State Consumer Disputes Redressal Commission
Sushma Swaraj vs M/S Shivalik Infrastructures & ... on 16 January, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. Consumer Complaint No.107 of 2013 Date of Institution : 11.10.2013 Order Reserved on : 12.01.2017 Date of Decision : 16.01.2017 Ms. Sushma Swaraj, r/o H.No. 5508/3, Modern Housing Complex, Panchkula, Haryana. .....Complainant Versus 1. M/s Shivalik Infrastructure and Developers Pvt. Ltd., through its Manager Director Sh. Jagdish Singh Saini, having its Head Office SCO No. 510, Ist Floor, Sector 70, Mohali, (Pb.). 2. LIC Housing Finance Ltd, SCO 2445-46, Sector 22-C, Chandigarh 160022 ....Opposite Parties Consumer 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.
Shri J.S Gill, Member.
Shri H.S. Guram, Member.
Present:-
For the complainant : Sh. G.C Babbar, Advocate For opposite party no.1 : Sh.Shakti Mehta and Sh.Sandeep Khunger Advocates For opposite party no.2 : Sh. O.P Narang, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The complainant has filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that OP no.1 is builder and developer and running the business under name and style of M/s Shivalik Infrastructure and Developers Pvt. Ltd. It is averred that OP no.1 offered fully constructed multi-storeyed apartments in the name of Shivalik Towers Phase-I, Shiwalik City in Sector 127 Greater Mohali District Mohali in different categories against the consideration price. The complainant purchased apartment from OP no.1 in their ongoing project Shiwalik Towers Phase-1, Shiwalik City in Sector 127 Greater Mohali District Mohali and was accordingly allotted apartment A-3 in Block No.-A situated in Shiwalik Tower Phase 1 Shivalik City after completing all the requisite formalities against the consideration price of Rs.26,57,925/-. The agreement was also entered into between the parties and its terms and conditions as agreed are also forming part of the contract. As per agreement, the physical possession of the dwelling unit was to be handed over by OPs within a period of one year from the date of agreement and time was the essence of the contract. The possession was to be delivered, as per terms agreed upon complainant was to perform her part promptly by making the payment of sale price. The complainant took loan from OP no.2 and it was agreed that installment amount as and when due shall be paid by the LICHFL on behalf of the complainant directly to the builder without any delay. It is further averred that OP no.2 refused to release further amount of installments on the ground that there was no sign of construction and due to slow progress in work at the site it was observed, as such further amount could not be released, as the amount already released was more than the proportionate actual construction price. OP no.1 failed to keep up their promise by not delivering the possession within a scheduled time. It is further averred that OP no.1 had been informing the complainant since 2007 that they were on the final stage of the construction, but till date construction was not complete. As per agreement, OPs failed to deliver the possession of the dwelling unit till date. OP no.1 cleverly got issued legal notice dated 24.01.2012 to complainant and cancelled the agreement and refunded the principal amount by way of cheque. On receiving notice, the complainant returned the cheque in original along with reply to legal notice dated 12.03.2012. The notice issued by OP no.1 was illegal, arbitrary and without any substance. It is further averred that dwelling unit was the requirement of the complainant, as such she had accepted the terms of the OPs. The OPs have badly failed to complete their project and remained not in a position to deliver the possession. The complainant alleged deficiency in service and unfair trade practice on the part of OPs. The complainant has, thus, filed the complaint directing OPs to deliver the possession of the flat immediately, besides Rs.5 lac as compensation for mental harassment, Rs.20,000/- as cost of litigation and Rs.11,000/- as miscellaneous charges.
2. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complainant has not approached the Forum with clean hands and has suppressed the material facts from the Forum. On merits, it was averred that buyer's agreement was duly executed between the parties. The terms and conditions were settled in the buyer's agreement and complainant was to make the entire payment as per terms of the above agreement. Out of the total sale consideration of Rs.26,57,925/-, the complainant has paid only a sum of Rs.18,43,931/- and she has failed to pay the balance sale consideration amount in spite of various notices. The complainant was further requested to make the payment of the balance amount at the earliest. Thereafter, the complainant, vide letter dated 29.06.2010 was informed that an amount of Rs.8,13,994/- was due to be paid and complainant was also informed that timely payment of the installment was the essence of the contract. OP no.1 left with no other choice cancelled the allotment of the flat and by cancelling the agreement, the amount of Rs.18,43,931/- paid by the complainant was refunded to her. The complainant has failed to make the payment of sale consideration, which led to the cancellation of the flat. It was pleaded that the adjoining flats constructed by OP no.1 were also completed by raising timely construction and the possessions were delivered to the allottees on making the payment of entire sale consideration along with interest, if any and the sale deeds have also been duly executed in their favour. It was denied that any sub-standard material was affixed due to poor supervision. It was also denied that OP no.1 ever informed the complainant that they were not able to deliver the possession of the flat due to recession in the market or due any problem with the bank. In terms of the allotment letter dated 03.01.2006, the buyers agreement was executed between the complainant and OP no.1. Rest of the averments have been denied by OP no.1 and it prayed for dismissal of the complaint.
