Haryana

Sonipat

CC/377/2016

Anil Sharma - Complainant(s)

Versus

M/s Omaxe Limited - Opp.Party(s)

S.P. Verma

19 Dec 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

SONEPAT.

               

 

                                Complaint No.377 of 2016                                              Instituted on:14.09.2016

                                Date of order:19.12.2016

 

1.Anil Sharma son of Rameshwar Dass,

2.Smt. Sunita Sharma wife of Anil Sharma, both residents of villa no.260, block A, sector 8, village and post office Shahpur Turk, Omaxe City, Sonepat.

..Complainant.

                      Versus

M/s Omaxe Ltd. (formerly Omaxe Construction Ltd.) having its registered office at Omaxe House, 7 Local Shopping Centre, Kalka Ji, New Delhi-19 through its Authorized signatory at Omaxe City, Sonepat situated at Sector 8, Sonepat in the revenue estate of village Rewli, Kumaspur and Raipur Turk.                                          

..Respondent.

COMPLAINT UNDER SECTION 12 OF       

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. SP Verma, Adv. for complainant.

           Sh. Mannu Malik, Adv. for respondent.

 

 

BEFORE     NAGENDER SINGH, PRESIDENT.

          PRABHA WATI, MEMBER.

          J.L. GUPTA, MEMBER.

 

O R D E R

 

          Complainant has filed the present complaint against the respondent alleging therein that the respondent has allotted a villa bearing no.260 in Block A  having built up area approximately 92.3472 Sq. meters (998 sq. feet) on the plot area approximately 161.99 sq. meters (193.75 sq. yards) in favour of one Satish Kumar Saluja and  accordingly, the agreement dated 05.12.2007 was executed in favour Satish Kumar Saluja.  Thereafter the complainant has purchased the said villa.  Sh. Rajbir Singh Simar submitted an application on 22.12.2011 before the respondent regarding penalty for delivery of possession with delay and the same was assessed to the tune of Rs.1,83,600/- upto 22.12.2011 and the respondent was readily agreed to part with Rs.87266/-  as penalty for delivery of the possession with delay.  The said Rajbir Singh deposited a cheque bearing no.842136 dated 22.12.2011 of the demanded amount i.e. Rs.149496/-.  The complainants are entitled to recover the balance outstanding of penalty after deducting Rs.87226/- from the total amount of Rs.183600/- i.e.  Rs.96334/- upto 2.12.2011 plus 10 months x 4990 = Rs.49,900 + Rs.96334/-  = Rs.146234/-.  As per 26 Clause F of the agreement,  in case of delay in construction of the said villa, the company would pay a sum at the rate of Rs.5/- per sq. feet of the super area per month for the period of delay to the buyer provided, however, that the buyer has made payment of all installments towards the ale consideration amount of the said villa in time and without making any delay to the company. After getting physical possession in the month of 10/2012, the complainant came to know about the letter issued by the Govt.    The company has received the cost of excess super area from the complainant alongwith other residents wrongly and illegally and the company is liable to refund the amount of excess super area to the complainant. The respondent also quite illegally got the sale deed executed and registered for a total covered area of 113.71 sq. meter equivalent to 1224 sq. feet despite the fact that proposed area of the villa was that of 94.69 sq. meter, whereas the department of Govt. has issued completion certificate for the area 92.3472 sq. meet equivalent to 998 sq. feet.  As such the complainant was compelled to pay stamp duty and other expenses for the excess area.  It is also submitted that ultimately on 6.9.2013,  the resident welfare association  has submitted the joint application to the respondent to refund the amount of excess super area wrongly and illegally charged, but the respondent refused to accept the request of the complainant, whereas the respondent is legally bound to make the payment of compensation for excess super area to the complainant, but of no use and that amounts to a grave deficiency in service on the part of the respondent.  So, he has come to this Forum and has filed the present complaint.

