RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
COMPLAINT NO. 161 OF 2014
Dr. Sanjay Kumar Sahiwal
S/o Late Sri Ram Singh SAhiwal
R/o A-104, Mantri Avas Colony
Vibhuti Khand
Lucknow
...Complainant
Vs.
M/s Mahagun India Pvt. Ltd.
Zonal Office A-19, Sector-63
Noida, District Gautam Budh Nagar
Through Managing Director
...Opposite Party
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
HON’BLE MR. SUSHIL KUMAR, MEMBER
For the Complainant : Sri Alok Ranjan, Advocate.
For the Opposite Party : None appeared
Dated : 06-09-2022
JUDGMENT
MR. JUSTICE ASHOK KUMAR, PRESIDENT
Heard Sri Alok Ranjan, learned Counsel for the complainant.
None appeared for the opposite party though the names of Counsel for the opposite party Sri Vikas Agrawal and Sri Anurag Srivastava are mentioned in the daily cause list.
The instant complaint has been filed under Section 17 of the Consumer Protection Act, 1986 by Dr. Sanjay Kumar Sahiwal against the opposite party M/s Mahagun India Private Limited with the following prayers:-
“The complainant most respectfully prayed for the following relief that the Hon’ble Commission may graciously be pleased to:
- Direct the opposite party to give the possession and registration in good condition of Flat MILANO-1621 on 16th floor in opposite party’s Housing Residential Complex known as ‘MAHAGUN MASCOT’ having super covered area 2215 SQ. FT. and covered carpet area 1887 SQ.FT. having 4 bedrooms,
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3 toilets, Servant room with toilet, living room, dining room, kitchen with utility balcony and balconies of type SHIG-1 alongwith 2 parking space situated at plot no. 5, Sector 11, crossing Republik, Dundahera, Ghaziabad (U.P.) after getting the certificate of completion from the prescribed authority and
- Direct the opposite party to give interest on total deposited basic price amounting to Rs.43,98,990/- plus Rs.30,000/- @ 18% p.a. from 24-06-2008 till the date of actual possession and
- Award compensation of Rs.1,00,000/- for mental and physical agony to the complainant for arbitrary and illegal acts of the opposite party and
- The expenses Rs.50,000/- incurred in follow up of the matter may be awarded in favour of the complainant against the opposite parties, and
- Cost of the complaint Rs.25,000/- may be awarded in favour of the complainant against the opposite parties, and
(f)Any reliefs which this Hon’ble Commission may deem fit and proper in the circumstances of the case be also passed in favour of the complainant against the opposite party.”
Facts of the case stated in brief are that the complainant had booked a finished flat ‘MILANO-1621’on 16th floor in the residential complex of the opposite party known as ‘MAHAGUN MASCOT’ having super covered area 2215 sq. ft. and covered carpet area 1887 sq. ft. having 4 bedrooms, 3 toilets, servant room with toilet, living room, dining room, kitchen with utility balcony and balconies of type SHIG-1 situated at plot No.5, Sector 11, crossing Republik, Dundahera, Ghaziabad. The complainant had paid Rs.2,00,000/- on 27-01-2008 as booking amount to the opposite party and on 06-02-2008 the opposite party had issued an allotment letter. As per allotment letter the total price of the said flat was Rs.43,98,990/- and the balance amount of Rs.41,98,990/- had to be paid on 14-03-2008.
It has been further stated in the complaint that the complainant had paid the balance amount Rs.41,98,990/- in instalments, first payment of Rs.8,00,000/- on 23-02-2008, second payment of Rs.15,98,990/-, third
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payment of Rs.11,00,000/- on 30-04-2008 and fourth payment of Rs.7,00,000/- on 24-06-2008 and a sum of Rs.30,000/- was also paid on 24-06-2008 as interest as per agreement. Thus the total payment of Rs.43,98,990/- plus Rs.30,000/- as interest against late payment has been paid to the opposite party till 24-06-2008 for the said flat.
