Delhi

StateCommission

CC/11/193

ANIL PODDAR - Complainant(s)

Versus

NIHO CONSTRUCTIONS - Opp.Party(s)

21 Jul 2017

ORDER

IN THE STATE COMMISSION: DELHI

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

 

                                                                    Date of Decision: 21.07.2017

 

Complaint Case No. 193/2011

In the matter of:

Sh. Anil K Poddar

S/o Sh. Kantiprasad B. Poddar

R/o 82-B Paradise Apts.

44, Neapan Sea Road

Mumbai-400036                                              .........Appellant

 

Versus

 

Director/s

Niho Construction Ltd.

Corporate Office: X 22

Ist Floor, Hauz Khas

New Delhi-110016                                           ..........Respondent

                                                                  

CORAM

N P KAUSHIK                         -                  Member (Judicial)

 

1.         Whether reporters of local newspaper be allowed to see the judgment?                   Yes

2.         To be referred to the reporter or not?                                                                  Yes

 

N P KAUSHIK – MEMBER (JUDICIAL)

 

JUDGMENT   

1.         Case of the complainant is that the Niho Construction Ltd., Hauz Khas New Delhi (in short the OP) entered into a flat buyer’s agreement with one Sh. N P Singh on 06.09.2006. Sh. N P Singh and OP had entered into two separate agreements. Both the agreements were entered into on 06.09.2006. First agreement related to the construction and allotment of the flat whereas the second one was in respect of fixtures and fittings. Complainant stepped into the shoes of Sh. N P Singh on payment of an amount of Rs. 5.4 lacs to Sh. N P Singh and the amount of Rs. 21.60 lacs to the OP. Accordingly the flat bearing No. I-1204 Hi Bird Block Scottish Gardens, Indirapuram (Ghaziabad) was transferred in the name of the complainant herein. Indemnity bond was executed in favour of the OP accordingly.
2.         Vide letter dated 10.02.2007 OP requested the complainant to pay an amount of Rs. 14,278/-. The same was duly acknowledged by the OP after receipt. Again the OP vide its letters dated 10.01.2009 and 05.09.2010 demanded payment of further installments. Grievance of the complainant is that the OP vide its letters dated 27.11.2009, 30.12.2009 and 01.09.2010 asked the complainant for further payment of Rs. 2,81,317/-. Further, vide e-mail dated 20.04.2011, OP illegally claimed an amount of Rs. 4,44,277/-. Contention of the complainant is that he had made full payment towards the total price consideration in the year 2009. On the basis of the aforesaid facts, the complainant has prayed for directions to the OP to hand him over the possession of the flat No. I 1204 Hi Bird Block, Scottish Gardens, Indirapuram (Ghaziabad). A prayer for grant of interest @ 24% p.a. on the amount of Rs. 29,84,318/- paid to the OP till the time of handing over the possession is also made.
3.         OP put in appearance and filed his written version. Sole defence raised by the OP is that the original allottee named Col. N P Singh vide his letter dated 10.10.2009 asked the OP not to handover the possession of the flat without his consent in writing.  OP however admitted having entered into flat buyer’s agreement with Col. N P Singh on 06.09.2006.
4.         Complainant filed his rejoinder and affidavit towards evidence. On the contrary, OP absented himself from the proceedings without filing his evidence. OP was proceeded against ex-parte vide orders dated 26.10.2016.
5.         I have heard at length the arguments addressed by the counsel for the complainant Ms. Ekta Bhasin Advocate.
6.         Perusal of the record shows that the OP had demanded payment of the various installments from the complainant w.e.f. 10.01.2009 uptil 14.09.2010. Now it does not lie in the mouth of the OP to rely upon the letter dated 10.10.2009 written by the predecessor-in-interest of the complainant Col. N P Singh. It is not denied by the OP that the amount of Rs. 21.60 lacs was received by the OP from the present complainant. It is also not denied by the OP that the amount of Rs. 5.4 lacs was paid by the present complainant to said Col. N P Singh. It is not the case of the OP that the present complainant ever committed any default in the payment of installments. The defence raised by the OP (which is not supported by an affidavit towards evidence) is of no avail to him.
7.         As per flat buyer’s agreement dated 06.09.2006, OP was required to handover the physical possession of the flat within a period of 30 months from the date of execution of the agreement. Admittedly the possession has not been handed over so far. It can hardly be disputed that there has been a steep appreciation in the market value of the land in the area of Indirapuram (Ghaziabad) in the period of last 7-8 years. Complainant cannot get a compatible flat at the same price at which the agreement was entered into and payment made. For these reasons, OP is directed to pay to the complainant as under:
   1. to refund the amount of Rs. 21.60 lacs alongwith interest @ 18% p.a. from the date of deposit till the date of its realization.

The abovesaid amount shall be paid by the OP to the complainant within a period of 60 days from today failing which it shall carry interest @ 24% p.a. Complaint is accordingly allowed.

8.         Copy of the orders be made available to the parties free of costs as per rules and thereafter the file be consigned to Records.

 

(N P KAUSHIK)

MEMBER (JUDICIAL)​