Delhi

StateCommission

CC/1425/2017

ABHINAV TAMBI & ANR. - Complainant(s)

Versus

M/S AMRAPALI PRINCELY ESTATE PVT. LTD. - Opp.Party(s)

AMAN BHATNAGAR

11 Sep 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :11.09.2017

Date of Decision :12.09.2017

Complaint No.1425/2017

IN THE MATTER OF:

 

1. Shri Abhinav Tambi,

Resident of 78, New Rajdhani Enclave,                                                                                  

Vikas Marg, New Delhi-110092.

 

 2. Shri Abhishek Tambi

Resident of 78, New Rajdhani Enclave,

Viaks Marg, New Delhi-110092.                                                             ……Complainants

                                                                        Versus

 

M/s. Amrapali Princely Estate Pvt. Ltd.,

Having its Registered office at:

307, 3^rd Floor, Nipun Tower,

Community Centre, Karkarduma,

Delhi-110092.

 

Also at:

Corporate  Office:

C-56 /40, Sector-62,

Noida-201309 (UP)                                                                                       ….Opposite Party

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

Present:        Shri    Aman Bhatnagar, counsel for complainant.

                        None for the OP.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          Short question for adjudication in this complaint filed under Section 17 of the Consumer Protection Act, 1986 is whether the complainant is entitled to the compensation for the delay done by the opposite party in handing over the physical possession of the flat as also for the mental harassment and mental agony caused to the complainant.

          Facts of the case, necessary for the disposal of the complaint, are these.

          Shri Abhinav Tambi and anr. for short complainants, both residing at New Delhi, have filed a complaint before this Commission under Section 17 of the Consumer Protection Act, 1986, against M/s. Amrapali Princely Estate Pvt. Ltd., having their registered office at Delhi, hereinafter referred to as opposite party alleging mental harassment and agony caused to them due to the delay done by the opposite party in handing over the physical possession of the flat applied for by them on 05.08.2010 in the  (OPs) residential project namely Amrapali Princely Estate at GH-021 A, Sector-76, NOIDA, UP and their conduct was further aggravated when despite legal notice, compensation for the delay as contemplated under the agreement was not paid.

          The complainants had booked a three BHK flat with  opposite party in their project at Sector 76, NOIDA and on receipt of the booking amount the OP issued an allotment letter on 05.08.2010, allotting them, a flat admeasuring 1315  sq ft, flat no.K-507, in the said project, for a total sale consideration of Rs.39,05,550/-. The agreement was executed  and as per the agreement, possession of the flat was to be handed over within a period of 30 months from the date of allotment of the flat, i.e. 05.08.2010 with a maximum grace period of six months on account of unforeseen circumstances. Clause 19(a) of this agreement, relevant for the purpose of reproduced below:

“That the Developer shall complete the development/ construction of the flat within 30 months from the date of start of excavation/ signing of agreement which may vary for  6 months. The completion date is subject to force majeure conditions. No claim by way of damages/ compensation shall lie against the Developer in case of delay in handing over the possession on account of the force majeure condition and the developer shall be entitled to a reasonable extension of time for the  delivery of possession of the flat to the allottee.”

          As per the  terms of the agreement the possession of the flat was to be handed over, on or around 05.02.2013, the agreement having been executed on 05.08.2010. Total sale consideration was paid to the Ops. But the possession of the flat was delayed considerably. The OP had finally handed over physical possession of the flat on 26.08.15 after a delay of about 30 months from the agreed date of possession.

          Since there was delay in handing over possession of the flat, the complainants, keeping in view clause 19(c ) of the agreement, sought for the compensation due to him on account of delay. Clause 19(c ) of the agreement is reproduced below:

“In case of delay in construction of the Flat reasons of the flat for reasons other than force majeure condition, the Developer shall pay a sum at the rate of Rs.10/- (Rs. Ten only) per sq. ft. of super area per month for the delayed  period, which shall include of any / all damages, compensation, claims for delayed possession.

          The OP did not respond to the appeal made by the complainant for the compensation, despite legal notice issued to him. The complainant thereafter filed a complaint before this Commission praying for relief as under:-

“a)    Direct the OP to pay Rs.3,94,500/- (Rupees three lakh ninety four thousand give hundred only) alongwith compounding interest @18% p.a. from the due date till the date of payment, calculated for each month, for delay of a period of 30 months in handing over the possession of the flat;

b)      Direct the OP to pay the compensation of Rs.4,00,000/- towards mental harassment and agony cause to the complainants, due to the illegal, unlawful and unfair trade practices of OP;

c)      Direct the OP to pay Rs.20,000/-  towards the cost of litigation.

d)      Pass any such other order(s) or direction(s) as this Hon’ble Forum may seem fir and proper in the circumstances of the case.

          The matter was listed before us for admission hearing on 11.09.2017 when the ld. Counsel for the complainant appeared and advanced his arguments. We have also perused the records of the case.

          On perusal of records of the case we notice that physical possession of the flat has already been handed over to the complainant on 26.08.2015 and the note of taking over possession in this behalf is reproduced below:

“I/we Mr. Abhinav Tambi S/o. Shri Ravi Tambi has taken  physical possession of the flat no.K-507, admeasuring 1315 sq. ft. On 5^th Floor of Tower-K in Amrapali Princely Estate Pvt. Ltd. at plot no.GH-02, Sector-76, Noida, UP on this 26^th day of August 2015 along with the fittings and fixtures in perfect condition and in order. “

          It is a settled position of law that once possession of the flat has been taken over, one is no longer a consumer. The Hon’ble NCDRC in the matter of Harpal Arya vs. Housing Board, Haryana – II (2016) CPJ 36 (NC) – has held:

“Once petitioner had taken over possession with open eyes and without any precondition, he ceases to be a consumer”.

          Similar view was taken by the Hon’ble NCDRC in the matter of Smita Roy vs. Excel Construction – IV (2012) CPJ 204.

          In the given case the complainants have indisputably taken over the possession of the flat unconditionally. If that be the case, relying on he decisions of the Hon’ble NCDRC referred to above, the complainants here  are not Consumers and thus not entitled for the relief  under the provisions of the Consumer Protection Act, 1986.

          We order accordingly. Copy of the order be sent to the parties free of cost as statutorily required.

          File be consigned to records.

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                            MEMBER (JUDICIAL)