State Consumer Disputes Redressal Commission
Parveen Kumar Goel vs M/S Ats Estates Pvt. Ltd. on 9 April, 2019
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
Consumer Complaint No.154 of 2018
Date of Institution: 28.02.2018
Order reserved on: 26.03.2019
Date of Decision : 09.04.2019
Parveen Kumar Goel, S/o Late Sh. Gian Chand Goel, R/o
H.No.177, Sector 12-A, Panchkula, Haryana, 134112.
.....Complainant
Versus
1. M/s ATS Estates Private Limited through its Managing
Director/Directors, Site Office Address ATS Golf Meadows,
Chandigarh Ambala Highway Opposite Sadashiv Complex,
Near Derabassi, Derabassi, Distt. SAS Nagar, Mohali,
Punjab-140507.
Corporate Office: ATS Tower Plot No.16, Sector 135, Noida.
Registered Office: 711/92, Deepali Nehru Place, New Delhi,
110019.
2. Getamber Anand, Managing Director, M/s ATS Estates
Private Limited, Site Office Address ATS Golf Meadows,
Chandigarh Ambala Highway Opposite Sadashiv Complex,
Near Derabassi, Derabassi, Distt. SAS Nagar, Mohali,
Punjab-140507.
3. Sameer Puri, Director, M/s ATS Estates Private Limited, Site
Office Address ATS Golf Meadows, Chandigarh Ambala
Highway Opposite Sadashiv Complex, Near Derabassi,
Derabassi, Distt. SAS Nagar, Mohali, Punjab-140507.
4. Vipul Kumar Maheshwari, Director, M/s ATS Estates Private
Limited, Site Office Address ATS Golf Meadows,
Chandigarh Ambala Highway Opposite Sadashiv Complex,
Near Derabassi, Derabassi, Distt. SAS Nagar, Mohali,
Punjab-140507.
Consumer Complaint No.154 of 2018 2
5. Poonam Getamber Anand, Director, M/s ATS Estates
Private Limited, Site Office Address ATS Golf Meadows,
Chandigarh Ambala Highway Opposite Sadashiv Complex,
Near Derabassi, Derabassi, Distt. SAS Nagar, Mohali,
Punjab-140507.
6. Adityajit Singh Tiwana, Director, M/s ATS Estates Private
Limited, G-7, Site Office Address ATS Golf Meadows,
Chandigarh Ambala Highway Opposite Sadashiv Complex,
Near Derabassi, Derabassi, Distt. SAS Nagar, Mohali,
Punjab-140507.
.....Opposite Parties
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 Rajinder Kumar Goyal, Member Present:-
For the complainant : Sh. Ravi Inder Singh, Advocate with Sh.Manish Sharma, Advocate For the opposite parties : Sh. Sukhandeep Singh, 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 opposite parties (in short the 'OPs') on the premise, that OP nos.2 to 6 are the Managing Directors and Directors of OP no.1 company and have been conducting day to day working and affairs of OP no.1. He was allotted type B flat on second floor in tower-6, bearing no.6024 in ATS Golf Meadows Lifestyle, vide Consumer Complaint No.154 of 2018 3 letter dated 31.07.2013, as he applied for flat for his own residence. Buyers agreement dated 31.07.2013 was also executed between the parties. The construction of tower no.6 was commenced in December 2012, as per letter dated 31.07.2013, vide Ex.C-2. He opted payment plan of construction linked plan in this project. The basic sale consideration of the flat is Rs.56,27,500/- and parties settled it at Rs.57,77,500/- as total consideration including maintenance charges and power backup charges. He paid booking amount of Rs.7,76,021/-, vide cheque no.350619 and 643908 of Canara Bank dated 05.04.2013 and 20.05.2013 respectively. As per clause 6(ii) of the buyers agreement, he paid the entire installments, vide Annexure C-3 and C-4 (colly), except one installment. The OPs have not handed over the possession of the allotted flat to him in scheduled time despite email sent by him dated 10.06.2017 followed by another email dated 23.06.2017. As per clause 14 of the Buyers Agreement, OPs were to handover the possession of the allotted flat to him within 36 months with further grace period of six months. The schedule time for delivery of possession has already expired, but OPs have not delivered the possession of the allotted Consumer Complaint No.154 of 2018 4 plot by developing it to him. The OPs are liable to pay compensation @Rs.5/- per square feet per month and to pay interest @18% per annum with effect form July 2016 till possession of the flat, as per clause 15 of the buyers agreement for delay. The complainant has alleged deficiency in service and unfair trade practice on the part of OPs. He prayed that OPs be directed to hand over the vacant and physical possession of Unit/Flat no.6024, tower no.6, 2nd floor, type-B, flat in ATS Golf Meadows Life Style situated at Village Madhopor Tehsil Derabassi District Mohali, further to pay compensation @Rs.5/- per square feet per month and to pay interest @18% per annum with effect form July 2016 till delivery of possession of the flat, to pay Rs.Five Lakh as compensation for mental harassment with interest @18%, further to pay Rs.Five Lakh for deficiency in service and unfair trade practice with interest@18% per annum and with litigation cost to the tune of Rs.One Lakh. He further prayed that OPs be directed not to charge GST from him.
