1. Heard Mr. Sudhir Mahajan, Advocate, for the complainant and Mr. Rahul Chauhan, Advocate, for the opposite party. 2. Mrs. Nisha Rani (the complainant) filed this complaint for directing M/s. Mapsko Builders Private Limited (the opposite party), (hereinafter referred to as the builder) (i) to hand over possession of Flat No. 1203, in Regent Tower, Mapsko Royale Ville, at Sector-82, Gurgaon, Haryana, complete in all respect with all amenities in habitable and liveable condition or to return the entire amount deposited by her along with interest @ 18% per annum, from the date of each deposit till its payment, (ii) In case, the flat is being offered, the Director of the builder be directed to execute conveyance deed of the flat in her favour and handover physical possession of it (iii) to pay interest @ 12% per annum, on the amount paid by the complainant from the date of promised possession till the date of handing over possession of the flat, (iv) to pay increased service tax, after the date of promised possession (v) to pay cost of the litigation and (iv) any other relief which may be deemed fit and proper, in the circumstances of the case, be passed. 3. The facts as stated in the complaint and emerged from the documents attached with it are that the builder was a company, engaged in business of development and construction of residential and commercial buildings and selling its unit to the prospective buyers. The builders launched a project of group housing complex in the name of “Mapsko Royale Ville” at Sector-82, Gurgaon, in 2010. The complainant booked a flat and was allotted Flat No. 1203, (3BR+3T+SR), admeasuring super area 1790 sq. ft., on 12th Floor, in Tower Regent, at the rate of Rs. 2790/- per sq. ft., basic sale price Rs. 4994100/- (total price was Rs.6280150/-), on 17.09.2010. Payment plan was “Construction Linked Payment Plan”, under which Rs. 4/- lakhs was to be paid at the time of booking and 20% of basic sale price (including booking amount) was to be paid within 60 days of the booking. 10% of the basic sale price + 50% of EDC & IDC were to be paid at the time of agreement, remaining 65% of basic sale price + 50% EDC & IDC +Car parking charge were to be paid in 12 instalments, on different level constructions and 5% of BSP and other charges at the time of offer of possession. The complainant deposited Rs.4 lakhs on 17.09.2010 and Rs.598820/- on 07.12.2010. The construction was allegedly started on 20.09.2011 and a demand notice of Rs.776295/- was issued. The complainant deposited Rs.1578310/- on 24.12.2011. The complainant deposited Rs.7548954/- up to 06.12.2016. Flat Buyer’s Agreement was executed on 13.09.2016. In clause-17, promised date of possession was mentioned as 42 months with grace period of six months from the date of agreement although up to 13.02.2016, payment of the level of “completion of external plaster” had been taken, which was last instalment before possession in the payment plan. The builder has taken total Rs.7548954/- as against total price was Rs.6280150/- but they have not offered possession as such this complaint was filed on 09.03.2017. 4. The builder contested the complaint and filed its written reply on 08.08.2017, in which, material facts have not been denied. It has been stated that this Commission has no pecuniary jurisdiction as the value of the flat was Rs.6221234/-. The complainant already owned several houses in Delhi, Gurgaon and Rohtak and the present flat was booked for investment purposes, as such, the complainant is not a consumer, within the meaning of Consumer Protection Act, 1986. The disputed questions of facts are involved as such the complainant be relegated to go before Civil Court for adjudication of dispute. Till the date, the complainant has paid Rs.5713414/-. Right of the parties are governed by the contract, executed between them and they are bound by it. Timely payment of the dues/demands is an essence of the contract. As the complainant failed to pay dues/demands timely and sometime her cheque was bounced as such interest was charged for delayed payment. As the complainant has failed to make timely payment of the instalment as such she could not complain for delay in offer of possession. Duly filled up Flat Buyer’s Agreement was couriered to the complainant on 12.07.2011. If this was not received to her, she would have informed the builder in this respect timely. Delay in execution of Flat Buyer’s Agreement has occurred due to fault of the complainant. The builder offered possession to the complainant but the complainant failed to deposit of amount of last instalment and other dues and take possession of the flat. 5. The complainant filed their rejoinder reply on 28.03.2018 in which the material facts stated in the complaint were reiterated. It has been denied that the complainant invested money in this flat, for earning profit or she had houses in Delhi, Gurgaon and Rohtak. It has been stated that the complainant booked the flat for her residence, in September, 2010. The builder should have handed over possession of the flat till March, 2014. The builder charged interest @ 21% per annum for delayed payment as such he is liable to pay interest @ 12% per annum, after March, 2014 till the delivery of possession of the flat and also compensation for harassment. 6. Along with complaint, the complainant filed copy of allotment letter dated 24.06.2011 (Annexure-A), copy of Flat Buyer’s Agreement (Annexure-B), Copy of ledger relating to his account maintained by the builder as on 06.12.2016 (Annexure-C), Extract of dispatch Register maintained by the builder (Annexure-D), Legal notice dated 27.01.2017 (Annexure-E), Photographs of the construction of the flat as taken on 16.02.2017 (Annexure-F), Power of attorney dated 11.02.2017 (Annexure-G), Price List (Annexure-H). The complainant filed Affidavit of Evidence and Affidavit of Admission/Denial of Satyaroop Singh. 7. Along with written Reply, the opposite party filed Authority letter dated 24.07.2017, in favour of Mr. Ajay Kumar Gupta (Annexure-OP-1), Application Form of the complainant dated 17.09.2010 (Annexure-OP-2), Extract of Interest Ledger (Annexure-OP-3), Copies of demand notices and receipts (Annexure-OP-4), and copy of account statement of the complainant as on 13.02.2017 (Annexure-OP-5). The builder filed Affidavit of Evidence and Affidavit of Admission/ Denial of Ajay Kumar Gupta. Both the parties filed their short Synopsys. 