Delhi

East Delhi

CC/1068/2013

MANOJ MISHRA - Complainant(s)

Versus

AJNARA FARMS - Opp.Party(s)

26 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  1068-13

 

Shri Manoj Mishra

S/o Shri S.J. Mishra

R/o 7, Akash Ganga Apartment

Sector-56, Gurgaon, Haryana                                       …….Complainant

 

Vs.

 

1. Ajnara Farms & Services Ltd.

502, Sachdeva Corporate Towers

Karkardooma Community Center

Delhi – 110 092                                                               ….Opponents

 

Date of Institution: 15.01.2014

Judgment Reserved on: 26.05.2017

Judgment Passed on: 01.06..2017

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

          This complaint has been filed by Shri Manoj Mishra against Ajnara Farms & Services Ltd. (OP) under Section 12 of the Consumer Protection Act, 1986. 

2.       The facts in brief are that the complainant booked a HIG flat measuring 1530 Sq. Ft. NO. S-S-802 at plot no. GH-6, Crossing Republik, NH-24, Ghaziabad, UP, costing Rs. 27,80,750/- in the project named Ajnara Gen-X by paying booking amount of Rs. 1,50,000/- vide receipt of dated 17.01.2008.  He opted cash down payment under Plan ‘A’ of the scheme.  He received allotment cum demand letter dated 09.01.2008 from the OP confirming allotment of HIG Flat measuring 1530 Sq. Ft. NO. S-S-802 at plot no. GH-6, Crossing Republik, NH-24, Ghaziabad, UP and demanded balance Rs. 23,80,750/-, which was 85% of the basic cost.  The complainant took loan from bank and paid the balance price Rs. 26,41,713/-, 95% of the cost of the flat as per the agreement vide receipt dated 30.01.2008 for a sum of Rs. 1,11,111/-, receipt dated 06.02.22008 for a sum of Rs. 17,713/- and receipt of dated 07.02.2008 for a sum of Rs., 23,63,000/-.  The balance 5% was to be paid at the time of delivery of possession of the flat.

          It has been stated that even after taking 95% of payment of the flat, the OP kept on delaying the construction activity in the project.  The complainant never received any information about the status of the said project.  He was wrongly informed that the possession will be given as promised i.e. by 30.06.2010.  Having not delivered the possession, as promised, the complainant is stated to have taken a residential flat on rent for a period from 01.09.2011 to 30.07.2012 for a monthly rent of  Rs. 10,000/-, thereafter for a period from 01.09.2012 till date for a monthly rent of Rs. 12,000/-, which the complainant have claimed.  He has further claimed penal charges amounting to Rs. 7,650/- per month on account of delay.  When the complainant on 28.07.2013, visited the site, he was shocked to see that OP had completed the project and had also given possession to several consumers.  The complainant again visited the site on 25.08.2013, where he came to know that the builder has provided allotment to some other allottees and registry deed of few such flats have also been done.  Though, the construction activity in such flats was done at brisk pace, such transfers were being done by providing bogus fitness certificate to flat owners.  He has further stated that when he alongwith his wife visited on 25.08.2013, they were disturbed to find that despite three years after the promised date of delivery, the construction work has not yet finished in his flat.  The flooring was not done.  The plastering, white wash, glass work and interiors work was incomplete.  The plumbing and electrical work was still incomplete.  The toilet seats were not assembled.  Windows and doors were still not done.  The construction debris was lying here and there, whereas the next flat i.e. S-803 has been delivered and handed over 6 months back.  They were told that the resold flats were being done on priority basis. 

          Thus, it has been stated that OP’s acts and omissions were in complete disagreement to the social responsibilities of a business and legitimate expectations of the customers based on equity, justice and good conscience.  Therefore, the attitude of OP was illegal, arbitrary and amounts to unfair trade practice.  Hence, the complainant has prayed for delivery of possession of HIG flat measuring 1530 Sq. Ft. NO. S-S-802 at plot no. GH-6, Crossing Republik, NH-24, Ghaziabad, UP; Rs. 5,00,000/- on account of mental agony and harassment, penal charges as agreed in contract for the period for which the flat was not delivered, with interest @ 24%; Rs. 2,42,000/- on account of reimbursement of rent of the alternative residential accommodation taken by the complainant and Rs. 50,000/- as cost of litigation with further prayer to desist from unfair trade practice in launching “Future Projects”.

