Delhi

South Delhi

CC/134/2018

SHWETA CHOUDHARY - Complainant(s)

Versus

M/S ADINATH PROPERTIES PVT LTD - Opp.Party(s)

10 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

 

Case No. 134/2018

 

Mrs. Shweta Choudhary

W/o Sh. Pawan Kumar

R/o Flat No-02 Sector-01 Pocket-02 Dwarka

New Delhi.

 

….Complainant

Versus

 

 

M/s Adinath Properties Pvt. Ltd.

Regd. Office: D-74 2^nd Floor Hauz Khas

New Delhi-110016

 

Also at:

M/s Adinath Properties Pvt. Ltd.

Corporate Office: 5^th Floor, Plot No-18, Sector-44,

Gurgaon, Haryana-122003

        ….Opposite Party

    

 

 Date of Institution    : 07.05.2018       

 Date of Order            : 10.03.2023      

 

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

 

 

ORDER

 

 

Member: Ms. Kiran Kaushal

 

 

1. Complainant has invoked the jurisdiction of this commission and prayed for direction to M/s Adinath Properties Pvt. Ltd. (OP) to award compensation of Rs. 75,900/- for delay in completing their flat. To remove all additional charges i.e. club charge of Rs. 25,000/-, external electrification charge of Rs. 12,604/- and interest due till date i.e. Rs. 4,566/-mentioned in the offer of possession. It is prayed that OP be directed to handover the possession of the complainant’s flat or refund the amount of Rs. 10,51,245/- with interest @ 24% p.a. till realization. Additionally it is prayed that directions be given to OP to award sum of Rs. 5 lac as compensation towards harassment, mental tension and deficiency in service alongwith cost of litigation.
2. It is stated that Complainant booked a flat Freesia F-203,2^nd Floor, ‘TERRA FLOORS’ of TERRA City, Bhiwadi and deposited the booking amount vide cheque dated 20.07.2012 and 19.09.2012. OP issued an allotment letter dated 17.10.2012 in favour of the Complainant and collected the instalments from Complainant’s house as per schedule, receipts thereof were sent through courier.
3. Complainant and his family on various occasions was assured that OP will hand over the possession of the flat in time. As per the agreement possession of the said flat was to be handed over to the Complainant within 36 months of the agreement as mentioned in Clause 14 of Buyer’s agreement and if there is delay in possession then OP shall compensate the Complainant as per Clause 50.
4. It is stated that till the time of filing of the complaint the basic amenities in the said flat were not complete and flat was not ready for living. Complainant on 05.04.2018 received Offer of Possession and final demand notice via mail which was given after delay of two years, two months and 12 days from the date of agreement i.e. 23.01.2013. Hence OP is liable to pay compensation as mentioned in clause 50of the Buyer agreement i.e. Rs. 5/sq.ft of super area per month i.e. Rs. 2,875/- per month which totals to Rs. 75,900/-.
5. It is next stated that Complainant being a simple family man booked one bedroom flat in the project of OP because ‘Club’ was not in the master plan and it is against the culture of the Complainant. But OP has deliberately added the club charges of Rs. 25,000/- in the Offer of possession. It is further stated that OP’s representative had told the Complainant that the project cost is escalation free and all the project development charges are included in flat cost, excluding stamp duty and other government charges as mentioned in Annexure-1 of Buyer’s agreement. It is further stated that as per Clause-3 of the builder buyer agreement complainant was only to pay charges mentioned in Annexure-1 but OP escalated the cost of the flat by including external electrification charge of Rs. 12,604/- .It is further mentioned that complainant had made all the payments before due date and as and when demanded by OP but OP added interest due till date i.e. Rs. 4,566/- in offer of possession letter. Thus alleging deficiency of service Complainant approached this Commission.
6. OP resisted the complaint, stating interalia that since the property in question is situated in Rajasthan, therefore the Courts/Forums of Rajasthan have the territorial jurisdiction over the said property. Hence, the complaint is not maintainable in the jurisdiction of this Commission. It is stated that complainant booked a flat in Fresia F-203 having a tentative super area of 575 sq. feet vide provisional allotment letter dated 17.10.2012 for total sale consideration of Rs.10,71,850/- subject to the terms and conditions mentioned in the Buyer’s agreement. It is further stated that it is clearly mentioned in Clause 14 of the Agreement that the possession of the said premises is proposed to be delivered by OP within 36 months from the date of agreement, subject to force majeure circumstances. In case due to force majeure or any other reason beyond the control of the developer, the developer shall be entitled for extension of time.

 

7. It is next stated that as per Clause 33.1 of the Agreement, complainant is liable to pay charges towards external electrification in case any security or deposit is demanded by the electricity authority, municipal authority or any other local authority for providing any facility or amenity. The allottee shall contribute proportionately towards such security or deposit.

 

8. It is further stated that complainant had received the letter of Offer of possession and final demand notice on 05.4.2018. As the complainant failed to take possession of the above said flat and also failed to make payment OP is entitled to charge interest from the complainant as per the builder buyer agreement. It is therefore, prayed that the complaint be dismissed with punitive costs.

 

9. Rejoinder is filed on behalf of the Complainant. Evidence and written submissions are filed on behalf of parties.

 

10. Admittedly Complainant had booked a flat with OP and deposited Rs. 10,51,245/- towards sale consideration. Allotment letter dated 17.10.2012 has been placed on record. As per Clause 14 of Buyer’s agreement dated 23.01.2013 possession of the said premises is proposed to be delivered by the developer to the allottee within 36 months from the date of agreement. Complainant had approached this Commission in 2018 i.e. much beyond 36 months from the date of the agreement. As per

 

Clause 14, in case of force majeure OP shall be entitled for extension of time for delivery of possession of said premises. However, OP has not placed anything on record to substantiate and to establish that the delay in handing over the possession of the flat was due to force majeure or any other reason mentioned in Clause 14 of the Buyer’s agreement.

11. OPs contention that this Commission does not have the territorial jurisdiction to entertain the complaint, is rejected. It is seen that Complainant had made payment through cheque payable at Delhi and the cheque was presented in OP’s Bank account in New Delhi.  OP after receiving the booking amount had issued the receipt on 31.07.2012 and on 19.09.2012 with revenue stamp and with New Delhi office seal on the receipt. Moreover OP in their own Offer of possession have asked the Complainant to make the balance payment at New Delhi or Gurgaon Office. Therefore, as part of cause of action has arisen in the jurisdiction of this commission the present complaint is maintainable within the jurisdiction of this Commission.
12. Facts on record clearly indicate that OP has failed to discharge the obligation made to the complainant. Thus as OP was deficient in rendering service in terms of the obligation they had undertaken we are of the opinion that Complainant is entitled to compensation as per Clause 50A of buyers agreement.
13. There is no denying the fact that OP has not been able to fulfill its obligation within the stipulated time nor has the OP shown any sufficient cause for delay in handing over the possession. In view of the same we find OP to be deficient in service and direct OP to refund Rs. 10,51,245/- alongwith interest @ 9% p.a. from the date of filing of the complaint within three months from the date of order, failing which OP shall pay interest @ 15 % on the above stated amount till realisation. Additionally OP is directed to pay Rs. 25,000/- towards compensation, mental agony and litigation cost.

Parties to be provided copy of order as per rules. Order be uploaded on the website.

File be consigned to the record room.