Consumer Complaint against Parkwood Glade, Kharar-Landran Road, Sector 116, District Mohali
Source: http://164.100.72.12/ncdrcrep/judgement/12647141118150821117Dharvinder%20.htm
Source: http://164.100.72.12/ncdrcrep/judgement/12647141118150821117Dharvinder%20.htm
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAS NAGAR, MOHALI
Consumer Complaint No.514 of 2012
Date of institution: 08.11.2012
Date of Decision: 14.11.2014
1. Dharvinder Pal Ahuja son of Rajinder Singh.
2. Ramandeep Kaur wife of Dharvinder Pal Ahuja
Both residents of House No.N-101, First Floor, Parkwood Glade, Kharar-Landran Road, Sector 116, District Mohali through Rajinder Singh resident of House No.N-101, First Floor, Parkwood Glade, Kharar-Landran Road, Sector 116, District SAS Nagar Mohali, power of attorney holder of both Dharvinder Pal Ahuja and Ramandeep Kaur.
……..Complainants
Versus
1. Parkwood Developers Pvt. Ltd., 1001, Hemkunt Chambers, 89, Nehru Palace, New Delhi 110 019 through its Director.
2. Parkwood Developers Pvt. Ltd., Parkwood Glade, Kharar-Landran Road, Sector 116, District SAS Nagar (Mohali) through its Manager.
3. Gurdeep Singh Walia resident of House No.314, Phase 3-A, SAS Nagar (Mohali).
4. Dewan Housing Finance Corporation Limited (DHFL), SCO 62, 1st Floor, above Punjab and Sind Bank, Sector 26, Madhya Marg, Chandigarh through its Manager.
………. Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
CORAM
Mrs. Madhu. P. Singh, President.
Shri A.B. Aggarwal, Member.
Present: Shri Divjyot Singh Sandhu, counsel for the complainant.
Shri I.P.Singh, counsel for OP Nos.1 and 2.
None for OP No.3.
Shri Mohinder Singh, counsel for OP No.4
(A.B. AGGARWAL, MEMBER)
ORDER
The complainants have filed the present complaint through Rajinder Singh, their power of attorney. The case of the complainants is that they entered into an agreement (Ex.C-1) with the Opposite Parties (for short ‘the OPs’) No.1 and 2 for purchase of flat measuring Super Built Up area 1675 sq. ft. at a basic price of Rs.35,59,375/- at a rate of Rs.2125/- per sq. ft. in their township in Sector 116, Mohali. The complainants made down payment of Rs.5.00 lacs through cheque dated 21.01.2011. The Manager of OP Nos.1 and 2 introduced OP No.3 with the complainants as he would help the complainants in getting the loan from OP No.4. OP No.3 asked the complainants to sign certain documents and full the formalities for the loan which they did. OP No.3 took Rs.50,000/- vide cheque dated 01.12.2010 Ex.C-2 as commission from the complainants for getting the loan sanctioned from OP No.4. The complainants completed all the formalities of the loan and handed over all the documents to Manvender Singh Grewal, Manager of OP Nos.1 2 in February, 2011 but he delayed the matter and did not submit the papers to OP No.4 in time due to which the loan was disbursed to the complainant very late. The Manager of OP Nos.1 and 2 did not handed over the offer of possession eve after release of loan amount. The letter of possession and allotment letter were handed over to the complainants by OP No.3 on 05.04.2011, who has been authorized by OP Nos.1 and 2 to deal with the prospective customers. Due to late payment to OP No.1, it imposed late payment charges/penalty of Rs.1,34,484/- upon the complainants. As per Clause 19 (a) of the Flat Buyers Agreement, the possession was to be handed over to the complainants by 30.06.2011 and on failure to handover the possession, OP Nos.1 and 2 agreed to pay the pre EMI till the possession is handed over to the complainants. When the possession was not delivered by 30.06.2011, the complainants asked the OP Nos.1 and 2 to deposit pre EMI to OP No.4 but OP Nos.1 and 2 asked the complainants to deposit the pre EMI to OP No.4 first and then show the receipts of pre EMIs and then they would give the said amount back to the complainants. The complainants informed the OP Nos.1 and 2 that no such condition exists in the tripartite agreement but OP Nos.1 and 2 refused to pay the EMIs to OP No.4. OP Nos.1 and 2 started giving cheques to the complainants to reimburse the amount given by the complainants to OP No.4 but stopped in the month of September. On asking by the complainants, Manager of OP No.2 refused to reimburse the pre EMI and said that no more reimbursement would be made by them to the complainants. The complainants paid the pre EMIs to OP No.4 from October 2011 to June,2012. The OP Nos.1 and 2 also promised to provide facility of club and took Rs.40,000/- from the complainants as club membership fee at the time of agreement. But till the date of filing the complaint club facility has not been provided by the OPs. The complainants raised a loan of Rs.22,76,355/- but OP No.4 released only Rs.22,00,000/- and remaining Rs.76,355/- was directly paid to ICICI Prudential Life Insurance company whereas the complainants were never interested in the insurance. On 18.10.2012 the complainants came to know that the super built up area of their flat is not 1740 sq. ft. but is less than this. Due to late delivery of the possession, the complainants were forced to stay in rented accommodation from June, 2011 to May, 2012 and paid monthly rent of Rs.18,000/- . The OP Nos.1 and 2 had also taken Rs.42,71,000/- the total price of the flat from the complainant but did not give the possession and used the amount of the complainants.
