Haryana

StateCommission

CC/97/2016

SANTOSH ARYA - Complainant(s)

Versus

EMAAR MFG LAND LTD. - Opp.Party(s)

ROHIT GOSWAMI

31 May 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.97 of 2016

                                                       Date of Institution: 21.04.2016                  Date of Decision: 31.05.2016

 

Santosh Arya W/o Mr.Ram S.Arya, R/o 190 SW, Palm Cover Drive Palm City, Florida, FL34990, USA., at present resident of 20 Gumani Court, Free Hold, NJ 07728 through her Power of Attorney, Same Singh S/o Shri Mauji Ram, R/o 818 Sector 17, Faridabad, Haryana.

…..Complainant

 

Versus

 

Emaar MGF Land Limited, ECE House, 1^st Floor, 28, Kasturba Gandhi Marg, New Delhi 110001, through its Managing Director.

          …..Opposite Party

 

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

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Kulbhushan Sharma, Advocate counsel for the complainant.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It is alleged by the complainant that initially flat No. TPD B-F06-601 measuring 3175 sq. ft. was allotted to Raja Natesan and Mrs. Kamalini Natesan for total sale consideration of Rs.1,85,01285/- vide buyers agreement in the month of January  2010 and the payment was made to the opposite party (O.P.) as detailed below:-

“No.	Particulars	Amount Rs.	Date
i)	Booking amount	20,00,000/-	22.01.2010
ii)	Customer installment	20,00,000/-	15.02.2010
iii)	Customer Installment	1,34,85,126/-	11.03.2010
iv)	Installments	1,05,410/-	10.05.2010”

O.P. rewarded complainant with the waiver of 5% due to payment in time as mentioned in letter dated 03.01.2010.  As per clause 14 of the agreement possession was to be delivered within 24 months with the grace of 90 days from the date of execution thereto which was over by 08.06.2012.  Previous allottees sold this unit to her vide agreement to sell dated 01.12.2010 which was confirmed by O.Ps. vide letter dated 03.03.2011 wherein receipt of Rs.1,75,85,265.75 was also acknowledged and undertaking was given to inform about possession. On 04.04.2015 O.Ps. informed about possession.  It was also informed that the area of the plot was more than 3175 sq. feet and Rs.2,48,498/- were shown as outstanding against her.  O.P. did not give rebate of 5% as promised earlier.  He sent letters and e-mails to the O.P., but, to no avail and ultimately she paid Rs.28,50,000/- as demanded by O.P. under protest.  O.P. illegally charged interest @ 24% on the balance amount.   An indemnity bond was also obtained from her.  All these acts amount to unfair trade practice because nobody can be stopped from pursuing legal relief.  In this way, she was entitled for interest on Rs.1,69,64,984/- @ 24% per annum from the contractual date of possession i.e. 08.06.2012 till the date of possession i.e. 02.11.2015 which amounts to Rs.1,46,83,049/-.  She was also entitled for 5% waiver amounting to Rs.8,89,000/- and Rs.27613/- of service tax, total amounting to Rs.1,64,64,468/- plus interest per day to the tune of Rs.11,81,259/- but she is restricting her relief to Rs.99,99,000/-.

2.      Arguments heard. File perused.

3.      This complaint has been filed by Same Singh on behalf of allottee on the basis of Special Power of Attorney.

4.      Learned counsel for the complainant vehemently argued that as per clause 14 of Buyer’s agreement the possession was to be delivered within  24 months from the execution of that agreement with the grace period of 90 days subject to force majure.  In the present case there was no force majure and O.P. was  supposed to deliver possession by 08.06.2012 so she is entitled for the interest @ 24% on the amount deposited i.e. Rs.1,79,64,984/- from the date of deposit amounting to Rs.1,46,83,049/- because O.P. also charged interest @ 24% on delayed  part payment.  She is entitled for  waiver of 5% and refund of service tax etc. as mentioned above, total amounting to Rs.1,64,64,468/- upon which interest accruing per day @ 24% is Rs.11,81,269/-, but, she is restricting her claim to Rs.99,99,000/-.  The condition about payment of compensation @ Rs.5/- per sq. feet on delayed possession is one sided. In support of his arguments he placed reliance upon the opinion of Hon’ble National Commission expressed in Quality Foils India Pvt. Ltd. Vs. Bank of Madura Ltd. and Anr. 1996 (2) C.P.C. 55, consumer case No.346 of 2013 titled as Lt. col. Anil Raj & Anr. Vs. M/s Unitech Limited decided on 02.05.2016 and this Commission in Vinita Goyal and another Vs. Unitech Limited and another 2014(3) CPJ 139.

