CHANDIGARH HOUSING BOARD Vs. KARNIAL SINGH

JUDGEMENT

(1.) This Appeal has been filed by the Appellant/Opposite Party against the Respondent/Complainant challenging the impugned Order dtd. 7/4/2016 passed by the State Consumer Disputes Redressal Commission, U.T., Chandigarh, in Consumer Complaint bearing No. 208 of 2015. Vide such Order, the State Commission had partly allowed the Complaint.

(2.) The brief facts of the case are that the Complainant had applied for allotment of a Flat comprising of 3 bedrooms vide Application Form No. 14103 under General Self Financing Housing Scheme, 2008, at Sector 63, Chandigarh, for Rs.70,28,135.00 as per the Acceptance-cum-Demand Letter dtd. 25/11/2011. It was submitted that the Complainant had paid a total sum of Rs.44,40,547.00 and only Rs.25,87,588.00 remained as the balance sum. It was the further case of the Complainant that the Opposite Party had failed to issue Allotment Letter due to which there was no time prescribed in the ACD Letter for the delivery of possession. However, it was understood that the Opposite Party could claim the last instalment only on completion of the construction which was due after 18 months of issue of the letter dtd. 25/11/2011 i.e. by 25/5/2013. But the Opposite Party failed to complete the construction and deliver physical possession within 18 months. Moreover, instead of completing the construction, the Opposite Party issued a Show-cause Notice dtd. 12/5/2015 to the Complainant regarding Cancellation of Allotment and was given an opportunity to appear before the Opposite Party, but the Complainant was not attended by any competent person on the said date. Again, Show-cause Notices dtd. 3/6/2015 and 15/6/2015 were issued. Thereafter, the Opposite Party demanded payment of the balance amount of Rs.25,87,588.00 and interest/penalty of Rs.51,18,057.00 on the delayed payments totalling to Rs.76,05,645.00. Consequently, the Complainant served a Legal Notice dtd. 1/7/2015 on the Opposite Party. Thereafter, the Complaint was filed before the Ld. State Commission alleging unfair trade practice and deficiency in services by the Opposite Party by seeking directions to the Opposite Party to withdraw the Show-cause Notice and not cancel the Flat, and not to charge the remaining amount of Rs.25,87,588.00 and Rs.51,18,057.00from the Complainant since the Opposite Party was unable to complete the construction and deliver possession in time. The Complainant further prayed for delivering possession of the Flat, Rs.2,00,000.00 as compensation, and Rs.50,000.00 as litigation costs.

(3.) The Opposite Party appeared before the Ld. State Commission and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended that the Complainant had defaulted in timely payments as per the schedule of payment provided in Acceptance-cum-Demand Letter. It was stated that as per Clause 13 of the Scheme of Allotment, the Complainant was entitled to delivery of possession of the allotted unit only if he paid all his dues i.e., 100% payment of the allotment price along with interest, and further completed all the formalities and executed all the documents as per the scheme of allotment. There was no such Agreement under the Scheme providing that time was the essence of the contract; rather 100% payment of the entire consideration was the essence. It was the case of the Opposite Party that applications had been invited for allotment of Flats under the Self-Financing Scheme called 'General Self Financing Housing Scheme, 2008' which was constructed on the basis of 'Self-Finance' of each of the allottee and every allottee was required to make the entire payment before getting the possession because entire construction of the Flat was to be made with the finance/money of all the allottees. Therefore, prior payment of the entire consideration was a mandatory condition for allotment and possession of the Flat. Moreover, in the present case, allotment was sought under 3BR, category-A, Sub-scheme-B plan which postulates an advantage to secure the assured allotment of Flat on Free-hold Basis instead of Lease-hold. It was further stated that the Complainant had only paid a sum of Rs.40,34,408.00. Due to default in payments, the Complainant was issued Show-cause Notice and was given 21 opportunities of hearing wherein though he appeared but failed to clear his outstanding dues. The default in payments also attracted interest for the delay under clause 5 of the Acceptance-cum-Demand Letter and approximately Rs.78.00 Lakhs were still pending from the Complainant as on the date of filing of the Reply. Therefore, it was stated that the proceedings of cancellation of the Flat were pending with the Opposite Party and in case of failure to clear the outstanding dues, the Flat would be cancelled. Therefore, the Opposite Party prayed for dismissal of the Complaint with costs.