It is alleged by the complainant in the complaint that the opposite party has also demanded Rs.1,50,000/- for one medium covered car parking and Rs.1,00,000/- for one open car parking. The complainant had protested to the opposite party for demanding additional charges for car parking on the ground that Hon’ble Supreme Court has ruled that a builder cannot demand additional amount for car parking as he has to provide car parking alongwith the flat without any extra charge. The complainant was forced to pay Rs.80,000/- on 21-08-2008 as first instalment for car parking.
It has further been stated in the complaint that it was specifically provided in the allotment letter that possession of units will be given to allottees of phase 1 by March, 2010 and if opposite party fails to deliver the possession by June, 2010, then opposite party will pay the penalty @ Rs.10 per sq. ft. per month for the delay to the allottees.
It is alleged by the complainant that till June, 2010 possession of said flat was not handed over to the complainant by the opposite party. The complainant got a letter dated 28-06-2010 from the opposite party informing him that due to Common Wealth games there is unavailability of building materials and labour, and due to this company is unable to hand over the possession in stipulated time, hence they attached 6 cheques of Rs.22,150/- each as compensation as agreed in the allotment letter. Thereafter the opposite party also sent cheque for Rs.22,150/- till May, 2011.
It has further been stated by the complainant in his complaint that he got a letter dated 27-05-2011 from opposite party in which the opposite party asserted that the project has been completed and is ready for possession and requested the complainant to visit the site for completing the formalities of delivery of possession and further directed to pay Rs.5,32,125/- on or before 30-06-2011 on different heads plus demand
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draft of Rs.3,45,000/- for stamp duty towards registration of sale deed and take the possession on or before 31-07-2011. The complainant went to the site on 21-06-2011 and met Senior Manager Marketing Sri Shiv Prakash Choudhary, Manager Marketing Sri Sanjeev Singh and Nodal Person Nidhi Manjita and inspected the site in their presence and found that the contruction of the building towers were not complete and constructions were going on in full swing with the help of big machines. There were so many deficiencies also found. Even the boundary wall was not constructed and other 35 facilities which were promised to be provided and which were necessarily parts of the valued flat did not exist at all.
The complainant has alleged in the complaint that he sent a mail to the opposite party and also sent a letter dated 25-06-2011 mentioning about non completion of building and requesting him to pay to the complainant Rs.22,150/- as compensation as agreed in allotment letter till the completion of all the pending works but the opposite party neither paid any compensation; nor did they send reply to the complainant’s letter dated 25-06-2011 and email. The opposite party so far never showed or sent the copy of ‘completion certificate’ or even intimated about it to the complainant and the opposite party also stopped paying compensation to the complainant, hence the later sent a legal notice to them for making payment of compensation to him for delayed possession.
It has been further stated in the complaint that on legal advice the complainant filed a complaint Case No. 89/2012 before the District Forum-I, Ghaziabad only with a prayer to direct the opposite party for not compelling him for the registration of the said flat until they obtain the ‘completion certificate’ from G.D.A. and for payment of interest @ 18% p.a. on the total basic amount deposited by him from June, 2011 to December,2011 amounting Rs.4,73,445/- etc.
It is further stated that the opposite party appeared and filed their written statement dated 18-07-2012 challenging the maintainability of the said complaint case on various grounds. In the written statement opposite party had for the first time,alleged that it had cancelled the allotment of complainant because despite repeated reminders he/complainant had failed to make payments. It is submitted that the said allegation of
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opposite party is totally false as the opposite party never cancelled the allotment of the said flat and never informed the complainant about it. Moreover, there was no provision either in allotment letter or in agreement signed between the parties that it could cancel the allotment inspite of payment of full basic price of the flat. It is crystal clear that opposite party had taken this false and fabricated plea of cancellation of allotment only to save itself from the liabilities of payment of interest on total amount deposited by the complainant. The opposite party had enclosed with its affidavit a copy of unsigned letter dated 12-12-2011 purported to be a letter of cancellation of allotment of flat. It is no where mentioned that how this letter was sent to the complainant.
