Haryana

StateCommission

CC/107/2015

PRIYANKA GUPTA - Complainant(s)

Versus

IREO GRACE REALTECH PVT.LTD. - Opp.Party(s)

CHETAN GUPTA

22 Aug 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Consumer Complaint No: 107 of 2015

Date of Institution: 23.06.2015    

Date of Decision: 22.08.2016       

 

Mrs. Priyanka Gupta w/o Sh. Gaurav Gupta, Resident of House No.560, Rajinder Nagar, Bharatpur, Rajasthan.

                                      Complainant

Versus

1.      M/s Ireo Grace Realtech Private Limited, Corporate Office, 5^th Floor, Orchid, Center Gold Course Road, Sector 53, Gurgaon, through its authorised signatory.

2.      M/s Ireo Grace Realtech Private Limited, Registered Office at 304, Kanchan House, Karampura Commercial Complex, New Delhi.

                                      Opposite Parties

 

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

                             Mr. B.M. Bedi, Judicial Member.

                             Mr. Diwan Singh Chauhan, Member.

 

Argued by:          Shri Hitender Kansal, Advocate for complainant.

                             Shri Ramnik Gupta, Advocate for the Opposite Parties.

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

                   Priyanka Gupta-complainant, booked a flat in the upcoming project of M/s Ireo Grace Realtech Private Limited-Opposite Parties (hereinafter referred to as ‘the builder’) namely ‘The Corridors’ situated at Sector 67A, Gurgaon on March 22^nd, 2013.  She paid Rs.30.00 lacs to the builder vide receipts Exhibit C-1 to C-3. The builder vide letter dated August 7^th, 2013 (Exhibit C-4) allotted Apartment No.CD-B4-12-1203 in ‘The Corridors’ situated at Sector 67A, Gurgaon. After nine months of booking, the builder vide letter dated December 12^th, 2013 (Exhibit C-5) sent a Buyer’s Agreement (Exhibit C-6) to the complainant. 

2.                On March 22^nd, 2014, the complainant received an email (Exhibit C-8) from the builder asking her (complainant) to send back the buyer’s agreement as the same was not in accordance with the assurance of the builder to the complainant.  The complainant visited the site on April 8^th, 2015 and found that the builder had not raised any construction. Photograph (Exhibit C-7) was taken. 

3.                Vide letter dated February 02^nd, 2015 (Exhibit C-9), the builder again raised the demand of Rs.58,68,016.74 from the complainant which was to be paid up to February 24^th, 2015. The builder vide letter dated February 11^th, 2015 (Exhibit C-10) cancelled the allotment of the complainant and forfeited the amount of Rs.30,00,000/- paid by her.  Legal Notice dated February 24^th, 2015 (Exhibit C-11) was served upon the builder and the same was replied by builder vide reply (Exhibit C-12). The complainant requested for refund of the amount deposited, alongwith interest but the builder did not pay the amount. Hence, complaint under Section 17 of the Consumer Protection Act, 1986 (for short ‘the Act, 1986) has been filed before this Commission.

4.                The builder-Opposite Parties by filing written version contested the complaint. It was stated that as per terms and conditions of the Apartment Buyer’s Agreement, the possession of the apartment was to be delivered within a period of 42 months from the date of approval of building plan or fulfillment of pre-conditions imposed thereunder, however with grace period of 180 days for unforeseen delays beyond the reasonable control of the builder. The building plan was approved on 23^rd July, 2013 vide letter Exhibit OP-3. In case of non-delivery of possession within the stipulated period, the builder was liable to pay compensation @ Rs.7.5 per sq. feet of the super area per month till the actual date fixed by the builder for offer of possession. The payment was to be made as per payment plan. It was denied that the complainant had returned the Apartment Buyer’s Agreement to the builder. Since the complainant failed to pay the instalments, the builder cancelled the allotment and forfeited the amount. It was prayed that the complaint be dismissed. 

5.                The complainant-Priyanka Gupta, in her evidence has appeared as CW1 and produced documents Exhibits C-1 to C-13.

6.                The opposite parties-builder examined Rajneesh as OPW-1 its authorized representative besides tendering documents Exhibits OP-1 to OP-4 and affidavit of Rajneesh Exhibit C-5.

 7.               Indisputably, the complainant had booked the apartment with the builder and paid Rs.30.00 lacs.  It is also not disputed that the possession of the apartment was to be delivered within 42 months from the date of approval of building plan with grace period of 180 days. The complainant made payment of Rs.30.00 lacs to the builder upto August 1^st, 2013. The period of completion was up to be calculated from the date of approval of the building plan. The building plan was approved on 23^rd July, 2013. Thus, the period of completion was upto 23^rd July, 2017 whereas the instant complaint was filed on 23^rd June, 2015.  Since the complainant failed to make further payment agreed by her, the builder was not under the obligation to deliver possession to her.  She could claim compensation from the builder for the delay in offering possession of the flat as per Buyers Agreement/allotment letter Exhibit C-4, only if payments were made regularly.  The complainant herself having defaulted in performing the terms of the said agreement/letter of allotment; she is not entitled to any compensation at all from the builder.

8.                Though, the complaint may appear to be pre-mature, as the period expires on 23^rd July, 2017, but the builder cancelled the booking vide letter dated February 11^th, 2015 (Exhibit C-10) forfeiting the amount deposited by the complainant. Moreover, cancellation of allotment gives cause of action to the complainant.

9.                In the obtaining circumstances, 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, wherein the total value of the plot was Rs.1,21,62,250/- and 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). 

10.              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.1,97,58,300/- and 10% of it comes to Rs.19,75,830/- which can be forfeited by the builder. The complainant deposited Rs.30,00,000/-. Thus, the amount refundable to the complainant by the builder comes to Rs.10,24,170/- i.e. (Rs.30,00,000 – 19,75,830). 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.

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

 

 

 

Announced 22.08.2016

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL