RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Complaint No. 257 of 2015

Vaibhav Dubey aged about 34 years,

S/o Shri Awadhesh Kumar Dubey.             ..Complainant.

Versus

Managing Director, M/s Supertech Ltd.,

Supertech House, B-28-29, Sector 58,

Noida – 201307                                          …..Opp. Party.

Present:-                                                   

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Shri Anant Saxena, Ld. counsel for complainant.

Shri  S.K. Sharma, Ld. counsel for the OP.

Date   14.7.2017

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This complaint has been filed by the complainant for providing possession of the flat with building completion and occupancy certificate, compound interest @ 2% per month, Rs.5,00,000.00 damages for mental, physical and economical sufferings and cost of complaint.

 The case, in brief, is that the complainant had booked flat at CS 7 tower situated in sector 74, Noida, District Gautam Budh Nagar through an agreement with the OP. The unit was booked in pursuance of impressing brochure provided by the OP that a bird sanctuary was situated on the left side of the balcony. It was specifically provided that the possession will be given by the Company on 31.10.2013 and the complainant had paid nearly 97% of the amount demanded by the OP M/s Supertech Ltd. It was also provided in the agreement that

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the allottee would be compensated @ Rs.5.00 per sq. foot per month for the delay in handing over possession which was to be given on 31.10.2013 with six months grace period. The complainant was shocked to find that the OP had added some more building structure in the project and had completely removed the bird sanctuary previously shown as such in the original brochure provided to the complainant. The OP in its offer of possession and payment demand, demanded excessive payment to be made by the complainant. The complainant asked for justification for such a huge demand but no response was given by the company but despite that the complainant made payment of Rs.47,615.00 on 8.8.2015. The OP made a demand of Rs.3,38,069.00 in possession payment notice without proper calculation and ignoring the penalty for delay in possession. The complainant had already prepared a demand draft for a sum of Rs.3.38.069.00 and was waiting for the response from the Company but being doubtful of the malicious intention of the Company, the complainant got the draft cancelled. The Company had altered the site plan of the project and most of the areas of lake, water fall etc. were replaced with new structures. The complainant had selected the flat as per the specifications provided by the original brochure but with the change in the site plan, the Company is making breach of trust. The complainant has taken a loan from the Punjab National Bank and has also invested hard earned savings to buy the aforesaid flat but the demand of the Company is increasing day by day whereas, there is no reply to the

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query regarding building completion certificate and occupancy certificate. Due to the delay in completion and delivering of the possession of the flat, there is much rise in the circle rate and registration fees. Since the grievances of the complainant were not met by the OP therefore, this complaint has been filed for directing the OP to give possession of the flat with building completion certificate etc. on a genuinely calculated possession demand notice and also for directing the OP to pay 2% per month compound interest from 31.10.2013 till the actual payment of the flat and also for award of compensation etc.

The OP filed the written statement submitting therein that the Supertech Ltd. has not been arrayed as OP in the case and as no consideration has been paid to the Managing Director therefore, this complaint deserves to be dismissed on this score itself. Besides, the complainant is not a consumer as he has not hired any service from the OP. The complainant was offered the possession of the unit vide offer letter dated 9.7.2015 with a demand of Rs.3,38,069.00 but against that the complainant had made a payment of Rs.47,615.00 only. Therefore, the complainant is a defaulter. It was specifically agreed between the parties that payment of timely instalments is essence of the contract and though the possession was expected to be delivered in the month of October, 2013 but that clause was application to such allottees who had deposited the payment timely and not the for the defaulters. Besides, the date of possession was tentative and the unit was purchased for commercial gain. It seems

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that the rent agreement dated 1.4.2015 was prepared and the complaint was instituted before this Hon'ble Commission on 6.11.2015 but there is no whisper of this agreement or the complainant living on rent in any of the communication enclosed alongwith complaint. The OP had made the demand in pursuance of the agreement. The OP had not committed any inordinate delay or deliberate delay in completing the project. In fact, despite recession as well as other hurdles, the project was completed in a very short span. However, the complainant with mala-fide intention did not deposit the cost and violated the terms and conditions of the agreement. The tentative date of October, 2013 was informed but that was not final and within 10 months thereafter, possession was offered. Hence, there is no inordinate delay. The complainant has grossly over valued the valuation of the case to Rs.25,89,837.00 as the communication enclosed alongwith the case are confined to the valuation of Rs.3,38,069.00. Hence, it was not maintainable. Therefore, on the basis of the grounds mentioned above, this complaint should be dismissed with costs.

