In this post we will discuss about Consumer Complaint against Maya Garden City wherein the court ordered to deliver the possession of flat on payment of any balance payment if due according to the buyer’s agreement, pay penalty @ Rs. 5/- per sq. ft. of the super area from 16.6.2017 per month till the delivery of the possession, pay Rs. 20,000/- as compensation on account of mental agony and physical harassment and to pay Rs. 11,000/- as litigation expenses within a period of 45 days from the date of receiving of the copy of the order.
Property Dispute Between Consumer vs The Builders
Diljit Arora vs Maya Garden City
Also Read- Barnala Builders & Property Consultants Consumer Complaints
In this case, we will cover the property dispute between the consumer and the builder under the section 17 of the consumer Protection act, 1986 decided by the hon’ble court. So one can pretty much have fair idea how the case commences in courts if one is looking to have similar relief from District Courts of Chandigarh Panchkula Mohali, Kharar, Derabassi, Zirakpur.
The present post will cover and give an overview of the case diljit Arora vs. Maya garden and it will give you a brief yet precise outline regarding all the major facts and issues involved in this particular case which basically revolves around claiming, transferring and releasing of the property as the transfer of property.
ALSO READ-DALJIT ARORA VS MAYA GARDEN CITY ON 19 JANUARY, 2018
- Facts of case :
Court’s Name- Punjab and Haryana High Court capitol complex, sector 1, Chandigarh, 160001
Petitioner-
- Daljit Arora S/o Sh. Uttam Chand
- Mrs. Prem Arora W/o Daljit Arora
Both resident of 1167, Progressive Society, Sector 50-B,
Chandigarh
Also Read- M/S. Barnala Builders & Property … vs Krishan Gopal & Anr
Respondent-
1. Maya Garden City, Opposite MacDonald’s, Chandigarh-2 .Barnala Builders & Property Consultants
Date of filing of petition: 05/04/2017
Date of order reserved: 09/01/2018
Date of pronouncement of order: 19/01/2018
ALSO READ-RERA PUNJAB COMPLAINT AGAINST BARNALA BUILDERS (MAYA GARDEN)
Date of amendment under Sections 25 &27 of the CP Act: 04/03/2018
Timeline of events:
- 1st payment of the consumer (Diljit Arora) on 4.2012.of rupees 2 lakh in cash
- 2nd payment of the consumer on 6.2012 of rupees 1 lakh
- 3rd payment of consumer of 24,70,000/- on 16.6.2014
ALSO READ-RAJ KUMARI VS M/S MAYA GARDEN CITY ON 9 NOVEMBER, 2015
Petitioner’s Arguments/ Evidences-
Upon notice, Ops appeared and filed their written reply taking preliminary objections that intricate questions of fact and law are involved, which cannot be adjudicated in the summary procedure envisaged under the Act, therefore, the matter be relegated to the Civil Court; complainants are not consumers but investors as they have booked number of flats in their project only; under Clause 29 of the agreement, there is arbitration clause, therefore, the matter should be referred to the Arbitrator under Arbitration and Conciliation Act, 1996 and that the present complaint has been filed with malafide intentions, just to get undue advantage from the Ops. It was again reiterated that the flat was booked by the complainants for resale. The complainants sold many flats constructed by the Ops to earn handsome commission. The complainants originally booked flat No. 202 in block G-1 but later sold the same and again booked flat No. 401 in Block G-4, sold it out and again booked flat No. 402 in block G-1. It was also sold and then booked flat No. 604 in Block G-3 but they failed to retain the flat and again booked flat No. 603 in Block I-3.
