Haryana

Gurgaon

CC/921/2010

Ashish Aggarwal - Complainant(s)

Versus

Omaxe Constructions - Opp.Party(s)

18 Aug 2015

ORDER

                                                                                                                                 Consumer Complaint No. 921 of 2010.                                                                                                                                                              Date of Institution: 03.12.2010                                                                                                                                                                          Date of Decision: 18.08.2015

 

Ashish Agarwal s/o Shri N.P.Agarwal, R/o Flat No.204, IInd Floor, Tower Sphinx of Block-I, THE NILE, Village Ghausola, Sector-49, Sohna Road, Gurgaon.

 

                                                                                        ……Complainant.

 

                                                Versus

 

Omaxe Constructions Ltd, Registered Office at 7, Local Shopping Centre, Kalkaji, New Delhi through its Managing Director/Principal Officer.

 

  ..Opposite party

                                                                            

 

                                               

Complaints under Sections 12 & 14 of Consumer Protection Act,1986                                                                 

 

BEFORE:     SH.SUBHASH GOYAL, PRESIDENT.

                     SMT JYOTI SIWACH, MEMBER

 SH.SURENDER SINGH BALYAN, MEMBER.

 

 

Present:        Sh. R.A. Sharma, Adv for the complainant.

                    Sh. Arun Kumar Yadav, Adv for the opposite parties.

 

ORDER       SUBHASH GOYAL, PRESIDENT.       

 

 

We shall dispose off both the complainant simultaneously as the matter involved in both the complaints is same, similar and identical regarding the same Flat.

2                 The case of the complainant in both the complaints, in brief, is that initially an Apartment No.204, IInd Floor, Sphinx Tower in “The Nile” situated at Sohna Road, Gurgaon measuring 1900 sq. ft built area was purchased by Shri Rajesh Bhatia from the opposite party and later on the complainant has purchased the same from Mr. Rajesh Bhatia and the opposite party has transferred the same in favour of the complainant and the possession of the said Apartment was to be handed over within 30  months from the date of execution of the agreement i.e. possession was to be handed over up to 02.12.2007. However, opposite party demanded a sum of Rs.7,89,472.90 vide letter dated 28.02.2008 as full and final settlement  and it was also admitted that the possession of the Apartment would be handed over after completion of entire work. The complainant has deposited  a sum of Rs.7,89,472.90 as demanded by the opposite party on 27.03.2008. The opposite party also executed  deed of conveyance on 11.12.2008 but at that time the Apartment was not  fully completed and lastly, the possession of the Flat was handed over to the complainant on 21.01.2009 as shown in the possession certificate.  The complainant deposited an amount of Rs.95,000/- as interest free security and the same was to be refunded to the association of the unit owners/maintenance agency after deducting the outstanding bills/other outgoings at the time of execution of the conveyance deed. The opposite party did not remit the amount of security as the execution of the conveyance was executed on 11.12.2008. Instead of making the payment of interest free maintenance security on 11.12.2008, the opposite party illegally deducted the amount of maintenance to the tune of Rs.75,754/- of maintenance whereas the opposite party could not deduct the maintenance charges because the possession of the apartment was handed over only on 21.01.2009 and the maintenance is to be made by the association. It is further alleged that the opposite party wrongly and illegally deducted Rs.20,047/- from interest free security as maintenance charges from 01.09.2008 to 20.01.2009  and the opposite parties are liable to refund the same with interest.

3                 The further case of the complainant is that as the possession of the Flat was handed over to the complainant on 21.01.2009 as shown in the possession certificate, thus, as per clause 25(i) & 25(iii) the opposite party was liable to make the payment of Rs.5/- per sq. ft per month from 03.12.2007 to 21.01.2009 as the opposite party failed to hand over the possession of the flat within 30 months from the agreement.

4                 The complainant requested the opposite parties to fulfill their commitment as made in the agreement but  of no use. Thus, the opposite parties are deficient in providing services to the complainant. He prayed that the opposite parties be directed to refund IFMS to the welfare association and to refund the amount of Rs.66,680.80 of development charges, Rs.33,000/- on account of electricity. He prayed that the opposite parties be directed to refund Rs.1,41, 720.53/- with interest towards penalty as provided under clause 25(iii) of the agreement. He also claimed compensation of Rs. 3 Lac for harassment and mental agony. The complaint is supported with an affidavit and the documents placed on file.

2                 OPs in their written reply have alleged that as per clause 25(ii) of the agreement the opposite parties are entitled for reasonable extension of time for delivery of possession if delay is caused by reason of non availability of steel, cement, other building material or water supply, electricity, strike, slow down or any force majeure circumstances or due to any notice, order, rule or notification of the government or for any other reason beyond the control of the company. The possession was offered on 28.02.2008 as per the terms and conditions of the agreement and it was the complainant who had not taken over the possession and raised various complaints and thus, the amount of Rs.75,754/- was rightly deducted as the complainant failed to take the possession of the property on his own even after offer of possession on 28.02.2008 and the remaining amount was deposited with RWA. Thus, there is no delay on the part of the OPs. The possession was offered on 28.02.2008 and the maintenance agreement was executed on 17.10.2008 and thus, the maintenance charges were rightly deducted and there was no deficiency of service on the part of the opposite parties.