3. OP no.2 appeared and filed written reply and contested the complaint vehemently. It was averred that the letters addressed to OP no.2 with copies of builder's letter dated 12.12.2008 and 29.06.2010, as Ex.C-11 to Ex.C-14, which were never received by OP no.2. No postal receipt and acknowledgment has been produced on record in this regard. The housing loan was sanctioned to Sushma Swaraj and Ramesh Kumar whereas Ramesh Kumar has not been a party in the complaint. Any deficiency in service on the part of OP no.2 was vehemently. Rest of the averments have been denied by OP no.2 and it prayed for dismissal of the complaint.
4. The complainant tendered in evidence affidavit of complainant Ms. Sushma Swaraj Ex.C-A along with copies of documents Ex.C-1 to Ex.C-15. As against it; OP no.1 tendered in evidence affidavit of Amardeep Singh Hira Managing Director Shivalik Infrastructure Ex.OP-1/1 along with copies of documents Ex.OP-1/2 to Ex.OP-1/8. OP No.2 tendered in evidence affidavits of Sh. Ashu Devgan authorized representative and Manager of OP no.2/LIC Housing Ex.OP-2 along with copies of documents Ex.OP-2/1 to Ex.OP-2/13 and closed evidence.
5. The complaint was dismissed by the District Forum Mohali due to lack of pecuniary jurisdiction. This Commission, vide order dated 26.02.2013, set aside the order of the District Forum Mohali and ordered return of the complaint to be presented before proper Forum. The complaint came to be presented before this Forum in this way.
6. We have heard learned counsel for the parties and have also gone through the evidence on the record.
7. Affidavit tendered by complainant Sushma Swaraj is Ex.C-A on the record. She has stated in this affidavit that she was offered fully constructed multi storyed ready to live in apartment by OP no.1 in the name of Shivalik Towers, Phase-1 Shivalik City in Sector 127, Greter Mohali. The apartment was re-allotted to her against sale consideration price of Rs.26,57,925/-, vide letter Ex.C-1 dated 03.01.2006. She was allotted Flat No. A-3, Block No. A at Shivalik Towers Phase-1 in Shivalik City, Kharar and buyers agreement was entered into between the complainant and OP no.1, vide Ex.C-2. The physical possession of dwelling unit was to be given to complainant within one year from the date of buyers agreement and time was the essence of the contract and entered into tripartite agreement with OPs no.1 and 2 for raising loan from OP no.2 by agreeing to pay installment amounts, when due on behalf of the complainant directly to builder without any delay by OP no.2. The installments as per scheduled time were being paid to OP no.1. As acknowledged, the tripartite agreement and statement of loan account issued by OP no.2 are Ex.C-3 and Ex.C-4. OP No.2/LIC Housing Loan refused to release the installment amounts on the ground that no construction was complete due to slow progress in the project at site. The amount already was allegedly released by OP no.2 according to proportionate actual construction only. The copy of letter in this regard is Ex.C-5. The complainant showed her willingness to make the payment and due to wrongful act of OP no.1, further payment has not been released by OP no.2. Ex.C-5 is legal notice sent by R.K. Rana Advocate to Bandna Gautam with regard to Flat No. A-5, which was duly replied, vide Ex.C-6. OP no.1 ducked its responsibility to deliver the possession to complainant due to recession in the market. The complainant has raised loan from OP no.2 for payment of installments to pay the amount. Even sub-standard material was used by OPs earlier under the supervision of OP no.1 in an negligent manner. Incomplete construction has been hanging in balance thereupon. Reply to legal notice dated 24.01.2012 is Ex.C-10. OP no.1 did not comply with Clauses 11.3 and 11.4 of the buyers agreement. OP no.1 utilized hard-earned money of the complainant for long time and then chose to revoke the buyers agreement unilaterally in an arbitrary manner. Ex.C-1 is allotment letter dated 03.01.2006 with regard to allotment of Flat No. A 3 to complainant by OP no.1 for total cost of Rs.26,57,925.00. Ex.C-2 is incomplete buyers agreement and Ex.C-3 is complete buyers agreement placed on record. Ex.C-4 is letter of intent for housing loan. Ex.C-5 is legal notice sent by R.K. Rana Advocate to Bandna Gautam with regard to Flat No. A-5. Reply to legal notice is Ex.C-6. Ex.C-7 is letter dated 27.08.2007 by OP no.1 regretting delay due to market instability in handing over the