2. Upon notice, OP no.1 appeared and filed written reply that Gurdeep Singh has been authorized to defend the case by means of resolution passed by Board of Directors of OP no.1 Consumer Complaint No.154 of 2018 5 dated 03.07.2018. It denied the averments of complainant. OP no.1 alleged the complaint to be abuse of process of law only. It is alleged that the complaint has been filed with the sole purpose to harass OP no.1. The complainant is not consumer of OP no.1, as he purchased the flat for investment purposes only. Material facts have been suppressed by the complainant from the Forum. OP no.1 further averred that as per buyers agreement, the proposed time for delivery of possession of above flat was 36 months with further grace period of six months from the date of start of construction of that particular tower in December 2012. OP no.1 controverted the averments of complainant and prayed for dismissal of the complaint.
3. OP no.2 filed his separate written reply alleging the complaint to be abuse of process of law, being frivolous. It is alleged that OP no.2 is not the Managing Director of OP no.1 company and is not involved in the business activities of OP no.1. The complainant is alleged to be not consumer of OP no.2. OP no.2 controverted the other averments of the complainant by denying any deficiency in service and unfair trade practice on his part and prayed for dismissal of the complaint. Consumer Complaint No.154 of 2018 6
4. OP no.3 filed separate written reply alleging the complaint to be false and frivolous. It is further pleaded that OP no.3 is not involved in the business activities of OP no.1 and has been wrongly impleaded as party in this case. OP no.3 has not dealt personally with complainant on any account. OP no.3 is not the Director of OP no.1. OP no.3 controverted the other averments of the complainant by denying any deficiency in service and unfair trade practice on his part and prayed for dismissal of the complaint.
5. OP no.4 filed separate written reply alleging the complaint to be false and frivolous. It is further pleaded that OP no.4 is not involved in the business activities of OP no.1 and has been wrongly impleaded as party in this case. OP no.4 has not dealt personally with complainant at any stage. OP no.4 is not the Director of OP no.1. OP no.4 controverted the other averments of the complainant by denying any deficiency in service and unfair trade practice on his part and prayed for dismissal of the complaint.
6. OP no.5 filed separate written reply alleging the complaint to be false and frivolous. It is further pleaded that OP Consumer Complaint No.154 of 2018 7 no.5 is not involved in the business activities of OP no.1 and has been wrongly impleaded as party in this case. OP no.5 has not dealt personally with complainant on any matter. OP no.5 is not the Director of OP no.1. OP no.5 controverted the other averments of the complainant by denying any deficiency in service and unfair trade practice on his part and prayed for dismissal of the complaint.
7. OP no.6 filed separate written reply alleging the complaint to be false and frivolous. It is further averred that OP no.6 is not involved in the business activities of OP no.1 and has been wrongly impleaded as party in this case. OP no.6 has not dealt personally with complainant on any stage in this case. OP no.6 is not the Director of OP no.1. OP no.6 controverted the other averments of the complainant by denying any deficiency in service and unfair trade practice on his part and prayed for dismissal of the complaint.
8. The complainant tendered in evidence his affidavit Ex.C-A with copies of documents Ex.C-1 to Ex.C-11 and closed the evidence. As against it, OPs tendered in evidence affidavit of Gurdeep Singh, Authorized Representative of OP no.1 Ex.OP-1/A Consumer Complaint No.154 of 2018 8 with documents Ex.OP-1/1 to Ex.OP-1/4 and affidavits of OP no.2 Ex.OP-2/A, affidavit of Sameer PuriEx.OP-3/A, affidavit of Vipul Kumar Maheshwari Ex.OP-4/A, affidavit of Poonam Geetamber Anand Ex.OP-5/A and affidavit of Adityajit Singh Tiwana Ex.OP- 6/A with documents Ex.OP-2/1, Ex.OP-3/1 and Ex.OP-5/1 and closed the evidence.
9. We have heard the learned counsel for the parties and have also examined the record of the case. We firstly decide this point as to whether OP no.2 to 6 have been correctly impleaded by the complainant in this case, being Directors of OP no.1 company. Application has been filed on the record by them separately to the effect that the complaint against them be dismissed, as they have nothing to do with the business activities of OP no.1. The complainant alleged them to be Directors of OP no.1 company. Affidavit of complainant Parveen Kumar Goel is Ex.C-A on the record, wherein he specifically stated OP nos.2 to 6 are the Managing Director and Directors of OP no.1 company respectively, vide para no.1 of it. OP nos.2 to 6 filed their affidavits on the record that they have nothing to do with the matter in this case, whereas there are no allegations against Consumer Complaint No.154 of 2018 9 them. We have also perused the documents on the record and find that it should be established on record by OP nos.2 and 6 that they are not the Managing Director and Directors of OP no.1 company and have nothing to do with the matter. Whatever the case may be, all the Directors are not supposed to sign the buyers agreement executed by the company, even resolution by OP no.1 is not on the record to the effect that OP nos.2 to 6 are unconcerned with the matter in dispute. Consequently, the application put in by OP nos.2 to 6 for dismissal of complaint against them is not accepted, because there is no sufficient evidence on record to return the finding that they have got nothing to do with the matter in dispute on behalf of OP no.1 company.
