View 50 Cases Against Mapsko Builders
Arti W/o Vipin Kumar filed a consumer case on 15 Jun 2016 against M/s Mapsko Builders Pvt. Ltd. in the Sonipat Consumer Court. The case no is CC/455/2015 and the judgment uploaded on 12 Jul 2016.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
SONEPAT.
Complaint No.455 of 2015
Instituted on:11.12.2015
Date of order:15.06.2016
Ms.Arti wife of Vipin Kumar, resident of H.No.644/21, Narender Nagar, Holy Child School road, Sonepat.
……Complainant
VERSUS
1.M/s Mapsko Builders Pvt. Ltd. through its Managing Director/CEO, 52, North Avenue Road, Punjabi Bagh West Delhi-26.
Also at :
a.125, Ist Floor, Vipul Agora, MG Road, Gurgaon-122002.
b.Mapsko City Homes, Sector 27, Sonepat-131001.
2.Mrs. Uma Sardana wife of Satish Sardana, r/o H.No.931, Sector 15, Sonepat.
……Respondents.
COMPLAINT UNDER SECTION 12 OF
THE CONSUMER PROTECTION ACT,1986
Argued by: Shri Varun Gulia Adv. for complainant.
Shri VS Lather, Adv. for respondent no.1.
Shri Deepak Sharma Adv. for respondent no.2.
BEFORE NAGENDER SINGH, PRESIDENT.
PRABHA WATI, MEMBER.
O R D E R
Complainant has filed the present complaint against the respondents alleging therein that she intends to purchase a house and thus, she has contacted the respondent on.1. As original booking was closed, the respondent no.1 convinced her to purchase one floor in their project at Sector 27 Sonepat from any original allottee. The respondent no.1 arranged a meeting with respondent no.2 in their office and they both convinced the complainant that possession of the said floor will be given to her in 12/2012. The complainant has purchased the floor bearing no.ME-128 Ist Floor in Mapsko City Homes Sector 27, Sonepat on 18.4.2012 from respondent no.2 and the agreement dated 28.10.2010 which was in between the respondent no.1 and 2 was endorsed in favour of the complainant after taking transfer fee of Rs.25000/- on 18.4.2012. All pending dues/payments were cleared by the complainant and she also paid Rs.4,26,000/- to Rajeev Kant Mittal, the relative of Uma Sardana. An amount of Rs.5 lacs was also paid in cash to Rajeev Kant Mittal for the said premium or profit of the said floor. In 12/2012, when the complainant asked the respondent no.1 for delivery of possession, they told that the project has been delayed due to some issues and the complainant will get interest at the rate of 24% per annum till possession and possession will be given in the month of 4/2013 and in case of failure, the complainant will be compensated with her house rent of Rs.10000/- alongwith committed interest on her payment and the house rent will be adjusted in last installment and possession would be handed over after adjustment. But to the surprise of the complainant, till date construction of the flat is not completed. The complainant has made her last visit in 8/2015 and found that the construction of the flat is not completed and the respondent no.1 has flatly refused the claim of the complainant and asked the complainant to sell it because the company can only offer possession in June/July,2016 and this wrongful act of the respondent no.1 has caused unnecessary mental agony, harassment and financial loss to the complainant. So, she has come to this Forum and has filed the present complaint.
