.
(H.P.S. MAHAL) PRESIDING JUDICIAL MEMBER (KIRAN SIBAL) MEMBER November 20, 2024 dv