State Consumer Disputes Redressal Commission
Priti Kapur vs Chandigarh Overseas Private Limited on 3 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint case No. : 91 of 2013 Date of Institution : 25.11.2013 Date of Decision : 03.02.2014 Priti Kapur wife of Sh. Rajiv Kapur, resident of House No. 976, Phase-4, Mohali, Punjab. Complainant V e r s u s Chandigarh Overseas Private Limited, SCO 196-197, Sector 34-A, Chandigarh, 160022, through its Director. .... Opposite Party Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER
MRS. PADMA PANDEY, MEMBER Argued by: Sh. Sandeep Bhardwaj, Advocate for the complainant.
Opposite Party exparte.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the complainant wanted to have a residential house, in her own name. She applied for a residential flat, to the Opposite Party, vide application dated 12.12.2009. The price of the flat was Rs.27 lacs. The complainant paid an amount of Rs.1 lac, through cheque bearing No.647505 dated 12.12.2009. The Opposite Party, received an undertaking from the complainant, wherein, it was specifically mentioned that the provisional allotment letter, would be issued, only after signing the Buyer-Developer Agreement. It was stated that the complainant agreed to pay the amount of Rs.24 lacs, on or before 14.12.2009, and balance before the issuance of the final allotment and delivery of possession of the flat, in question. It was also mentioned, in the said undertaking that the complainant would also deposit a sum of Rs.2 lacs, on 01.01.2010. The complainant paid a sum of Rs.13 lacs, and Rs.11 lacs, vide cheques no.100698 and 150424, respectively, on 14.12.2009. The complainant paid the entire sale consideration, to the tune of Rs.27 lacs. Provisional Allotment letter dated 14.12.2009, was also issued, in favour of the complainant. Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, was executed between the parties. Flat No.602, Tower 1, was allotted, in favour of the complainant. According to Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, the agreed date of completion of the project/flat was 31.03.2011. It was further mentioned, in this Agreement that, in case, the Developer failed to hand over possession of the flat, by the due date, it would be liable to pay to the buyer, a sum of Rs.1000/- per day, for the period of delay. It was further mentioned, in this Agreement, that this condition was not applicable, in case of natural disaster/Govt. or Court ruling, strikes and any other reasons, beyond the control of the Developer, under force majeure conditions.
2. It was further stated that since the Opposite Party, without any reason, beyond its control, failed to complete the construction of flat, by the stipulated date, it was liable to pay a sum of Rs.1000/- per day, to the complainant, for the period of delay. It was further stated that the Opposite Party was many a time, asked to complete the construction of flat, handover possession thereof, to the complainant, as also pay Rs.1000/- per day, as per Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, but it failed to do so. It was further stated that the aforesaid acts of the Opposite Party, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Party, to handover physical possession of the flat, in question, immediately; pay interest @18% P.A., on the amount of Rs.27 lacs, from the respective dates of deposits, till realization; Rs.1000/- per day w.e.f. 30.03.2011, till handing over possession of the flat, in question; compensation, to the tune of Rs.1 lac, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.51,000/-.
3. The Opposite Party was duly served, but no authorized agent/representative, on its behalf, put in appearance, as a result whereof, it was proceeded against exparte.
4. The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
5. We have heard the Counsel for the complainant, and, have gone through the evidence and record of the case, carefully.
6. The first question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction, to entertain and decide the complaint. No doubt, the flat, in question, for the allotment whereof, the complainant moved an application, is situated in Fashion Technology Park, Sector 90, S.A.S. Nagar, Mohali, Punjab. The application form copy whereof, is Annexure C-1, was, however, submitted by the complainant to Chandigarh Overseas Private Limited, SCO 196-197, Top Floor, Sector 34-A, Chandigarh, which was duly signed by her, as also by an authorized signatory of the Opposite Party, on 12.12.2009, at Chandigarh. Not only this, it is evident from the copies of receipts Annexure C-3 (colly.) that Rs.1 lac, vide cheque No.647505 dated 12.12.2009, Rs.13 lacs vide cheque No.100698 dated 14.12.2009, Rs.11 lacs, vide cheque No.150424 dated 14.12.2009 (Annexure C-3 Colly.) and Rs.2 lacs, vide cheque no.647511 dated 31.12.2009 Annexure C-9, towards the entire sale consideration were paid by the complainant, at Chandigarh, and the same (receipts) were issued by the Opposite Party, at Chandigarh. Thus, a part of cause of action arose to the complainant, within the territorial Jurisdiction of Chandigarh. Under these circumstances, this Commission has got territorial Jurisdiction, to entertain and decide the complaint.
