CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)
New Delhi – 110 016
Case No.814/2009
SH. ARUN VERMA
S/O DR. BRAHM SINGH VERMA
R/O G-29-C, SUSHANT LOK,
GURGAON, HARYANA
…………. COMPLAINANT
VS.
- MR. HIMANSHU AGARWAL,
DIRECTOR OF M/S ZISTHA DEVELOPER LTD.,
G-65, KALKAJI, NEW DELHI
ALSO AT:-
MR. HIMANSHU AGARWAL,
(ZESTHA DEVELOPER)
R/0 B-13, SEC-33, NOIDA, U.P.
OFFICE ADDRESS:-
F-436, SECTOR-63, NOIDA, U.P.
- CHIEF MANAGER/SENIOR MANAGER/MANAGER
ALLAHABAD BANK,
RUDRAPUR(NAINITAL),
ARYA SAMAJ MANDIR, RUDRAPUR,
DISTT. UDHAM SINGH NAGAR(UTTRAKHAND)
………….. RESPONDENTS
Date of Order:20.01.2016
O R D E R
A.S. Yadav – President
The case of the complainant is that he applied for allotment of residential flat in the project of OP namely “Platinum Tower” under the Residential Group Housing Scheme at Rudrapur, District Udhampur(Uttranchal) on 30.11.2006 and submitted all the relevant documents to OP. OP entered into a written agreement dated 03.12.2006 with complainant for selling the duly constructed well furnished flat bearing No.B-3/31 on the third floor having total cost of Rs.15,70,000/-. At the time of written agreement, OP demanded initial payment for booking of above said flat to the tune of Rs.3,14,000/- alongwith application and remaining balance to be paid in 180 equal monthly instalments. Complainant paid Rs.3,14,000/- as a initial payment to OP.
It is further stated that complainant approached to Allahabad Bank for sanction of loan of Rs.12,56,000/-. Allahabad Bank sanctioned a loan of Rs.12,56,000/- in equal monthly instalment of 180 months of Rs.13624/- to be directly released month wise to OP and in that process the post dated cheques were procured form complainant by Allahabad Bank. Complainant paid monthly instalments to Allahabad bank and the bank released the same without any delay to OP.
It is further stated that official of Bank staff are taking the monthly instalment form complainant as per the loan sanction amount released to OP. OP has already received a loan sanctioned amount of Rs.12,56,000/- from Allahabad Bank. It shows that OP received total amount as per the terms and condition of written agreement dated 03.12.06 including initial amount but failed to hand over the possession of the said flat to complainant.
It is further stated that complainant visited number of times to OP for issuance of possession of the above said flat but OP always tried to misguide the complainant by assuring that possession of the flat will be handed over to him in a very short span.
It is further stated that complainant sent legal notice dated 09.10.09 to OP by registered post but the same was unserved with the remarks that OP had left the premises without any new address which shows that OP with collusion of postal employee got the notice unserved.
It is prayed that OP be directed to hand over possession of the flat with immediate effect if OP fails to hand over the possession the total amount (initial + loan sanctioned amount) are to be paid with interest @ 24% per month.
We have heard Ld. Counsel for the parties and carefully perused the record.
OP-1 in its reply has admitted that there was a written agreement dated 03.12.2006 executed between the parties for purchase of flat. However, complainant violated the terms and conditions of the above referred agreement as payment of instalments were not being paid in time by complainant. The delay in handing over the physical possession of flat is due to certain unavoidable and unexpected circumstance totally beyond the control of OP. The construction was in full swing and OP was all set to hand over the possession on time however in March 2008 due to change of unexpected circumstance created by the government, the work was stopped at the site by making wrong demands on the OP and passing wrong orders without any logic and legality. However vide judgments dated 26.12.2008 and 20.2.2006, orders were passed in favour of OP and it further took some more time to obtain resanctions form local authorities to restart the work. Hence due to force majure, the physical possession could not be handed over by OP but that falls within the permitted circumstances as per the clause 16 of the agreement dated 03.12.06. There was no deficiency in service on the part of OP. It is prayed that complaint be dismissed.
In fact no relief has been claimed against OP-2. OP-2 in its reply has not disputed that the loan of Rs.12.56 lakhs was given to complainant by virtue of tripartite agreement entered between complainant, OP-1 and OP-2. However, OP-2 has taken a plea that the complainant committed default in repayment of the loan amount alongwith interest. OP-2 in the written submissions has submitted that it has initiated the proceedings against complainant under Securitization Act for the recovery of the loan amount alongwith interest.
We have heard Ld. Counsel for the parties and carefully perused the records.
In fact OP-1 has failed to deliver the possession of the flat in time. It is a clear cut case of deficiency in service on the part of OP-1. Complainant has specifically stated in its written arguments that Sub District Magistrate, Rudrapur, Uttranchal has stated in his letter dated 05.03.2008 that OP-1 started construction on khasra No.224, 225 and 246 situated at village Phul Saunga, Tehsil Kichachs, Rudrapur, District Udhamsingh Nagar, Uttranchal without getting the plan of the building approved by his office.
It is evident form this letter that the construction was started without obtaining necessary approval. Complainant was not concerned with the litigation which took place between OP-1 and the appropriate govt. In fact for that litigation also OP-1 was responsible. Complainant has specifically stated in written arguments that Writ Petition(M/S) no.2001 of 2008 in the Hon’ble High Court of Uttrakhand was the result of failure of OP-1 to get the sale deed for khasra nos.224, 225 and 226 situated at village Phul Saunga, Tehsil Kichacha, Rudrapur registered within 180 days from the date on which permission was granted by the government i.e. 01.11.2006.
There was no question of delay on account for force majure. It is not an act of God or people which has resulted in delay. Definition of force majure as mentioned in Balck’s Law Dictionary is given below:-
“An event of effect that can be neither anticipated nor controlled. “The term includes both acts of nature(eg. Floods, hurricanes etc.) and acts of people(eg. Riots, strikes and wars).”
Moreover in this case initially the flat No.B-3/31 was allotted which was changed to B-4/31 without giving any information to the complainant about the reason for making such a change. Complainant has proved beyond doubt deficiency in service on the part of OP.
In view of the facts and circumstance of the case, it will be appropriate if OP-1 is directed to refund entire amount received by it i.e. a sum of Rs.15,70,800/- (Rs.3,14,800/ and Rs.12,56,000/-) alongwith interest @ 10% p.a. from the date of filing of complaint. OP is also directed to pay Rs.20,000/- as compensation and Rs.5,000/- towards litigation expenses.
Let the order be complied with within one month of the receipt thereof. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(D.R. TAMTA) (A.S. YADAV)
MEMBER PRESIDENT
