Delhi

East Delhi

CC/574/2014

RAJESH - Complainant(s)

Versus

M-TECH - Opp.Party(s)

13 Apr 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF N.C.T. OF DELHI

CONVENIENT SHOPPING CENTRE, SAINI ENCLAVE, DELHI - 92

CC No.574/2014:

In the matter of:

1.Sh. Rajesh Kumar Jain

   S/o. Sh. P.C. Jain

2.Smt. Neeru Jain

   W/o.Sh. Rajesh Kumar Jain

 

   Both R/o.507/24, Sector 10, Dwarka, New Delhi

Complainant

V/s

M/s M-Tech Developers Ltd.

(Through its Managing Director Mr. Amit K. Jha)

M-Tech House, 144-4/A, 4/B,

Hari Nagar Ashram, New Delhi – 110 014                                     

Respondent

 

                                                                                                             Date of Admission: 03/07/3014

                                                                                                             Date of Order         : 13/04/2015

ORDER

Ms. Poonam Malhotra, Member:

 

This complaint has been filed with the allegation that the complainants applied for a three Bedroom flat in the residential project announced by the Respondent under the name Camellia Garden in Bhiwadi, Rajasthan after depositing a sum of Rs.1,62,000/- vide Receipt No.8715 dated  05/12/2006.  Possession was promised in September, 2011.  Vide letter dated 20/01/2007 the Respondent informed the complainant that the construction work has started and it demanded Rs.2,43,000/- from them. The said amount of Rs.2,43,000/- was paid vide Receipt No.15409 dated 21/12/2007 but thereafter no demand was raised by the  respondent.  The respondent declined to execute the Agreement with the complainants though it had signed Agreement with some other allottees.  Legal Notice served upon the respondent and letter dated 19/08/2013 written to it were of no consequence.  In reply to the enquiry of status of flat the respondent assured the complainants to deliver its possession very shortly but it has not given the possession of the flat till date. In these circumstances the respondent has become liable to make payment of Rs.7,500/- per month from September, 2011 alongwith interest @ 24% p.a. till the payment is made.  The respondent is deficient in not completing the project within the assured time period.  The complainant has prayed for directions to the respondent to pay to the complainant Rs.2,47,500/- for the period September, 2011 to June, 2014 alongwith interest @ 24% p.a. as agreed compensation for delay in giving possession to them, pay as agreed compensation for the delay in possession a sum of Rs.7,500/- per month to the complainant w.e.f. July, 2014 till the possession of the complete Flat No.302, III^rd Floor, Gama Tower, 10, Camellia Garden, Bhiwadi, Rajasthan. They have also prayed for payment of interest @ 24% p.a. towards further compensation for excruciating delay in completion of the project, Rs.1,00,000/- towards compensation for harassment and the cost of litigation. 

 

            In response to the notice none put up appearance on behalf of the Respondent and no reply filed.  Case proceeded ex-parte against it.

 

          Evidence by way of Affidavit and documents filed by the complainant in support of their case.

 

            Heard the Ld. Counsel for the complainant and perused the record.

                                                                                                                                                      

            It is not in dispute that the complainants have paid in all a sum of Rs.4,05,000/- (Rs.1,62,000/- and Rs.2,43,000/-)  from 05/12/2006 to 21/12/2007 towards the cost of the flat booked by them.  In the present complaint, it is alleged by the complainants that the respondent had assured to complete the construction of the Three Bedroom Flats in its residential project Camellia Garden in Bhiwadi, Rajasthan in which they had booked a flat within 30 months from the date of signing of the Buyer-Seller Agreement but they declined to execute the Agreement with the complainants though it had signed the Agreement with some other allottees with regard to the same Three Bedroom Flats in its residential project Camellia Garden in Bhiwadi, Rajasthan.  To substantiate their averment, the Complainant No.I has filed by way of an additional evidence the Buyer-Seller Agreement executed between one Smt. Santosh Jain W/o. Sh. Shri Krishan Jain 5C/21, Johari Niwas, New Rohtak Road, Karol Bagh, New Delhi – 110 005 and the respondent on 12/03/2009 with regard to a flat booked by her in the same Three -Bedroom Flats in the same project Camellia Garden in Bhiwadi, Rajasthan.  The placing on record of the said Agreement by the complainants leaves no room for doubt that the respondent had, as an afterthought conjoined with its malafide intention to swindle their customers of their hard–earned money by using it to their advantage, declined to execute the Agreement with the complainants though it had signed the Agreement with some other allottees.  This is nothing but the clear-cut outcome of the ruminations resulting  from the legal opinions sought by it after executing the Agreement with some of the allottees with regard to the legal repercussions of the execution of the said Agreement and its liability to pay the agreed compensation @ Rs.5/- per Sq.ft. of Super Area per month in case it delays to complete the construction of the three bedroom  flats in its project in question within the period of 30 months as assured to the complainants and as agreed with other persons with whom it had executed the Agreement.  This is a perfect indicator of the malafide intention of the respondent solely to circumvent its liability to pay the compensation for the period of delay to the buyer/complainants beyond the assured period on its failure to complete the construction of the booked flats.  Had the intention of the respondent been clear, then they would have expressly communicated to the complainants about their inability to complete the construction of the flats within the assured time period concurrently they would have proffered to refund the amount received from them on account of the cost of the flat booked by them alongwith compensation for the period of delay in completing the construction of the booked flats within the assured time period.  The malafide intention of withholding the money coupled with its refusal to execute an Agreement squarely falls within the definition of Unfair Trade Practice.

