Complaint Case No. 871 of 2016. Case: Vikram Wadhwa Vs Puma Realtors Private Limited and Ors.. Chhattisgarh State Consumer Disputes Redressal Commission
|Complaint Case No. 871 of 2016
|For Appellant: Gaurav Bhardwaj, Advocate and For Respondents: Ramnik Gupta, Advocate
|Jasbir Singh, J. (President), Dev Raj and Padma Pandey, Members
|Arbitration And Conciliation Act, 1996 - Section 8; Code of Civil Procedure, 1908 (CPC) - Sections 15, 16 17, 18, 19, 20; Consumer Protection Act, 1986 - Sections 11, 13 (4), 14(1)(d), 17, 2(1)(d), 2(1)(d)(ii), 2(1)(o), 3
|April 12, 2017
|Chhattisgarh State Consumer Disputes Redressal Commission
Jasbir Singh, J. (President)
As per facts on record, the complainant wanted to purchase a flat, for his personal/family use, in the project of the opposite parties, launched by them, under the name and style 'IREO RISE', Sector 99, SAS Nagar, Mohali, Punjab. The complainant alongwith his friend, jointly moved an application, to purchase above unit, by making payment of Rs. 3,82,000/- plus (+) Rs. 2,40,000/-, on 17.09.2011 and 22.10.2011 respectively, vide receipts Annexure C-1 and C-2. Vide Apartment Buyer's Agreement dated 11.11.2011, they were allotted flat bearing No. CCC-01-003, measuring 1511 square feet in the said project. Total sale price of the said unit was fixed at Rs. 49,69,019/-, which included EDC, IFMS etc. The allottees opted for construction linked payment plan. Thereafter, the allottees paid the following amount:-
Provisional allotment offer letter was issued by the opposite parties on 26.06.2012. The allottees applied for transfer of the unit, in the name of the complainant, as the second allottee was no longer interested in it. The opposite parties, finally transferred the unit, in favour of the complainant, vide letter dated 14.08.2012. All the necessary documents, in respect of the said plot was endorsed in favour of the complainant. Thereafter, the complainant made further payments, in the manner, given below:-
It is case of the complainant that in terms of Clause 13.3 of the Agreement, it was committed by the opposite parties to deliver possession of the unit within a period of 30 months from the date of agreement or approval of the building plans and the Company was entitled to grace period of 180 days for unforeseen delays, in obtaining the occupation certificate etc.. Clauses 13.3 and 13.4 of the Agreement read thus:-
'"13.3 - Subject to Force Majeure, as defined herein, and further subject to the Proposed Allottee having complied with all its obligations under the terms and conditions of this Agreement, and the Proposed Allottee not being in default under any part of this Agreement including but not limited to the timely payment of the total Sale Consideration, Stamp Duty and other charges and also subject to the Proposed Allottee having complied with all formalities or documentation as prescribed by the Company, the Company proposes to hand over the possession of the said Apartment to the Proposed Allottee within a period of 30 months from the date of this agreement or approval of the Building Plans and/or fulfillment of the preconditions imposed thereunder, whichever is later ("Commitment Period"). The Proposed Allottee further agrees and understands that the Company shall additionally be entitled to a period of 180 (One Hundred and Eighty) days ("Grace Period"), after the expiry of the said Commitment Period to allow for unforeseen delays in obtaining the Occupation Certificate etc., from the Competent Authority under the Punjab Rules, in respect of IREO-RISE.
13.4-Subject to Clause 13.3, if the Company fails to offer possession of the said Apartment to the Proposed Allottee by the end of the Grace Period, it shall be liable to pay to the Proposed Allottee compensation calculated at the rate of Rs. 7.50/- (Rupees Seven and paise Fifty only) per sq. ft. of the Super Area ("Delay Compensation") for every month of delay thereafter until the actual date fixed by the Company for handing over of possession of the said Apartment to the Proposed Allottee. The Proposed Allottee shall be entitled to payment/adjustment against such 'Delay Compensation' only at the time of 'Notice of Possession' or at the time of payment of the final installment, whichever is earlier".
