STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB DAKSHIN MARG, SECTOR 37-A, CHANDIGARH. Consumer Complaint No.278 of 2016 Date of institution : 06.09.2016 Date of decision : 14.09.2016 Mohan Singh son of Inder Singh, Resident of House No.301/4, Defence Colony, Railway Road, Gurdaspur, Punjab. .Complainant Versus
1. Emerging Valley Pvt. Ltd., Registered Office, B-57, Lower Ground South Extension, Part-II, New Delhi-49, through its Managing Director/Authorized Signatory.
2. Emerging Valley Pvt. Ltd. [A unit of Emerging India, Housing Corporation (P) Ltd.], through its Authorized Signatory. SCO No.46-47, 1st Floor, Sector 9-D, near Matka Chowk, Madhya Marg, Chandigarh. .Opposite Parties Consumer Complaint under Section 17(1)(a)(i) of the Consumer Protection Act, 1986. Quorum:- Honble Mr. Justice Gurdev Singh, President Mr. Vinod Kumar Gupta, Member Present:- For the complainant : Shri Inderjit Shama, Advocate JUSTICE GURDEV SINGH, PRESIDENT : The complainant, Mohan Singh, has filed this complaint, under Section 17(1) (a) (i) of the Consumer Protection Act, 1986, for the issuance of following directions to the opposite party:
i) to deliver the vacant possession of 2 BHK residential flat in the project; named, Emerging Height 4, located at Emerging Consumer Complaint No.278 of 2016 Valley, Landran-Banur Road, located at S.A.S. Nagar, Mohali, Punjab (in short, the flat); ii) to pay interest at the rate of 12% per annum on the instalments paid by him, till the delivery of actual possession of the flat; iii) if the project is not being started and the infrastructure is not going on and it has remained unable to deliver possession of the flat, then to refund of Rs.12,98,000/-, already deposited by him, along with interest at the rate of 12% per annum from the date of payment till the date of realization; and iv) to pay Rs.2,00,000/-, as damages and compensation on account of the mental and physical harassment, along with litigation expenses. He alleged therein that he booked the flat with the opposite party and deposited Rs.6,12,775/-, vide Acknowledgement Slip dated 28.03.2012. He was issued Provisional Registration No.EW/2BHK/E/202 on 19.05.2012 regarding that booking. On 06.10.2012, he paid Rs.3,67,650/- towards the renewal of the flat. He was issued Provisional Allotment Letter dated 10.07.2013 of 2 BHK residential flat on 26.07.2013; which contained the details of the amounts payable by him. The Payment Plan was also issued, along with that letter. At the time of issuance of that Provisional Allotment Letter, he paid Rs.1,00,000/- and thereafter paid Rs.2,17,650/- on 12.08.2013. Even after the receipt of the amount of Rs.12,98,000/-, the possession of 2 BHK flat was not handed over to him, as per the terms and conditions of the allotment letter and feeling aggrieved, he Consumer Complaint No.278 of 2016 sought upto date report, vide letter dated 02.06.2015, on the following points:
i) What is the latest status of this project; named, Emerging Height 4, located at Emerging Valley, Landran-Banur Road, located at S.A.S. Nagar, Mohali, Punjab? ii) How much construction work of EH4, 2BHK (allotment number for which is EV/EH4/2BHK-D/102) has been completed till date? iii) What is the actual balance payment that I am yet to deposit with you and what is the due date of such balance payment? iv) When are you going to give the possession of 2 BHK flat, having allotment number EV/EH4/2BHK-D/102? However, the opposite party failed to respond positively and did not give any reply to that letter. Thereafter, he sent representations dated 04.07.2015 and 20.08.2015 to it to know the status of the project, but again did not receive any response from its side and it remained silent for the reasons best known to it. It was mentioned in Clause-K of the Provisional Allotment Letter that in case the opposite party failed to give possession of the property within the maximum time-limit of three years after the allotment, it shall be liable to pay interest at the rate of 12% per annum on the instalments paid by him till the date of actual possession. In fact, no such project has been started by the opposite party, nor it has made any construction at the spot, so as to deliver the possession of 2 BHK residential flat to him and, as such, has violated Consumer Complaint No.278 of 2016 the terms and conditions. It has grabbed his hard earned money in a fraudulent manner. He is entitled to get the possession of the flat, as per the terms and conditions of the allotment. The said act and conduct of the opposite party is illegal, arbitrary and amounts to deficiency in service and indulging in unfair trade practice. As a result thereof, mental and physical agony was caused to him and his desire to have residential flat immediately has been delayed on account of the adopting of delaying tactics.