3                 We have heard the learned counsel for the parties and perused the record available on file.

4                 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that the complainant has filed the present complaints against the OPs alleging deficiency of service on their  part on the ground that he purchased an Apartment from Rajesh Bhatia  and the opposite party has transferred the same in favour of the complainant and the possession of the said Apartment was to be handed over within 30 months from the date of execution of the agreement i.e. possession was to be handed over up to 02.12.2007. However, the opposite parties demanded a sum of Rs.7,89,472.90 vide letter dated 28.02.2008 as full and final settlement and it was admitted that the possession would be handed over after completion of the entire work. The complainant deposited the said amount of Rs.7,89,472.90 as demanded by the opposite parties and the opposite parties executed the conveyance deed on 11.12.2008 but at that time also the said flat was not fully completed and the possession was handed over to the complainant on 21.01.2009 as shown in the possession certificate. The complainant alleged that a sum of Rs.95,000/- was deposited as security which was to be refunded at the time of execution of the conveyance deed on 11.12.2008  but the opposite parties illegally deducted an amount of Rs.75,754/- on account of alleged maintenance charges despite the fact that the opposite parties were not entitled to claim the maintenance charges as the possession was delivered on 21.01.2009. The complainant has claimed a sum of Rs.20,047/- allegedly deducted on account of maintenance charges from 01.09.2008 to 20.01.2009 despite the fact that the conveyance deed was executed on 11.12.2008. Learned counsel for the complainant has further contended that the complainant was entitled to penalty @ Rs.5/- per sq. ft. per month for the delayed period as per clause 25(iii) of the agreement which comes to Rs.1,41,720.53/-.  To substantiate his claim the counsel for the complainant has relied upon Haryana Urban Development Authority Vs Sadhu Ram IV (2006) CPJ 250, Ansal Housing & Construction Ltd Vs M. Tripat Bawa II(2010) CPJ 411 and Haryana Urban Development Authority Vs Raj Pathak & Ano II(2010) CPJ 113 (NC).

5                 However, as per the contention of the opposite parties, the possession of the flat was offered on 28.02.2008 and not on 21.01.2009. The opposite parties have admitted the execution of the conveyance deed on 11.12.2008. The opposite parties have accepted that they have rightly deducted a sum of Rs.75,754/- as the complainant failed to take possession despite offer on 28.02.2008. Opposite parties have also contended that maintenance agreement was signed on 17.10.2008 and in terms of said agreement the amount was rightly deducted. The complainant is not entitled to any penalty amount @ Rs.5/- as he himself failed to take possession of the flat despite offer on 28.02.2008.

6                 Therefore after going through the evidence and the circumstances of the case it is evident that No Dues Certificate was issued on 23.10.2008 by the opposite party No.1 Omaxe Ltd and the conveyance deed was executed on 11.12.2008. Therefore, it is evident that till payment of entire amount no  No Dues Certificate could have been issued and when the complainant deposited the dues then No Dues Certificate was issued on 23.10.2008.. Thereafter conveyance deed was executed on 11.12.2008. No doubt the opposite party has alleged that the possession was offered on 28.02.2008 but there is no letter of offer of possession on the file as contended by the learned counsel for the opposite party. It is pertinent to mention here that after inspecting the unit in question the complainant gave an undertaking on 11.12.2008. Therefore, from the facts and circumstances of the case we are of the considered opinion that possession would be deemed to have been given on 11.12.2008 when the conveyance deed was executed after clearance of all dues and thus,  the deemed date of offer of possession would be 11.12.2008. The unit was to be handed over within 30 months  from the date of execution of the agreement i.e. up to 03.12.2007 which was handed over on 11.12.2008.

Besides this we are of the considered opinion that the maintenance charges would be applicable from the date of possession. In the instant case as observed above the deemed date of possession is 11.12.2008, therefore, the maintenance charges prior to 11.12.2008 are liable to be refunded. However, complainant failed to prove his claim regarding development charges and electricity charges as prayed for by the complainant in the prayer clause.

7.                Therefore, we accept the present complaint and direct the opposite party No.1 i.e. Omaxe Construction Ltd to pay penalty @ Rs.5/- per sq. ft. per month for the delayed period i.e.  from 03.12.2007 to 11.12.2008 along with interest @ 9 % p.a. from the date of filing of the present complaint till realization. The maintenance charges charged from the complainant prior to 11.12.2008 are liable to be refunded by the opposite party to the complainant along with interest @ 9 % p.a. from the date of filing the present complaint till realization. The complainant is entitled to compensation of Rs.5,000/- for harassment and mental agony. He is also entitled to litigation expenses of Rs.3100/-. OP-1 shall make the compliance of the order within 30 days from the date of receipt of the copy of this order.

 

Copy of this order be also placed on the connected case file bearing CC No.921 of 2010 titled as Ashish Aggarwal Vs Omaxe Construction.

 

The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.

 

Announced                                                                                                                                (Subhash Goyal)

18.08.2015                                                                                                                                   President,

                                                                                                                                               District Consumer Disputes

                                                                                                                                                      Redressal Forum, Gurgaon

 

 

(Jyoti Siwach)        (Surender Singh Balyan)

Member                 Member