Delhi

New Delhi

CC/738/2013

Nitin Jain - Complainant(s)

Versus

M/S. Orchid Infrastructure Developers Pvt.Ltd. - Opp.Party(s)

18 Jul 2016

ORDER

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTT. NEW DELHI),

 ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

 NEW DELHI-110001

 

 

Case No.C.C./738/2013                                 Dated:

In the matter of:

1.     SH.NITIN JAIN,

        R/o 601, T-14, Orchid Petals,

        Sohna Road, Sector-49,Gurgaon,

        Haryana-122018

 

        ……..COMPLAINANT-1

2.     MRS. RAJINI JAIN,

        R/o 601, T-14, Orchid Petals,

        Sohna Road, Sector-49,Gurgaon,

        Haryana-122018

 

……..COMPLAINANT-2

 

VERSUS

1.     M/S ORCHID INFRASTRUCURE DEVELOPERS (P) LTD.

        R/o 1011, Surya Kiran,

        19, K.G. Marg,

        New Delhi-01

.... OPPOSITE PARTY-I

 

2.     M/S VIPUL LIMITED

        Global Arcade, 3^rd Floor, M.G. Road,

        Gurgaon, Haryana-100220

Sushant Lok-II, Gurgoan-122003

.....OPPOSITE PARTY-2

 

 

 

MEMBER : NIPUR CHNDNA

ORDER

                The complainants booked a residential flat with the OPs on 1/12/2005 at a total cost of Rs. 53,41,400/- in Orchid Petals Condominium Complex in Sector-49, Sohna Road, Distt. Gurgaon, Haryana.

        It is alleged by the complainants they paid booking amount of Rs. 4,98,979/- to the OPs vided cheque dated 10/6/05, inturn of which OP executed buyer agreement dated 1/12/05 vide which OPs have agreed to hand over the possession of the booked flat within 36 months.

        It is stated by the complainants that OP-1 had allotted him a flat in Unit No. 601 in town No. 014 on 6^th Floor in the Group Housing Complex at Orchid Petal, Sector-49, Gurgaon, Haryana.

It is alleged by the complainants that as per the agreement they paid a sum of Rs. 45,81,951/- to the OPs from 21/11/05 to 23/01/08 and further paid a sum of Rs. 4,92,279/- till 2008 and the remaining balance amount they had to pay at the time of taking possession.

       It is further alleged by the complainants that OPs demanded a sum of Rs. 14,07,314/- vide letter dated 16/8/2010 from them as the aforesaid flat was ready for possession.  Complainant No. 1 vide letter

dated 5/10/12 requested the OPs  to reduce the demand by Rs. 2,94,630/- as OP-1 had failed to hand over the possession in time i.e. in October 2008 as pr the agreement and as such it is liable to pay the penalty @ Rs. 5/- per sq. ft. per month to the complainants.

      It is alleged by the complainant that despites several reminders, OP-1 did not reduce the amount and on the contrary on 2/4/2011 threatened the complainants that if they did not make the balance payment of Rs. 14,07,314/- it hold on authority to cancel the said flat.

       It is stated by the complainants that having no other option, they paid a balance amount of Rs. 14,07,314/- to the OPs. 

        It is alleged by the complainants that delay in handling the possession of the flat by almost 23 months amount to deficiency in service on the part of OP-1.   Hence this complaint.

       Notice of the complaint was sent to the OPs through Regd. AD Post for 27/01/14.  Since none appeared on behalf of the OPs, they  were ordered to be proceeded with ex-parte on 24/3/14.

        This complaint case had already been reserved for orders on 28/01/15.  But, before the order could be passed the then Ld.                                                                                                                                                                                                                                                                                                                                                                                                                                                     President and one Ld. Member of this District Forum retired, leading to deciding the matter for re-arguments.

        We have heard ex-parte arguments and have persued the record.

        The complainants have placed on record copy of Flat Buyers Agreement, copies of the payment receipt issued by the OP, copy of the final demand letter issued by OP on 16/8/10, copy of the letter dated 13/9/10, 5/10/10and 24/01/11written by the complainant to the OP in support of their case.

        Complainants have alleged in their complaint that the OP-1 had failed to perform its part of contract by not providing the possession of the flat in year 2008 as per the agreement.  It is further contended by the Ld. Counsel for complainants as the possession was delivered /handed over to the complainant after delay of approximate 23 months complainant is entitled for the sum of Rs. 2,94,630/- i.e. penalty calculated @ Rs.5/-  sq.ft. per month as per agreement for the OP.

        It is contended by the ld. Counsel for the complainant that complainant wrote various/several letters to the OP to deduct Rs. 2,94,630/- out of the total cost of Rs. 14,07,314/- but OP instead of deducting the amount directed the complainant to make the entire payment of Rs. 14,07,314/- otherwise the flat in question shall stand cancelled.  The complainants paid the entire amount to the OP.

        If the offer of the OPs is not acceptable to the complainant than he should not have made the payment to the OPs and take the delivery of the aforesaid flat in question.  The act of complainant of taking possession and making the entire payment without any protest had lost his character as a Consumer.

             A similar view was taken by Hon’ble National Commission in the case of Haryana State Co-operative Supply and Marketing Federation Ltd., Jind V/s IFFCO Tokyo General Insurance Company Ltd. through its Manager Revision Petition No. 4713 of 2012  wherein it was held that:-

“The petitioner cannot be allowed to accept the offer of the respondent only in part which suited their convenience and reject the condition subject to which offer was made.”

       In view of the aforesaid judgment and the documents placed on record, we are of the considered opinion that the complainant by his own conduct his forfeited his right to plead that he had not accepted the offer in full and final settlement of his claim against the OPs. 

        Moreover, the complaint is also barred by limitation, as the complainants had make the entire payment to the OP and took the possession of the flat in the year April 2011, and from then he remained silent and never approached the OPs and directly filed the complaint before this fora on 13/8/13, which is after 2 years of accrued the cause of action.

     In the light of above discussion we find no merits in the complaint.  The same is hereby dismissed

         This final order be sent to server (www.confonet.nic.in ). A copy each of this order each be sent to both parties free of cost by post.

File be consigned to record room.

Pronounced in open Forum on                             .

 

 

(S K SARVARIA)

 PRESIDENT

 

 

 

(H M VYAS)             (NIPUR CHANDANA)

                                                                 MEMBER                          MEMBER