Delhi

East Delhi

CC/999/2013

Dr. R.S. Gupta - Complainant(s)

Versus

K.D.P. Infrastructure Private Limited - Opp.Party(s)

10 Dec 2013

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

               CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CASE NO-999/13
 

Dr. R.S. Gupta

Son of  Late Sh.P.R.Saran

R/O 677-A, First Floor,

Nyay Khand-II, Indirapuram,

Ghaziabad.

 

Complainant

 

Vs

 

K.D.P. Infrastructure Private Limited

Through its Managing Director

Having a Corporate Office at D-247/29, Sector-63,

Noida, Distt. Gautambudh Nagar.

 

Opposite Party

 

                                                                                   DATE OF ADMISSION-18/11/2013

                                                                                  DATE OF ORDER       -01/06/2015

SH. N. A. ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the complainant booked a Flat No.203, IInd Floor, Tower ‘A”, in the residential multistoried complex ‘Grand-Savana’ developed by the respondent in Rajnagar Extension, Ghaziabad, jointly in the name of his wife Smt. Reena Agarwal. The value of the Flat was Rs.31,92,500/-. A rebate of 8% was offered if the payment is made under the Down Payment Plan. The complainant opted for the down payment plan 15% of the BSP was to be paid at the time of booking, 80% within 45 days and 5% at the time of offer of possession. An amount of Rs.45000/-, 5000/-, 50,000/-, 20,000/-, 2,28000/-, were paid on 22/01/2009, 01/02/2009, 06/05/2009, 22/09/2009, and 25/09/2009, a total of Rs.3,50,000/-. Another amount of Rs.22,00,000/- was paid by Axis Bank. On 16/10/2009, under a Tripartite Agreement another amount of Rs.50,000/-, Rs.25,000/- were paid on 28/05/2010, 05/06/2010. On 05/06/2010 a total amount of Rs.26,50,000/- was paid by the complainant when the respondent was entitled for Rs29,37,500/- after deducting 8% rebate. An amount of Rs 1,55,000/- is held by the respondent in excess. On 20/10/2012, the respondent intimated the complainant to deposit Rs.13,26,105/- and thereafter the demand of Rs.14,52,681/- was raised. This is a clear harassment and no offer of possession has been extended so far. This is a gross deficiency in service. They are utilizing the amount of Rs.26,50,000/- for more than four years. The complainant has prayed for direction to the respondent for indicating the date of possession and for recall of demand of Rs.17,12,446/-. He has further demanded 24% interest on the amount deposited by him, and 50,000/- toward cost of litigation.

            The respondent filed their written statement where in they have raised the issue of Axis Bank being a necessary party. The complainant has misled the Forum by concealing the facts. Under the down plan 15% of the basic sale price was to be paid at the time of the booking, 80% within 45 days. Neither the allottee nor the Bank complied the said condition, only a payment of Rs.22 Lakhs, was made by the Bank and thereafter no further payment has been made. They have not followed the terms and condition of the Tripartite Agreement. The Bank of the allottee requested to make payment as per construction linked plan and asked for CLP plan and since the payment was not offered. The allotment was cancelled on 22/11/2011 and intimation was given to the Bank. The plea of arbitration clause have also been taken. The complainant has committed default by not making the payment, as such he is not entitled for any relief. They have also raised the issue of jurisdiction as the project is located in Ghaziabad.

            Both the parties have filed on record their respective evidence and documents.

