Haryana

StateCommission

CC/35/2014

Usha Bansal - Complainant(s)

Versus

Dwarkadhish Projects - Opp.Party(s)

25 Jan 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.35 of 2014

                                             Date of Institution:02.04.2014

          Date of Decision: 25.01.2017

 

1.      Usha Bansal W/o Sh.Bijender Bansal

2.      Bijender Bansal S/o Prem Chand

          Both residents of House NO.22 A, Friends colony, Near Sector-15, Gurgaon.

…..Complainants

 

Versus

 

M/s Dwarkadhish Projects Pvt. Ltd. Suite No.17, 2^nd Floor, Ninex City Mart, Sohna Road, Gurgaon-122001 through its Managing Director/Director/Authorised signatory.

          …..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  None for the complainant.

                             Mr.Yashpal Gupta, Advocate counsel for opposite party.

 

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It is alleged by complainant that she booked a flat measuring 1500 sq.feet @ Rs.1550/- with opposite party (O.P.) on 02.02.2007 and paid Rs.3,50,000/- at the time of booking. Total value of flat was Rs.23,25,000/-. She was allotted flat No.04 on ground floor of Tower NO.B-2 vide letter dated 23.07.2007.  Before booking it was told that possession would be delivered within two years from the booking. She deposited Rs.27,18,125/- with the O.P., but, possession is not delivered as yet.  Not to talk of possession even construction work has not started.  So, O.P. be directed not to charge any interest and not to cancel allotment and deliver possession within 30 days.  In case it is not possible to handover possession then  Rs.27,18,125/- be refunded alongwith the interest @ 36% per annum, besides compensation to the tune of Rs.Five lacs for mental agony.

2.      It is alleged by O.P. that averments raised by complainants are without any basis. As per agreement executed in between them State Commission at Panchkula is not having territorial jurisdiction to decide the matter. This commission is also not having pecuniary jurisdiction to try this complaint. As per payment schedule complainants were liable to pay Rs.36,00768/- whereas they have paid Rs.27,18,125/- as detailed below:-

“Installment	Demand Date	Due Date	Installment due	Amount paid	Date of completion of payment	Delay days
01 At the time of Booking	Booking	31.10.07	348,750/-	348,750/-	02.02.07	271
02 On excavation/Bhoomi Poojan	28.04.07	31.10.07	116,250/-	116,250/-	06.06.07	147
03 On start of Raft Foundation + 1/4th of EDC & IDC	02.01.08	20.01.08	168,750/-	168,750/-	31.07.08	-193
04 On Start of Ground floor slab	10.06.08	30.06.08	174,375/-	174,375/-	31.07.08	-31
05 On start of First Floor Slab + ¼ Th of P.L.C.	12.09.08	04.10.08	153,750/-	153,750/-	01.10.08	3
06 On start of Second Floor Slab	26.11.08	17.12.08	116,250/-	116,250/-	31.12.08	-14
07 On start of third Floor Slab + 1/4th of EDC & IDC	28.01.09	16.02.09	173,095/-	173,095/-	18.05.11	-821
08 On start of fourth Floor Slab	14.03.09	07.04.09	119,243/-	119,243/-	18.05.11	-771
09 On start of Fifth floor Slab + 1/4 th of P.L.C.	15.05.09	08.06.09	160,606/-	160,606/-	09.06.11	-731
10 On start of Sixth Floor Slab +1/4th of EDC & IDC	16.07.09	07.08.09	173,095/-	173,095/-	09.06.11	-671
11 On start of Seventh Floor slab + ¼ th of P.L.c.	17.09.09	08.10.09	160,606/-	160,606/-	09.06.11	-609
12 On Start of eighth Floor slab + 1/4th of EDC and IDC	02.12.09	24.12.09	173,095/-	173,095/-	09.06.11	-532
13 On start of Ninth Floor Slab + 1/4th of P.L.C.	24.02.10	17.03.10	160,606/-	160,606/-	02.05.12	-777
14 On start of Tenth Floor Slab + ½ club Membership	16.04.10	07.05.10	146,818/-	89,654/-	02.05.12	-726
15 On start of Eleventh Floor Slab + ½ club membership	18.06.10	09.07.10	146,818/-
16 On start of Twelfth Floor Slab	01.09.10	20.09.10	75,000
17 On start of Last slab	23.03.11	15.06.11	178,865/-
Final finishing fit-out charges	30.07.12	15.09.12	199,770/-
18 final on possession	01.03.13	31.03.13	6,55,026/-
Total			3,600,768	2,288,125/-		“