Also Read- Vasdev Singla vs Barnala Builders And Property
The complainants paid a sum of Rs. 2 Lacs in cash for booking of flat No. 202, Block G-4. On 13.6.2013, the complainants paid Rs. 1 Lac for flat No. 402 in Block G-1. They further paid a sum of Rs. 3,20,000/- on 16.6.2014. Prior to 16.6.2014 whatever amount was paid by the complainant that was paid for different flat. At the time of taking of the flat in question, complainant got transferred the already paid amount in Accounts of different flats towards the account of flat in question and accordingly, allotment letter of flat in question was issued on 16.6.2014. It was denied that Ops had given the approximate time for completion of the project by November, 2015. The copy of the allotment letter placed on the record by the complainant is forged and fabricated documents. It was denied that Ops received a sum of Rs. 3,20,000/- for this flat after 16.6.2014. The complainants paid Rs. 10 Lacs on 27.7.2013 in the account of some other flat, which was transferred in the account of flat in question. Complainants themselves changed the size of the flat and executed the sale deed for Rs. 42,24,823/- including all taxes. Ops did not receive any sum of Rs. 28,277/- from the complainants on 4.6.2016. It was denied that the agreement to sell was got executed by the complainants under any pressure from the Ops. According to the agreement to sell, the possession of the flat was to be delivered within 36 months from the date of allotment. Ops did not have any knowledge about the visit of the complainants to their flat on 24.7.2016. The flat is ready and only final touching of the flat is pending, which is to be completed only when the complainants will provide their texture paint choice. It was denied that the Ops had deviated from the lay out plan, rather, the project has been developed as per the sanctioned layout plan. The complaint is without merit and has been filed just to get monetary gain from the Ops, therefore, it be dismissed.
ALSO READ-PUNJAB RERA COMPLAINT AGAINST SUSHMA BUILDTECH LTD HOMEWORK
- The parties were allowed to lead their respective evidence in support of their complaint. Complainants in their evidence has tendered affidavit of Sh. Daljit Arora as Ex. CA and documents Exs. C-1 to C-16. On the other hand, Ops have tendered affidavit of Sandeep Bansal, Manager as Ex. OP-A and documents Exs. Op-1 to 5.
- We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
- Before coming to the merits of the case, some preliminary objections have been taken by the Ops, which required to be addressed. The Ops have taken the plea that the complainants have referred to the forged and fabricated allotment letter and intricate questions of law and facts are involved, therefore, the matter be referred to the Civil Court. As per the agreement between the parties, the complainants availed the housing services from the Ops in their housing project Maya Garden City in which the complainants booked the flat. Both the parties have filed their respective documents on the basis of which, it could be decided whether there is any deficiency in services on the part of Ops. The Consumer Foras are deciding similar complaints, therefore, we do not see any complicacy in deciding these type of complaints, which are duly covered under the jurisdiction of this Act. Moreover, the Presiding Officers of the State Commission Benches are retired High Court Judges/District Judges, who have vast experience at their back and are fully competent to decide such type of complaints. In this regard, we are fortified by the judgment of the Hon’ble Supreme Court in the case of “Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi”, 2002(6) SCC 635 that:-
ALSO READ-HARYANA RERA PANCHKULA COMPLAINT AGAINST SUNCITY BUILDCOM LTD
‘the State Commission and District Forum are headed by retired High Court Judges and officers of District Judge level and in our view, this is not such a case which cannot be decided by the ‘Consumer Fora’ after obtaining evidence and if need be after getting an expert opinion’.
It was further held by the Hon’ble National Commission in “Shiv Kumar Agarwal versus ArunTandon and another”, 2007(2) CLT 287. In that case a plea that case involves complicated questions of fact and law and will need expert evidence, which is not possible in the summary proceedings adopted by the Consumer Fora repelled – Consumer Forum which is headed by Senior Judicial Officers, are capable of dealing with even complex questions. When both the parties have completed their evidence then it is not proper to relegate the matter to the Civil Court and the District Forum should have decided the matter. Therefore, we do not agree with the plea of the Ops that the matter in dispute cannot be decided before the Consumer Fora or that it should be relegated to the Civil Court. Therefore, we do not subscriber to the view taken by the Ops that the matter be relegated to the Civil Court.
ALSO READ-CONSUMER COMPLAINT AGAINST JAGRAN DEVELOPER
- It has been stated that the complainant is investor and not a ‘consumer’. In para 3 on merits, it has been stated that the complainants booked flat No. 202 in Block G-1 but later sold out and after that the complainants booked flat No. 401 in Block G-4. However, there is one letter dated 5.3.2012 Ex. Op-1 vide which the complainants requested the Ops to shift their flat No. 202 to Flat No. 401 in block G-4, therefore, it is a transfer from one flat to another flat, otherwise, the Ops have not placed on the record any document that the possession of flat No. 202 in Block-G1 was given to the complainant and they sold it. There is no evidence that they have sold even their booking number to any other person because Ops have not been able to lead any such evidence on the record and without their consent the flat cannot be transferred/sold to any other person. It has been further stated that flat No. 402 in Block G-1 was booked and it was sold by the complainants. In this regard, they have referred the letter dated 9.8.2012 vide which offer of allotment of flat No. 402 Block G-1 4th Floor has been placed on the record but no document that the possession of this flat was given to the complainants and after that it was sold or that booking number was sold by the complainants to any other person because no transfer is possible without the knowledge/ consent of the Ops.
Also Read- More judgments against Barnala Builders Maya Garden Group and Barnala Builders & Property Consultants
It has been further stated that the complainants booked flat No. 604 in Block G-3 but failed to retain it. Same is our view with regard to this flat as no documentary evidence with regard to the sale of flat/booking number by the complainant in favour of any other person has been placed on the record. Booking of flat No. 603 in Block I-3 is a matter of record. It is pertinent to mention here that in para No. 7 of the written reply, it has been mentioned by Ops that at the time of booking of the flat in question i.e. Flat No. 603, Block I-3, the complainants got transferred the already paid amount in accounts of different flat numbers to the account of the flat in question. No doubt that the complainants had booked number of flats but lateron all the amounts deposited in various flats was got transferred to the flat in question, therefore, the booking of all other flats stand cancelled.
Therefore, at present the complainants have only the flat in question and they have specifically stated that flat in question was for their residential purposes. Since the Ops failed to prove on record that the complainants are trading in real estate and till such evidence is produced, no such view can be taken in this regard that flat was booked for speculative purpose. We are fortified by the judgment of Hon’ble National Commission reported in 2017(3) CLT 459 “PranabBasak versus Suhas Chatterjee”. In that case, two flats were booked by the complainant and a plea was taken that the complainant had booked these flats for investment purposes. It was observed by the Hon’ble National Commission that unless it is established that the complainant is dealing in sale and purchase or his real intention in booking the flat was to sell the same on profit, on appreciation of the value of the real estate. Therefore, we do not agree with the plea raised by the Ops that the complainants are not a consumer.
Also Read- Complaint no. 46 of 2017 RERA Punjab Judgment
- It has been further stated that according to Clause No. 29 of the agreement, in the eventuality of any dispute between the parties, the matter is required to be referred to the Arbitrator under Arbitration and Conciliation Act, 1996. The provision of arbitration clause in the agreement has not been stated by the complainants. However, mere provision in the agreement does not exclude jurisdiction of this Commission. Firstly, the Ops were required to move an application under Section 8of the Arbitration and Conciliation Act, 1996 to refer the matter to the arbitrator in case the Ops was so willing to referred the matter of arbitration but no such application was filed by them for the reasons best known to them. Further in a recent judgment the Hon’ble National Commission in Consumer Case No. 701 of 2015 “Aftab Singh versus EMAAR MGF Land Limited & Others”, decided on 13.7.2017, after considering the new amendments in the Act held that an arbitration clause in the agreement between the complainant and the builder cannot subscribe the jurisdiction of the Consumer Fora, notwithstanding the amendment made to Section 8(1) of the Arbitration Act. It has been decided that even if there is arbitration clause, Section 3provides additional remedy to the Consumer Fora to entertain this type of complaints and decide it. Therefore, we again do not subscribe to the plea taken by the Ops that the matter is required to be referred to the arbitrator or that the Consumer Foras do not have the right to entertain this complaint.
ALSO READ-RERA PUNJAB COMPLAINT AGAINST LAND TWISTER HOMES KHARAR
- The booking of the flat No. 603, 4 BHK, Block I-3 is a matter of record and that the total sale consideration amount is Rs. 42,24,823/-. This fact is corroborated from the offer of possession letter dated 16.6.2014 (Ex. C-6) and agreement to sell is Ex. C-7, according to which the price of the flat has been fixed as Rs. 42,24,823/- exclusive of other payment mentioned in the payment plan, it includes IFMS charges for additional load, if required or any other charges applicable. However, the main dispute between the parties is as to when the possession was to be delivered. As per the allotment letter placed on the record by the complainant i.e. Ex. C-6 in which the approximate time has been given as November, 2015. Whereas as per the reply filed by Ops, a plea has been taken that this allotment letter has been fabricated and the 2nd page of the allotment pertains to some other flat and not to this flat.