It was stated that the 'end date' to deliver possession stood expired in the month of May 2014. Possession of the unit was not so offered. It is further case of the complainant that as per terms and conditions of the Agreement, the opposite parties under took to pay compensation, for the period of delay @ Rs. 7.50ps. (Rupees Seven and paisa Fifty only) per sq. ft. of the super area of the flat. The amount to be so awarded comes to Rs. 11,332.50ps. per month (not Rs. 12,067.50ps as mentioned in the complaint). However, neither possession of the unit was offered nor amount of compensation, as referred to above, was paid, for the period of delay. When this complaint was filed, the complainant had already paid an amount of Rs. 46,99,426/- towards price of the said unit. It was further stated that the said clause 13.4 does not safeguard the right of the complainant. It is further case of the complainant that without delivering possession of the unit, as agreed, fresh advertisements were published inviting more applications to purchase properties, from the opposite parties. It was also stated that the Contractor/Company, which was to construct the units, was replaced with some other Company, as a result whereof, the construction work came to stand still. The basic facilities are not available at the site. It was averred that the opposite parties are not intending to provide modular kitchen and provision of split ACs, as per specifications, mentioned in the Agreement. It was further stated that the complainant had also obtained housing loan from HDFC limited, for making payment towards price of the said plot. Emails sent to the opposite parties, in September and October 2015, seeking update of development activities at the project, yielded no results. Requests made by the complainant to deliver possession of the unit, also failed to yield any result. Hence this complaint was filed seeking following relief:-
To direct the OPs to handover the possession when the project is fully complete and all the amenities as guaranteed in the agreement are provided.
To direct the OPs for making the compensation for delayed possession as per Clause No. 13.4. In the case of the complainant the said compensation is to be started after the completion of 30 months. The project is already delayed by 29 months. The OPs be directed to pay the money at the first instance along with 15% interest and start making the monthly delayed payments for the period for which the flat is not offered for possession with amenities.
To direct the OPs for making the compensation for a sum of Rs. 10 lacs in lumpsum on account of harassment, mental agony cause to the complainant.
Holding that the agreement prepared by the OPs is one sided and arbitrary and as such the conditions which are one sided cannot be made applicable upon the complainant.
OPs be directed to make the provisions for electricity, water and sewerage from the govt.
To direct the OPs to provide the amenities along with the possession as guaranteed in the brochure and agreement. Further directing the OPs for providing complete modular kitchen i.e. the lower cupboards as well as upper cupboards and for providing the Split ACs provision in all the rooms.
To direct the OPs to pay litigation charges to the tune of Rs. 55,000/-.
Upon notice, the opposite parties filed their joint written version, raising numerous objections that in the face of existence of arbitration Clause in the Agreement, to settle disputes between the parties through Arbitration, in terms of provisions of Section 8 (amended) of 1996 Act, this Commission has no jurisdiction to entertain the consumer complaint. It was averred that the consumer complaint was not maintainable, as the matter relates with regard to dispute of contractual nature and an agreement to sell/purchase of an apartment only i.e. an immovable property. It was stated that no services were to be provided by the opposite parties to the complainant. It was further stated that, in this view of the matter, consumer complaint was not maintainable and only a Civil Court could adjudicate the dispute, in question. Territorial jurisdiction of this Commission was also disputed. It was stated that, time was not the essence of contract. It was averred that there is no continuing cause of action, in favour of the complainant to file this complaint. It was further stated that since the complainant had purchased the unit, in question, for investment/commercial purpose i.e. for resale, as and when there was escalation in the prices of real estate, as such, he would not fall within the definition of consumer, as defined by Section 2(1)(d)(ii) of 1986 Act. He possesses house No. 2054/4, ST No. 15B, Abohar, District Ferozpur, where he is living with his family, since long. Due to service exigencies, he earlier shifted to Mohali and then at present, is in Gurgaon.
On merits, sale of the unit, in question, in the first instance, in the name of the complainant and his friend was admitted. Payments made, as mentioned in the complaint was also not seriously disputed. It was also not disputed that initially the said plot was purchased by complainant and his friend and later on, the same was got transferred by the complainant, in his name alone. Vide letter dated 14.08.2012, the opposite parties assigned the rights of plot, in the name of the complainant. Execution of Buyer's Agreement between the parties was also not disputed. It was stated that provisional allotment letter was earlier issued on 21.09.2011, however, since it was misplaced by the complainant, as such, on furnishing indemnity bond-cum-undertaking dated 26.06.2012, another provisional offer letter was issued by the opposite parties. It was stated that possession period of the unit was to be counted from the date of approval of the building plans i.e. 18.01.2012 and not from the date of execution of the agreement. It was further stated that as per terms and conditions of the Agreement, the complainant has given a consent that in case of delay in delivery of possession of the unit beyond period of 30 months, opposite parties shall be liable to pay delayed compensation @Rs. 7.50Ps., per square feet of the super area of the unit, per month. It was stated that amount of compensation for the...
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