Delhi

East Delhi

CC/342/2015

SANGEETA - Complainant(s)

Versus

PARAMOUNT TOWER - Opp.Party(s)

03 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC. NO-342/15

In the matter of:
Smt. Sangeeta

8/105, Chiranjiv Vihar

Ghaziabad.                            

Complainant

Vs

Paramount Towers Pvt. Ltd.

Registered Office at

208, Second Floor,

Sikka Mansion, LSC

Savita Vihar,

Delhi 110092

                                                                                                             Opposite Party

 

                                                                                        DATE OF ADMISSION-29/05/2015

                                                                                        DATE OF ORDER         -06/08/2015

ORDER

SH. N.A.ZAIDI, PRESIDENT

This complaint has been filed with the allegation that on enquiry from the office of the respondent and from the newspaper, the complainant was assured that the respondent are providing quality homes, flats and villas at affordable price and they deliver project absolutely on time. He booked a flat bearing No. Nettle 1303 in its project Paramount Floraville situated at Plot No.Gh-06, Sector 137, NOIDA and paid Rs.2 lakhs. On 10/01/2013 allotment letter was issued. The cost of the flat was Rs.79,48,988/- inclusive of other charges like Car parking, club membership etc. The possession was to be delivered within eighteen months from the date of the issuance of allotment letter with the four months grace period for completing the project. The mode of payment was Flexi/Construction linked plan. He paid Rs.1,94,006/- on 20/09/2012 and Rs.6,01,416/-  on 07/01/2013 total Rs.7,95,422/-. The respondent is demanding penal interest @ 18% which is illegal. Flat was to be delivered in 18 months from the date of the allotment which is not delivered as yet. Clause 28 says if the company is unable to deliver the possession in the stipulated time the company will compensate the allottee for the delayed period @ of Rs.5/sq ft. per month. The complainant booked the flat on 10/01/2013, the possession was to be delivered by 10/10/2014 and if the grace period is to be included even then the respondent has failed to deliver the possession and they are not compensating the complainant for delayed possession @ Rs.5/sq. ft. per month on the other hand they are demanding interest @ 18%. On 06/05/2015 when the complainant visited the office of the respondent for collecting the letter of possession in which respondent included Rs.17,97,968/- on account of interest @ 18% for delayed payment but have not adjusted or mentioned the compensation amount of delay in handing over the possession to the complainant. No satisfactory reply has been given in this regard to the complainant. In these circumstances complainant has sought direction from this forum that respondent to pay Rs. 5/sq. ft. per month from 10/10/2014 till the delivery of the possession of the flat, compensation of Rs.2 lakh and legal expense.

            Respondent filed their reply where in it is alleged that the complaint has been filed with false and frivolous ground. This fact is admitted that the flat No.1303 Nettle in Paramount Floraville was booked. On 10/01/2013, allotment letter was issued which was signed by both the parties. The complainant has agreed to make the payment as per the payment schedule mentioned in the allotment letter but he did not adhere to the payment schedule and have breached the terms and condition as agreed upon between the parties. So far he has paid Rs.7,95,422/- out of total Rs.79,48,988/- it was specifically mentioned in clause one of the allotment letter “that timely payment of installments by the allottee as indicated in the payment plan is a essence of the scheme”. The demand of Rs.5/sq ft. per month for late delivery of the flat is not maintainable it is only payable to the customers if the said customers has made timely payment. In these circumstances the complaint deserves to be dismissed.

            Both the parties have filed evidence by way of affidavit.

            We have heard the Ld. Counsel for the parties and have perused the record. The short question which arises for our consideration in the present complaint in the present complaint is as to whether the complainant is entitled for Rs.5/sq ft. per month for delayed delivery of the possession and defendant is not entitled to recover interest from the complainant.