It has been further stated by the complainant in his complaint that the opposite party has filed an unsigned letter of cancellation of flat. The alleged cancellation letter is a fake and fabricated document and it is also mentioned that without obtaining the required completion certificate how the opposite party could cancel the flat when the flat was not ready for possession and registration as per law. The construction of the project has not been completed and the flat in question was not ready for delivery of possession and the opposite party has not obtained the certificate of completion of project from the prescribed authority. The complainant had sought information under Right to Information Act, 2005 from the Ghaziabad Development Authority and the letter issued by Development Authority has informed the complainant that certificate of completion of project in question has not yet been issued to the opposite party.
It has been stated in the complaint that the District Forum without application of judicious mind and without production of any evidence of proof of service of letter of cancellation of the said allotment on the complainant has presumed that complainant’s allotment was cancelled and also without perusing reliefs mentioned in complaint petition dismissed the complaint holding that complainant by concealing the fact has tried to take the possession of the flat by getting the restoration of the allotment and disputes of the parties is worth more than Rs.20,00,000/-.
It has been alleged in complaint by the complainant that he for the first time learnt about the alleged fake, fabricated and unsigned letter of
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alleged cancellation of allotted flat of the complainant and the judgment of District Forum, Ghaziabad in his complaint case No. 89/2012 on 20-11-2014 when he received the entire file of the complaint case sent by his Counsel from Ghaziabad. Thus cause of action for filing of complaint for the first time accrued on 20-11-2014, hence the complaint is within time.
It is further submitted that even if it is assumed for the sake of argument that cause of action accrued on 19-07-2012 on which date alleged fake and fabricated letter of cancellation was filed by the opposite party in the District Forum, the limitation will start running from 20-11-2014 when complainant got knowledge of this letter.
As per law laid down by Hon’ble Supreme Court in the case reported in AIR 1996 SC Page 92 the point of limitation will start from the date of knowledge and complainant got knowledge for the first time on 20-11-2014 that his flat was allegedly cancelled by the opposite party. But however if the Hon’ble Commission treats the date filing of fake and fabricated cancellation letter as the starting point of limitation, then the delay of 160 days has been sufficiently explained and it has been shown by the complainant that he has sufficient cause for not filing complaint petition earlier as he had no knowledge at all of the alleged fake cancellation of allotted flat of the complainant.
It is also submitted that the Hon’ble National Commission in the case of Bhagyalaxmi Construction V/s Manoranjan Basak and another reported in III (2013) CPJ 75(NC) has held that the question of limitation does not arise in the case of continuing cause of action and similar view was expressed by the Hon’ble National Commission in F.A. 1029/2012 wherein it has been held that when once the opposite party has received the value of flat, it is incumbent upon the opposite party to complte the project, deliver the flat, register the flat and put the complainant in possession till then complainant will get recurring cause of action and also entitled to seek the compensation.
It is submitted that therefore the complainant is entitled to get the possession and registration of flat allotted to him and damages and compensation for mental agony as well as expenses incurred in follow up
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of the case which may be calculated in terms of money for the purpose of valuation of complaint as well as reliefs sought by the complainant. The valuation of complaint case is 70 lacs.
Learned Counsel for the complainant has also placed reliance of certain annexures which are filed alongwith the complaint namely Annexure-1 which is the photostat copy of the allotment letter.
Annexure-2 to the complaint is the photostat copy of the payment receipts.
Annexure 3 – Photocopy of receipt.
Annexure 4 to the complaint is the photocopy of the letter dated 28-06-2010.
Annexure 5 to the complaint is the photocopy of letter dated 27-05-2011 of opposite party.
Annexure 6 to the complaint is copy of ltter dated 25-06-2011 of complainant.
Annexures 7 and 8 to the complaint are copies of legal notice and complaint petition.
Annexure 9 to the complaint is the copy of alleged cancellation ltter dated 12-12-2011.
Annexure 10 to the complaint is the copy of judgment dated 15-10-2014 passed in Complaint Case No. 89/2012 by District Forum-I, Ghaziabad.