                                                 

Taking into consideration the Buyer-Seller Agreement executed between one Smt. Santosh Jain and the respondent on 12/03/2009 and the facts that despite the failure of the respondent to complete the construction of the booked flat within the assured time period neither the respondent has ever offered an option to the complainant for the refund of the amount deposited by them on account towards the cost of the booked flat nor there has been any express denial on the part of the respondent that the project has been abandoned by them, we adopt the said Agreement to the facts and circumstances of the present complaint and apply its terms and conditions as agreed between the parties thereto to the parties to the present lis assuming as if the said Agreement has also been executed by the respondents with the complainants of the present complaint.  Further, it is also significant to mention here that it is a settled law that the parties to the Agreement are bound by its terms. On a threadbare perusal of the said Agreement, we observe that as per Clause 26(a) of the said Agreement the respondent was under an obligation to complete the construction of the Three Bedroom Flats in its residential project Camellia Garden in Bhiwadi, Rajasthan within 30 months from the date of signing of the said Agreement and as per Clause 26(f) of the said Agreement in case it fails to complete the construction within the stipulated period of 30 months it was liable to pay compensation @ Rs.5/- per Sq.ft. of Super Area per month for the period of delay to the buyer/complainant provided that the buyer has made payment of all the instalments due from the buyer as per the Payment Plan forming part of the Agreement executed between the parties to the present lis.  In the case in hand, it is  stated by the complainants that after the payment of 21/12/2007 neither any demand was raised by the respondent towards the cost of the flat nor is it the case of the respondent that the payment made by the complainants was not commensurate with the stage of construction.  Further, it is alleged by the complainants that in reply to the enquiry made by the complainants with regard to the status of the construction of the flat in question the assurance given by the complainant to deliver possession very shortly after first completing the construction of the 2-Bedroom Flats.  This allegation has been reaffirmed by the complainant on oath and the same has not been controverted by the respondent.  All the above facts leave no room for doubt that the respondent had a definite intention only to stall the construction of the Three Bedroom Flats in its residential project Camellia Garden in Bhiwadi, Rajasthan and which it did stall as is evident from the facts of the case in hand. However, there is nothing on record from which an inference could be drawn that the respondent had abandoned the Three Bedroom Flat Project in question.  From this we arrive at a conclusion that though the project is still alive but the Respondent has failed to meet the deadline for the completion of construction causing inordinate delay in completing the construction of the flat in question and delivering the possession thereof to the complainants, thereby entitling the complainants to the agreed compensation of @ Rs.5/- per Sq.ft. of Super Area per month for the period of delay.

 

It is a settled position of law that uncontroverted evidence cannot be disbelieved and there is no reason for us to disbelieve the averments of the complainants and the same are acceptable to us.  In the case in hand, the construction of the three bedroom flats was inordinately delayed without any sufficient and acceptable reasons. The respondent has failed to stand by its commitment to the complainants.  It is copiously iniquitous on the part of the respondent to utilise the money collected by it for the construction of three bedroom flats to construct two bedroom flats and has thereby caused excruciating delay in delivering the possession of the three bedroom flat to the complainant for which they have made the payment.   Infact, the respondent has used the money deposited by the complainants to their advantage without discharging their obligation towards the complainants.  It is a clear-cut and glaring case of unfair trade practice on the part of the respondent and also amounts to deficiency in service on the part of the respondent company and it is squarely covered by the provisions of the The Consumer Protection Act.

           Taking into consideration the observations and discussion made supra, we allow this complaint and direct the respondent to pay to the complainants jointly @ Rs.5/- per Sq.ft. of Super Area per month for the period of delay reckoning from September, 2011 upto the date on which the respondent delivers the possession of the booked flat to the complainant in the following manner:

1. The respondent is directed to pay the amount of agreed compensation @ Rs.5/- per Sq.ft. of Super Area per month for the period of delay reckoning from 12/09/2011 upto the date of this order within 45 days from the date of this order failing which the complainants shall be entitled for interest @ 10% p.a. over this amount till it is finally paid; &,
2. The amount of agreed compensation @ Rs.5/- per Sq.ft. of Super Area per month reckoning from the date of this order upto the date of an instalment falling due from the complainants as per the Construction Linked Plan of the Agreement shall be deducted from the instalment amount payable by the complainants to the respondent towards the cost of the allotted flat and the net amount, if any, shall be payable by the complainants to the respondent.  This process of payment and agreed compensation shall continue upto the date of delivery of possession of the flat to the complainants. 

 

 We, further, award a compensation of Rs.30,000/- to the complainants for the harassment meted out by them for the agonizing delay and this amount shall include the cost of this litigation.  The amount of Rs.30,000/-  shall also be paid within 45 days from the date of this order failing which the complainants shall be entitled for interest @ 10% p.a. over this amount also till it is finally paid. 

 

             Copy of this order be sent to both the parties as per rule.

 

                       

 

(Poonam Malhotra)                                                                                          (N.A. Zaidi)

         Member                                                                                                                     President