5.      This argument is of no avail.  If we scrutinize the file then it will be clear that the compensation claimed is not in commensuration with the loss and injury suffered. It is arbitrary imaginary and on a higher side. It appears that this amount has been exaggerated to bring this complaint within the pecuniary jurisdiction of this commission. Why complainant reduced her claim to Rs.99,99,000/- is nowhere explained. No prudent person will restrict claim to lower amount when one is claiming entitlement for much higher amount.

6.      Complainant purchased this plot from Raja Natesan S/o Mr. Natesaiyer Raman  as per agreement dated 01.12.2010.    Previous allottees executed agreement Annexure C-4 with O.Ps. As per clause 17 .1. (a) of the agreement, in case of  failure of allottee to take possession, he/she is liable to pay charges @ Rs.5/- per sq. ft. of the super area to O.P.  For ready reference the said clause is reproduced as under:-

“(a)    charges @ Rs.5/- per sq. ft. of the super area of the said Apartment/Villa/penthouse per month for the entire period of such delay.”

The parties are bound by the agreement executed in between them.   The O.P. is  charging @ 24% on the amount due and not in case of not taking possession. Complainant is entitled to charge @ Rs.5/- per sq. feet as mentioned in clause 16 A.  Clause 16 A is reproduced as under:-

“(a)    In case within a period of 3 months, which may be extended by a period of 3 months from obtaining the occupation certificate or is as extended under the circumstances mentioned in clause 20.2, the Company is not able to hand over the possession to the Apartment Allottee(s), the Apartment Allottee shall be entitled  to payment of compensation for delay at the rate of Rs.5/- (Rupees five only) per sq. ft. per month of the super area till the date of notice of possession under the provision of clause 15 (a) provided  the Apartment Allottee has complied with all the terms and conditions of this agreement. the apartment/ Allottee shall have no other claim against the company in respect of the said apartment/villa/Penthouse and parking space under this Agreement during the said period of twelve (12) months.”

 In the aforesaid case laws, cited by the complainant, it is no where opined that complainant/allottee will be entitled for interest equal to the builder in case of delayed possession.  In these cases the question of refund of amount was involved and not the delayed possession.  The Hon’ble National Commission has discussed opinion of Hon’ble Supreme court expressed in Gaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, in para No.17 of  Ltd. Col Anil Raj’s case (supra).  The relevant portion of the said para is reproduced as under:-

“One of the illustrations given in the said decision was between the cases, where possession of a booked/allotted property was directed to be delivered and the cases where only monies paid as sale consideration, are directed to be refunded. The Hon’ble Court observed, in this behalf, that in cases where possession is directed to be delivered to the complainant, the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting.  But in cases where monies are being simply refunded, then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot.  He is not only deprived of the flat/plot, he has been deprived of the benefit of escalation of the price of the flat/plot.  Additionally, in our view, in such a situation, he also suffers substantial monetary loss on account of payment of interest on the loans raised; depreciation in the money value and escalation in the cost of construction etc.,”

 There is disparity as far as question of delay in handing over and taking over of possession is concerned. As per this opinion claimant cannot claim interest @ 24%  as alleged by  her.  At the most she can ask the compensation @ Rs.5/- per sq. feet area which is 3307.98 sq. ft., as per letter dated 04.04.2015 because possession is already offered to her and she has not asked for refund. If we calculate amount at this rate for aforesaid period it comes to 6,50,875/- which is much less then the pecuniary jurisdiction of this commission though that agreed with original allottee. Such like situation was discussed by Haryana Urban Development Authority Vs. Raje Ram [2008] INSC 1822 (23 October 2008).  As per agreement the area offered in the beginning was tentative which increase or decrease and she is bound to pay the same.  Even if the amount of 5% rebate i.e. Rs.8,79,000/- is added even then the amount is less than the pecuniary jurisdiction of this commission.  As already mentioned above, it appears that amount of compensation is exaggerated, so the complaint is hereby dismissed without expressing an opinion on the point that whether Same Singh is duly authorized as per Special Power of Attorney to file the complaint or not.

 

May 31st, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.