Annexure 11 to the complaint is copy of letter and receipt of postage.
The opposite party, the builder has filed the written statement against the complaint filed by the complainant on 22-07-2016 and denied the allegations made by the complainant but the learned Counsel for the complainant has moved application to close opportunity of written statement of opposite party and to proceed exparte and submitted in view of provision under Section 13(2)(a) of the Consumer Protection Act, 1986 opportunity of written statement stands closed and written statement cannot be admitted on record at this stage. On this point this Commission
has passed the following order on 30-08-2016 which is extracted below:-
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“30-08-2016
Perual of records shows that opposite party appeared for the first time on 27-07-2015 in this complaint through learned Counsel Sri Rajesh Chadha. On that date 26-08-2015 was fixed date for written statement but opposite party did not file written statement on date fixed. Thereafter more than 45 days have passed but opposite party did not file written statement. Opposite party has moved preliminary objection on 01-12-2015 alleging that the complaint is barred by principle of resjudicata. Said preliminary objection has yet not been decided. In the meantime on 07-05-2016 complainant moved application to close opportunity of written statement and to proceed exparte against opposite party. Subsequntly opposite party filed written statement on 22-07-2016. The complainant has objection on entertaining written statement at this stage.
Relevant provision of Section 13 (2)(a) of the Consumer Protection Act reads as follows:-
“refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.”
In the case of New India Assurance Company Limited V/s Hilli Multipurpose Cold Storage Pvt. Ltd. I(2016) CPJ 1(SC) the Hon’ble Apex Court has held that District Consumer Forum can grant time for written statement no beyond 45 days prescribed in Section 13(2)(a) of the Consumer Protection Act 1986.
In view of provisions of Section 13(2)(a) of the Consumer Protection Act 1986 as well as proposition laid down by Hon’ble Apex Court in above judgment, the Commission has no power to permit opposite party to file written statement after expiry of 45 days from the date of his first appearance.
Opposite party has appeared on 27-07-2015 for the first time in this complaint and thereafter several dates were fixed but opposite party did not file written statement, nor applied for time to file written statement. Opposite party has filed preliminary objection also after expiry of above
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prescribed 45 days.
Provisions of law should be strictly followed. No one should be permitted to depart from provisions of law enacted by legislature. Expeditious disposal of complaint under the Consumer Protection Act 1986 is one of the essential requirement of the Act.
In view of above, we are of the view that opposite party cannot be permitted by Commission to file written statement after expiry of 45 days prescribed in Section 13(2)(a) of the Consumer Protection Act 1986. As such written statement filed by opposite party cannot be entertained at this stage. Written statement filed by opposite party is returned to him. However, in view of proposition laid down by Hon’ble National Commission in its judgment rendered in the First Appeal No. 257/2016 Rudra Buildwwell Construction Private Limited and another V/s Dharampal opposite party is permited to participate in proceedings of the complaint to assist Commission.
List on 26-09-2016 for evidence of complainant.”
It is argued by learned Counsel for the complainant that the complainant has booked a finished residential Apartment No. ‘MILANO-1621’ on 16th floor having super covered area 2215 sq.ft. (covered area 1887 sq.ft.) approximately for a basic cost of Rs.43,98,990/- after depositing the booking amount of Rs.2,00,000/- on 27-01-2008. The opposite party had issued an allotment letter on 06-02-2008 and as per allotment letter the balance amount of Rs. 41,98,990/- had to be paid on 14-03-2008.
It is argued by learned Counsel for the complainant that the complainant has paid the balance amount of Rs.43,98,990/- plus Rs.30,000/- as interest against late payment to the opposite party till 24-06-2008 for the said flat.