possession to complainant. Ex.C-8 is letter dated 30.01.2007 addressed to complainant stating that dispute has been resolved and OP no.1/Builder assigned the remaining work to M/s Kajal Enterprises to complete the remaining construction. Legal notice sent to original allottee Bandna Gautam is Ex.C-9 dated 24.01.2012. Reply to legal notice dated 24.01.2012 is Ex.C-10 sent by the complainant. Ex.C-10/1 and Ex.OP/2 are postal receipt. Ex.C-11 is letter of OP no.1 to complainant that installment of loan amount have been pending from her bank and she was requested to instruct the bank to release the balance installment. Ex.C-12 and Ex.C-13 are the letters sent by the complainant to Branch Manager/OP no.2 to release the balance amount of loan on her behalf to OP no.1. Ex.C-14 is letter dated 09.06.2010 regarding outstanding payment of Flat No. A-3 sent to complainant by OP no.1. Ex.C-15 is letter dated 22.01.2011 sent by Daljit Singh Director of OP no.1 to complainant to pay the balance amount.
8. To refute this evidence, OP no.1 tendered in evidence affidavit of Amardeep Singh Hira Managing Director Shivalik Infrastructure & Developers Pvt. Ltd Ex.OP-1/1. He testified in this affidavit that complainant was allotted the flat no.A-3 in Block A vide allotment letter dated 03.01.2006 for sale consideration of Rs.26,57,925/-. The complainant paid sum of Rs.18,43,931/- out of the sale consideration amount of Rs.26,57,925/- and failed to pay the balance sale consideration amount, despite various notices and reminders. Notice was sent to complainant on 23.11.2009 for sending the balance amount before its possession could be delivered. Registered notice is dated 23.11.2009 Ex.OP-1/1. The notice dated 28.09.2010 was sent to her to pay the balance amount of Rs.8,13,994/-, vide Ex.OP-1/3 dated 28.09.2010. OP no.1 was, thus, left with no option but to cancel the agreement and to refund the amount of Rs.18,43,931/- to complainant, vide cheque dated 24.01.2012 sent to complainant, vide Ex.OP-1/5. The flat allotted in favour of the complainant has been cancelled due to default of complainant in making the payment of the balance amount of sale. Had the flat not been be cancelled, there would have been an amount of Rs. 20,60,114.57 due towards the complainant on account of balance sale consideration with interest on remaining sale consideration amount, vide calculation sheet up to January, 2014 is Ex.OP-1/8. Legal notice is Ex.OP-1/4 sent to complainant for cancelling allotment and refunding the amount of Rs.18,43,931/-. Copy of cheque of Rs.18,43,931/- is Ex.OP-1/5. The delivery of possession of Flat No.A 4 to Neelam Arora is Ex.OP-1/6. The copy of sale deed in favour of Neelam Arora with regard to Flat No.A-4, 4th Floor is Ex.OP-1/7 and copy of statement of account is Ex.OP-/8 showing the pending installment amount of Rs.6,13,994 and total delayed interest is Rs.14,61,120.57 and total outstanding amount of Rs.20,60,114.57.
9. The version of OP no.2 emerging in its reply and as argued by Sh. O.P Narang Advocate /Counsel for OP no.2 before us is that the letters addressed to OP no.2 with copies of builder's letter dated 12.12.2008 and 29.06.2010, as Ex.C-11 to Ex.C-14, which were never received by OP no.2. No postal receipt and acknowledgment has been produced on record in this regard by the concerned party. The housing loan was sanctioned to Sushma Swaraj and Ramesh Kumar has not been a party in the complaint. OP no.2 financed loan to OP no.1 on behalf of the complainant in this regard for purchasing the flat. Affidavit of Ashu Devgan Manager of OP no.2 is Ex.CA on the record. Ex.OP-II-R-1 is addressed to complainant Sushma Swaraj for not refunding the fee. Loan agreement is Ex.OP-II-R-II, clause 3.3. of Loan Agreement lays down :-
that security furnished/to be furnished or procured or to be procured by the BORROWER/S in connection with the loan shall remain a continuing Security to OP no.2 and binding upon BORROWER/S and shall not be discharged by intermediate payment by the BORRWOER/S or any settlement of accounts by the BORROWER/S so far as any part of the outstanding amount remains outstanding to be paid by the Borrower/s.
b) Shall be paid in addition to and not in derogation of any other security which OP no.2 may at any time hold in respect of the dues of BORROWR/S; and
c) Shall be available to OP no.2 until all accounts between OP no.2 and the BORROWER/S in respect of the outstanding amount/loan are ultimately settled to the satisfaction of OP no.2.
