Haryana

StateCommission

CC/330/2018

RAJENDER KUMAR - Complainant(s)

Versus

M/S SUN CITY PROJECTS PVT. - Opp.Party(s)

B.S.WALIA

08 Aug 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                Date of Institution:22.05.2018

                                                         Date of Final Hearing: 09.07.2024

                                                     Date of Pronouncement: 08.08.2024

 

Consumer Complaint No.330 of 2018

 

 

Rajender Kumar son of Shri Mehar Chand, Resident of House No.137, Sector-2, (HUDA), Rohtak.                                ....Complainant

 

•  

 

1.  
2.  

          .....Opposite Parties

CORAM:             Mr. Naresh Katyal, Judicial Member

                             Mr. S.C. Kaushik, Member

 

Argued by:-       Mr. B.S. Walia, counsel for the complainant

Mr. Ashim Aggarwal, counsel for opposite parties.

 

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:-

                   Complainant purchased Residential Plot C-1, Sector-36, Block-C, Sun City, Rohtak, measuring 273 sq. mtrs, on higher purchase basis, vide Agreement Dated 31.03.2010 from Lakhpat Rai Aggarwal and Sachin Gupta (Original Allottees). Buyer’s Agreement (Annexure C-1) was executed between Original Allottees and Opposite Parties on 27.01.2009. Complainant paid Rs.17,53,348/- (Approximately 90% of total price of plot), till 26.10.2010, besides EDC of Rs.3,26,508/-, interest of delayed payment amounting to Rs.40,800/- and Rs.36,040/-. He paid total amount of Rs.21,56,700/-, as per receipts appended with complaint. Possession Letter (Annexure C-2) was issued by opposite parties on 21.12.2016.

2.                As per advertisement, OPs agreed to hand over actual physical possession of plot upto December-2011 after completing all development works. Possession was delivered on 21.12.2016. Despite passing of about 05 years, OPs had not completed entire development work including removal of agriculture land from site, completing roads, sewerage, street light work etc. This shows that there is/was gross negligence and deficiency in service on part of OPs and it is unfair trade practice on their part. This act of OPs due to non delivery of actual possession of plot within stipulated period i.e. by December-2011 has caused him (complainant) hardship, harassment and mental agony. He has also suffered financially. OPs have utilized his hard-earned money. On these pleas, complaint has been filed for seeking directions against OPs to grant him reasonable rate of interest on deposited amount of Rs.21,56,700/-; to refund amount charged by OPs from him by way of interest on installments; grant compensation to him amounting to Rs.5,00,000/- for mental agony and Rs.50,000/- towards cost of litigation expenses. Text of complaint is supported by complainant’s affidavit.

3.                OPs raised contest, in written version, it is pleaded that all averments made in complaint are false and without any basis. Complainant does not fall within definition of ‘Consumer’. He ceased to be consumer upon taking over possession and execution of sale deed. He had taken possession of unit on 21.12.2016 and also executed Sale Deed on same date with open eyes and without any pre-condition or protest. He has recorded in Sale Deed that:-

“5. That the actual physical possession of the said Plot is hereby handed over by the Vendors to the Vendee simultaneously with the execution of this Sale Deed and now the Vendee is in actual physical possession of the said Plot hereby sold, as its true and absolute owner. The Vendee has satisfied itself and confirms to have no claim against the Vendors in respect of any item in the said Plot or in the said Project, which may be alleged not to have been carried out or completed…..”

 

It is pleaded that complainant has confirmed that all developments have been completed. He has no locus to file complaint which is time barred and discloses no cause of action or deficiency in service or unfair trade practice on the part of OPs. He has concealed the fact that: he signed undertaking affidavit (OP/2) on 22.11.2016 stating that he had no grievance against company. Complainant failed to disclose that possession was offered to him vide letter dated 28.04.2016 (OP/3). He failed to pay balance dues and take possession. He is estopped from making allegations. It is pleaded that there was no delay on the part of OPs, however, due to force majeure circumstances possession was delayed. CWP No.13611 of 2009 was filed in Hon’ble Punjab & Haryana High Court at Chandigarh titled as “Kali Ram and others Vs. State of Haryana and others”, challenging acquisition of land for residential purpose in Sector-36, Rohtak, where plot of complainant is located. Hon’ble Punjab & Haryana High Court at Chandigarh vide interim order dated 05.04.2010 injuncted Respondent No.5 therein (M/s Sharad Farms & Holding Pvt. Ltd.) from raising any construction and maintain status-quo. Due to status-quo order, development activity was stopped. Status-quo continued till ultimate dismissal of aforesaid CWP No.13611 of 2009 on 27.08.2015 (vide copy of order OP/5). Alleged delay, if any, was due to such force majeure reasons. Clause-15 of Agreement states that delay in handing over possession at a result of any order or decree of any Court would be force-majeure clause. It is further stated that allottee would not claim any damage/compensation on account of delay due to force majeure and company would be entitled to extension of time for delivery of possession.

4.                It is pleaded that immediately on vacation of status-quo order; OPs completed development work and amenities in area, where plot of complainant was located and offered possession to him on 28.04.2016. Further reminder had to be issued to him on 15.11.2016 (OP/6) to take possession, else, holding charges would be levied.  Development work was completed and competent authority also granted Partial Completion Certificate certifying that development works have been completed to their satisfaction. It is denied that there is any negligence or deficiency in service on the part of OPs and that complainant suffered any hardship/harassment. On above pleaded stance; dismissal of complaint has been pleaded.