            This fact is not in dispute that the complainant has booked flat no. Nettle 1303 in project Paramount Floraville are deposited so far Rs.7,95,422/- out of the total sale consideration of Rs.79,48,988/-. This fact is also not in dispute that the booking was made on 20/09.2012 and the allotment letter which contains the terms and condition of the allotment was executed between the parties on 10/01/2013. The complainant herself filed the letter written to the complainant by the respondent on 10/01/2013 along with the allotment containing terms and condition bearing the signature of the complainant as well as of the respondent. It is specifically mentioned in this letter “that this allotment is subject to the terms and condition detailed in this allotment letter herein after and shall prevail over all other terms and condition given in our brochure, price list, etc”. As per this letter out of the total cost of Rs. 79,48,988/- first payment to be made as per the super flexi plan at the time of booking 10%. It has been indicated that Rs.7,94,899/- was to be deposited as first installment that is 10% of the total sale consideration. The complainant has deposited admittedly Rs.7,95,422/- up to 07/01/2013, 35% of the total sale consideration that is Rs.27,82,146/- was supposed to be deposited within 30 days of booking that is up to 06/02/2013 and rest amount of 55%that is Rs. 43,71,943/- was to be paid at the time of offer of possession. This letter also specifies that unit is to be delivered in 18 months from the date of the issuance of allotment letter subject to receipt of the entire sale price. The agreement which has been executed between the parties and signed by Smt. Sangeeta also makes it clear that timely payment of installment as indicated in the payment plan is the essence of the scheme and if the installment as per the payment schedule not made the company will charge 24% per annum on the delayed payment for the period of delay, however, if the same remains in arrear for more than two months, the allotment will automatically stand cancelled. It has been argued on behalf of the respondent that as per the opted payment plan 35% of the sale price that is Rs.27,82,146/- was to be paid by the complainant within 30 days from the date of the booking that is up to 06/02/2013. Admittedly this amount has not been deposited by the complainant. it has been argued on behalf of the complainant that she did not deposit this amount since the respondent have not adhered to the construction plan. They could only claim this amount if the respondent have constructed this building and flat within the stipulated time  period of 18 months or within further grace period of four months. Counsel for the respondent argued that the delay in construction if any could only be taking shelter by the complainant, had she herself complied with the terms of the contract by depositing the 35% of the total cost within 30 days of booking. As per the plan the respondent has given this liberty to the complainant and the other allotties to pay the remaining 35% only when they offer possession, since the complainant in this case have defaulted in making payment as per the payment plan. She cannot invoke the clause No.28 of the agreement which provide that “in case the company is unable to construct apartment other than the reason beyond the control of the builder, within stipulated time, after exceeding the grace period of three months, the company will compensate the Allottee(s) for delayed period @ Rs.5/sq. ft. per month subject to regular and timely payment by the allotties”. It is argued on behalf of the respondent that the language of the terms and condition of the allotment letter is very clear that the benefit of Rs.5/sq ft. per month compensation can only be claimed by the allottee if she or he has made the regular payment. According to the rule, of the construction of documents every Para of the agreement has to be read in consonance and not in disjunction. The para-1 of this agreement is specifically say that timely payment of the installment by the allottee shall be the essence of the scheme and if the allottee fails to make the payment herself and have defaulted in her obligation by making payment on due date as agreed upon how she can claim the benefit of compensation on account of delayed possession. According to the terms of this agreement, the right has been give to the respondent to condone the delay in payment exceeding the two months by charging the interest at the agreed rate and to restore the allotment. The burden was upon the complainant to prove that she has made the payment as per the payment plan if she has not made the payment as agreed upon, it is unjust on the part of the complainant to ask for the invoking the clause 28 of the agreement when she herself fail to adhere to other terms of the contract. She could have been awarded compensation for delayed possession @ of Rs.5/sq ft. per month had she have made the payment in time or condoned by the respondent. In the present case the respondent has not condoned the delay and they have issued the demand letters asking her to deposit the due amount along with the interest on 01/05/2013, even then the complainant has not deposited the amount. In these circumstances neither the complainant can get any remission in the agreed interest rate nor can she claim any amount @ Rs.5/sq.ft. per month. Once she has agreed to pay interest on the delayed payment, how, she can say that respondent cannot claim the interest on the amount, which she has failed to pay on the due date. There is no merit in this complaint it deserves dismissal and accordingly dismissed.

The copy of the order be sent to the parties as per rules.

 

SUBHASH GUPTA                               POONAM MALHOTRA                             N.A.ZAIDI

      MEMBER                                                MEMBER                                                    PRESIDENT