3.       In the WS, filed on behalf of Ajnara Farms & Services Ltd. (OP), they have taken various pleas such as the complaint not maintainable in view of “Arbitration Clause” contained in the allotment letter; complainant not abiding by the terms of allotment letter and trying to take advantage of his own wrong; the project has already been completed and OP has issued a letter dated 06.11.2013 to the complainant calling upon him to make the balance payment and take steps for the execution of sale deed.  It has been stated that the complainant was required to make payment of Rs. 23,80,713/- on or before 15.01.2008 which was made by the complainant on 08.02.2008.  This late payment is stated to have attracted interest @ 18% p.a. from the due date of payment.  OP purchased plot no. GH-06 in the township Crossing Republik from M/s. Crossing Infrastructure Pvt. Ltd. and after acquisition of the said land from the farmers by M/s. Crossing Infrastructure Pvt. Ltd., the farmers started various agitations which hampered construction which was under the progress.  They have stated that they were within their right not to pay any compensation for the delay in terms of the mutually agreed clause of allotment letter which was accepted by the complainant. 

          The complainant became entitled to receive delayed possession charges @ Rs. 5/square feet i.e. Rs. 7,650/-.  It has also been stated that by its letter of dated 11.02.2011, the complainant specifically requested penalties, dues etc. to be adjusted.  At his request, the OP instead of paying the monthly delayed possession charges adjusted the same against outstanding payment.  The construction of the flat was completed and by its letter of dated 06.11.2013, the complainant was called upon to make the outstanding payment and to take steps for execution of sale deed.  Even, he was advised on his personal visits as well as emails and letters dated 11.12.2013, 13.12.2013 and 19.12.2013 respectively.  The complainant was deliberately not coming forward for payment of the outstanding amount in respect of the flat booked by him and execution of sale deed in his favour.  The said act of the complainant was said to be in direct violation of terms and conditions contained in the allotment letter and he was liable to pay holding charges to OP @ Rs. 5/sq. ft./month. 

          The complainant made a payment of Rs. 1,50,000/- after filing of the complaint which was stated to have been adjusted.  They have also made calculations of various accounts and have stated that an amount of Rs. 2,49,457/- was outstanding against the complainant which was communicated to him for payment.  Out of this amount, it has been stated that Rs. 2,11,207/- was to be paid to OP while the balance amount of Rs. 38,250/- to be paid to M/s. Lotus Maintenance Services Pvt. Ltd., which was the maintenance agency, appointed for the maintenance and upkeep of the group housing society.  As the complainant has made payment of Rs. 1,50,000/- during the course of proceedings, the complainant was required to pay the balance amount of Rs. 61,207/- to M/s. Ajnara Gen-X and a sum of Rs, 38,250/- to    M/s. Lotus Maintenance Services Pvt. Ltd.  The complainant was also required to pay stamp duty of Rs, 3,11,400/- and bear the registration and legal charges for registration of sale deed.  He was also required to deposit an amount of Rs. 55,700/- towards maintenance charges.  Thus, they have stated that OP has not delayed the construction activity.  They have issued various letters and emails to the complainant for execution of sale deed and handing over of possession.  The complainant has deliberately delayed the payment and outstanding charges.  They informed the complainant from time to time in respect of the progress made in the project.  They have stated that those who have cleared the payment, they have been given the possession.  They have denied other facts also.    

4.       In support of its complaint, the complainant has examined himself on affidavit.  He has narrated the facts which have been stated in the complaint.  He has also got exhibited document such as brochure with payment plan (Annex.A1), receipt of booking amount of Rs. 1,50,000/- (Annex.A2), Allotment cum Demand Letter (Annex.A3), payment receipt of Rs. 1,11,111/-  vide receipt of dated 30.01.2008 (Annex.A4), another receipt for an amount of Rs. 17,713/- dated 06.02.2008 (Annex.A5), receipt for an amount of Rs. 23,63,000/- dated 07.02.2008 (Annex.A6), rent agreement (Annex.A7 & A8) and emails sent to OP for status report (Annex. A9).