2. The respondent no.1 and 2 have appeared and they filed their separate written statement.
The respondent no.1 in its written statement has submitted that the complainant has wrongly claimed Rs.16,20,000/- from the respondent no.1 under different heads and without any documentary proof. The complainant is having her house in Narender Nagar in her name or in the name of her husband’s or mother’s name. So, the question of paying Rs.10000/- per month as house rent is wrong. Initially the floor was allotted to respondent no.2 on 28.12.2010 and floor buyer’s agreement was executed between the respondent no.1 and 2. There is no dispute regarding the development work done at the spot till 18.4.2012 and till that date, the development and construction work was in full swing at the spot and only due to this reason, the complainant herself has contacted the respondent no.2 for purchasing the same. The respondent no.1 has already offered the possession to the plot owners and more-than 300 plot owners have got conveyance deed executed in their favour. Possession to floor owners in block A and MF has also been offered and development work in ME block is also on advance stage. So, it cannot be said that there is a delay in the development and construction of the floor by the respondent no.1. As the transfer/endorsement of the floor was approved by the respondent no.1 on 18.4.2012 on the terms and conditions as were agreed between the respondent no.1 and 2 as well as the complainant, no claim or compensation is maintainable as per clause 14A of the agreement. As per clause 14A of the agreement, the original allotee or the reallottee has no right to claim any damages or compensation in case of delay of possession of the floor to the allottee. If Rajcon Infrastructure Ltd., the construction company did not left the construction work incomplete, the respondent no.1 would be able to offer the possession of the said block just like other blocks. There is no intentional delay on the part of the respondent no.1 in completing and finishing the construction work of ME Block. The complainant was endorsed the said floor on such terms and conditions as were arrived at between the respondent no.1 and 2. After fully understanding the terms and conditions of the agreement, the complainant has purchased the floor from the respondent no.2 without any intimation to the respondent no.1. It is only on 18.4.2012 when the complainant came to the office of the respondent no.1 and requested to transfer/endorse the floor in her favour. There is no such condition of damages or compensation in the transfer/endorse, if there is any delayed possession of the said floor. There is no deficiency in service on the part of the respondent no.1 and thus, prayed for the dismissal of the present complaint qua respondent no.1 since the complainant is not entitled for any relief and compensation from the respondent no.1.
Similarly, the respondent no.2 in her written statement has submitted that the complainant has contacted the respondent no.2 and expressed her willingness to purchase first floor of the house which was to be constructed by the respondent no.1 on plot no.ME-128 in Mapsko City Homes Sector 27, Sonepat from the respondent no.2 which was allotted by the respondent no.1 to the respondent no.2 and the respondent no.2 agreed to sell/transfer the same in the name of the complainant through the respondent no.1 as mutually agreed between the complainant and respondent no.2. However, no assurance was ever given by the respondent no.2 for the delivery of the possession of the constructed house as mentioned above as the respondent no.1 is responsible and liable to deliver the possession of the same after getting constructed such floor of the house to the complainant. The complainant has paid an amount of Rs.4,26,000/- to the respondent no.2 and no other amount has ever been paid to the respondent no.2 by the complainant. The complainant has not suffered any mental agony or harassment at the hands of the respondent no.2 and thus, prayed for the dismissal of the complaint qua respondent no.2.
3. We have heard the complainant in person and learned counsel for the respondent at length and have also gone through the entire case file very carefully.
4. Ld. Counsel for the complainant has submitted that due to delay in constructing the flat, the complainant has to suffer unnecessary harassment, humiliation, mental agony and financial loss at the hands of the respondents. It is also submitted that all pending dues/payments were cleared by the complainant and she also paid Rs.4,26,000/- to Rajeev Kant Mittal, the relative of Uma Sardana. An amount of Rs.5 lacs was also paid in cash to Rajeev Kant Mittal for the said premium or profit of the said floor. In 12/2012, when the complainant asked the respondent no.1 for delivery of possession, they told that the project has been delayed due to some issues and the complainant will get interest at the rate of 24% per annum till possession and possession will be given in the month of 4/2013 and in case of failure, the complainant will be compensated with her house rent of Rs.10000/- alongwith committed interest on her payment and the house rent will be adjusted in last installment and possession would be handed over after adjustment. But to the surprise of the complainant, till date construction of the flat is not completed. The complainant has made her last visit in 8/2015 and found that the construction of the flat is not completed and the respondent no.1 has flatly refused the claim of the complainant and asked the complainant to sell it because the company can only offer possession in June/July,2016 and that amounts to a grave deficiency in service on the part of the respondents.
