Delhi

StateCommission

CC/840/2018

SH. SYED MAJID AHMED - Complainant(s)

Versus

M/S SUPERTECH LTD. - Opp.Party(s)

R.M. KEDIA

18 Sep 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments 18.09.2019

Date of Decision : 11.10.2019

COMPLAINT NO.840/2018

In the matter of:

 

Shri Syed Majid Husan,

S/o. Shri Syed Saeed Ahmed,

Earlier at 115 B Zakir Bagh,

Okhla Road, Near New Friend’s Colony,

New Delhi-110025.

And at H.N.A., Rani Laxmi Bai,

Kaiser Bagh, Lucknow-226001 UP.………Complainant

 

Versus

M/s. Supertech Ltd,

•  

Under the Indian Company’s Act,

Having its registered office at:-

1114, 11^th Floor, Hemkunt Chamber,

89, Nehru Place, New Delhi-110019.                           ……..Opposite Party

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. Initially this case was filed in NC where it was registered as CC NO.1461/2016. Vide order dated 10.05.18 the case was transferred to this Commission with the observations that NC has not awarded compensation in the Form of interest exceeding @12% p.a. If interest from committed date of possession on Rs.46,30,460/- is calculated @12% p.a. and is added to the sale consideration of Rs.46,30,407/-, aggregate comes to much below Rs.One crore.
2. The complainant filed a case on the allegations that he was allottee of unit no.0078 in SI Tower at Supertech UP Country situated at TS-1, Sector-17 A Yamuna Expressway Industrial Development Authority. OP was developing a Group Housing Complex. Agreement to sell dated 24.10.13 was executed. To start with the flat was agreed to be purchased by Ms. Ashu Raheja and present complainant, the payment was made by present complainant. MOU dated 20.11.13 was executed vide which Ms. Ashu Raheja transferred her rights in favour of present complainant for valuable consideration. Copy of said MOU is Annexure-B she executed undertaking copy of which is Annexure-C. The Op issued allotment letter dated 01.02.14 in favour of present complainant. Possession was to be given in May, 2014. OP agreed to pay penalty @75 per sq. ft. of super area of unit per month for delay in possession beyond the given date. Copy of agreement dated 01.02.14 is Annexure-E.
3. The complainant had paid almost all payments as and when due, the OP has received more than 95% of the consideration but without completing the project abandoned the same. The OP failed and neglected to handover the flat/ possession between the stipulated time. The said act amounts to deficiency and unfair trade practice. In response to letter dated 07.05.16 complaining not handing of possession, the OP demanded several amounts first time which were not intimated at the time of booking.  Complainant is not liable to pay the same.
4. OP fairly admitted that handing over possession has been delayed for more than two years and therefore it gave discount of very small/ negligible amount like a drop in the ocean. Complainant sent notice date 06.02.16 requesting OP to furnish complete breakup of amount of each and every item supported by documentary evidence. Copy of the same is Annexure-I. OP did not comply with the same nor cared to reply the same. Hence this complaint for directing OP to hand over possession of the flat, the entire amount paid by the complainant with interest @12% p.a. as agreed, compensation for mental torture, agony, injustice, harassment. It was  also prayed that OP may be restrained from for creating third party interest in the flat.
5. OP filed a WS  raising preliminary objections that complainant is guilty of suppression of material facts, it has not committed deficiency in service. The Commission didn’t have jurisdiction as the same relates to covenants of allotment letter and their interpretation and in categorical terms, more specifically Clause 48 of the allotment letter provided arbitration. Complainant is not a consumer. He has booked flat for investment/ resale/ commercial purpose. His objective was to make investment in the property and make profit by reselling the same at a later stage. The present flat was not the only property booked by the complainant for his business purposes, By way of preliminary submissions it submitted that the total cost of the Villa was Rs.46,30,407/- excluding tax and other charges. Timely payment was essence of the claim. Complainant had opted for construction linked plan. Complainant is defaulter who has not paid the instalments as per mutual agreed terms.