When complainants did not adhere to payment plan, it suffered huge loss. Some cheques paid by  complainants, were    dishonoured  due to insufficient funds. Demand letter  and offer of possession was given  to complainants vide letter dated 01.03.2013 but they did not come forward. Reminders dated 01.06.2013 01.08.2013 and 10.09.2013 were also  sent, but, without any result.  Letters were issued time and again  about outstanding installments, but, they did not bother to make any payment. Ultimately final notice dated 20.12.2013 was issued to  them about cancellation of allotment and ultimately allotment was cancelled vide letter dated 29.01.2013.  Thereafter they have approached this commission. As per statement of account Rs.28,16,145/- were due towards them including amount of installment, interest and holding charges. After deducting that amount it is ready to return the remaining amount.  It is still ready to restore the cancelled apartment subject to payment of the amount due towards them. Objections about concealment of true facts, estopple, jurisdiction etc. were also raised and requested to dismiss the complaint.

3.      After evidence of parties complaint was adjourned time and again for arguments. Since two dates nobody has appeared on behalf of complainant’s counsel, so complaint is being decided on merits even in their absence because it is pertaining to the year 2014 and more than two years have already passed after filing of complaint. Arguments of O.P’s counsel are heard. File perused.

4.      It is alleged by the complainants that O.P. assured to  deliver possession within two years from the date of booking i.e. 02.02.2007, but,  possession is not delivered despite the fact that they have already deposited Rs.27,18,125/-.  It is also alleged in evidence that no agreement was executed in between them. The O.P. should be directed not to cancel allotment and deliver possession of flat in question otherwise to refund the amount as mentioned above. 

5.      Though the complainants have raised averments to this effect but there is no document on the file showing that O.P. ever agreed to deliver possession within two years.  It is alleged by O.Ps. that complainants have not come forward to execute agreement and they are bound by the terms and conditions mentioned in allotment letter dated 23.07.2007 Ex.C-3.  Clause 9 of this agreement is pertaining to cancellation and forfeiture of the amount. For ready reference clause No.9 is reproduced as under:-

“CANCELLATION: In the event the Allottee(s) fails to make the payment on the due date or commits breach of any of the terms and conditions of this Agreement, the allotment hereby made may be cancelled by the Owner after giving a notice in writing at the address herein given by ordinary mail to rectify the breach within 30 days and thereafter 10% of the total price of the said Apartment/shop will be forfeited by the Owner and the balance will be refunded to the Allottee(s) without any interest. The stipulated time for the payment of sale consideration is an essential condition of this agreement.”