          In defence, Ajnara Farms & Services Ltd. (OP) has examined  Shri Vineet Kumar Srivastava, Legal Officer, who have also deposed on affidavit.  He has narrated the facts which have been stated in the WS.  He has also got exhibited documents such as resolution dated 16.09.2012 authorising him to appear and defend the case (Ex.RW-1), application form for receipt of payment (Ex.RW-2), allotment cum demand letter (Ex.RW-3), letter written by the complainant for adjustment of dues dated 11.02.2011 (Ex.RW-4), informing the complainant for completion of flat and making the outstanding payment (Ex.RW-5) and copies of emails sent from time to time (Ex.RW-6).

5.       We have heard the complainant in person and the Ld. Counsel for OP.  First and foremost argument, which have been advanced on behalf of OP has been that this Forum was not having pecuniary jurisdiction to entertain the complaint as the value of the flat was Rs. 27,80,750/-.  The second argument, which has been advanced on behalf of OP, has been that they have informed the complainant to take possession of the flat by paying the balance cost, but the complainant has not come forward to make the payment and take possession thereof.  Thus, they have stated that there was no delay on their part.  Not only that, it has also been stated on behalf of OP that they have adjusted an amount of     Rs. 2,83,050/- on account of delayed possession.  They have further argued that the complainant was required to pay the holding and maintenance charges which he has not paid.

          On the other hand, complainant has argued that he has made the payment from time to time and he has not been given the possession inspite of his request. 

          To appreciate the arguments of complainant and Ld. Counsel for OP, a look has to be made to the testimony of both the witnesses and the documents got exhibited by them.  The first and foremost point that arises for consideration is with regard to pecuniary jurisdiction.  For this, firstly, the complaint itself has to be gone into.  If a look is made to the complaint, it is noticed that in para 5 of the complaint, complainant himself have stated that cost of the flat was     Rs. 27,80,750/-.  Though, the complainant himself have stated in his complaint the cost of flat as Rs. 27,80,750/-, the basic price of the flat as stated in the application form has been Rs. 26,07,500/- as per Ex. RW-2.  Even if the cost of flat as reflected in the application form (Ex.RW-2) is taken as                    Rs. 26,07,500/-, the same was beyond the pecuniary jurisdiction of this Forum.  The complaint should not have been admitted in the initial stage itself, which was registered in the year 2013 and admitted on 15.01.2014.  The fact that the value of the flat has been  Rs.26,07,500/-, which is above the pecuniary jurisdiction of this Forum, the argument advanced on behalf of OP hold good.  Therefore, this Forum has no jurisdiction to entertain the complaint due to lack of jurisdiction. 

          Though, the complaint fails on the ground of pecuniary jurisdiction, however, if the evidence on record is examined, it is noticed that the complainant was offered possession of flat and execution of documents through the letter of OP dated 06.11.2013 (Annex.R-1), but the complainant did not come forward to take possession of the flat.  Not only that, the company has written a letter to the complainant through its letter of dated 11.12.2013 (Ex.R-5) asking for payment of amount due.  In this letter, they have demanded monthly maintenance charges and the amount due.  Even in the testimony of Shri Vineet Kumar Srivastava, Legal Officer of company, he has stated that at the request of complainant through his letter of dated 11.02.2011, they have adjusted the penalties as well as charges on account of monthly delayed possession towards outstanding amount.

          Thus, the overwhelming evidence on record shows that the company have adjusted the amount towards delayed possession.  when they have adjusted the amount towards delayed possession, the question of compensation on account of delayed possession cannot be accepted.  Not only that, it is the complainant who has not taken possession inspite of being offered.  Even the complainant himself has stated that many of the flat owners have taken possession of the flats being offered by the company.  When the complainant himself have stated that other flat owners have taken possession of the flats, by not taking possession of the flat on his own, he cannot raise the question of any deficiency on the part of OP.  When no case has been made out against the OP, the question of compensation on account of mental agony and harassment; delayed possession; reimbursement of rent of the alternative residence and cost of litigation does not arise.  His prayer with regard to restraining the company from launching future projects cannot also be accepted.      

          In view of the above, we are of the opinion that this Forum was not having pecuniary jurisdiction, therefore, the complaint deserves dismissal on account of pecuniary jurisdiction.  Hence, the same is dismissed.  There is no order as to cost.

          Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member 

 

           

            (SUKHDEV SINGH)

                                                      President