            We have heard the Ld. Cl. for the parties and have perused the record. Along with the affidavit and arguments, parties have filed the copy of the original allotment letter which is dated 24/11/2009. According to this document the Basic Sale Price was Rs.27,12,500/- additional charges Rs.4,05000/- parking charges Rs.75,000/- that makes it total Rs.31,92,500/-, Annexure-2 to this agreement is scheduled to payment which clearly shows that 8% rebate on down payment shall be allowed. According to this plan, 15% of the total Basic Sale Price is to be paid at the time of the registration. The letter of allotment is dated 24/11/2009. It cast obligation upon the complainant to deposit the 15% Basic Sale Price. The total amount mentioned in this agreement of Basic Sale Price is Rs.27,12,500/- as such on the date of allotment 15% of this amount comes to Rs.4,40,657/-. It is contended by the counsel for the respondent that as per the allegation in the complaint only the amount of Rs.3,50,000/-was deposited on various date, and lastly 25/01/2009. This amount is also fall short of the total amount which was to be paid at the time of the booking i.e. 24/11/2009. The Counsel for the complainant submitted that the intimation of due installments dated 19/09/2009 shows that the Basic Sale Price was Rs.24,80,000/-. If the arguments of the complainant are to be accepted than this amount also falls short of 15% of the total amount required to be deposited. The complainant was under obligation as per the agreement to deposit the 80% of the Basic Sale Price plus 50% of the additional charges and as per the document filed by the complainant. The additional charges were Rs.7,12,500/- the 80% of which will be Rs.25,54000/-.  As per the averment in the complaint, the complainant under Tripartite Agreement has only deposited the amount of Rs.22 lakhs on 16/10/2009. This deposit of Rs.22 lakhs was within 45 days but the amount deposited was less than 80%.  In Para 5 of the complaint an amount of Rs.45,000/- was deposited on 28/05/2010 and Rs.25,000/- on 05/06/2010 and further Rs.25,000/- were also alleged to have been deposited in the month of June 2010. This amount to be Rs.1 lakh was also not within stipulated period as agreed between the parties it was not deposited within 45 days. We find substance in the submission of the Ld. Cl. for the respondent that when the terms of the agreement were violated by the complainant himself, he cannot claim the benefit of 8% rebate on the total sale consideration. If the complainant have paid the amount as per the agreement within the stipulated period of 45 days and then only the complainant could have alleged that the respondent have violated the terms of agreement and have committed the breach of the agreement. When the complainant himself is defaulter he cannot allege the deficiency in service on the part of the respondent. The contention raised by the respondent that the plan was converted from down payment plan to construction link plan is not supported by any evidence on record. As such this cannot be accepted that the complainant was deprived of his right or making the payment under down payment plan. This is clear that the complainant has deposited the amounts, which fall short of 80% if the rebate of 8% is ousted because of non compliance of conditions. The respondent in such circumstances may be competent to call for the Balance of amount, if the same is not deposited they can claim interest only on such amount which was not deposited and not on the total amount. The respondent have not disclosed how they are claiming the delayed payment interest to the tune of Rs.17,12,446/-.

            This is alleged by the respondent that the allotment of the complainant was cancelled on 22/11/2011. The total amount of the Rs.26,50,000/- was in deposited, with the respondent in the account of complainant. This shall be unfair on the part of the respondent, if the levy interest on the total amount of consideration, the respondent can only claim interest only on the amount left to be paid by the complainant. The respondent is under obligation to return to the complainant, the amount, which the complainant have deposited, after making any deduction, if allowed, as per the agreement between the parties.

            In so far as the question of jurisdiction is concerned, it is clear from the documents on record that the agreement of this case was executed in which the Axis Bank is party. This Bank located in New Delhi, in these circumstances the part of cause of action has arisen in Delhi and the Forum at Delhi shall have the Jurisdiction to entertain the present complaint. The respondent have also challenged the jurisdiction on the ground of value of the flat which is beyond the pecuniary jurisdiction of this Forum, admittedly the net value of the Flat is Rs.31,92,500/- , the relief sought in this case is regarding the possession and recalling the demand of Rs.17,12,446/-. From the relief claim, the entire value of the Flat is in issue, which is beyond Rs.20 lacs, more than, the jurisdiction of this Forum, since the complainant has failed to established any deficiency on the part of the complainant. We don’t find any merit in this complaint and it is accordingly dismissed.

Copy of the order be supplied to the parties as per rule

 

(POONAM MALHOTRA)                                                                                (N.A.ZAIDI)                                                                                                                                                         MEMBER                                                                                        PRESIDENT