Also Read- Complaint No. GcNo. 1017 of 2018 RERA Punjab Judgment
It is corroborated from the fact that in the agreement to sell Ex. C-7 duly signed by the complainant in which it has been specifically mentioned that he does not agree to the maintenance clause, the time to deliver the possession has been fixed as 3 years from the date of allotment. In case it would have been November, 2015 then it would have been referred by the complainants so in the agreement because they were very well aware of the clauses and after reading all the clauses they had made a note that they do not agree with the maintenance clause. The counsel for the Ops has moved Miscellaneous Application No. 1060 of 2017 for production of documents i.e. the original allotment letter and agreement to sell but the complainant failed either to reply it or to place on the record the original documents.
Also Read- RERA Punjab Judgments against Maya Garden Group Barnala Builders
During the course of arguments, a plea was taken that the original documents were pledged with the Bank from where they had taken the finance. In case it was so they could examine any official of the concerned Bank so that he could produce those documents and from those documents it could be checked whether the date of offer of possession is 3 years from the date of allotment or it was to be delivered by 15.11.2015. On the basis of evidence, adverse inference from non-production of original documents is taken against the complainants and on the basis of evidence on the record, it is hereby determined that the possession of the flat in question was to be given within 3 years from the date of allotment letter. The allotment letter is dated 16.6.2014 and in case three years are taken from that date then 3 years will be complete by 16.6.2017. However, the Ops issued the offer of possession letter on 3.6.2016 Ex. C-9 i.e. prior to the outer date given as per the allotment letter / buyer’s agreement. However, the complainants visited the spot and after that he wrote a letter dated 24.7.2016 Ex. C-11 in which he has referred that certain things are still to be done and he specifically referred to the following points:-
- Kitchen Slab height is less comparing 5 BHK/Standard size.
- Bathroom (Master) WC height is more
- Why one window A.C. in one room in place of split.
- No Split AC installed in Dining Hall
- Seepage in all the room.
- Why MC for 3 years in advance.
Also Read- Rs 45K stolen from flat at Maya Garden City in Zirakpur
and after that he issued a legal notice dated 8.9.2016 (Ex. C-12) but its reply has not been sent by the Ops to the complainants. It was also argued by the counsel for the complainants that offer of possession letter was issued before taking any completion certificate. The Ops have referred the completion certificate as Ex. Op-5 No. 9934 dated 8.12.16, however, the counsel for the complainants referred that it is a partial completion certificate and specifically tower I-3 has not been mentioned in this letter. In response to that, the counsel for the Ops during the course of arguments produced another letter No. 9954 dated 8.12.16, which is ordered to be taken on the record according to which the partial completion certificate refers to Tower I-3 also. Therefore, the completion certificate was also taken before the outer date given by the Ops.
ALSO READ-GAURAV RASTOGI AND ANOTHER VS BARNALA BUILDERS AND OTHERS ON 27 APRIL, 2015
Order of the Court-
(i) to deliver the possession of flat No. 603, 4 BHK, Block 13 in Maya Garden City, Zirakpur-Ambala Highway, Zirakpur, Mohali, complete in all respect specifically after sorting out the objection raised by the complainants in his letter dated 24.7.2016 Ex. C-11 on payment of any balance payment if due according to the buyer’s agreement;
(ii) pay penalty @ Rs. 5/- per sq. ft. of the super area from 16.6.2017 per month till the delivery of the possession;
(iii) pay Rs. 20,000/- as compensation on account of mental agony and physical harassment;
(iv) pay Rs. 11,000/- as litigation expenses.
within a period of 45 days from the date of receiving of the copy of the order, failing which the complainants will be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
ALSO READ-LT. COL TAJAMMUL HODA (RETD.) VS M/S BARNALA BUILDERS & PROPERTY … ON 27 FEBRUARY, 2015
Thus, the whole case is the dispute between the customer and the builder on the possession on the flat. Finally, as per the judgment the case was decided in favor of petitioner and orders the oppositions to give the possession before the given time. Also orders to pay the compensation and litigation charges to the customer.
This post is written by Rohit Kale
For case specific advice on real estate matters related to delay compensation, delay interest one may contact top/best expert Rera Lawyers in Chandigarh Panchkula Mohali Zirakpur Derabassi Kharar Mullanpur Baltana.
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