8. We have considered the arguments of the counsel for the parties and examined the record. So far as pecuniary jurisdiction of this Commission is concerned, we are not going into this issue as it is well settled that a court of higher pecuniary jurisdiction can decide the cases of lesser valuation. The builder has not adduced any evidence to prove that the complainant owned several house as such there is no force in the argument that she is not a consumer. 9. The complainant booked the flat on 17.09.2010 as is proved from Annexure OP-2. Clause-16 of Terms and Condition for Registration (Annexure-OP-2) provides that the builder shall endeavour to give possession of the said flat as early as possible. Annexure-2 to Flat Buyer’s Agreement provides Payment plan as “Construction Linked Payment Plan”, under which Rs. 4/- lakhs was to be paid at the time of booking and 20% of basic sale price (including booking amount) was to be paid within 60 days of the booking. 10% of the basic sale price + 50% of EDC & IDC were to be paid at the time of agreement, remaining 65% of basic sale price + 50% EDC & IDC +Car parking charge were to be paid in 12 instalments, on different level of constructions and 5% of BSP and other charges at the time of offer of possession. From the ledger relating to the account of the complainant as maintained by the builder (Annexure-C), it is proved that the complainant deposited Rs.4 lakhs on 17.09.2010 i.e. at the time of booking and Rs.598820/- on 07.12.2010. From this ledger, it is also proved that the construction was started on 20.09.2011 and a demand notice of Rs.776295/- was issued. The complainant gave a cheque of Rs.1578310/- on 05.12.2011, which was not encashed. Thereafter, the complainant through four different cheques deposited Rs.1578310/- on 24.12.2011. The complainant deposited Rs.7548954/- up to 06.12.2016, i.e. more than the price of flat, which was Rs.6280150/-. 10. The builder took the plea that dully filled up Flat Buyer’s Agreement was sent to the complainant through courier on 12.07.2011, but no evidence has been filed to prove this allegation. Clause-17 of Flat Buyer’s Agreement provides 42 months with grace period of 6 months as period of completing construction and delivery of possession of the flat. We take this 48 months period would run from 12.07.2011 and ended on 12.07.2015. It is therefore proved that there was delay in delivery of possession on the part of the builder. The builder has not adduced any evidence to justify delay in construction. Therefore deficiency in service on the part of the builder has been proved. Supreme Court in Afirfur Rahman Khan (Lt. Col.) DLF Southern Themes Pvt. Ltd. (2020) 16 SCC 512, has held that in case of delay in offer of possession, the flat buyer was entitled to compensation in shape of interest @ 6% per annum from the date of promised possession till the date of actual possession. 11. From the ledger relating to the account of the complainant as maintained by the builder (Annexure-C), it is proved that the builder issued demand notice dated 13.02.2016 of Rs.258757/-, on alleged “completion of external plaster”, which was deposited by the complainant on 13.02.2016. According to “Construction Linked Payment Plan” Annexure-II to the Flat Buyer’s Agreement, it was last instalment before offer of possession. As such even according to their own document only 5% of total sale price remained due and had to be paid at the time of offer of possession. The builder took plea that the complainant was offered possession but neither its date, month and year have been specified nor any document to prove this fact has been filed. The builder has not produced “Occupancy Certificate” issued by the competent authority. The builder has raised various false pleas in Written Reply without producing any document in this respect. 12. The builder has filed a Statement of Account relating to the complainant as maintained by him as Annexure-OP-5. In this Statement of Account, amount payable was shown as ‘zero’ in last column, on 13.02.2016. On 06.03.2017, a new entry “On completion Flooring (Tax Revised)” has been entered and on this account Rs.249605/- was demanded and amount payable was shown as Rs.260383/-. In “Construction Linked Payment Plan” Annexure-II to the Flat Buyer’s Agreement, there was no such entry. Demand of “On completion Flooring (Tax Revised)” is illegal and amounts to unfair trade practice. As stated above, the complainant deposited Rs.7548954/- up to 06.12.2016, i.e. more than the price of flat, which was Rs.6280150/-. Only one cheque of Rs.1578310/- dated 05.12.2011, was bounced. However, the complainant through four different cheques deposited Rs.1578310/- on 24.12.2011. The builder has not produced any demand letter to prove that the complainant had delayed payment and therefore interest was charged. Charge of interest at the rate of 21% per annum from the complainant and thereby realizing more than Rs.13 lakhs from the complainant was illegal and amount to fraud. 13. Supreme Court in Bangalore Development Authority Vs. Syndicate Bank, (2007) 6 SCC 711, Fortune Infrastructure Vs. Trevor D’ Lima, (2018) 5 SCC 442 and Kolkata West International City Pvt. Ltd. Vs. Devasis Rudra, 2019 SCC OnLine SC 438 has held that the buyer cannot made to wait for indefinite period for possession. O R D E R In view of aforementioned discussions, the complaint is allowed with cost of Rs.one lakh. The builder is directed to hand over possession of Flat No. 1203, in Regent Tower, Mapsko Royale Ville, at Sector-82, Gurgaon, Haryana, complete in all respect with all amenities in habitable and liveable condition and execute conveyance deed of the flat in favour of the complainant within one month from today. The builder shall not charge any amount except stamp duty and registration charge as the complainant has already paid much more than actual price of the flat. The builder will pay an interest @ rate of 6% per annum on the amount deposited by the complainant from 15.07.2015 till the date of handing over possession, within one month. In case, the builder failed to comply aforesaid direction within aforesaid period, then he will return to the entire amount deposited by the complainant i.e. Rs.7548954/- along with interest @ 9% per annum from the date of each deposit, within period of two months. |
