Delhi

StateCommission

CC/13/673

MANU NARULA - Complainant(s)

Versus

M/S ANSAL PROPERTIES & INFRASTRUCTURE - Opp.Party(s)

31 Aug 2018

ORDER

IN THE STATE COMMISSION: DELHI

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

 

 

Date of Decision: 31.08.2018

 

 

Complaint Case No.673/2013

 

 

Mr. Manu Narula,

S/o Shri S.S. Narula,

R/o 56/10, Rajender Nagar,

Delhi – 110060.

 

                                …..Complainant

 

Versus

 

 

1. M/s. Ansal Properties & Infrastructure Ltd.,

Through its Managing Director,

115, Ansal Bhawan,

16, Kasturba Gandhi Marg,

New Delhi -110001.

 

2. LIC Housing Finance Ltd.,

54, Mahatta Tower, 4^th Floor,

B-1, Community Centre,

Janak Puri, New Delhi – 110058.

 

                                                ….Opposite Parties

 

CORAM

 

Justice Veena Birbal, President

Ms. Salma Noor, Member

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. A complaint under Section 17 of the Consumer Protection Act, 1986 (in short, the “Act”) is filed by the complainant Mr. Manu Narula wherein it is stated that in the month of June, 2006 OP No.1 had advertised in the newspaper that they are launching new project for developing a Group Housing Complex of Residential Apartment on the plot of land situated in the revenue estate of Sonipat, Kundli in the State of Haryana. It is alleged that one Ms. Rajender Kaur had booked a residential flat in the aforesaid project and paid Rs.3,50,000/- as booking amount to OP No.1 on 14.08.2006. On 19.08.2006 She further deposited another sum of Rs.1,74,875/-  and thereby paid 20% of the basic price of the flat. On 28.08.2006 she was allotted an apartment No.03 on 9^th Floor in Tower -14 having super area of 1615 sq. ft. on Basic Rate of Rs.1,625/-sq. ft. on total Basic Price of Rs.26,24,375/- exclusive of Rs.1,00,000/- towards car parking, Rs.5,24,875/- towards composite charges and Rs.25,000/- towards club charges. It is stated that a Flat Buyers Agreement (in short ‘Agreement’) was also executed between Ms. Rajender Kaur and OP No.1 on 28.08.2006, wherein it was agreed that the possession of the apartment would be given within 30 months. It is alleged that on 09.03.2007 Ms. Rajender Kaur transferred her rights and interest in the said apartment in favour of the complainant and requisite amount was also paid to her. It is alleged that said Ms. Rajender Kaur vide letter dated 09.03.2007 also requested OP No.1 to transfer her rights/interest in the said apartment in favour of the complainant. Complainant also applied for loan of Rs.23,50,000/- from OP No.2 for the purpose of purchasing the said apartment. Even OP No.1 wrote to OP No.2 that they have no objection in transferring the said apartment in favour of the complainant. Subsequently, a Tripartite Agreement was signed between the complainant, OP No.1 and 2 on 23.03.2007 whereby loan amount was sanctioned.
2. On 10.04.2007 OP No.1 vide letter dated 10.04.2007 intimated the complainant regarding transfer of the aforesaid apartment in favour of the complainant. It is alleged that OP No.2 had been paying the instalments as and when demanded by OP No.1. It is alleged that period of 30 months expired in December 2008 but the OP No.1 did not handover the possession. It is alleged that the complainant made payment of total sum of Rs.29,10,893/- to OP No.1 against total costs of Rs.32,74,249.40 and only a sum of Rs.3,63,357/- was left, which was to be paid at the time of handing over of the possession of the apartment. It is alleged that on 27.09.2012, OP No.1 had issued a letter calling upon the complainant to take over actual physical possession of the apartment and raised demand of Rs.14,30,007/-.  It  is  alleged  that the said demand was in contravention of the Agreement between the parties. It  is  alleged that vide final statement of account  dated 28.09.2012 OP No.1 arbitrarily increased the final area from 1615 sq. ft. to 1864 sq. ft. thereby increasing the final basic costs of the apartment to Rs.30,54,187/-. Further, composite charges were also increased. It is alleged that despite timely payment, OP No.1 also raised demand of Rs.4,48,887/- towards interest on account of delayed payment and a sum of Rs.16,000/- was also demanded towards interest free security.. Thereafter, complainant requested for withdrawal of the aforesaid demand but the same was not withdrawn. Complainant had sent a legal notice dated 18.10.2012. On receipt of the same complainant was called by OP No.1 for resolution of his grievances, but the same, were not resolved. It is alleged that again vide letter dated 24.04.2013, complainant was called upon to take possession of the apartment till 15.05.2013 failing which holding charges would be applicable. It  is alleged that on 30.08.2013, OP No.1 had cancelled the allotment of the said apartment. Again another letter dated 06.12.2013 was received from OP No.1 informing  the complainant that due to non-payment his allotment has been cancelled and an amount of Rs.6,05,800/- has been forfeited and an amount of Rs.23,05,093/- is refundable. It is stated that photocopy of cheque was also annexed with the said letter.
3. Complainant has alleged that cancellation of the allotment of the apartment and forfeiture of earnest money is illegal. It is alleged that there is deficiency in service on the part of OP No.1. Complainant has made prayer for possession of the apartment allotted to him and for registration of the sale deed in his favour. Complainant has prayed for damages and compensation. Complainant has also prayed that OP be directed not to levy any interest/penalty charges on the alleged demand of Rs.14,30,007/-.  