2.        The respondent in their reply has submitted that the conveyance deed of the property in question was registered and possession was handed over to the complainant.   The possession certificate also recites the constructed area of the premises in question to be 1224 sq. feet.  After having got the possession of the unit and getting the conveyance deed executed and registered, the complainant has filed the false and frivolous complaint.  The complainant is not entitled for any amount towards alleged delay in handing over the possession of the premises.  The development and construction of the unit was completed before the purchase of the unit by the complainant.  It is also submitted that the complainant had given in writing that the period of development and construction of the unit would be reckoned from the date of endorsement in his favour.    The complainant is not entitled to recover any amount towards compensation for delay in handing over the possession of the unit. Registered sale deed dated 25.10.2012 was also executed in favour of the complainant.  The complainant got the sale deed registered and took possession without any demure or protest.  The respondent has not received amount for any excess area from the complainant.  The tentative area of villa was 101.27 sq. meters as per agreement dated 5.12.2007 which was subject to change on completion.  There is no deficiency in service on the part of the respondent and the complainant is not entitled for any relief and compensation and thus, prayed for the dismissal of the present complaint.

3.        We have heard the arguments advanced by the ld. Counsel for both the parties  at length and we have also gone through the entire relevant material available on the case file carefully & minutely.

          Ld. Counsel for the complainant has submitted that after getting physical possession in the month of 10/2012 the complainant came to know about the letter issued by the Govt.    The company has received the cost of excess super area from the complainant alongwith other residents wrongly and illegally and the company is liable to refund the amount of excess super area to the complainant.  It is also submitted that Sh. Rajbir Singh Simar submitted an application on 22.12.2011 before the respondent regarding penalty for delivery of possession with delay and the same was assessed to the tune of Rs.1,83,600/- upto 22.12.2011 and the respondent was readily agreed to part with Rs.87266/-  as penalty for delivery of the possession with delay.  The said Rajbir Singh deposited a cheque bearing no.842136 dated 22.12.2011 of the demanded amount i.e. Rs.149496/-.  The complainants are entitled to recover the balance outstanding of penalty after deducting Rs.87226/- from the total amount of Rs.183600/- i.e.  Rs.96334/- upto 2.12.2011 plus 10 months x 4990 = Rs.49,900 + Rs.96334/-  = Rs.146234/-.  It is further submitted that the respondent also quite illegally got the sale deed executed and registered for a total covered area of 113.71 sq. meter equivalent to 1224 sq. feet despite the fact that proposed area of the villa was that of 94.69 sq. meter, whereas the department of Govt. has issued completion certificate for the area 92.3472 sq. meet equivalent to 998 sq. feet.  As such the complainant was compelled to pay stamp duty and other expenses for the excess area.  Ultimately on 6.9.2013,  the resident welfare association  has submitted the joint application to the respondent to refund the amount of excess super area wrongly and illegally charged, but the respondent refused to accept the request of the complainant, whereas the respondent is legally bound to make the payment of compensation for excess super area to the complainant, but of no use and that amounts to a grave deficiency in service on the part of the respondent.  Ld. Counsel for the complainant has requested to direct the respondent to refund the amount of Rs.3,37,034/- (excess super area of the villa+delayed delivery of possession of the villa, excess stamp duty alongwith interest and compensation.

          Ld. Counsel for the respondent has submitted that the conveyance deed of the property in question was registered and possession was handed over to the complainant.   The possession certificate also recites the constructed area of the premises in question to be 1224 sq. feet.     After having got the possession of the unit and getting the conveyance deed executed and registered, the complainant has filed the false and frivolous complaint.     The complainant is not entitled for any amount towards alleged delay in handing over the possession of the premises.     The development and construction of the unit was completed before the purchase of the unit by the complainant.  It   is also  submitted that the complainant had given in writing that the period of development and construction of the unit would be    reckoned from the date of endorsement in his favour.    The complainant is not entitled to recover any amount towards compensation for delay in handing over the possession of the unit. Registered sale deed dated 25.10.2012 was also executed in favour of the   complainant.    The complainant got the sale deed registered and took possession without any demure or protest.      The respondent has not    received amount for any excess area from the complainant.    The   tentative area of villa was 101.27 sq. meters as per agreement dated 5.12.2007 which was subject to change on completion.  There is no deficiency in service on the part of the respondent.

