| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.964/2008 SMT. BABITA SOOD W/O SHRI RAHUL SOOD R/O C-30, MAHENDRU ENCLAVE, STREET NO. 4, NEW DELHI…..COMPLAINANT Vs. M/S. VARDHMAN PROPERTIES LTD., THROUGH ITS M.D/DIRECTOR/ BUSINESS MANAGER/AUTH. SIGNATORY, G-9, VARDHMAN TRADE CENTRE, NEHRU PLACE, NEW DELHI-110019.…..OPPOSITE PARTY Date of Institution-22.12.2008 Date of Order- 02.02.2024 O R D E R MONIKA SRIVASTAVA-President - Complainant has filed a present complaint seeking vacant and peaceful possession of flat/office bearing no. 305 in the Vardhman Fortune mall, GT Karnal road, direction to OP to pay Rs. 4,15,000/- in respect of delay in possession and for the direction to OP to pay Rs. 18% per annum of the cost of flat/ office to the complainant till the delivery of possession.
- It is stated by the complainant that he purchased a flat/office at the 3rd floor of Vardhman Fortune Mall for an amount of Rs.15,83,560/-. in 2006 and 95% of the payment was collected by 2007. The possession was to be handed over in December 2008 and in case of delay in payment, interest @ 18% per annum would be charged and vice-versa, if the building was not ready in the stipulated time, interest @18% per annum would be given by the OP to the complainant.
- It is the case of the complainant that he has paid 95% of the cost of the said flat/office and invoices thereof are annexed as annexure C-3(colly). It is further stated that OP did not offer the possession as per agreement even after 95% of the payment of the flat/ office. It is further stated that on account of deficiency in service on the part of OP, complainant had to bear losses as she had already planned for expansion of her business after investing huge amount and was still not getting the possession. It is further stated that in case the OP had offered the possession in time i.e. in March 2008 the amount payable that the complainant would be liable to pay would be Rs.3,06,622/- at the time of taking possession.
- It is the case of the complainant that two letters were received dated 31.07.2008 dispatched by the OP offering possession of the said flat/ office on or before 18.08.2008 in which the OP demanded a total amount of Rs. 3,22,458/-. It is stated by the complainant that as per this letter, OP demanded an additional amount of Rs. 15,836/- i.e. 1% extra of the total cost of flat/ office which is illegal and violative of the terms and conditions of the agreement. The copy of the demand letter dated 31.07.2008 is annexed as annexure C-4.
- It is further stated by the complainant that as possession was offered by the OP after 4½ months of the agreed time period therefore, the complainant is entitled to get interest @ 18% per annum on the total value of the flat/ office. Accordingly, the complainant sent a letter to OP on 08.08.2008 informing the OP to deduct the interest amount and additional allied charges i.e. Rs. 15,836/- out of the total amount raised by OP. Both the letters are annexed as annexure C-5(colly).
- It is further stated that complainant received a reminder of the payment of Rs. 3,22,458/- from the OP and OP did not respond to the concerns of the complainant raised by her in her letter dated 08.08.2008.
- The complainant then sent a legal notice stated 12.09.2008 along with pay order dated 12.09.2008 for an amount of Rs. 1,99,732/- deducting the amount claimable by the complainant i.e. Rs.1,06,890/-. Copy of legal notice and pay order is annexed as annexure C-7.
- Reply was sent by OP dated 23.09.2008 returning the pay order wherein the OP has denied to perform its part of the obligation as per agreement dated 05.03.2006. The reply of the OP to the legal notice is annexed as annexure C-8.
- It is further stated that the case of the complainant that she has suffered huge business losses of more than Rs.5,00,000/- and that she is entitled to claim an amount of Rs.50,000/- as compensation for mental agony, harassment and litigation charges.
- It is further stated by the complainant that he is entitled to compensation for mental agony as well as business losses to the tune of Rs.4,15,000/- with interest @18% per annum in terms of the judgment of the Hon’ble Supreme Court titled as Lucknow Development Authority Vs. M.K. Gupta AIR 1994 SC 787.
- It is further stated that OP is admitting the delay in completion of building as the completion certificate was obtained from DDA by the OP on 26.06,2008 and thereafter possession was offered to the complainant vide letter dated 31.07.2008.
- OP, in its reply has stated that complaint does not pertain to any allegation of deficiency in goods or services and it is only an allegation pertaining to breach of contract. It is further stated that complaint is not maintainable in the light of the judgment of the Hon’ble Supreme Court passed in “Sourabh Prakash Vs. DLF Universal Limited 2007 (1) SCC 228”.
- OP has also stated that the complaint pertains to pricing of the unit and terms and conditions of allotment which is in no manner a deficiency in service. It is stated that complainant is only claiming interest on account of default in service as per terms and conditions reproduced as under:
“In case if the payment is delayed interest @18% per annum will be charged by the company from the said allottee, vice versa, if the building is not ready in the stipulated time period, the interest @18% per annum will be given by the company to the said allottee.” - It is stated by OP that after completion of the construction, OP requested the complainant to comply with the formalities and takeover possession of the unit, however, the complainant was not having requisite funds to make the balance payment and therefore, she did not come forward to comply with formalities and take possession. It is further stated that OP applied for Completion Certificate on 14.02.2008 and as per clause 7.6 of the building bye-laws 1983, had the deemed completion by 13.04.2008 and therefore, complainant was under an obligation to take over the possession of her unit by paying the balance amount. Copy of the completion certificate is annexed as annexure A2. It is stated that vide another letter dated 31.07.2008, OP demanded the balance payment from the complainant but the complainant vide letter dated 08.08.2008 raised totally frivolous and unattainable objections and started claiming interest stating that possession was delayed beyond March, 2008.