4. The complaint is opposed by OP No.1 by filing written statement, wherein it is admitted that initially the booking was done by Ms. Rajender Kaur and subsequently it was transferred in the name of the complainant on 10.04.2017. OP has also admitted the payment made by the complainant. It is denied that the offer of possession of the apartment was to be given in December 2008 as is alleged. It is alleged that as per clause 12 of the Agreement OP No.1 had agreed to offer the possession of the apartment to the allottee within 30 months from the date of sanction of building plans by the authority. The increase in the size of the plot from 1615 sq. ft. to 1864 sq. ft. is also not denied. It is stated that increase in the size of the apartment and the proportionate increase in basic price, EDC etc. was duly intimated to the complainant by letter dated 27.09.2012 which also included the offer of possession as well additional balance payment. It is alleged that the complainant was not ready to clear the outstanding dues, so he was liable to pay interest @20% p.a. as per clause 6 of the Agreement. It is further alleged that even OP No.1 had agreed to waive 50% of the interest charged despite that no payment was made due to which cancellation letter was sent on 30.08.2013. Thereupon, OP No.1 had sent another letter dated 06.12.2013 asking him to collect the refund amount. It is alleged that the complainant has got done the booking for making investment purposes and not for self use. It is stated that there is no deficiency in service and the complaint is liable to be dismissed.  
5. Rejoinder is filed by complainant denying the allegations made by the OP No.1 against the complainant. The complainant has reiterated contents of complaint case.
6. Both the parties filed evidence in the form of affidavits. Complainant has filed his own evidence in the form of affidavit wherein the contents of the complaint case are reiterated on oath. In the evidence, the complainant has placed on record copy of the application dated 09.03.2007 by which Ms. Rajender Kaur requested OP No.1 to transfer the booking in favour of complainant Ex. CW -1/1,  Copy of letter dated 19.03.2007 by which OP No.1 gave no objection for transfer of apartment in favour of the complainant subject to payment of outstanding amount of Rs.7,34,824/- Ex.CW-1/2, copy of Tripartite Agreement dated 23.03.2007 Ex. CW -1/3,  copy of letter dated 10.04.2007 by which OP No.1 informed regarding transfer of apartment in favour of complainant Ex. CW -1/4, copy of Agreement Ex. CW -1/5, copy of letter dated 27.09.2012 issued by OP No.1 calling upon the complainant to take possession of the apartment on payment of Rs.14,30,007/- Ex. CW -1/6, copy of statement of account dated 18.09.2012 Ex. CW -1/7, copy of account statement dated 28.09.2012 Ex. CW -1/8, copy of complaint/notice dated 18.10.2012 Ex. CW -1/9, copy of reply dated 05.11.2012 Ex. CW -1/10, copy of letter dated 24.04.2013 issued by OP No.1 to take over the possession till 15.05.2013, failing which holding charges will be applicable Ex. CW-1/11, Copy of letter dated 30.08.2013 whereby allotment of apartment has been cancelled Ex. CW -1/12, copy of legal notice dated 10.11.2013 alongwith courier receipts Ex. CW-1/13 (Colly), copy of cancellation letter dated 06.12.2013 Ex. CW -1/14.
7. OP No.1 has filed evidence by way of affidavit of Shri F.N. Rai, its authorized representative, wherein the contents of the written statement are reiterated on oath. Alongwith affidavit, the OP No.1 has placed on record copy of Board Resolution dated 11.08.2015 in his favour Ex. RW -1/1, copy of Agreement dated 20.01.2007 with Ms. Rajender Kaur Ex. RW -1/2, copy of transfer certificate in favour of the complainant Ex. RW-1/3,  Copy of letter dated 24.05.2007 Ex. RW -1/4, Copy of letter dated 27.09.2012 issued by OP No.1 calling upon the complainant to take possession of the apartment Ex. RW -1/5, copy of cancellation notice dated 23.07.2013 Ex. RW -1/6, copy of letter dated 30.08.2013 whereby allotment of apartment has been cancelled Ex. RW -1/7,  copy of letter dated 06.12.2013 by which allotment was cancelled Ex. RW -1/8.  copy of letter dated 27.02.2013 offering waiver of 50% interest to the complainant Ex. RW-1/10, copy of letter dated 14.05.2013 informing holding charges will be payable in case dues are not cleared Ex. RW-1/11.
8. No one has appeared on behalf of the OP at the time of arguments. Even on the last date of hearing i.e.14.05.2018 no one had appeared for the OP. Accordingly, we have heard counsel for the complainant and perused the material on record.
