DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.222/2013

1.      Mrs. Richa Salwan                                              (Senior Citizen)

          W/o Sh. Rajiv Salwan,                                          78 years old

          R/o P-103, Maitri Chaya Pitri Chaya Apartments,

          Priyadarshini Nagar,

          Rajpur-492001, Chhattisgarh

2.      Shri Vaisnavi Dutt Sharma

          S/o Sh. Rishi Ram Sharma,

          R/o Near Radha Soami Satsang Road,

          V.P.O.  Gaget, District UNA

          Himachal Pradesh                                              ….Complainants

Versus

M/s Niho Construction Limited,

X-22, First Floor, Hauz Khas,

New Delhi-110016                                                    ….Opposite Party   

                                                  Date of Institution      : 13.04.11         Date of Order              : 24.03.18

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

Case of the Complainants, in nutshell, is that they booked a flat with the OP and paid Rs.56,260/- on 17.05.08 at the time of booking of the flat and thereafter Rs.4,50,000/- on  31.05.08 and Rs.4,90,000/- on 18.07.08 (totalling to Rs.9,96,260/-) to the OP. OP allotted 3 bedrooms flat bearing unit No.D202 At Marvel Sector, Scottish Garden, Indirapuram Ghaziabad on 17.05.2008 and thereafter a Flat Buyers Agreement dated 13.06.08 was executed between the parties. At the time of booking, the OP had assured the complainants that the possession of the flat/unit shall be delivered within a period of 20 months from the date of execution of the Agreement dated 13.06.08 failing which the OP would pay the penalty calculated @ Rs.5 per sq. ft. per month for the delayed period to the complainants. However, the complainants found that the OP did not start the construction and did not make any progress and accordingly the complainants called upon the OP to refund the amounts deposited by them. In response to the same, the OP assured the complainants that the amount shall be refunded within 15 days from the date of cancellation of the booking i.e. 02.08.10. However, the OP did not return the said amount to them despite number of written requests and sending legal notice. Hence, pleading deficiency in service on the part of the OP, the complainants have filed the present complaint for issuing directions to the OP to pay to the complainants Rs.9,96,260/- alongwith interest @ 24% per annum w.e.f. July 2008 till payment, Rs.3 lacs being the amount towards harassment, mental agony, embarrassment and inconvenience caused to the complainants, Rs.1 lac towards administrative and litigation expenses incurred by them and to declare that the OP is guilty of practicing unfair trade practice by not refunding the amount paid to it by the complainants and to desist from practicing unfair trade practice.

          OP has contested the complaint and filed the written statement wherein it is inter-alia pleaded that the complaint is time barred since the Complainants cancelled the booking on 02.08.10 and filed the present complaint after the limitation period of 2 years. It is stated that the total recovery of installments as per the Agreement between the parties was approximately Rs.14,46,250/- but the complainants paid only a sum of Rs.9,96,260/-; that the OP raised the demand on 25.06.10 for a sum of Rs.4,98,040/- but  the complainants deliberately did not deposit the amount and requested for cancellation of the booking. According to the OP, since the complainants themselves had cancelled the booking of their own the OP is not liable to pay any amount to them. It is denied that the OP is liable to pay penalty @ Rs.5 sq. ft.  It is submitted that the construction of the aforesaid apartment was in full swing but the complainants themselves cancelled the booking.  It is stated that the parties are bound by the Agreement executed between the parties wherein clause 25 specifically says that in case of cancellation of booking the developer shall forfeit the earnest amount paid by the buyers and after deduction of all the expenses the developer shall refund the amount deposited without an interest.  It is pleaded that due to recession and financial crisis (market) has hit very badly to the OP as well as to the complainant and the sale/booking of the flats was slow down. It is prayed that the complaint be dismissed.

          Complainants have filed a rejoinder wherein it is inter-alia submitted that the project of the OP was at the initial stage and as such the cause of action arose in favour of the complainant is continuing. 

