Haryana

StateCommission

CC/759/2017

DR. RAJ LUXMI - Complainant(s)

Versus

MAPSKO BUILDERS PVT.LTD. - Opp.Party(s)

BY POST

26 Nov 2018

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Complaint  No.759 of  2017

Date of the Institution:29.11.2017

Date of Decision: 26.11.2018

 

Dr. Raj Luxmi, R/o 68-A, Haroja House, Patilputra Colony, Patna, Pin Code-800013.

                                                                   .….Complainant

Versus

 

Mapsko Builders Pvt. Ltd., 6^th Floor, No.1 Golf Course Road, Sector-56, Gurgaon, Haryana, Pin Code-122011.

 

                                                .….Opposite Party.

 

CORAM:    Mr.Ram Singh Chaudhary, Judicial Member.

 

 

Present:-    Dr. Raj Luxmi, complainant in person.

Mr.Sachin Mittal, Advocate for opposite party.

 

O R D E R

 

RAM SINGH CHAUDHARY, JUDICIAL MEMBER:

 

                    Complainant has filed the present complaint under the Consumer Protection Act, 1986 (In short “Act”) pleaded therein that she booked two residential flats bearing No.803, Regent Tower, Mapsko Royal Ville, Sector-82, Gurgaon on 21.08.2010 and Flat No.1103, Regent Tower, Mapsko Royal Ville, Sector-82, Gurgaon on

26.08.2010 with opposite party (O.P). The basic sale price of the flat No.803 was Rs.47,64,922/- and basic sale price of flat No.1103 was Rs.66,72,439/- respectively.  The complainant had deposited the entire amount of the flats including service tax to the O.P at different phases. Apartment Buyers agreements was executed between the parties on 01.05.2011 and on 28.07.2011 respectively. As per clause No.17 (a) of the agreements, the construction of the flats was to be completed within 42 (months) +6 months (extended period)=48 months therefrom, but, till date construction of the flats were not completed and possession was not delivered to them.  The O.P has committed the unfair trade practices and also cheated the complainants and other innocent people also. The complainant requested the O.P to refund the interest amount on the deposited amount, but till date O.P did not paid any heed to the request of the complainant. Hence, under the constraint circumstances the complainant had no option but to file the present complaint with the prayer that the appropriate direction may be issued to the O.P to make payment of a sum of Rs.42,75,857/-  as interest on the amount which had been deposited by the complainant with the O.P. alongwith interest @ 21% per annum from the date of entering into the agreement with the complainants from the date of default in delivery of possession of units in question.

2.                Notice of the complaint was issued against the O.P and the reply was filed, wherein the averments taken in the complaint were  strongly denied and refuted and prayed for dismissal of the complaint.

3.                While taking the preliminary objection it has been alleged that the present complaint was filed with respect two flats i.e. Flat No.803 and Flat No.1103 Regent Tower, Mapsko Royal Ville, Sector-82, Gurgaon and the possession of the flat No.803 has been handed over to complainant on 5.02.2018 and possession of flat No.1103 has been handed over on 20.03.2018. Complainant accepted the possession to her complete satisfaction in all respect and has no claim whatsoever against the O.P as on date. Thus, there was no deficiency in service on the part of O.P.

4.                When the complaint was posted for recording evidence of the parties, the complainant in her evidence has tendered the affidavit Ex.CA vide which she has reiterated all the averments taken in the complaint and further tendered the documents Ex.C-1 to Ex.C-70 and closed her evidence.

5.                On the other hand, O.P. in evidence tendered affidavit Ex.RA vide which they reiterated all the averments taken in the written version and further tendered the documents Ex.R-1 to Ex.R-8 and closed its evidence.

6.                The arguments have been advanced by SMt. Raj Laxmi, complainant in person and pleaded her case herself as well as Sh. Sachin Mittal, learned counsel for the opposite parties.  With their kind assistance the entire records including documentary evidence as well as whatever the evidence had been led by the parties during the proceedings of the complaint had also been properly perused and examined.

7.                The basic and foremost question on the basis of contentions raised by the parties is as to whether the complainant is entitled to get the interest over the delayed possession of two units.

8.                While advancing the arguments it has been argued by complainant that the possession of the flats in question was delivered by the O.P in the February, 2018 i.e. after filing the present complaint and she had paid the entire amount of units. She had followed all the terms and conditions as per buyer’s agreement, but there is delay on the part of O.P in delivery of possession of units, so she is entitled to get interest on the deposited amount for the delayed period in delivering the possession of units.

9.                Contrary to it, it has been argued by Sh. Sachin Mittal, learned counsel for the O.P that once the claim has been waived of, given in writing, same claim cannot be allowed by the Court of Law. In this regard he has referred Ex.R-5 as well as Ex.R-6, wherein, the possession of units has been accepted unconditionally and further undertaken that not to claim the interest to the company, as such, no interest could be allowed to the complainant.

10.              Considering the submissions made on behalf of the complainant as well as learned counsel for O.P, as per the admitted facts of the present complaint, the entire amount had already been paid by the complainant. Possession of the units was delivered in the first week of February, 2018, contrary to it, as per terms and conditions of the agreement in the case of a unit which was booked on 21.08.2010, whereas the agreement was executed on 01.05.2011, possession was to be delivered on or before 30.04.2015 and since the possession has been delivered to the complainant in the first week of February, 2018. So, there is a delay of 33 months. Similarly, the other unit which was booked on 26.08.2010 and the agreement was executed on 28.07.2011, possession was to be delivered on or before 27.07.2015 and actual possession has been delivered in the first week of February, 2018 and there is a delay of 31 months. There is a delay of more than 30 months in delivery of possession of both the units. In such circumstances, no investor or buyer of a unit would agree to take the possession waiving of entire claim of delayed period. It is true that there are two documents referred by the learned counsel for O.P which are Ex.R-5 and Ex.R-6, wherein it has been mentioned that complainant would not claim anything against the O.P, but it appears that since delivery of possession was delayed for a period of more than 30 months and it is quite possible that the signatures were obtained under the duress, as such the investor who basically belongs to working class cannot be denied legal right to claim the interest for delay about more than 30 months for delivery of possession of two units. Hence, the contentions of O.P is rejected and the interest @ 12% p.a. is allowed to the complainant in case of the first unit No.803 which was booked on 21.08.2010 and the total price of the same was Rs.47,64,922/-, as such she would be entitled @ 12% p.a. from 30.04.2015 to 31.01.2018.

11.              In the case of another unit No.1103, which was booked on 26.08.2010 for a total amount of Rs.66,72,439/- and in this case possession was to be delivered within 48 months and ultimately possession was to be delivered on or before 27.07.2015 and the same was delivered in the first week of February, 2018, so, in this case also there is a delay in delivery of possession. As such, on the similar analogy, the interest at the rate of 12% p.a. is further allowed for the period w.e.f. 27.07.2015 to 31.01.2018. In case, there is a breach in making payment within the stipulated period of three months in that eventuality the complainant would further be entitled to get the interest @ 18% per annum, for the defaulting period. The complainant is also entitled of Rs.51,000/- for compensation of mental agony and physical harassment.  It is also made clear that for non-compliance, the provisions enshrined under section 27 of the C.P.Act would also be attractable. 

 

 

November, 26^th, 2018                                                            Ram Singh Chaudhary                                                                                                        Judicial Member                                                                                                                   Addl.Bench               

R.K.