The complainant in support of his complaint has filed his affidavit as also the copies of the documents pertaining to the allotment, payment and communication with the OP.

The OP has filed affidavit of Shei Sangeet Kumar and Shri Shailendra Pandey as also copies of the documents pertaining to the agreement, details of payment and other documents relating to the communication with the complainant.

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Replication has also filed by the complainant refuting all allegations of the OP made in their WS.  

Heard counsel for the parties and perused the entire evidence on record.

In this case, it is not disputed that a flat was allotted by the OP M/s Supertech Ltd. in CS 7 Tower in Sector 74, Noida. It is also not disputed that as per the agreement the possession of the flat was to be handed over to the complainant by 31.10.2013 with a grace period of six months. It is also not disputed that the OP offered possession of the flat denying letter dated 9.7.2015 wherein a demand of Rs.3,38,069.00 was made and as against this demand a sum of Rs.47,615.00 was deposited by the complainant. The disputed point according to the complainant is that there was much delay in offering the possession of the flat in question to the complainant by the OP. Another point is that whatever was promised as per the brochure, the same was not provided alongwith flat. Besides, excessive payment was demanded from the complainant. Hence, the OP has committed deficiency in service as also unfair trade practice whereas, according to the OP, the complaint was not maintainable as M/s Supertech Ltd. has not been arrayed as a party and the Managing Director was not paid any consideration and hence, no case was made against him. Secondly, there was no inordinate delay in handing over possession as after a few month of the slated date of handing over possession, the possession was offered. Another point is that the complainant had no deposited the amount as per the

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agreement and hence, the OP can not be held deficient in service in delivering the possession of the flat in question. Another issue is that this complaint was over valued and therefore, it was not maintainable in this commission.

Now, we take up all the issues one by one. Firstly, we take up the issue as to whether this complainant is not maintainable as the Managing Director has not been paid any consideration and M/s Supertech Ltd. has not been arrayed as a party. In this regard, we find that there is no substance in this contention of the OP that the Managing Director was not paid any consideration and that M/s Supertech Ltd. has not been arrayed as a party because M/s Supertech Ltd. has been arrayed as a party through Managing Director and since the consideration was paid to M/s Supertech Ltd. therefore, the case has been filed against M/s Supertech Ltd. through Managing Director and there is just no illegality in that and this infact is the futile contention on the part of the OP that the case was not maintainable on the aforesaid ground. So it is clear that the case is very well maintainable against M/s Supertech Ltd. which is represented through Managing Director.

Now, we take up the point as to whether this complaint is overvalued and therefore, it is not maintainable in this Commission. In this regard, it is argued by the ld. counsel for the OP that the communication centered around the demand of Rs.3,38,069.00, so valuation of the case was not over Rs.20 lacs and therefore, it was over valued at

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Rs.25,89,837.00 but we find that there is no substance in this argument as the cost of the flat according to the OP was Rs.26,03,826.64 as per the demand letter dated 9.7.2015 and as this amount was payable for taking possession of the flat in question which was not handed over by the OP timely, therefore, the entire cost of the flat is to be taken into consideration for the purposes of handing over possession, therefore, this complaint was correctly valued more than Rs.20 lacs and hence, the case was very well maintainable in this Commission as it was of a value of more than Rs.20 lacs.    