Ld. Counsel for the respondent no.1 has submitted that the complainant has wrongly claimed Rs.16,20,000/- from the respondent no.1 under different heads and without any documentary proof. The complainant is having her house in Narender Nagar in her name or in the name of her husband’s or mother’s name. So, the question of paying Rs.10000/- per month as house rent is wrong. Initially the floor was allotted to respondent no.2 on 28.12.2010 and floor buyer’s agreement was executed between the respondent no.1 and 2. There is no dispute regarding the development work done at the spot till 18.4.2012 and till that date, the development and construction work was in full swing at the spot and only due to this reason, the complainant herself has contacted the respondent no.2 for purchasing the same. The respondent no.1 has already offered the possession to the plot owners and more-than 300 plot owners have got conveyance deed executed in their favour. Possession to floor owners in block A and MF has also been offered and development work in ME block is also on advance stage. So, it cannot be said that there is a delay in the development and construction of the floor by the respondent no.1. As the transfer/endorsement of the floor was approved by the respondent no.1 on 18.4.2012 on the terms and conditions as were agreed between the respondent no.1 and 2 as well as the complainant, no claim or compensation is maintainable as per clause 14A of the agreement. As per clause 14A of the agreement, the original allotee or the reallottee has no right to claim any damages or compensation in case of delay of possession of the floor to the allottee. If Rajcon Infrastructure Ltd., the construction company did not left the construction work incomplete, the respondent no.1 would be able to offer the possession of the said block just like other blocks. There is no intentional delay on the part of the respondent no.1 in completing and finishing the construction work of ME Block. The complainant was endorsed the said floor on such terms and conditions as were arrived at between the respondent no.1 and 2. After fully understanding the terms and conditions of the agreement, the complainant has purchased the floor from the respondent no.2 without any intimation to the respondent no.1. It is only on 18.4.2012 when the complainant came to the office of the respondent no.1 and requested to transfer/endorse the floor in her favour. There is no such condition of damages or compensation in the transfer/endorse, if there is any delayed possession of the said floor. There is no deficiency in service on the part of the respondent no.1.
Ld. Counsel for the respondent no.2 has submitted and admitted that the complainant has contacted the respondent no.2 and expressed her willingness to purchase first floor of the house which was to be constructed by the respondent no.1 on plot no.ME-128 in Mapsko City Homes Sector 27, Sonepat from the respondent no.2 which was allotted by the respondent no.1 to the respondent no.2 and the respondent no.2 agreed to sell/transfer the same in the name of the complainant through the respondent no.1 as mutually agreed between the complainant and respondent no.2. However, no assurance was ever given by the respondent no.2 for the delivery of the possession of the constructed house as mentioned above as the respondent no.1 is responsible and liable to deliver the possession of the same after getting constructed such floor of the house to the complainant. The complainant has paid only an amount of Rs.4,26,000/- to the respondent no.2 and no other amount i.e. Rs.5 lacs has ever been paid to the respondent no.2 by the complainant. The complainant has not suffered any mental agony or harassment at the hands of the respondent no.2 in any manner.
We have perused the relief clause of the complainant very carefully whereby the complainant has claimed Rs.3,20,000/- on account of house rent at the rate of Rs.10,000/- per month from 4/2013 till date.
But it is very sorry state of affairs that no rent receipt issued by the landowner in favour of the complainant is available on the case file. So, in the absence of the rent receipt, this claim of the complainant also rejected straightaway because the complainant has also failed to produce any terms and conditions vide which the respondent no.1 assured the complainant that if possession will not be handed over in 4/2013, the complainant will be compensated with house rent at the rate of Rs.10,000/- per month alongwith the committed interest of 24% per annum on her payment.
In the present complaint, the respondent no.1 and 2 have denied the payment of Rs.5 lacs to the respondent no.2 by the complainant. The respondent no.2 has also tendered her affidavit in this regard. But it is meritless to consider whether the payment of Rs.5 lacs was made by the complainant to the respondent no.2 or not, because we have to consider the document Ex.CW1/1 which shows that the total cost of the floor was Rs.13,31,000/-. The respondent no.1 as on 2.5.2016 has received the amount of Rs.12,58,321/- from the complainant against the total cost of Rs.13,31,000/- and the balance towards the complainant comes to Rs.72679/- which the complainant is legally liable to pay to the respondent no.1.
