Haryana

Sonipat

CC/72/2015

Vipin Parmar S/o Suresh Pal - Complainant(s)

Versus

Rama Krishna Buildwell Pvt. Ltd. - Opp.Party(s)

B.S. JAGLAN

05 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                     SONEPAT.

 

                             Complaint No.72 of 2015

                             Instituted on:05.03.2015

                             Date of order:05.04.2016

 

Vipin Parmar son of Suresh Pal, resident of B-1, Ground Floor, Pusa Complex, IARI, New Delhi.

                                      ...Complainant.

 

                      Versus

 

 

1.Rama Krishna Buildwell Pvt. Ltd. 551-Tower B, Aggarwal Cyber Plaza, Netaji Subhash Place, Pitam Pura, New Delhi-34 through its Chairman.

2.Harish Luthra Managing Incharge of Rama Krishna Buildwell Pvt. Ltd., c/o Mera Baba Real Estate Pvt. Ltd., 3890, Aggarwal Cyber Plaza-II, Netaji Subhash Place, Pitampura, New Delhi.

                                      ...Respondents.

 

COMPLAINT UNDER SECTION 12 OF

THE CONSUMER PROTECTION ACT,1986

 

Argued by: Sh. BS Jaglan, Adv. for complainant.

           Sh. AK Jain, Adv. for respondents.

 

BEFORE-    Nagender Singh, PRESIDENT.

          Prabha Wati, MEMBER.

         

 

O R D E R

 

         Complainant has filed the present complaint against the respondents alleging therein that he gave his consent for the purchase of a flat in 2^nd Tower of Divine City of the respondents.  The respondents entered into an agreement dated 9.8.2013 for Flat No.2/405  which was reduced into writing.  The respondents agreed to sell the said flat to the complainant against basic cost of Rs.28,96,695/-. The respondents promised to complete the construction of 2^nd Tower of this flat within two years from 6.6.2013.  The complainant has paid Rs.289670/- i.e. 10% of the cost of the flat and Rs.434504/- i.e. 15%  at the time of allotment i.e. total Rs.724174/-.  The complainant has always remained ready to make the balance payment as per schedule, but the respondents did not demand the balance payment.  The complainant in the month of July,2014 came to know that the respondents have not started the construction work of 2^nd tower in Divine City and that amounts to a grave deficiency in service on the part of the respondents.  The respondents illegally withheld the payment of the complainant. The respondents have accepted the payment from the complainant before construction and even till date, they have failed to start construction and thus, the complainant has every right to get refund of his deposited amount alongwith interest from the respondents. Thus, he has come to this Forum and has filed the present complaint.

2.        The respondents have appeared and they filed their joint written statement submitting therein that they never told the complainant that they will complete the construction of divine city within two years from the date of booking.  owever,

 However, it is correct that the complainant has purchased flat no.2/405 from the respondents.  The basic cost of the flat was Rs.32,18,550/- plus EDC, IDC and total cost of the flat was agreed Rs.39,36,991/- plus car parking, taxes and registration fees etc.  The respondents never promised the complainant to complete the construction of second tower of this flat within two years i.e. from 6.6.2013 i.e. booking date of this flat.   The complainant and respondent entered into a contract on 10.8.2013 and both are bound by the terms and conditions of the agreement to sell.  The complainant has paid only Rs.724173/- but he did not pay the tax of Rs.22378/-.  The respondents gave special offer vide letter dated  14.2.2014 to the complainant that we are ready to give possession of the flat/unit  and also ready to give relaxation in payment schedule.  The respondents are not liable to pay interest in any manner to the complainant.  Further the respondents had given an offer to the complainant to shift from tower no.2 to tower no.3 and 4.  The construction of tower no.3 is almost complete upto 9^th Floor and construction of 4^th tower is complete upto 6^th floor.  But the complainant is not interested in shifting the same.  The respondents have denied that 2^nd floor is not in their plan.  The complainant has not suffered any mental agony or harassment at the hands of the respondents.  The complainant is not entitled for any relief and compensation since there is no deficiency in service on the part of the respondents and thus, prayed for the dismissal of the present complaint.

3.        We have heard the arguments of both the ld. Counsel for the parties at length and we have also gone through the entire relevant material available on the case file carefully & minutely.

4.        Ld. Counsel for the complainant has argued his case vehemently that the complainant gave his consent for the purchase of a flat in 2^nd Tower of Divine City of the respondents.  The respondents entered into an agreement dated 9.8.2013 for Flat No.2/405  which was reduced into writing.  The respondents agreed to sell the said flat to the complainant against basic cost of Rs.28,96,695/-. The respondents promised to complete the construction of 2^nd Tower of this flat within two years from 6.6.2013.  The complainant has paid Rs.289670/- i.e. 10% of the cost of the flat and Rs.434504/- i.e. 15%  at the time of allotment i.e. total Rs.724174/-.  The complainant has always remained ready to make the balance payment as per schedule, but the respondents did not demand the balance payment.  The complainant in the month of July,2014 came to know that the respondents have not started the construction work of 2^nd tower in Divine City and that amounts to a grave deficiency in service on the part of the respondents.  The respondents illegally withheld the payment of the complainant. The respondents have accepted the payment from the complainant before construction and even till date, they have failed to start construction and thus, the complainant has every right to get refund of his deposited amount alongwith interest from the respondents.