With these allegations, the complainants have sought directions to OP Nos.1 and 2 to refund them Rs.1,94,661/- the amount of Pre EMIs paid by them to OP No.4; Rs.1,34,484/- as penalty; Rs.1,98,000/- as rent paid by them; Rs.76,355/- paid towards insurance charges; to pay them Rs.5,00,000/- for harassment and mental agony and Rs.20,000/- as legal expenses.
2. OP Nos.1 and 2 in the preliminary objections of their written statement have pleaded that the complainants have not approached this Forum with clean hands. The complainants have raised disputed question of facts and law. Sale deed of the flat was executed on 24.05.2012 after receipt of full payment and physical possession of the flat was handed over to the complainants on 23.05.2012. The complainants failed to comply with the terms and conditions of the Flat Buyers Agreement. Due to delayed payments by the complainants the interest was to be charged in terms of the agreement. The OP Nos.1 and 2 had been communicating with the complainants vide their letters dated 22.04.2011, 20.07.2011, 09.09.2011, 03.11.2011, 16.11.2012 and 16.12.2011 to make the payments. On merits, it is pleaded that the complainants applied for loan to some banks and their case was rejected which was on the basis of record maintained by CIBL. The letter of offer-cum-acceptance dated 25.03.2011 was given by OP No.4 to the complainants and it was for them to accept the same and OP Nos.1 and 2 had nothing to do with the same. The OPs agreed to pay the Pre EMI for six months only and the same were duly paid till 30.09.2011. The club facility is not a basic amenity to occupy the flat. They have denied that the super built up area of the flat is not 1740 sq. ft. Denying any deficiency in service or unfair trade practice, OP Nos.1 and 2 have sought dismissal of the complaint.
3. OP No.3 in the written statement has pleaded that he was working as recovery agent with HDFC Bank. Complainant No.1 was defaulter of the bank and OP No.3 make settlement with complainants on behalf of bank. He has also joined IELTS training class with complainant No.2. At that time complainant No.1 sought some financial help from OP No.3 which he made. The complainant No.1 returned the amount vide cheque dated 01.12.2010 which was not as a commission. The delay in loan was due to previous defaulter record of the complainants in CIBL. Letter of possession was not handed over to it by OP Nos.1 and 2. Denying any deficiency in service on his part, OP No.3 has also sought dismissal of the complaint against him.
4. OP No.4 in the written statement has pleaded that this Forum does not have the pecuniary jurisdiction to entertain the complaint. It is admitted that the complainant raised loan of Rs.22,76,355/- from it. Insurance policy was one of the conditions of the sanction letter and the complainants accepted the same without raising any objection. If they were not willing for the insurance, they could cancel the same at the time of its issuance but at this stage they could not be allowed to raise this plea. Denying any deficiency in service and unfair trade practice on its part, OP No.4 has also sought dismissal of the complaint.
5. Evidence of the complainants consist of their affidavit Ex.CW-1/1; copies of documents Ex.C-1 to C-7.
6. Evidence of OP Nos.1 and 2 consists of affidavit of Manminder Pal Singh their AGM Ex.OP-1/1 and documents Ex.OP-1 to OP-11.
7. Evidence of OP No.3 consists of his affidavit Ex.OP-3/1. Evidence of OP No.4 consists of affidavit of Gautam Chaudhary, Law officer Ex.OP-4/1.