Complainant No.1 has filed her own affidavit in evidence. On the other hand, no affidavit in evidence has been filed on behalf of the OP. The OP has been proceeded exparte vide order dated 02.04.14 passed by our predecessors.

Written arguments have been filed on behalf of the complainant.

We have heard the oral arguments advanced at the bar and have also carefully gone through the record.

The OP has not filed even a single paper/document/ photograph to show that the construction of the apartment in question was in full swing. As per the Agreement executed between the parties the OP had to construct the flats and hand over the possession of the flat in question to the complainants within 20 months from the date of execution of the Agreement dated 13.06.08. The Complainants were bound to pay the installments in time only when the OP had started the construction.

The Complainants have filed the copy of the Booking Form dated 17.05.08 and also the copy of the Buyer’s Agreement dated 13.06.08. Clause 18 of the Buyer’s Agreement inter-alia provides that the OP had proposed to hand over the possession of the flat in question to the complainants within 20 months from the date of execution of the Agreement and the OP was entitled to extend the said period in the circumstances mentioned in clause 18(b) of the Agreement and if there was any delay in handing over the possession of the unit by the OP, the OP had to pay penalty to be calculated @ Rs.5 per sq. ft. per month for the period of delay.  The complainants had to make the payment of the balance consideration as per payment Plan- B failing which complainants were liable to pay the interest as per clause 4(i) of the Agreement. Copy of Plan-B has been filed on the record which relates to “construction link booking.” Therefore, in order to claim further amount from the complainants the OP was bound to start the construction of the project and to raise construction and only then to raise the demand as per Payment Plan-B. It means that in case no construction was started and raised to a particular level as described in Payment Plan-B, the OP was not entitled to raise further demand from the complainants. We mark the copy of the Buyer’s Agreement as Mark A and the copy of Payment Plan-B as Mark B for the purposes of identification. Therefore, in our considered opinion, the complainants were totally, perfectly and legally justified in withholding the further payment to the OP and to cancel the booking and to ask the OP to refund the amount. In no case the OP had become entitled to forfeit the amount of the complainants.   As pleaded in para 12 of the complaint and not denied in the corresponding para of the written statement by the OP, the OP had cancelled the booking of the flat in question on 02.08.10. However, the OP did not return the said amount to the complainants despite number of correspondences made in this behalf and also despite serving of legal notice upon the OP. Therefore, in our considered opinion, cause of action for filing the present complaint arose in favour of the complainants for the first time arose on 02.08.10 and the same continued to run till the date of filing of the complaint. In other words, in the special facts and circumstances of the present case, we hold that the cause of action for filing the present complaint had continued to run in favour of the complainants till the date of filing of the present complaint. Hence, the complaint is not time barred.

As per stipulation 4 of the Flat Buyer’s Agreement the OP was entitled to charge interest @ Rs.18% per annum on the due outstanding amount upto a delay of 3 months @ 18% per annum and upto 6 months @ 24% per annum. Therefore, the same principle of reciprocity must also apply to the payment to be made by OP to the complainants.

In view of the above discussion, we hold the OP guilty of deficiency in service and unfair trade practice since there is no evidence on the record which may even remotely show that the OP had booked the flat with an intention to start the construction and to handover the possession thereof to the complainants within the stipulated period.  Accordingly, we direct the OP to pay Rs.9,96,260/- (Rs. Nine Lacs Ninety Six Thousand Two Hundred Sixty Only) @ 18% p.a. interest from the date of filing of the complaint till realization and Rs.50,000/- towards mental harassment and cost of litigation etc. to the complainants within a period of one month from the date of receipt of copy of this order failing which the OP shall become liable to pay interest @ Rs.24% per annum on the amount of Rs.9,96,260/- (Rs. Nine Lacs Ninety Six Thousand Two Hundred Sixty Only) to the complainants from the date of filing of the complaint till realization.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 24.03.18.