          Ld. Counsel for the respondents has submitted that they never told the complainant that they will complete the construction of divine city within two years from the date of booking.  owever,

 However, it is correct that the complainant has purchased flat no.2/405 from the respondents.  The basic cost of the flat was Rs.32,18,550/- plus EDC, IDC and total cost of the flat was agreed Rs.39,36,991/- plus car parking, taxes and registration fees etc.  The respondents never promised the complainant to complete the construction of second tower of this flat within two years i.e. from 6.6.2013 i.e. booking date of this flat.   The complainant and respondent entered into a contract on 10.8.2013 and both are bound by the terms and conditions of the agreement to sell.  The complainant has paid only Rs.724173/- but he did not pay the tax of Rs.22378/-.  The respondents gave special offer vide letter dated  14.2.2014 to the complainant that we are ready to give possession of the flat/unit  and also ready to give relaxation in payment schedule.  The respondents are not liable to pay interest in any manner to the complainant.  Further the respondents had given an offer to the complainant to shift from tower no.2 to tower no.3 and 4.  The construction of tower no.3 is almost complete upto 9^th Floor and construction of 4^th tower is complete upto 6^th floor.  But the complainant is not interested in shifting the same.  The respondents have denied that 2^nd floor is not in their plan.  The complainant has not suffered any mental agony or harassment at the hands of the respondents.  The complainant is not entitled for any relief and compensation since there is no deficiency in service on the part of the respondents.

5.        In the present case, the complainant has alleged that the respondents entered into an agreement dated 9.8.2013 in respect of the flat in question and the respondents promised to the complainant for completion of the construction of 2^nd tower within two years from 6.6.2013 i.e. booking date of the flat.

          The perusal of the case file shows that the complainant has filed the present complaint before this Forum on 5.3.2015 alleging in para no.4, page 4 that in the month of July, 2014, the complainant became astonished on coming to know that the respondents have not started the construction work of tower 2^nd in their Divine City. 

          In our view, the complainant has filed the present complaint before expiry of the two years.  As per calculation, if the period of two years is counted w.e.f. 9.8.2013 (date of agreement), then two years expired on 8.8.2015 and if the period of   two years is counted w.e.f. 6.6.2013 (date of booking of flat) then also it expired on 5.6.2015.  But the complainant before expiry of stipulated period of two years, has filed the present complaint against the respondents on 5.3.2015.

          Further on 1.12.2014 i.e. within 6 months from 6.6.2013 and within 4 months from 9.8.2013 has got issued legal notice to the respondents.

          Now the question arises for consideration before this Forum is whether the complainant is entitled to get any relief on the basis of the terms and conditions of the agreement.  In our view, until and unless, the stipulated period of two years is expired, the complainant cannot take the benefit of the terms and conditions of the agreement.  The complainant was in a hurry to initiate all the legal proceedings against the respondents and that’s why he has got issued the legal notice to the respondents through his counsel on 01.12.2014 and has also filed the present complaint before this Forum against the respondents on 5.3.2015 i.e. before expiry of stipulated period of two years and on the said date of 5.3.2015, the stipulated period of two years has not been expired.

          In our view, before taking such a steps, it was incumbent upon the complainant to give some alternative opportunities to respondents for doing some needful in favour of the complainant. But the complainant vide notice dated 1.12.2014 and vide complaint filed on 5.3.2015, has straightaway started to demand the refund of the deposited amount alongwith interest and compensation from the respondents, which in our view is not justified because at that time, the period of two years has not been expired.

So, in our view, the complainant is not entitled to claim any refund of the deposited amount alongwith interest from the respondents and the complainant cannot take the benefit of the terms and conditions of the agreement single handedly.

          Further in our view, the intention of the complainant was not fair and honest and only to avoid further payment of installments to the respondents in respect of the flat in question, the complainant has started to initiate the legal proceedings against the respondents.  There is no other document placed on record by the complainant which may go to prove that the complainant has ever approached the respondents even after issuing the legal notice to the respondents.

          On the other hand, the respondents vide letter dated 14.2.2014 has informed and has also given the opportunity to the complainant that if you (the present complainant) are willing, the company can shift your allotment from tower 2 to tower 3 and 4 as per availability where the construction is in full swing.

          The respondents in their written statement in para no.5 have submitted that the construction of tower no.3 and 4 are in full swing.  The construction of tower no.3 is almost complete upto 9^th floor and construction of 4^th tower is complete upto 6^th floor and the respondents are ready to give possession in the said floor as per the complainant wish.

          Though the complainant is not entitled for any relief keeping in view the fact that on the date of filing of the present complaint by the complainant, the stipulated period of two years of the agreement was not expired and the present complaint is pre-mature.  The complainant cannot take the benefit of his own wrongs and in the present case, he is liable for his own acts and deeds.

          However, in our view, the ends of justice would be fully met, if some directions are given to the respondents.  Thus, we hereby direct the respondents to refund the deposited amount of Rs.7,24,174/- to the complainant within a period of 45 days from the date of passing of this order, failing which, the respondents shall pay interest on the above said amount to the complainant  at the rate of 09% per annum from the date of this order till its actual realization.

          With these observations, findings and directions, the present complaint stands allowed partly.

          Certified copy of this order be provided to both the parties free of costs.

File be consigned to the record-room.

 

 

(Prabha Wati)               (Nagender Singh-President)

Member DCDRF                         DCDRF, Sonepat.

 

Announced: 05.04.2016