10. Evidence on the record consisting of affidavits of parties as well as documents have been examined by us. OP no.1 allotted type B flat on second floor in tower-6, bearing no.6024 in ATS Golf Meadows Lifestyle, vide letter dated 31.07.2013 Ex.C-1 to complainant. Buyers agreement is Ex.C-2 executed between complainant and OP no.1 on 31.07.2013. Ex.C-3 (colly) is the statement of account of complainant regarding payments received by OPs. Ex.C-4(colly) are the demand letters sent by OPs to Consumer Complaint No.154 of 2018 10 complainant. Ex.C-5 and C-6 are the emails exchanged between the parties. Ex.C-7 is the copy of demand note issued by OP no.1 to complainant. Ex.C-8 is the copy of demand draft in favour of OP no.1 of Rs.7,36,130/-. Ex.C-9 is the tribune newspaper cutting tiding regarding reducing of liability of tax on homes under GST. Ex.C-10 is the copy of complaint moved by complainant against OP no.1. Ex.C-11 is the copy of letter dated 27.10.2017 by OP no.1 to complainant regarding GST input benefit towards unit no.6024. OP no.1 has not disputed the fact that complainant has not paid the amounts except one installment. As per clause 14 of the buyers agreement Ex.C-2, there was 36 months period with further grace period of six months from the date of actual start of construction of particular tower, which took place in December 2012. The stipulated period of delivery of possession of the flat as per clause 14 of buyers agreement has already expired. Clause 15 of it, contains penalty clause for delayed possession for the reasons beyond the control of the company. No force majeure circumstances have been either pleaded or established on the record by OP no.1 and other OPs in this case to condone the above referred delay. There is penalty clause for payment of Consumer Complaint No.154 of 2018 11 compensation @Rs.5/- per square feet, as per area per month to original allottee for the delayed period of possession provided that allottee has not been a defaulter. Clause 15 of buyer agreement Ex.C-2 further gives alternative to complainant to exit from allotment on the ground of delay in handing over the possession by giving 90 days notice to the company from the expiry of the last date of the stipulated date of delivery of possession and in that event, OP company shall refund the amount paid by him within 90 days from the date of resale of the allotted property to a third party. The complainant prays for a direction to OPs to hand over the vacant and physical possession of the allotted plot to him and to pay compensation @Rs.5/- per square feet per month for the period of delay in handing over the possession from July 2017 till actual date of delivery of possession, as per agreement, besides payment of Rs.Five Lakh for mental harassment and Rs.One Lakh for cost of litigation.
11. From evaluation of evidence on the record, we find that OPs have not developed the project, where the allotted flat is located so as to deliver the possession to complainant within stipulated period. This penalty clause visualizes that clause 15 of Consumer Complaint No.154 of 2018 12 the buyer agreement would not be workable, where it causes undue hardship to the allottee on account inordinate delay in delivery of possession. Taking into account the entire facts and circumstances of the case, OPs are held to be guilty of deficiency in service and unfair trade practice in not delivering the possession of the flat to complainant within scheduled time.
12. As a result of our above discussion, the complaint of the complainant is accepted and below noted directions are issued to OPs:
(i) OPs are directed to hand over the complete vacant and physical possession of allotted unit no.6024, tower no.6, second floor, type B, Flat in ATS, ATS Golf Meadow Life Style situated at village Madhopor, Tehsil Derabassi, District Mohali within a period of three months from the date of receipt of this order with completion certificate subject to clearance of pending dues, if any, by the complainant during the above periodand further bearing the expenses for stamp and registration of conveyance deed.
(ii) OPs are further directed to pay interest @12% per annum from January 2017, the scheduled date of delivery of possession inclusive of grace period of six months, till handing Consumer Complaint No.154 of 2018 13 over the actual possession of the flat to the complainant on the deposited amounts.
(iii) OPs shall also pay composite amount of compensation of Rs.60,000/- to complainant for mental harassment and cost of litigation. Compliance of the order be made within 45 days from the date of receipt of certified copy of the order.
13. Arguments in this complaint were heard on 26.03.2019 and the order was reserved. The certified copies of the order be communicated to the parties, as per rules.
14. The complaint could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER April 09, 2019.
(MM)