Haryana

StateCommission

A/89/2016

ANSAL PROPERTIES AND INFRASTRUCTURE LTD. - Complainant(s)

Versus

RAJAT SACHDEVA - Opp.Party(s)

AJAY GHANGHAS

07 Sep 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                First Appeal No.89 of 2016

                                                          Date of Institution: 28.10.2016                         Date of Decision: 07.09.2017

 

M/s Ansal Properties & Infrastructure Ltd., 155 Ansal Bhawan, 16 KG Marg, New Delhi 110001 also at Ansal Sushant City, Ansal Sales Office, Kundli, Sonepat through it authorized signatory Sh.Rakesh Malik, Assistant Manager (Legal).

 …..Appellant

                                      VERSUS

Rajat Sachdeva S/o Late Sh.Ashok Sachdeva,R/o 2209, Gali Hinda Beg, Tilak Bazar, Delhi-110006.

          …..Respondent

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs. Urvashi Agnihotri, Member.                                   

For the parties:  Mr.Ajay Ghanghas, Advocate counsel for the appellant.

Mr.Nitin Gupta, Advocate counsel for the Respondent.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          As per complainant initially Jai Lal Mann booked flat in the project of  opposite party (O.P. in the month of September 2006 and paid Rs.2,50,000/-. Lateron he transferred his right in favour of complainant through application dated 29.03.2007. Vide letter dated 06.04.2007 flat No.04, first Floor at Tower No.28 was transferred in his name. As and when letter was received from O.P. amount was deposited accordingly, as detailed in the complaint.  In total he paid Rs.8,57,757/- which was more than 40% of total cost of plot which was Rs.21,99,375/-. Despite payment of this amount, he did not receive flat buyers agreement. He visited office of O.P. in the years 2009, 2010, 2011,2012 and also sent letters on 21.09.2013, 16.10.2013 and 09.02.2013, but, possession was not delivered.  It was told to previous allottee that possession  would be delivered within 30 months from the date of sanction of building plan. So O.Ps. be directed to deliver possession of the flat in question alongwith interest on the amount deposited by him and compensation as prayed for.

2.       O.Ps. filed reply controverting his averments and alleged that complaint was time barred. He never approached for possession as alleged by him.  He did not make payments as per agreement. No letter alleged to be written by complainant, was ever received. There was no question of execution of buyers agreement with complainant because the same was already entered with previous allottee and he stepped into his shoes.  An endorsement was made to this effect in the record which was  duly signed by the complainant. As per agreement, it was entitled to cancel allotment in case of unjustified and unexplained delay in payment. Objections about jurisdiction of consumer fora, accruing cause of action etc. were also raised and requested to dismiss complaint.

3.      After hearing both the parties, learned District Consumer Disputes Redressal Forum, Sonepat allowed complaint vide impugned order dated 03.12.2015 and directed as under:-

“In our view, the complainant is also entitled to get interest at the rate of 09% per annum on the amount of Rs.857757/- w.e.f.3/2009 till handing over the possession of the flat to the complainant. The respondent is also directed to execute the flat buyer agreement with the complainant and to hand over the physical possession of the flat in question to the complainant.

The complainant by way of present complaint has claimed the compensation to the tune of Rs.5 lacs, which in our view is on a very higher side. However, since the complainant has been able to prove the deficiency in service on the part of the respondent, we hereby direct the respondent to compensate the complainant to the tune of Rs.Five thousand for rendering deficient services, for causing unnecessary harassment and further to pay Rs.Two thousand to the complainant under the head of litigation expenses.”

4.      Feeling aggrieved therefrom O.P. has preferred this appeal.

5.      Arguments heard.  File perused.

6.      Learned counsel for complainant vehemently argued that he has already deposited Rs.8,57,757/- and the flat was allotted in the year 2007, but, the possession was not offered till filling of the complaint in the year 2014. After substituting his name in place of Jai Lal Mann, fresh buyer’s agreement was not signed. There is no explanation on the part of O.P. about delay in possession.  So, learned District Forum rightly gave relief mentioned above.

7.      On the other hand learned counsel for the appellant vehemently argued that initially flat allotted to Jai Lal Mann has already been allotted to someone else. If complainant wants then an alternative allotment can be made with some concession. On merits, it is argued that complainant did not make payments in time and that is why letter dated 22.03.2010 Ex.R-9 was also written to him. As per agreement dated 28.03.2007 Ex.R-11  value of the flat was 21,99,375/- whereas he has deposited only Rs.8,57,757/-. As he did not adhere to payment schedule he is not entitled for the relief claimed.  When agreement was executed with original allottee there was no necessity to execute new buyer’s agreement with him.  He stepped into shoes of Jai Lal Mann and was not having independent right.

8.       Neither arguments of complainant’s counsel nor of O.P.’s counsel can be accepted in toto because there is lapse on the part of both the parties.   As mentioned above, price of the flat was 21,99,375/- whereas complainant has only deposited Rs.8,57,757/-.  Had he deposited payment as agreed with Jai Lal Mann, it would have been much more.  O.P. asked him to deposit amount, but,  even then he did not deposit the same. On the other and as per agreement Ex.R-11 possession  was to be delivered within 30 months from the date of sanction of building plan etc.  This agreement was executed on 28.03.2007, but, possession was not delivered. So, O.P. is also at the fault.  As per clause 5 (c ) of the agreement if payment is not made in time then builder has a right to forfeit earnest money and cancel the allotment.  Though it was argued that plot allotted to Jai Lal Mann has been allotted to someone else, but, no letter about cancellation of allotment or forfeiture is produced on the file. So it shows that O.P. has not invoked the provisions contained in section 5 (c ) and consumer fora is to see what relief is to be given.

9.      Complainant has requested to direct O.P. to deliver the possession of Flat No.04 on first floor mentioned in agreement EX.R-11 but when the same has already been allotted to someone else, possession of the same cannot be delivered to him because if subsequent allotment will be cancelled, then he will  again come into litigation.  So, refund of the amount deposited by him can be ordered. Learned District Forum failed to take into consideration this aspect.

10.    As a sequel to above discussion if complainant succeeds in showing that plot allotted to Jai Lal Mann is not allotted to anyone till date then possession of the same will be delivered to him on depositing the remaining amount as per agreement Ex.R-11 executed in between Jai Lal Mann and O.P. because he has stepped into  shoes of Jai Lal Mann and no separate agreement is required. If that the flat is not available then O.P. can offer an alternative flat to him. If complainant does not want alternative allotment, then the O.Ps. will refund the amount deposited by him without any interest because  complainant did not make payment in time and he is not entitled for interest as opined by Hon’ble National Commission in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014. Relief about compensation of harassment, mental agony, litigation expenses etc. will be same as ordered by learned District Forum.  Impugned order dated 03.12.2015 is modified to this extent and appeal is decided accordingly.

11.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules.

 

September 07th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.