It has been further argued by the learned Counsel for the complainant that the opposite party has illegally demanded Rs.1,50,000/- for one medium covered car parking and Rs.1,00,000/- for one open car parking. The complainant had protested to the opposite party for demanding additional charges for car parking on the ground that Hon’ble Supreme Court has ruled that a builder cannot demand additional amount
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for car parking as he has to provide car parking alongwith the flat without any extra charge. The complainant was then forced to pay Rs.80,000/- as first instalment for car parking
Learned Counsel for the complainant has argued that the possession of the unit of phase 1 was to be given by March,2010 and as per allotment letter if the opposite party fails to deliver the possession by June,2010, then the opposite party will pay the penalty @ Rs.10/- per sq. ft. per month for the delay to the allottees. Till June, 2010 possession of said flat was not handed over to the complainant by the opposite party. The opposite party issued six cheques of Rs.22,150/- each as compensation to the complainant alongwith letter dated 28-06-2010. Thereafter also oppos9ite party sent cheque for Rs.22,150/- till May, 2011.
It has been further argued by the learned Counsel for the complainant that vide letter dated 27-05-2011 the opposite party informed the complainant that the project has been completed and is ready for possession and further directed to pay Rs.5,32,125/- on or before 30-06-2011 on different heads plus demand draft of Rs.3,45,000/- for stamp duty towards registration of sale deed. The opposite party directed the complainant to complete the formalities and take the possession on or before 31-07-2011.
Learned Counsel for the complainant has argued that the complainant has visited the site and found that the construction of building towers were not complete and there were so many deficiencies also. Thereafter the complainant sent email and a letter dated 25-06-2011 to the opposite party mentioning about non completion of building and requested him to pay Rs.22,150/- as compensation to the complainant but the opposite party neither paid any compensation nor replied to the letter dated 25-06-2011.
Learned Counsel for the complainant has further argued that no ‘Completion Certificate’ has been obtained by the opposite party from the competent authority and has stopped paying compensation to the complainant. The complainant sent a legal notice to the opposite party for making payment of compensation for delay possession.
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In view of the above it is submitted by the Counsel for the complainant that the instant complaint is liable to be allowed and the reliefs sought by the complainant are liable to be accepted by this Court.
We have heard learned Counsel for the complainant at length and perused the material evidence available on record.
None appeared for the opposite party.
We have also perused the evidence filed by the learned Counsel for the complainant as well as the evidence of opposite party.
The facts of the case are already mentioned hereinabove hence need no repetition. From the perusal of the facts narrated hereinabove it is clear that so far as the Flat allotted to the complainant by the opposite party in their project, the developer has not completed the construction of the unit allotted to the complainant till filing of this complaint.
It is further submitted here that as against the cost of the Flat i.e. Rs.43,98,990/- the complainant had already paid an amount of over and above Rs.43,98,990/- plus Rs.30,000/- as interest against late payment. This fact is also not disputed by the opposite party.
In view of the aforesaid, the instant complaint petition is liable to be allowed with costs.
ORDER
The complaint is allowed.
- The opposite party is directed to handover the possession and registration in good condition of Flat ‘MILANO-1621’ on 16th Floor in the Housing Residential Complex known as ‘MAHAGUN MASCOT’ having super covered area 2215 Sq. Ft. and covered carpet area 1887 Sq. Ft. having 4 bedrooms, 3 toilets, Servant Room with toilet, living room, dining room, kitchen with utility balcony and balconies of type SHIG-1 alongwith two parking space situated at Plot No.5, Sector 11, Crossing Republik, Dundahera, Ghaziabad (U.P.) after getting the certificate of completion from the prescribed authority and after due inspection by the complainant and if the complainant is satisfied with the condition of the flat in question and to take the possession of the said flat, alternatively
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- if the complainant is not ready to accept the offer of possession then the opposite party will refund the entire deposited amount within 30 days with the interest at the rate of 10% per annum from the date of deposit of the amounts till the date of payment.
The opposite party shall further pay a sum of Rs.1,00,000/- to the complainant towards mental agony and physical agony. The opposite party shall also pay a sum of Rs.25,000/- to the complainant towards the expenses incurred in follow up of the matter.
The opposite party will also pay a sum of Rs.25,000/- to the complainant as costs of the case.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission today itsel
( JUSTICE ASHOK KUMAR ) ( SUSHIL KUMAR )
PRESIDENT MEMBER
Pnt.
