Haryana

StateCommission

CC/90/2015

CHETAN PARKASH - Complainant(s)

Versus

ALM INFOTECH CITY PVT.LTD. - Opp.Party(s)

NARESH DILAWARI

12 Jul 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :     90 of 2015

Date of Institution:   03.06.2015

Date of Decision :    12.07.2016

 

Chetan Parkash, Resident of 46, Professor Colony, Balsamand Road, Hisar, Haryana.

                                      Complainant

 

Versus

 

 

1.      M/s ALM Infotech City Private Limited through its Manager/Director, ILD Trade Center, Sector 47, Sohna Road, Gurgaon.

2.      Director, M/s ALM Infotech City Private Limited ILD Trade Center, Sector 47, Sohna Road, Gurgaon.

                                      Opposite Parties

 

 

 

 

 

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. B.M. Bedi, Judicial Member.

                                                                                                         

Argued by:                    Shri Naresh Dilawari, Advocate for Complainant.

Shri Vivek Goyal, Advocate for Opposite Parties.  

 

                                                   O R D E R

 

NAWAB SINGH, J

 

Chetan Parkash-complainant booked a flat bearing No.3C/B, 3^rd Floor, Panorma Tower at ILD Grand, Sector 37-C, Gurgaon, admeasuring 1789 square feet with ALM Infotech City Private Limited (for short ‘the builder’)-Opposite Parties. The complainant paid Rs.3.00 lacs at the time of booking, vide receipt dated April 30^th, 2012 (Exhibit C-2). The builder issued Provisional Allotment Letter dated August 16^th, 2012 (Exhibit C-3). An Apartment Buyers Agreement dated October 21^st, 2013 (Exhibit OP-1) was executed between the complainant and the builder. The possession of the flat was to be delivered within three years from the date of booking with further grace period of 180 days. The builder failed to start the construction of the flat inspite of the fact that the complainant had paid a total sum of Rs.25,02,479/- to the builder from time to time.  In April, 2014, the complainant demanded refund of the amount paid by him. Instead of refunding the amount, the builder cancelled the booking of the flat vide cancellation letter February 04^th, 2015. Legal Notice dated March 16^th, 2015 (Exhibit C-10) seeking refund of Rs.26.00 lacs alongwith interest @ 18% per annum, was also issued but to no avail.  Hence, complaint under Section 17 of the Consumer Protection Act, 1986 has been filed.

2.      The builder-opposite parties contested the complaint by filing written version admitting to have received the amount of Rs.25,02,479/- from the complainant. As per Clause 9.1 of the Apartment Buyers Agreement (Exhibit OP-1), the construction of the project was to be completed within 36 months to be computed from the date of execution of the agreement with further grace period of 180 days. The total sale consideration of the flat was Rs.80,47,975/- as per the table given below:-

Description of charges	Rate	Rupees
Basic Sale Price (Super area)	3800/- per sq.ft	67,98,200/-
EDC & IDC (Super area)	335/- per sq. ft.	5,99,315/-
Specification Charges (Super area)	Nil	-
EEC/FFC/Electrical & Water Securities		As applicable
Preferential Location Charges	90/- per sq. ft.	1,61,000/-
Club Membership Charges and other utility charges		4,00,000/-
Interest free maintenance security (super area)	50/- per sq. ft.	89,450/-

 

3.      The payment was Construction Linked Plan. The complainant failed to make payment as per Construction Linked Plan. The builder issued reminder-notice dated July 02^nd, 2012 (Exhibit OP-2) to the complainant to make the payment of Rs.11,01,653/-. The complainant failed to make the payment, the builder vide letter dated February 04^th, 2015 (Exhibit OP-4) cancelled the allotment as per terms and conditions of the agreement. Thus, the complainant was himself a defaulter in making payments. It was prayed that the complaint be dismissed.

4.      In evidence, the complainant appeared as CW-1 and tendered documents Exhibits C-1 to C-10.

5.      The builder, examined OPW 1-Sahil Kapur-Senior Executive Legal and tendered documents Exhibits OP-1 to OP-5.

6.      Indisputably, the complainant had booked the flat with the builder. The complainant paid Rs.25,02,479/- to the builder.  The complainant and the builder had entered into the Apartment Buyers Agreement dated October 21^st, 2013 (Exhibit OP-1). Both the parties were bound by the terms and conditions of the agreement. As per agreement, the period of completion was 36 months from the date of agreement with further extension period of 180 days. The complainant made payment of Rs.25,02,479/- to the builder upto March 2014. The period of completion was upto 21^st April, 2017 whereas the instant complaint was filed on 3^rd June, 2015.  Since the complainant failed to make further payment agreed by him, the opposite party was not under the obligation to deliver possession to him.  He could claim compensation from the builder for the delay in offering possession of the flat as per Buyers Agreement only if payments were made regularly.  The complainant himself having defaulted in performing the terms of the said agreement; he is not entitled to any compensation at all from the builder.

7.      Though, the complaint may appear to be pre-mature, as the period expires on April 21^st, 2017, but the builder cancelled the booking vide letter dated February 04^th, 2015 (Exhibit OP-4) forfeiting 15% of the total sale consideration alongwith interest accrued due to delay in payment. The matter is required to be decided and taken to a logical end.  Moreover, cancellation of allotment gives cause of action to the complainant.

8.      In the obtaining circumstances, where both the parties committed default what should be the criteria for decision. In Shri Harjinder S. Kang versus M/s Emaar MGF Land Limited, Consumer Case No.482 of 2014 decided on July 4^th, 2016 by Hon’ble National Consumer Disputes Redressal Commission, New Delhi, the total value of the plot was Rs.1,21,62,250/-.  The complainant had deposited Rs.84,74,750/- with the opposite party. The National Commission held that the amount exceeding 10% of the total price of the property cannot be forfeited unless the opposite party can show that it has suffered loss to the extent of the amount actually forfeited by it.  Considering the aforesaid principle, the National Commission directed the opposite party to pay Rs.71,97,275/-, that is, Rs.84,74,750/- (deposited amount) - Rs.12,77,475/- (10% of the total value of the plot). 

9.      In view of Harjinder S. Kang’s case (Supra), the builder can forfeit 10% of the total sale consideration of the flat.  In the present case, the basic sale price of the flat was Rs.67,98,200/- and 10% of it comes to Rs.6,79,920/- which can be forfeited by the builder. The complainant deposited Rs.25,02,479/-. Thus, the amount refundable to the complainant by the builder comes to Rs.18,22,559/- i.e. (Rs.25,02,479 – 6,79,920). The builder-opposite parties are liable to pay interest to the complainant @ 12% per annum from the date of deposit till the date of realization of this amount. It is ordered accordingly.

10.    The complaint stands allowed in the terms indicated above. 

 

Announced: 12.07.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL/UK