7. Admittedly, the complainant applied for the allotment of a residential flat, measuring super area 2075 square feet, vide application form, copy whereof is Annexure C-1. She was issued a provisional allotment letter, copy whereof is Annexure C-7, in respect of the residential unit no. 602, Tower 1, on 14.12.2009. Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, was also executed between the parties. According to Clause 14 of this Agreement, the agreed date of completion of the project/flat was 31.03.2011, and, in case, the Developer failed to hand over possession of the flat, by the due date, it was liable to pay to the buyer, a sum of Rs.1000/- per day, for the period of delay. As per the said Agreement, this condition was not applicable, in case, of natural disaster/Govt. or Court ruling, strikes and any other reasons, beyond the control of the Developer, under force majeure conditions. Construction of the flat, in question, as is evident from the record, was not completed by 31.03.2011. Even by the time, the complaint was filed, construction of the flat, had not been completed. Since, the Opposite Party was exparte, the question of production of any evidence, to the effect, that construction could not be completed, on account of the reasons/circumstances, beyond its control, did not at all arise. The entire sale consideration, in the sum of Rs.27 lacs, as is evident from the copies of receipts Annexures C-3 (colly.) and C-9, was paid by the complainant, to the Opposite Party, as and when the payments fell due. There was, therefore, no default, on the part of the complainant, in abiding by the terms and conditions of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6. The Opposite Party, by making misleading representation, to the complainant, duped her of her hard earned money and utilized the same, for a long time, but failed to complete the construction of flat, allotted in her favour, by 31.03.2011, as committed in the aforesaid Agreement. Thus, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice.
8. The next question, that falls for consideration, is, as to whether, the complainant is entitled to physical possession of the flat, in question, as also a sum of Rs.1000/- per day, as per Clause 14 of the Agreement aforesaid, from 01.04.2011, or not. As stated above, physical possession of the flat, in question, which was allotted, in favour of the complainant, despite making payment of the entire sale consideration, has not been delivered to her, till date. Since, the Opposite Party failed to complete the construction of flat, by 31.03.2011, and deliver possession thereof, to the complainant, by that date, it was liable to pay a sum of Rs.1000/- per day, for the period of delay i.e. from 01.04.2011. The parties being bound by the terms and conditions of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, were required to act according to the same. By not delivering possession of the unit, in question, by the stipulated date, as also by not making payment of the amount of Rs.1000/- per day, as specified in Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, the Opposite Party was not only deficient, in rendering service, but also indulged into unfair trade practice. It is, therefore, held that the complainant is entitled to the possession of flat no.602, Tower 1, complete in all respects, as also the amount @Rs.1000/- per day, from 01.04.2011, till realization.
9. The complainant has also claimed compensation, on account of mental agony and physical harassment. No doubt, the complainant was not delivered possession of the unit, in question, by the stipulated date, as provided in the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, yet, sufficient safeguard was provided, in the said Clause, by burdening the Opposite Party, to pay a sum of Rs.1000/- per day, for the period of delay. A sum of Rs.1000/- per day, to be paid by the Opposite Party, for the period of delay, could be said to be sufficient, to take care of the compensation, which would have otherwise been granted to the complainant, for mental agony and physical harassment. It is settled principle of law, that the Consumer Foras are not meant to enrich the consumers, at the hands of the service providers, by awarding unfair, unjust and excessive compensation. In these circumstances, no separate compensation, for mental agony and physical harassment, can be granted to the complainant, as claimed by her.
10. No other point, was urged, by the Counsel for the complainant.
11. For the reasons recorded above, the complaint is partly accepted, with costs, in the following manner:-
(i).
The Opposite Party is directed to hand-over the legal physical possession of flat No. 602, Tower 1, complete in all respects, to the complainant, within a period of 60 days, from the date of receipt of a certified copy of this order.
(ii).
The Opposite Party is further directed to pay @ Rs.1000/- per day, to the complainant, as provided in Clause 14 of the Buyer-Developer Agreement dated 14.12.2009, Annexure C-6, from 01.04.2011 [the stipulated date for completion and handing over the possession being 31.03.2011].
(iii).
The Opposite Party is further directed to pay, to the complainant, cost of litigation, to the tune of Rs.20,000/-.
(iv).
The amount @ Rs.1000/- per day, as stated in Clause (ii) above, which has already fallen due, to the complainant, from 01.04.2011 to 31.12.2013, shall be paid by the Opposite Party, to her, within a period of 45 days, from the date of receipt of a certified copy of this order, failing which, it shall carry interest @7% P.A., from the date of default, till realization.
(v).
The amount accruing due, to the complainant @ Rs.1000/- per day, w.e.f. 01.01.2014, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @7% P.A., from the date of default, till realization, besides payment of costs.
12. Certified Copies of this order be sent to the parties, free of charge.
13. The file be consigned to Record Room, after completion Pronounced.
February 3, 2014 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Sd/-
(PADMA PANDEY) MEMBER Rg