6. Acquisition of Village Shahberi was quashed by High Court of Allahabad vide order dated 12.05.11 passed in WP no.500/2010 titled as Devender Kumar vs. State of UP. The same was confirmed by Hon’ble Supreme Court in SLP no.16366/2011 titled as Greater Noida Industrial Development Authority vs. Devendra Kumar decided on 06.07.11. The same is reported in 2011 (12) SCC 375. On the basis of said order acquisition in various villages of Distt. Gautam Budh Nagar where project in question is situated, was challenged by the farmers. High Court of Allahabad vide order dated 21.10.11 directed the Greater Noida not to  carry on development and not to  implement Master Plan 2021. Greater Noida Authority directed to pay additional compensation to the farmers @64.7% and  allotment of 10% developed plot. The same was confirmed by Hon’ble Supreme Court in Civil Appeal no.4506/2015 vide order dated 14.05.15. The farmers were creating serious law and order problem.
7. NGT restrained ground water extraction for construction purposes. OP had to depend on Greater India Authority for supply of water for construction and related purposes. The said circumstances were beyond the control of OP. The OP had completed structure of Villa of sizes 90 sq. yrds, 125 sq. yrds, 200 sq. yrds. The OP took defence of force majeure circumstances. The allotment letter inadvertently mentioned penalty @75 per sq. ft. whereas it was per sq. yrd. The same was brought to the notice of the complainant by letter dated 11.02.16 copy of which is annexure OP-4. The OP has adjusted penalty of Rs.1,01,250/- in demand notice dated  25.03.16.
8. The complainant booked Villa measuring 90 sq. yrds. The area could be increased/ decreased  due to architectural reasons. Proportionate charges for such changes are to be borne by purchaser as per Clause B.6 of letter of allotment and Clause 53. The OP was charging  at the base sale price for increase  in area. The complainant was liable to pay charges payable to department for obtaining service connections like electricity, telephone, water etc. including security deposit for sanction and release of connections. Rs.17,52,344/- is due from the  complainant as on 25.03.16. The complainant  is also liable to pay sewerage charges, water facility charges including water connection charges for one year. In parawise reply the OP took the same pleas.
9. Complainant filed rejoinder. The complainant filed his own affidavit in evidence.
10. OP the other hand the OP filed affidavit of Shri Sangeet Kumar, Asstt. Manager, Legal.
11. The Op filed written arguments before NC. Complainant also filed written synopsis before NC.
12. After transfer of case to this Commission, the OP filed additional evidence by way of affidavit of Shri Sangeet Kumar, Asstt. Manager, Legal as permitted by NC in the order transferring the case to this Commission. The OP has filed fresh written arguments. Complainant has filed compilation of judgements. He has relied upon decision in CC no.346/13 titled as Lt. Col. Anil Raj vs. Unitech Ltd. decided on 02.05.16 where the OP was directed to pay interest 18% p.a. He has also relied upon decision of NC in Narain Shiva Redkar vs. Orbit Corporations Ltd. decided in 17.07.17, decision in Kavita Ahuja vs. Shipra Estate decided on 12.02.15, R.P. No.743/17 titled as Vatika vs. Shalin Chug decided on 06.12.17, CC no.503/15 titled as Bhupesh Gupta vs. Unitech decided on 08.02.16. In this case the OP was directed to pay interest 12% p.a. w.e.f. 36 months from the date of initial agreement till the date of possession.
13. Complainant has also referred to decision of NC in R.P. No.1883/08 titled as Abhay Mahendra Jain vs. Pushpendra Complex decided on 09.01.09 to make out that one sided unfair clause are not binding. For the same purpose he has relied upon decision in Tarun Kumar Ghai vs.  Malibu Estate Pvt. Ltd. decided on 20.12.07. In Lotha Estate vs. Urmila Uday Kamath I (2005) CPJ 101 order  granting interest @15% p.a. was upheld.
14. During arguments counsel for complainant submitted that booking was done in 2011, possession was to be delivered in 2014. Now after 8 years of the agreement, he is not interested in allotment. In support of his submission he relied upon recent decision of Hon’ble Suprmee court in Pioneer Urban land and Infrastructurer vs. Govindan Raghavan Vol.II (2019) CPJ 34 .
15. As per para-9 of the written arguments of complainant, OP had admitted that Rs.64,78,284/- has been paid by the complainant. The plea of force majeure is a usual plea taken by builder and seldom accepted by court.
16. As a result of the above discussion the complaint is allowed, OP is directed to refund Rs.64,78,284/- with interest @9% p.a. from the respective date of payment till the date of refund. 
17. Copy of the order be sent to both the parties free of cost.
18. File be consigned to record room.

 

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)

•