4.        After hearing both the parties at length and after going through the entire relevant records very carefully, we are of the view that there is no deficiency in service on the part of the respondent.

          We have perused the document R-8 i.e. Agreement and condition no.11 of this agreement mentioned at page no.5 is reproduced below:-

          It is further understood and agreed by the buyer(s) that the area of the said Villa given in this agreement is tentative and subject to change as per direction of the Sanctioning Authority or Architect or Structurual Engineers of the Company which may result in change (decrease or increase) in the area of the said Villa, Change in its dimension, size, location, number, boundaries etc.  The final size, location, number, boundaries etc. shall be confirmed by the company on completion of development of the project.  In case of increase in the allotted plot area/super area of the said Villa, the buyer shall pay for the initial 10% of the increase in area at the rate of booking of the said Villa and shall pay the balance increased area at the then prevailing company’s rate/market rate.  In case of decrease of the allotted plot area/super area of the said Villa, the amount received in excess over and above the total cost of the said Villa based on the changed area, shall be refunded/adjusted (as the case may be) by the company to the buyer(s) alongwith simple interest at the rate of 10% per annum.

          In the agreement at page no.4, in para no.3 it is mentioned that the built up area of the said villa means the covered area of the said villa including area enclosed by its periphery walls and area under calls, columns, verandah etc. which form integral part of the said Villa.

          In the Affidavit-cum-Indemnity (R-6) in para no.8, it is mentioned that:-

          “I/We hereby clearly agree and understand that the development/construction period of the said unit as stated in the allotment letter/agreement shall be reckoned with effect from the date of endorsement of allotment right in my/our favour and I/we shall not claim for compensation for any delay in offer of possession of the said unit by the company.

          We have also perused the Schedule of Villa attached with Conveyance deed (R-2) and it is mentioned in this document that:-

          All the rights, title and interest of the promoter/vendor into and upon the said villa having built up /constructed area of 1224 Sq. feet (113.71 Sq. meters) (appox) built on that piece and parcel of land area admeasuring 193.75 Sq. yards (162 sq. meters (appox) bearing Villa No.260 in Block A in the residential colony known as Omaxe City, Sonepat situated in Sector 8, Sonepat as per the approved layout thereof by the concerned authority.                   We have also perused the Ground Floor Plan which is also attached with the Conveyance deed and area detail is mentioned below:-

Area Detail

Total Plot Area 193.75 sq. yards/1743.75 sq. feet/161.99 sq. meter

Constructed Area 1224 sq. feet/113.71 sq. meter

Ground Floor Area 92.71 Sq. meter

Back courtyard area 6.94 sq. meter

Front courtyard area 9.98 sq. meter

Total courtyard area 16.92 sq. meter

50% shaft area=0.920- sq. meter

50% boundary wall =3.158 sq. meter

Total G.C.A. =113.71 sq. meter        1224.0 sq. feet.

          We have also perused the possession certificate R-4 very carefully.   In this document, it is mentioned that the respondent has handed over the physical possession of the Villa No.260 in Block A in the residential colony Omaxe City, Sonepat situated in Sector 8, Sonepat in terms of the conveyance deed no.10585 dated 25.10.2012.

          In the case in hand, the conveyance deed was executed in favour of the complainant on 25.10.2012.

          Initially the above said Villa was in the name of Satish Kumar Saluja in the year 2007 and thereafter the same was sold to one Rajbir Singh and from Rajbir Singh, the complainant has purchased the said Villa.  The offer of possession letter was issued to Rajbir Singh on 21.11.2011 vide document R-7.