The floor in question was transferred in the name of the complainant on 18.4.2012. The complainant in para no.2 of her complaint has mentioned while relying on the clause 14(a) of the agreement that the promoter/respondent no.1 shall endeavour to complete the construction of the said floor within a period of 18 months from the date of signing of this agreement with the buyer or within an extended period of six months.
The perusal of this clause as mentioned in the agreement shows that the complainant very cleverly has mentioned in the incomplete clause and the complainant has not mentioned the words “subject to any other reasons beyond the control of the promoter. NO claim by way of damages/compensation shall lie against the promoter in case of delay in handing over the possession on account of any of the aforesaid reasons and the promoter shall be entitled to a reasonable extended time for the delivery of possession of the said floor to the buyer.
In the present case, the reasons were beyond the control of the respondent no.1 because the construction work was assigned to Rajcon Infrastructure Pvt. Ltd., a construction company, who left the work incomplete without assigning any reason and that’s why there is delay in completing the construction of the floor.
The perusal of the case file shows that the respondent Mapsko Builders has filed the written statement in the civil suit filed by Rajcon Infrastructure Ltd. against Mapsko Builders and in the said written statement, it is mentioned that the time is the essence of the work & contract and it is specifically provided under condition no.4, clause 4.5.2 that the work is to be executed within 9 months from the date of contract and the date of contract is 11.11.2012, but Rajcon Infrastructure Ltd. has miserably failed to execute the work in time despite the payment of Rs.9,75,46,262/- (Rs.Nine Crores Seventy Five Lacs Forty Six thousand Two hundred sixty two only) and there is floor of litigations from the allottees for giving possession of the floors to them. The report of technical staff of the company is concerned, only the work of Rs.7,46,80,366/- (Rs.Seven Crores Forty Six Lacs Eighty Thousand Three hundred sixty six only) has been done by Rajcon Infrastructure Ltd. Thus, an excess payment of Rs.2,28,65,896/- (Rs.two crores twenty eight lacs sixty five thousand eight hundred ninety six only) was made to Rajcon Infrastructure Ltd. and the same is recoverable from Rajcon Infrastructure Ltd. alongwith penalty of delay of execution work amounting to Rs.7468036/- (Rs.seventy four lacs sixty eight thousand thirty six only) from Rajcon Infrastructure Ltd..
Now the main question arises for consideration is as to from which date the complainant is entitled to get interest on her deposited amount from the respondent no.1?
The perusal of the case file shows that the buyer’s agreement was executed in respect of the floor in question with respondent no.2 on 28.12.2010 and later-on the same was transferred in the name of the complainant on 18.4.2012. In our view, as per authoritative decisions of the Hon’ble Higher Courts, the period of 36 months from the date of execution of the agreement was sufficient for the builder company to deliver the physical possession of the floor to the complainant. Thus, the period of 36 months (i.e. three years) expires approximately on 28.12.2013. Thus, in our view, the ends of justice would be fully met if directions are given to the respondent no.1 company to pay interest to the complainant on her deposited amount w.e.f. 01.01.2014. Accordingly, we hereby direct the respondent no.1 to offer and deliver the physical possession of the floor bearing no.128 on first floor in ME Block in Mapsko City Homes, Sector 27, Sonepat at the earliest possible. Further it is directed to the respondent no.1 to pay interest to the complainant at the rate of 09% per annum on the amount of Rs.12,58,321/- (Rs.twelve lacs fifty eight thousand three hundred twenty one) lying deposited with the respondent no.1 with effect from 01.01.2014 till the delivery of the physical possession of the floor to the complainant. It is also directed to the complainant to deposit the balance dues with the respondent no.1. The respondent no.1 is also directed to compensate the complainant to the tune of Rs.Ten thousand for rendering deficient services, harassment and under the head of litigation expenses.
With these observations, findings and directions, the present complaint stands partly allowed qua respondent no.1 since
we find no deficiency in service on the part of the respondent no.2.
Certified copy of this order be provided to both the parties free of cost.
File be consigned to the record-room.
(Prabha Wati) (Nagender Singh-President)
Member DCDRF DCDRF, Sonepat.
Announced: 15.06.2016
Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes
Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.