- It is further stated by the OP that the payment offered by the complainant of Rs.1,99,732/- was not as per the agreed terms and further that the delay, if any, was not on account of any act or omission on the part of OP but on account of delays and hindrances on account of government clearances and permissions which was exempted under the force majeure clause. It is stated that OP has fulfilled all its obligations under the agreement and has not been deficient in their services in any manner.
- In her rejoinder, complainant has denied the averments made by OP in their reply and it is denied by the complainant that she is seeking performance of agreement to sell and claiming compensation for breach of contract in the form of interest. It is further denied by the complainant that she did not have requisite funds to make the balance payment and therefore she did not comply the formalities and took possession of the flat/ office. It is stated that as per building bye-laws, 1983, any agency/authority must not offer possession of any building or part thereof without getting the Occupancy Certificate which the OP only got on 26.06.2008 and therefore OP is deficient in its services. Copy of the bank passbook of the complainant is annexed as annexure C/R-2.
- It is reiterated by the complainant that as per the terms and conditions of the agreement dated 07.04.2006 OP is duty bound to pay interest @18% per annum to the complainant in case of delay in possession. It is further stated by the complainant that OP is wrongly taking shelter of the force majeure clause on false and frivolous grounds. Complainant has relied on the judgments in the case of “Fakir Chand Gulati Vs. Uppal Agencies III (2008) CPJ 48 (SC) and Sujeet Kumar Banerjee Vs. Rameshwaran and ors. III (2008) CPJ 62 (SC).
- Both the parties have filed their evidence affidavits and this Commission has gone through the entire material on record. As per the order dated 23.02.2009 passed by this Commission complainant paid a sum of Rs.3,00,000/- to the OP without prejudice and OP was directed to handover possession within a week thereafter and on that account complainant purchased the e-stamp of Rs. 63,343/- as per the direction of OP and handed it over for registration of the said agreement. However, even after receiving the amount of Rs. 3,00,000/- OP did not hand over the possession and being aggrieved with the misconduct of the OP, Complainant filed an execution and the Commission on 01.05.2009 passed an order directing the OP to hand over physical possession of the flat/ office on 02.05.2009. It is further seen that OP handed over the possession on 02.05.2009.
- Complainant in her written arguments have now changed the prayer and seeks that Cooperation Bank, Kamla Nagar be directed to release the e-stamp for amount of Rs.63,343/-. In the alternative OP be directed to pay the e-stamp amount to the complainant.
- There is no denial by either the complainant or the OP that in case of delay in payment interest of 18% would be charged on the balance amount left to be paid by the complainant and in case of delay in handing over possession, OP would be entitled to pay interest at the rate of 18% on the cost of the property to the complainant. The objection taken by the OP is that it amounts to merely a breach of contract and does not amount to deficiency in service. This Commission is of the opinion that delay in handing over possession in view of the judgement of the Hon’ble Supreme Court in Lucknow Development Authority Vs. M.K. Gupta AIR 1994 SC 787 amounts to deficiency in service and therefore, OP is held to be deficient in its services in not providing/handing over the possession to the complainant in time.
- Therefore, this Commission directs the OP to pay interest at the rate of 18% per annum on the cost of the flat paid till 2007 i.e Rs. 15,04,382/- . This amount is payable from March 2008 when the possession was to be handed over till the time possession was actually handed over to the complainant i.e 02.05.2009.
- Further, as per the agreement the complainant was also liable to pay interest 18% per annum on the amount demanded by the OP which on 31.07.2008 was Rs. 3,22,458/-. But the complainant has stated that as per the agreement she was liable to pay sum of Rs. 3,06,622/-. It is stated by the OP that it had the Occupancy certificate on 26.06.2008 and actual possession was offered to the complainant on 31.07.2008. OP has alleged that the complainant did not have the requisite money with her to pay on the said date and complainant has countered the allegation by placing a copy of her passbook which shows that she had the requisite amount in her bank/FD on the relevant date. OP, on the other hand has not given explanation for seeking extra allied charges from the complainant.
- As per the order of this Commission the complainant has already paid a sum of Rs.3,00,000 to the OP and therefore, the liability of the complainant to pay interest to the OP is limited to the amount of Rs. 6,622/-. This Commission directs the complainant to pay interest of 18% per annum on the balance amount of Rs. 6,622/- from the date 31.07.2008 till it was actually paid on 01.05.2009.
- Both these amounts are payable by both the OP as well as the complainant within three months from the date of this order. The complainant cannot be granted any other relief as that has not been prayed for in the complaint.
- Copy of the order be provided to the parties as per rules. File be consigned to record room. Order be uploaded on the website.
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