6.      The payment slab is also reproduced as under:-

“Installment	Demand Date	Due Date	Installment due	Amount paid	Date of completion of payment	Delay days
01 At the time of Booking	Booking	31.10.07	348,750/-	348,750/-	02.02.07	271
02 On excavation/Bhoomi Poojan	28.04.07	31.10.07	116,250/-	116,250/-	06.06.07	147
03 On start of Raft Foundation + 1/4th of EDC & IDC	02.01.08	20.01.08	168,750/-	168,750/-	31.07.08	-193
04 On Start of Ground floor slab	10.06.08	30.06.08	174,375/-	174,375/-	31.07.08	-31
05 On start of First Floor Slab + ¼ Th of P.L.C.	12.09.08	04.10.08	153,750/-	153,750/-	01.10.08	3
06 On start of Second Floor Slab	26.11.08	17.12.08	116,250/-	116,250/-	31.12.08	-14
07 On start of third Floor Slab + 1/4th of EDC & IDC	28.01.09	16.02.09	173,095/-	173,095/-	18.05.11	-821
08 On start of fourth Floor Slab	14.03.09	07.04.09	119,243/-	119,243/-	18.05.11	-771
09 On start of Fifth floor Slab + 1/4 th of P.L.C.	15.05.09	08.06.09	160,606/-	160,606/-	09.06.11	-731
10 On start of Sixth Floor Slab +1/4th of EDC & IDC	16.07.09	07.08.09	173,095/-	173,095/-	09.06.11	-671
11 On start of Seventh Floor slab + ¼ th of P.L.c.	17.09.09	08.10.09	160,606/-	160,606/-	09.06.11	-609
12 On Start of eighth Floor slab + 1/4th of EDC and IDC	02.12.09	24.12.09	173,095/-	173,095/-	09.06.11	-532
13 On start of Ninth Floor Slab + 1/4th of P.L.C.	24.02.10	17.03.10	160,606/-	160,606/-	02.05.12	-777
14 On start of Tenth Floor Slab + ½ club Membership	16.04.10	07.05.10	146,818/-	89,654/-	02.05.12	-726
15 On start of Eleventh Floor Slab + ½ club membership	18.06.10	09.07.10	146,818/-
16 On start of Twelfth Floor Slab	01.09.10	20.09.10	75,000
17 On start of Last slab	23.03.11	15.06.11	178,865/-
Final finishing fit-out charges	30.07.12	15.09.12	199,770/-
18 final on possession	01.03.13	31.03.13	6,55,026/-
Total			3,600,768	2,288,125/-		“

 

They were supposed to make payment as per schedule as already mentioned above.  As per statement of account Ex.C-4 complainants have deposited only Rs.22,88,125/-. After 07.05.2010 they have not made any payment, whereas they were bound to pay remaining amount as mentioned above.  When complainants did not make payment, demand notices were sent to them which is clear from the perusal of letters dated 28.04.2007, 02.01.2008, 10.06.2008 and 12.09.2008 and attached with colly R-5, but, despite those letters they did not make any payment. So letters Ex.C-6 dated 25.10.2013, Ex.C-7 dated 27.11.2013 and Ex.C-8 dated 20.12.2013 were sent to them to deposit amount otherwise allotment would be cancelled. Despite those notices complainants did not make any payment so O.P. was left with no other alternative except to cancel allotment because it has also taken heavy loan from the banks and is to repay the same, which is clear from the perusal of Ex.R-7 (colly). It is common knowledge that if allottees will not make payment then how a builder will complete construction and repay the loan, obtained from any institution.  As per clause 9 of allotment letter, notices were issued to complainants to adhere to financial discipline. When they did not make any payment allotment was cancelled vide letter dated 29.01.2014 Ex.C-9. As per clause No.9 of allotment letter O.P is entitled to forfeit 10% of the total price of the apartment. Despite that O.P. has given an offer to complainants to make payment of remaining amount and take possession of the flat.  As per report Ex.C-10, given in a matter pending before Lok Adalat at Pre-litigation stage, it cannot be presumed that construction is not complete.  Firstly this report is given in the year 2011 whereas the allotment has been cancelled in the year 2014 and possession was offered in 2013.  This report was given in an other case and not in any matter pending in between complainants and O.P. This document  is pertaining to a case of third party and it cannot be alleged that the construction is not complete.  In these circumstances O.P. cannot be directed to refund the entire amount deposited by complainants because no fault is proved on it’s part. At the most the complainant can ask for refund as per allotment letter. In view of our discussion O.P. is held liable to refund the amount after calculation as per clause 9 of allotment letter Ex.C-3 after cancellation. However if they opt to deposit the remaining amount then the allotment of the flat may be restored and possession may be delivered after completing all the formalities and if no flat is available then this part will not be operative.  As complainants themselves are on fault so they cannot be awarded interest keeping in view the opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 titled as  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014. For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

7.      The complaint stands disposed off accordingly.

 

January 25th, 2017

Mrs.Urvashi Agnihotri Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.