9. It is admitted position that earlier booking of the unit in question was done by Ms. Rajender Kaur in August 2006 and the apartment was allotted to her. It is also admitted position that the said Rajender Kaur transferred her rights and interest in the said apartment to the complainant on payment of Rs.5,24,875/-  to her. It is also not disputed that Ms. Rajender Kaur vide letter dated 09.03.2007 acknowledged the receipt of aforesaid amount and requested OP No.1 to transfer her right/interest in the said apartment in favour of the complainant and OP No.1 accepted the said application and on that basis complainant applied for housing loan of Rs.23,50,000/- from OP No.2 for purchasing the aforesaid apartment. It is also not disputed that OP No.1 issued letter dated 19.03.2007 whereby no objection was given for transferring the aforesaid apartment in the name of the complainant subject to payment of outstanding dues. On receiving the said letter OP No.2 sanctioned the loan amount in favour of complainant and a Tripartite Agreement was executed between the complainant, OP No.1 and  OP No.2.  It is also not disputed that on 10.04.2007 OP No.1 informed the complainant about transfer of the apartment in his name. It is also note disputed by OP No.1 that it had put endorsement on Agreement (Ex.  CW -1/5), thereby transferring the said apartment in the name of complainant. Payments made by the complainant i.e. Rs.29,10,893/- to OP No.1 against total cost of Rs.32,74,249-  is also not disputed. It is also not disputed that only 5% of the balance amount was left which was to be given at the time of handing over of the actual possession of the apartment.
10. It is also not disputed by OP No.1 that no demand was made from the complainant after June 2011 uptil 27.09.2012. The same is also evident from statement of account dated 18.09.2012 (Ex. CW-1/7) and also that the possession was to be given within 30 months from the date of execution of the Agreement subject to force-majeure circumstances and on receipt of payment as agreed  between the parties. The Agreement is dated 20.01.2007. OP No.1 has deliberately not given the date of sanction of building plan in the written statement.  On reading clause 12 of the Agreement, it is evident that OP No.1 has agreed to hand over the possession within 30 months from the date of sanction of building plan subject to force majeure and on receipt of all payments. Nothing is placed on record by OP about the date of sanction of building plans by the concerned authorities. The Agreement between the parties was executed on 20.01.2007. Even if period of 30 months are taken from said date, the same would be over by July 2009. However, offer of possession is made on 27.09.2012 whereby the complainant has been asked to make payment of Rs.14,30,0007/-. Further, as per statement of account dated 28.09.2012 (Ex. CW -1/8). OP No.1 has demanded Rs.4,48,887/- towards interest on account of delay payment. The correspondence between the parties placed on record, show that complainant has taken up the issue of interest with OP No.1 by contending that there was no delayed payment on his behalf as such he was not liable for payment of interest of Rs.4,48,887/-. However, there is no response to the same either in the written statement or in the evidence filed by the OP No.1 by way of affidavit.
11. From the averments made in the complaint and the evidence on record it is clear that the complainant has always been ready to pay basic price of the increased area and other charges subject to withdrawal of interest amount towards delayed payment. No response has been given by OP No.1 in this regard. Rather vide letter dated 30.08.2013, OP No.1 cancelled the allotment of the apartment, despite receiving 95% of the basic price of the said apartment. In these circumstances act of the OP No.1 in cancelling the apartment amount to unfair trade practice and deficiency in service. In written statement, OP No.1 has taken a stand that it is ready to waive 50% of the interest, however, no explanation is given in the written statement also as to why the complainant has been asked to pay interest when there is no delay in making payment on his behalf. Rather, there is some delay on the part of OP NO.1 in making offer of possession. There is no clause in the Agreement for compensation on delayed possession. On the other hand as per clause 24 of the Agreement allottee is liable to pay interest @24% on the delayed payment. The Agreement is totally one sided as all the terms are favouring OP No.1
12. In view of the above discussion, we find that acts of OP No.1 in issuing letter dated 30.08.2013 and 06.12.2013 cancelling the allotment and forfeiting the earnest money amounts to unfair trade practice and deficiency in service on the part of the OP No.1, we, therefore, cancel the aforesaid letters and direct OP No.1 to handover the possession of the apartment bearing No.140903 situated in Sunshine Country, Sonipat measuring 1864 sq. ft. to the complainant within the period of 02 months from the date of receipt of the copy of this order.
13. The complainant shall deposit the balance amount after deleting interest amount as is shown in the statement of account dated 28.09.2012 in this Commission within 06 weeks by way of FDR in the name of Registrar of this Commission. We would satisfy outselves that the complainant is put in possession of the flat in dispute and thereafter, we would release the FDR with interest being accrued thereon to the OP No.1. Since there is deficiency in service on the part of OP No.1, it will not charge any interest on the balance amount also. We also direct OP No.1 to pay Rs.50,000/- towards litigation costs to the complainant.
14. Complaint stands allowed in aforesaid terms
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge. 

                 Thereafter the file be consigned to record room.     

 

 

 

 (Justice Veena Birbal)

• President

 

 

 

(Salma Noor)

• Member

Tri