2. We have heard learned counsel for the complainant and have carefully gone through the allegations made in the complaint and the documents annexed therewith, in support of those allegations.
3. It has been submitted by the learned counsel for the complainant that after the payment of the amount, so mentioned in the complaint, the complainant became entitled to the possession of the flat; which was required to be delivered within three years of the issuance of the Provisional Allotment Letter dated 10.07.2013, but the opposite party failed to deliver that flat, which amounts to deficiency in service and, as such, the complaint is liable to be admitted and the complainant is to be permitted to proceed with the same.
4. It is very much clear from the copy of the order dated 18.07.2016, Annexure, P-10, of the complaint that previously the complainant filed Consumer Complaint No.200 of 2016 before this Commission and the same was dismissed as withdrawn, with liberty to file fresh complaint as and when cause of action accrued to the complainant. It appears that the complainant has filed the second Consumer Complaint No.278 of 2016 complaint, by assuming that the cause of action has already accrued to him for filing the complaint for possession of the flat. The relevant term/condition of the Provisional Allotment Letter dated 10.07.2013, Annexure C-4, is reproduced below: K. In case the company fails to give possession of the property to you by the maximum time-limit of three years after allotment, then the company shall be liable to pay you interest at the rate of 12 percent per annum on the instalments paid by you till the date of delivery of actual possession, statutory/legal impediments and force majeure reasons excepting. A perusal of this term/condition makes it clear that in case of failure of the opposite party to give the possession of the property within three years of the allotment, it was liable to pay interest and the mentioning of that time-limit itself shows that it had agreed to deliver the possession of the property within three years of the date of allotment. The question arises, whether this Provisional Allotment Letter dated 10.07.2013 itself amounts to the allotment of the flat? The position becomes clear from the term/condition mentioned at No.A. It was made clear that the offer contained in the letter did not constitute any definite or final allotment or any Agreement to Sell and that the complainant was not to become entitled to the final allotment, until proper Buyers Agreement was executed between him and the opposite party. A minute perusal of the terms and conditions of this Provisional Allotment Letter makes it clear that there was no allotment of the flat in favour of the complainant. Only provisional Consumer Complaint No.278 of 2016 allotment was made by issuing the No.EV/EH4/2BHK-D/102. The Payment Plan was made part of that Provisional Allotment itself; though the complainant has tried to project that Payment Plan as an independent document, by mentioning the same as Annexure C-5. That Payment Plan is the fourth Page of the Provisional Allotment itself. The sixth instalment was payable by 28.09.2014 and only the final instalment was payable at the time of possession. As per the said terms and conditions, the timely payment constituted the essence of the relationship between the parties and in the event of default by the complainant in making payments on time, the opposite party had the right to cancel the provisional allotment or to charge the penal interest. It cannot be made out from the documents annexed with the complaint that all the instalments have been paid by the complainant or that he became entitled to possession of the flat; which was to be given only after the final allotment of specific flat. Therefore, the complaint seeking possession of the flat is not competent.
5. It may be said that the complainant had become entitled to the refund of the amount, on the ground of the non-issuance of the final allotment letter by the opposite party, but the question arises, to how much amount he is entitled by way of refund? Even if the amounts, claimed in the complaint as refund and compensation, are taken into consideration, even then the said amount is less than Rs.20,00,000/- and, as such, this Commission has no pecuniary jurisdiction to entertain this complaint. The same was required to be filed before the appropriate District Forum. Consumer Complaint No.278 of 2016
6. Accordingly, the complaint is dismissed, without prejudice to the rights of the complainant to file fresh complaint regarding the refund of the amount before the appropriate District Forum. (JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER September 14, 2016. (Gurmeet S)