DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF N.C.T. OF DELHI

CONVENIENT SHOPPING CENTRE; SAINI ENCLAVE: DELHI – 92

CC. No.573/2014:

In the matter of:

Smt. Santosh Jain

W/o. Sh. Shri Kishan Jain

SC/21, Johari Niwas, New Rohtak Road,

Karol Bagh, New Delhi – 110 005

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 

Also At:

H.No.02, KK Ext.1

Laxmi Nagar, Delhi – 110 092

Respondent

                                                                                                                   Date of Admission: 03/07/2014

                                                                                                                   Date of Order         : 26/03/2015

ORDER

Ms.Poonam Malhotra, Member:

This complaint has been filed with the allegation that the complainant 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.1,65,000/- vide Receipt No.1971 dated  19/08/2006.  Possession was promised in September, 2011. Vide letter dated 18/12/2006 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.MJ/CG/SS/56/249 dated 01/02/2007.  Vide letter dated 26/07/2007 the Respondent informed the complainant that the construction work was in full swing.  In response to the demand raised by the respondent  on phone the complainant further paid Rs.2,00,000/- to it on 09/09/2008 vide Receipt No.19285.  Vide Letter dated 30/09/2008 the respondent informed the complainant about the allotment of Flat No.302, III^rd Floor, Tower Gama 10 of the said project to her.  On 12/03/2009 the respondent signed an Agreement with the complainant whereby it promised to handover the possession of the flat by 11/09/2011 and failure to deliver as promised it shall pay Rs.7,500/- per month to the complainant w.e.f. 11/09/2011 upto the date of delivery of possession of the allotted flat to the complainant.  On demand raised by the respondent, the complainant further paid a sum of Rs.1,50,000/- to it vide Receipt No.21876 dated 04/06/4009.  Thereafter, no demand was raised by the respondent. Two Legal Notices 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 allotted flat the respondent assured the complainant to deliver its possession very shortly after first completing the construction of the 2-Bedroom Flats 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 11/09/2011 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 of the flat to her, also pay to the complainant as agreed compensation for the delay in possession of the flat a sum of Rs.7,500/- per month w.e.f. July, 2014 till the date of delivery of  possession of the complete Flat No.302, III^rd Floor, Gama Tower, 10, Camellia Garden, Bhiwadi, Rajasthan to her.  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 filed by the complainant in support of her case.

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

It is not in dispute that the complainant has paid in all a sum of Rs.7,58,000/- (Rs.1,65,000/-, Rs.2,43,000/-, Rs.2,00,000/- and Rs.1,50,000/-) from 19/08/2006 to 04/06/4009 towards the cost of the flat allotted to the complainant vide Letter dated 30/09/2008.  In the present complaint, the Buyer-Seller Agreement was executed between the complainant and the respondent on 12/03/2009.  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 complainant that after the payment of 04/06/4009 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 complainant was not commensurate with the stage of construction as per the Construction Linked Plan annexed to the Agreement executed between the parties to the present lis.  These facts leave no room for doubt that the construction of the Three Bedroom Flats in its residential project Camellia Garden in Bhiwadi, Rajasthan was stalled sometime around 04/06/2009 due to which it did not raise any further demand but the Three Bedroom Flat Project was not abandoned by it.  From this we arrive at an inference 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 delivering the possession of the Three Bedroom Flat allotted to her, thereby entitling the complainant 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 complainant 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 complainant. 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 allotted three bedroom flat to the complainant for which she has made the payment.  Infact, the respondent has used the money deposited by the complainant to their advantage without discharging their obligation under the Agreement executed between the parties to the present lis.  It is a clear-cut case of unfair trade practice 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 complainant @ Rs.5/- per Sq.ft. of Super Area per month for the period of delay reckoning from 12/09/2011 upto the date on which the respondent delivers the possession of the allotted 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 complainant 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 complainant as per the Construction Linked Plan of the Agreement shall be deducted from the instalment amount payable by the complainant to the respondent towards the cost of the allotted flat and the net amount, if any, shall be payable by the complainant to the respondent.  This process of payment and agreed compensation shall continue upto the date of delivery of possession of the flat to the complainant. 

The complainant of this case has been subjected to harassment, mental pain and agony on account of inordinate delay in handing over the possession of the allotted flat to her which is still continuing as on date.  We award a compensation of Rs.30,000/- to the complainant for the harassment meted out by her 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 complainant 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