          The complainant in para no.2 page 2 has mentioned that accordingly, the company pleased to allot villa bearing no.260 Block A  having built up area appox. 92.3472 sq. meters (998 sq. feet) on the plot area of appox. 161.99 sq. meters (193.75 sq. yards).  In para no.4, page 3 it is mentioned that Rajbir Singh submitted an application on 22.12.2011 in the office of the respondent whereby it is given that keeping in view the terms and conditions of the agreement, the penalty for delivery of possession with delay was assessed as Rs.183600/- upto 22.12.2011. In para no.5, page 4 of the complaint, it is mentioned that the present complainants have stepped into the shoes of earlier owners Satish Kumar Saluja and Rajbir Singh and after purchasing the present villa, the possession was delivered to the complainants on 25.10.2012.

          In our view, the complainants after satisfying themselves have purchased the Villa in question.  Each and everything was in the knowledge of the complainants and despite this, they have purchased the Villa in question from the previous owners.  So, in our view, the complainants have no right to claim the amount regarding super area or delayed delivery possession of the Villa. 

          Further the perusal of the case file shows that till the date of selling the villa in question by Rajbir Singh Shimar to the present complainants,  the previous owner Rajbir Singh Shimar was having correspondence with the respondent.  The conveyance deed was executed in favour of the complainants on 25.10.2012.  So, the complainants have become the consumer of the respondent only on 25.10.2012 and they cannot raise any dispute with the respondent regarding the deficiencies prior to the date of 25.10.2012 as they came in existence in respect of the villa in question on 25.10.2012 only.  The previous owner Rajbir Singh Shimar was having the right to invoke the provisions of the Consumer Protection Act regarding the deficiencies in respect of villa in question, against the respondent.  In our view, the complainants have no right to file the present complaint because they have taken the possession of the villa in question on 25.10.2012 and thus, they cannot be termed as consumer of the respondent.

          The observation of this Forum is fortified by the case law titled as T.K.A. Padmanabhan Vs. Abhiyan CGHS Ltd. Revision Petition no.1942 of 2013 decided on 4.1.2016 ,  in which it has been held by the Hon’ble National Commission that “It is an admitted fact that the petitioner had taken the physical possession of the flat on 27.2.2004 though there was delay of 11 months in giving possession on behalf of the respondent. However, the consumer complaint was filed on 8.8.2005, that is about one and half years after petitioner got possession.  There is nothing on record to show that at the time of taking possession of the flat, the petitioner had lodged any protect with regard to delay or took conditional possession. When the petitioner had taken the possession of the flat on 27.2.2004 unconditionally and without any protest, thereafter he ceased to be a consumer.  The agreement executed between the parties comes to an end.  Thus, on the date when consumer complaint was filed, there was no privity of contract between the parties.  As such, the consumer complaint on the fact of it is not maintainable.”

         In the present case, there is no dispute with regard to the fact that the conveyance deed has already been executed in favour of the complainants on 25.10.2012 and they have taken the possession of the villa and the complainants are residing in the Villa in question. Thus, the consumer complaint of the complainants is not maintainable before this Forum and they ceased to be the consumer of the respondent. Further, in our view, it was incumbent upon the complainants to get measured the area of the Villa in question before execution and registration of the conveyance deed, but the complainants have got measured the area of the flat after execution and registration of the sale deed/conveyance deed. 

Further in the conveyance deed,  the area of the Villa is mentioned. So our view, at this stage, there is no force in the contentions raised by the complainants and the complainants are not entitled for any relief & compensation.  The present complaint fails and we hereby dismiss the same with no order as to costs.

          Certified copy of this order be provided to both the

parties free of cost.
          File be consigned to the record-room.

 

 

(Prabha Wati)        (JL Gupta)                 (Nagender Singh-President)

Member DCDRF        Member DCDRF                   DCDRF, Sonepat.

 

Announced:19.12.2016