SATISH ESTATES PVT. LTD. Vs. GULSHAN RAI

JUDGEMENT

(1.) This Appeal has been filed by the Appellant/Opposite Party No.1 against Respondents/ Complainant and Opposite Party No.2 challenging the impugned Order dtd. 20/4/2018 passed by the State Consumer Disputes Redressal Commission, Chandigarh, Punjab, in Consumer Complaint bearing No. 540 of 2017. Vide such Order, the State Commission had directed the Opposite Party to deliver possession, and in the alternative, an order for refund was passed.

(2.) The brief facts of the case are that the Complainant had booked and was allotted a plot bearing No. 213 by the Opposite Party No.1 in its residential Project namely, 'Shubham Enclave' situated at G.T. Road, Daburji, Amritsar. The parties had entered into an Agreement dtd. 20/2/2008 as per which the total consideration i.e., Rs.24,18,600.00 was to be paid as per the Payment Plan 'B' wherein 75% of the total consideration was to paid in advance in a time-linked manner and the remaining 25% was to paid within 03 months at the time of possession and as per Clause 13, the promoter had to issue final-call Notice to the purchaser who thereafter within 30 days, had to remit all dues. It was averred by the Complainant that total payment of Rs.18,00,000.00 had been made and the Complainant was even willing to pay the balance payment. It was further stated that the Opposite Party had failed to mention any due date of delivery of possession in the Agreement which is per se violation of Sec. 2(g) r/w Sec. 6(b)(i) of the Punjab Apartment and Property Regulation Act, 1995. Therefore, it was submitted that the Opposite Parties had to complete the said Project within a reasonable time and handover the possession by issuing the final call Notice. However, the Opposite Parties neither completed the Project till the date of filing of the Complaint nor are in a position to complete it in the near future and have failed to handover possession even after a lapse of 9 years from the date of Agreement. The Complainant had also filed an RTI before the Amritsar Development Authority which was replied to by the Authority on 11/9/2015 stating that no completion certificate has been issued to Shubham Enclave Colony. Consequently, the Complainant issued a Legal Notice dtd. 17/11/2015 which was replied to by the Opposite Parties vide letter dtd. 30/11/2015 stating that 75% of the total consideration paid by the Complainant in 2008 had been unilaterally and arbitrarily forfeited due to non-payment of last instalment of 25%. However, it was averred that the Complainant had never received any Demand Notice from the Opposite Parties or a final call Notice which is mandatorily to be issued under the terms of the Agreement. Therefore, the Complaint was filed by the Complainant before the Ld. State Commission being harassed at the hands of the Opposite Parties by alleging Unfair Trade Practice due to failure of the Opposite Party to give possession, and therefore sought refund of Rs.18,00,000.00 along with interest @ 18% p.a., or in the alternative, possession of the plot along with interest @ 18%p.a., Compensation of Rs.5,00,000.00 and Litigation Charges of Rs.50,000.00.

(3.) The Complainant had also previously filed a Complaint bearing No. 7 of 2016 which was allowed by the Ld. District Forum, Amritsar, vide Order dtd. 6/9/2016. Consequently, the Opposite Parties had filed a First Appeal bearing No. 751 of 2016 before the Ld. State Commission, Chandigarh, which was allowed vide Order dtd. 19/5/2017 without prejudice to the rights of the Complainant to file his complaint before the appropriate Forum as the Ld. District Forum lacked in pecuniary jurisdiction.