Ex.OP-II-R-4 is letter sent to OP no.1 by OP no.2 that it would not be responsible for any delay or deferment in subsequent rate. Ex.OP-11-R-5 is letter sent by OP no.1 to OP no.2 that in the event of cancellation of the allotment of above flat, the refund due to OP no.2 after forfeiture of earnest money or any other dues should be directly paid to OP no.2, which would be utilized by OP no.2 for first settlement of loan amount i.e. loan interest along with other dues as per agreement. Permission to mortgage is Ex.OP-II-R/6. Application of allotment of Flat No.A-3 in Block A Shivalik Tower Project at Mohali Phase-1 Shivalik City Kharar by OP no.1 to OP no.2 is Ex.OP-II-R/7.
10. From critical appraisal of entire evidence on the record and hearing respective submissions of counsel for the parties, we have reached this conclusion that OP no.1 tried to be oversmart in this case with the complainant. The version of OP no.1 is that it has cancelled the allotment of flat to the complainant for non-payment of balance amount and re-allotted it to Neelam Arora and also executed the conveyance deed in her favour. We have gone through the draft of conveyance deed Ex.OP-1/7 on the record and re-allotment document to Neelam Arora dated 02.11.2011 is Ex.OP-1/6. The alleged conveyance deed Ex.OP-1/7 pertains to Flat No. A-4, 4th Floor of 36.11 sq. yards at Shivalik Tower, Phase-1, Kharar District SAS Nagar Mohali. The flat in dispute in this case is A-3 in Block No.-A situated in Shiwalik Tower Phase 1 Shivalik City. The flat, which was allotted to the complainant, as per the complaint is A-3 in Block No.-A situated in Shiwalik Tower Phase 1 Shivalik City. The flat allotted to Neelam Arora w/o Surinder Arora is A-4, 4th Floor of 36.11.sq. yards. The flats allotted in both cases are entirely different from each other. The flat in dispute in this case is A-3 in Block No.-A situated in Shiwalik Tower Phase 1 Shivalik City allotted to Neelam Arora is A-4 at 4th Floor of 36.11 sq. yards. OP No.1, thus, has not taken genuine defence as it has produced alleged conveyance deed in favour of Neelam Arora and allotment to Neelam Arora of some other flat bearing no.A-4 at 4th Floor of 36.11 sq. yards, whereas flat in dispute in this case is A-3 in Block No.-A situated in Shiwalik Tower Phase 1 Shivalik City. The defence taken by OP no.1 is that it has cancelled the allotment of flat to complainant and sent cheque as refund amount is without substance and merit on the record.
11. The complainant has prayed OP no.1 be directed to deliver the possession of flat immediately on such terms and conditions as agreed in the agreement along with penalty price as agreed in terms and conditions as 18% rate of interest, besides compensation and litigation expenses.
12. As a result of above discussion, we accept the complaint of the complainant and hold that complainant has already paid the substantial amount of sale consideration and hence interest of justice would be fully served in this case by directing OP no.1 to deliver the possession of the allotted flat A-3 in Block No.-A situated in Shivalik Tower Phase 1 Shivalik City, vide allotment letter Ex.C-1 to complainant on payment of entire balance sale consideration amount by the complainant to OP no.1 with interest @ 9% p.a from the date of delay till actual payment. The complainant shall pay the above referred balance amount with interest to OP no.1 within a period of 45 days from the date of receipt of certified copy of order, whereupon OP no.1 shall deliver the possession with complete occupation certificate to the complainant within 30 days period from that date by executing all the formalities on its part. It is further held that the right of OP no.2 shall remain fixed as security over the flat till the entire loan amount is cleared by the complainant as charged over the flat to OP no.2 for the loan taken by complainant from OP no.2.
13. Arguments in this complaint were heard on 12.01.2017 and the order was reserved. Now the order be communicated to the parties.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (J.S GILL) MEMBER (H.S.GURAM) MEMBER January 16, 2017 (ravi)