Sushma Elite Cross Zirakpur Consumer Case

The post covers Sushma Elite Cross Zirakpur Consumer Case whereon possession was not delivered on time & court allowed refund with interest plus compensation for delay.

The applicant bought a residential penthouse in the opposite party’s housing scheme. For the payments the applicant took 35 lacs loan from the Punjab Bank and paid the amount to the opposite parties. The opposite party gave the possession about a year after the fixed date and the applicant had to pay the maintenance charges even without occupying the house. Thus, the complaint was filed u/s 17 of the Consumer Protection Act. After listening to the both parties arguments’ the court gave the decision in the favour of the complainant.

TITLE: Mrs. Anita Aggarwal vs M/S Sushma Buildtech Ltd

FACTS OF THE CASE:

The complainants booked a residential apartment i.e., duplex Penthouse in the project of the Opposite Parties, namely, Sushma Elite Cross, basic sale price whereof was Rs.50,19,950/-. Apartment Buyer’s Agreement dated 10.07.2012 was executed between the parties. The complainants obtained housing loan of Rs.35 Lacs from Bank of India, Chandigarh and Tripartite Agreement dated 06.08.2012 was executed. Payments were to be made directly to the Opposite Parties based on construction linked payment plan. The complainants paid a total amount of Rs.51,70,594/- including service tax and late payment penalty interest. It was stated that allotment letter was handed over on 09.08.2011 whereas one sided Apartment Buyer’s Agreement was executed on 10.07.2012. The complainants are residing in rented flat and paying rent to the landlord, they requested the Opposite Parties to hand over the flat but did not get any satisfactory answer. It was further stated that in the month of December 2015, the complainants again asked for possession and also gave written request for change in their address.

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COMPLAINANTS ARGUMENTS

The learned counsel from the complainant’s side stated that that as per Clause 14(d) of the Agreement, possession of the unit, in question, was to be handed over by the Opposite Parties, within the stipulated period of 36 months from the date of execution of the agreement but they failed to do so. It was further stated that on getting no response, the complainants in the month of July 2016, again requested the Opposite Parties for handing over the possession of the unit, in question, and also requested for change of their address. It was further stated that vide email dated 27.07.2016, the Opposite Parties again reiterated the offer to the complainants which was earlier sent on 24.12.2015. It was further stated that representative of the Opposite Parties told the complainants that no dues certificate would be issued and possession of the unit, in question, would be given provided they signed maintenance agreement first. It was further stated that payment of maintenance charges was to be made and that too was to be effective from the date of receipt of occupation and completion certificates from the authorities. It was further stated that till date, neither any phone call nor any mail or written communication has been received from the Opposite Parties.

It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986, was filed, seeking directions to the Opposite Parties, to refund the amount.

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RESPONDENTS ARGUMENTS

The Opposite Parties, took up certain preliminary objections, to the effect, that the complainants, being investor, had purchased the flat, in question, for commercial purpose/speculation and earning profits, as such, would not fall within the definition of a consumer. Due to existence of arbitration clause No.21 in the Agreement, this Commission has no jurisdiction to try the matter and the same be referred to the sole Arbitrator; that this Commission lacks pecuniary jurisdiction to entertain the present complaint and that the complainants concealed the material facts and approached this Commission on flimsy grounds, which does not entitle them to claim refund of money.

It was stated that the Opposite Parties have duly offered possession of the unit, complete in all respects on 10.01.2017 and are committed to pay the delayed compensation. On merits, it was stated that as per clause 14(d) of the Agreement, the possession of the unit, in question, was to be delivered within 42 months from the signing of the agreement and in case of delay in handing over the possession, the complainants were entitled to penalty. It was further stated that the complainants are habitual defaulters as they never paid the installments in time and as such, an amount of Rs.1,25,142/- has accrued against them due to delay in payment. It was further stated that the complainants after signing the buyer agreement and till the filing of present complaint has never ever made any communication with regard to any dispute over clauses of the buyer agreement. It was further stated that several demands and reminders were sent to the complainants as they defaulted in timely payment of installments. It was further stated that possession of the flat was offered after completion of all the amenities and receipt of completion certificate on 27.06.2016. It was further stated that the Opposite Parties had already completed and handed over possession of units in other towers in the same project namely Sushma Elite Cross to its customers on time and only a negligible delay has taken place in the present project. It was further stated that the delayed compensation shall be credited/adjusted in the account of the complainants as per the binding terms of the agreement. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into any unfair trade practice. The remaining averments, were denied, being wrong.

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FINDINGS OF THE COURT

The court agrees that the complainant had purchased a residential area from the opposite party and also taken the loan of 35 lacs and has also paid the amount of the residential area and the possession was delivered to them a year after the fixed date. The court rejected all the plea contended by the opposite party regarding the jurisdiction of the court, the complainant do not fit under the definition of the consumer and also about the Arbitrator clause 14 (d) by citing the identical judgement’s and their ratio decidendi was taken into the consideration. And thus the complaint was agreed by the court.

CONCLUSION

The Opposite Parties are, jointly and severally, held liable and directed in the following manner:-

To refund the amount of Rs.51,70,594/- along with simple interest @12% per annum, to the complainants, from the respective dates of deposits, till realization, within 45 days, from the date of receipt of a certified copy of this order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @15% per annum, instead of 12% per annum, from the date of filing the complaint, till actual payment;

To pay an amount of Rs.1,50,000/- to the complainants, as compensation for deficiency in service, mental agony and physical harassment, within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith interest @12% per annum from the date of filing the complaint till actual payment;

To pay cost of litigation, to the tune of Rs.35,000/- to the complainants within a period of 45 days from the date of receipt of a certified copy of the order, failing which, the Opposite Parties shall pay the aforesaid amount alongwith simple interest @12% per annum from the date of filing the complaint till actual payment.