8. It is an admitted fact that the complainants were allotted flat No.N-101, First Floor, in Sector 116, Mohali by OP Nos.1 and 2 which was financed by OP No.4. It is admitted fact that tripartite agreement was executed between the parties. It is further an admitted fact that possession of the flat was to be handed over to the complainants by 30.06.2011. It is the case of the complainants that as per the conditions of the tripartite agreement, in the event of failure of OP Nos.1 and 2 to deliver the possession, they would pay the pre EMI to OP No.4 till the possession is handed over to the complainants. It is an admitted fact that possession of the flat could not be delivered to the complainants by 30.06.2011. It is admitted fact that the possession of the flat was handed over to the complainants on 25.05.2012 with delay of over 10 months. Clause-3 of Ex.C-3 relates to payment of Pre EMI by the developer on behalf of borrower but the period is left as (-) in Ex.C-3. During the course of proceedings, OP Nos.1 and 2 moved MA application for directing OP No.4 to produce original tripartite agreement but inspite of directions to OP No.4 it failed to produce this document. Therefore, in view of this adverse inference is drawn against OP No.4 and presumption can be drawn that the complainants have themselves paid pre EMIs to OP No.4 for the period of delayed possession which otherwise was to be paid by OP Nos.1 and 2 on behalf of complainants. Thus, in this way the complainants are entitled to the amount of interest on the amount of pre EMIs paid by them to OP No.4.
9. The allotment letter dated 21.01.2011 (Ex.C-4) of the flat was received by the complainants on 05.04.2011 as is evident from the receipt mentioned on the letter itself. The complainants paid 15% of the price of the flat at the time of booking on 21.01.2011 and as per opted payment plan the complainants paid 80% of the payment by 04.05.2011 within a period of 30 days from the receipt of allotment letter dated 05.04.2011. The remaining payment was to be paid at the time of offer of possession. As per the complainants the OPs have charged Rs.1,34,484/- towards late payment but although the allotment letter is of dated 21.01.2011 but it was actually received by the complainants on 05.04.2011 and the payment of 80% of sale consideration was made by the complainants by 04.05.2011 which is well within a period of 30 days from the receipt of allotment letter. Late delivery of allotment letter per se shows unfair trade practice on the part of the OP Nos.1 and 2. Thus the complainants are entitled to refund of amount of Rs.1,34,484/- charged as late payment interest/penalty.
10. As per the complainants an amount of Rs.76,355/- has been charged by OP No.4 on account of insurance of the loan. However, the OP No.4 has not issued any insurance policy to the complainants towards their loan account. Since the OP No.4 has not issued any insurance policy towards the loan account of the complainants it was bound to issue the policy to the complainants.
11. The OP Nos.1 and have charged Rs.40,000/- as club membership from the complainants. But they have failed to produce any document regarding existence of club facility.
12. OP No.3 is only a facilitator in procurement of loan from OP No.4 by the complainants and no relief has been claimed against OP No.3.
13. The complaint is hereby allowed with the following directions to OP Nos.1,2 and 4:
(a) OP No.1 and 2 to refund to the complainants an amount of Rs.1,34,484/- (Rs. One lac thirty four thousand four hundred eighty four only) charged from the complainants as interest/penalty.
(b) OP Nos.1 and 2 to refund an amount of Rs.1,94,661/- (Rs.One lac ninety four thousand six hundred sixty one only) to the complainants amount of pre EMIs which was agreed to be paid by OP Nos.1 and 2 to OP No.4 with interest thereon @ 9% per annum from the respective dates of deposit till actual refund.
(c) OP No.4 to handover a copy of the insurance policy to the complainants towards the loan account within a period of one month from receipt of a certified copy of this order.
(d) OP No.4 is further directed to pay to the complainants an amount of Rs.10,000/- (Rs. Ten thousand only) on account of deficiency in service and unfair trade practice.
(e) OP Nos.1 and 2 are further directed to pay to the complainants an amount of Rs.25,000/- (Rs. Twenty five thousand only) towards mental agony, harassment and costs of litigation.
Compliance of above directions be made by the Ops within a period of one month from the date of receipt of a certified copy of this order. Certified copies of the orders be sent to the parties free of costs and thereafter the file be consigned to the record room.
Pronounced.
November 14, 2014.
(Mrs. Madhu P. Singh)
President
(A.B. Aggarwal)
Member
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