Now, we come to the real issues that as to whether the OP committed deficiency in service in not providing the flat with the promises facilities and amenities and that there was delay in handing over the possession. It is also to be seen as to whether there was any excess demand made by the OP for handing over possession of the flat. If so, its consequences.

Since the two points are related to each other, therefore, they are being decided together.

It is admitted to the OP that the possession of the flat was to be handed over by 31.10.2013 with a grace period of six months. It is also not disputed that the possession of the flat could not be handed over by the aforesaid date or even with the grace period i.e. by 30.4.2014. Admittedly, the possession of the flat was offered vide letter dated 9.7.2015. So, there is clear cut delay in handing over possession of the flat in question to the complainant by more than 14 months taking into account the grace period

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of six months. According to the OP this is not an inordinate delay but no genuine reason has been given to justify this delay, therefore, it is clear that the delay was caused in handing over possession of the flat and therefore, the OP certainly has committed deficiency in service in this regard. It is argued by the ld. counsel for the OP that a sum of Rs.1,27,845.00 was due to be paid by the complainant for taking over possession of flat in question. It transpires that the complainant had asked for the details of the additional charges levied as also compensation payable @ Rs.5.00 sq.foot per month to the complainant not included in final calculation despite delay but there was no proper response to this query by the OP. Therefore, there is no justification shown by the OP in demanding a sum of Rs.3,38,069.00, so unless the justification for the amount demanded was not made clear, there was no reason for the complainant to pay the demanded amount and therefore, it can not be held that the complainant was defaulter in any manner. In fact, the complainant has on 7.8.2015 i.e. within a month of the possession letter dated 9.7.2015 deposited Rs.47,615.00. It is again the case of the complainant that in the brochure a bird sanctuary was shown in the site map at point no.32 but no such bird sanctuary as per site plan was provided in the scheme. There is no denying the fact that tall promises are made by the builders in their advertisements/brochure brought out by them whereby the consumers are attracted to the scheme but it is seen that when finally the project is completed many of such promises/amenities are not found

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which is the case in the circumstances of this case also as according to the complainant the bird sanctuary which was to be provided was not provided and instead buildings were constructed over the space provided for the purpose. There is no proper justification for this omission as well as commission by the OP in this regard. Therefore, it certainly is an unfair trade practice on the part of the OP in not providing all that was promised when the possession of the flat was to be handed over, hence, the OP has not only committed unfair trade practice as also deficiency in service in not providing the flat in question with all amenities within the stipulated time. Therefore, the complainant is entitled to have possession of the flat in question with the building completion certificate and occupancy certificate etc. as are admissible, after making correct demand with details of the amount due without any penalty as per reasons given therewith and after calculating the amount of compensation @ Rs.5.00 per Sq. foot per month for the delay in handing over possession to the complainant w.e.f. 30.4.2014 till the date of final possession. The complainant is also entitled to compensation for mental and physical harassment and under the circumstances of the case Rs.25,000.00 shall suffice. The complainant is also entitled to Rs.5,000.00 as cost of litigation.     

ORDER

The complaint is partly allowed. The OP is directed to make correct demand with details of the amount due without any penalty, after adjusting the amount of

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compensation @ Rs.5.00 per sq. feet per month for the delay in handing over possession to the complainant w.e.f. 30.4.2014 till the date of actual possession to be given within 15 days and the payment of such amount due, if any, by the complainant thereafter within 15 days. The OP is thereafter directed to give possession of the flat in question to the complainant with the building completion certificate and occupancy certificate etc. as are admissible within 15 days thereafter. The OP is also directed to pay to the complainant Rs.25,000.00  as compensation for mental and physical harassment and Rs.5,000.00 as cost of litigation within a month. If the compliance of this order is not made as per directions given above, the OP shall be liable to pay interest @ 12% p.a. on the entire amount due to them.

Certified copy of the judgment be provided to the parties in accordance with rules.

                 (Vijai Varma)                 (Govardhan Yadav)

               Presiding Member                     Member

Jafri PA II

Court No.4