5.                Parties led evidence. Complainant has tendered his duly sworn affidavit Ex.CA toward his affirmative statement on oath and relied upon documents Ex.C-1 to Ex.C-3. Learned counsel for complainant closed complainant’s evidence on 07.01.2019. OPs have tendered duly sworn affidavit of Shri Sushil Mehra (its Authorized Representative) towards affirmative statement on oath and relied upon documents Ex.OP-1 to Ex.OP-7. OPs closed their evidence on 08.11.2019 through statement of its counsel.

6.                We have heard learned counsel for the parties and with their able assistance we have also perused the complaint file.

7.                On behalf of complainant; it is contended that as per Buyer’s Agreement, actual physical possession of plot in question was to be delivered to complainant upto December-2011, but same was delivered on 21.12.2016. No development work was completed by OPs in this intervening period of 05 years. Complainant has suffered huge financial loss as he had paid Rs.21,56,700/- to OPs with respect to plot in question. It is urged that he is entitled to claim reasonable interest on deposited amount of Rs.21,56,700/-. Further he is entitled to justifiable compensation on account of delayed possession.

8.                Per Contra: learned counsel for OPs has urged that OPs offered possession of unit in question to complainant initially on 28.04.2016. Finally, he took possession on 21.12.2016. He had suffered undertaking thereby expressing his satisfaction that he has no claim or any grievance against vendors. Sale Deed had also been executed in his favour. Further it is urged that there was status-quo order passed by Hon’ble Punjab & Haryana High Court at Chandigarh in CWP No.13611 of 2009 titled as “Kali Ram and others Vs. State of Haryana and others” operative from 05.04.2010 till 27.08.2015. Said CWP was dismissed on 27.08.2015 and immediately thereafter, in no further loss of time; the development works were completed. Possession was then offered to complainant, who took it on 21.12.2016. It is urged that Buyer’s Agreement dated 27.01.2009 stipulates that reason for delay in possession on account of Court order, like in present case there has been long status-quo order of Hon’ble High Court, operative from 05.04.2010 to 27.08.2015, would be categorized as force majeure.

9.                This Commission is of view that complainant has not acquired any indefeasible right to claim any relief. Reasons in this regard are obvious. Complainant has specifically given an undertaking (Ex.OP/2 reproduced above) that he has no claim against vendors, at the time of taking actual physical possession of plot on 21.12.2016. This undertaking of complainant has acquired enormous ramifications at legal pedestal as it legally forecloses his rights to assert any grievance against OPs through this complaint. He cannot wriggle out from legal import flowing from his own undertaking. Having being in knowledge of his undertaking; still in his wisdom; complainant has concealed this fact of undertaking in his complaint by not making any reference to it. Courts of Law, over the centuries have frowned upon such litigants who tend to approach it with tainted hands, accentuated by suppression of material facts. Why a material fact should come from the defense taken by OPs, over which complainant has express knowledge? Why not it is disclosed by complainant, while pleading his positive case? Since complainant has suppressed the material facts regarding his own undertaking, therefore, he is not entitled to any equitable relief as claimed by him. He deserves to be non-suited straight away.

10.              Even otherwise, he has no case. Status-quo order has been passed by Hon’ble High Court on 05.04.2010 in CWP No.13611 of 2009 titled as “Kali Ram and others Vs. State of Haryana”. This Writ Petition has been filed to challenge the acquisition of land acquired for residential purpose in Sector-36, Rohtak, where plot of complainant is located. Status-quo order continued till 27.08.2015, when aforesaid petition was finally dismissed. Complainant entered into agreement with original allottee on 21.03.2010 with respect to plot in question. Immediately thereafter, from 05.04.2010 Status-quo order from Hon’ble High Court began to operate, which continued till 27.08.2015. In view of this fact, complainant cannot assert any negligence or deficiency in service on the part of OPs in completion of development work at location of site of his plot. Immediately on dismissal of petition, OPs went ahead with completion of development works and thereafter offered possession of unit/plot in question to complainant on 28.04.2016. Complainant did not take possession on that day i.e. on 28.04.2016. Ultimately, he took possession of 21.12.2016 vide document Ex.C-2 and Conveyance Deed was also executed on same date i.e. on 21.12.2016. To construe that OPs had delayed to offer possession of plot in question to complainant on given factual scenario would be travesty of justice. There is no element of existence of any circumstance which could even remotely give indication about any delayed possession being offered to complainant by OPs. There is no deficiency in service on the part of OPs towards complainant, much less any unfair trade practice on its part. Facts asserted in defense by OPs remained uncontroverted and same have important bearings on controversy involved in this complaint. It convincingly stood established that complainant is not entitled to claim interest on amount deposited by him, or any compensation on aspect of alleged delayed possession which does not exist at all, or compensation on alleged deficiency in service on the part of OPs plus litigation cost in any form.

11.              As a sequel to above subjective analysis of all relevant facets of this complaint, this Commission holds that this complaint does not carry any merit or substance. Being devoid of merits, it is accordingly ordered to be dismissed.

12.              Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.

13.              A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.

14.              File be consigned to record room.

                                    

Date of pronouncement: 08^th August, 2024

 

 

 

                             S.C. Kaushik                         Naresh Katyal                                          Member                                 Judicial Member

Addl. Bench                         Addl. Bench