JUDGMENT 23.11.2010 Justice Pritam Pal, President 1. The aforesaid two complaints have been filed by one and the same complainant namely Manoj Jaswani against S.M.V. Agencies Pvt. Ltd. etc. Since, in both these complaints parties are the same and similar questions of law and facts are involved, so we propose to decide both these complaints through common order. 2. The facts are culled out from Complaint NO.4 of 2010 titled Manoj Jaswani Vs SMV agencies etc. which are epitomized as under ; The complainant in response to an advertisement given by OPs NO.1 & 2 for the sale of flats in Zirakpur, applied for allotment of a flat in the proposed Sunrise Greens, Zirakpur. Subsequently complainant was allotted unit No.G-202 vide allotment letter No.00363 dated 16.4.2008. The complainant had made down payment of Rs.35,76,983/- for the allotted unit at the time of allotment. The final installment i.e. 5% of the total amount was to be made by the complainant at the time of possession. Complainant also entered into an agreement with OPs No.1 & 2 with an understanding that the possession of the flats would be delivered to the complainant on 30.5.2009 as mentioned in the possession clause of the allotment letter in case of down payment plan. The complainant had taken loan of Rs.20.00 lacs from the HDFC Bank vide tripartite agreement dated 1.5.2008 for the said flat and he was paying interest rates between 10.50 % to 11.75%. The complainant wrote letters and telephonically called OP company to know the status of the project but no satisfactory reply was received. It was alleged that complainant needed the flat urgently as his elderly parents were living separately and complainant being the only son was to look after them and thus required the dwelling unit. The complainant had made down payment of a huge amount for which he was loosing interest on the amount invested and due to delay in possession of the flat, he had also to pay the rent of Rs.12,000/- per month. When complainant did not get any satisfactory reply about the possession, he then requested OP NO.1 to cancel the allotment of the abovementioned residential unit and to refund the amount with interest @ 24% but to no effect. Hence, alleging deficiency in service on the part of OPs No.1 & 2, complainant has filed complaint seeking refund of the amount of Rs.35,76,983/- alongwith interest @ 24% p.a. from the date of deposit till realization besides interest on the borrowed amount and compensation etc. 3. In the second complaint bearing No.5/2010 initially a two bedroom apartment bearing No.S-203 was allotted to the complainant on 5.3.2007 in the proposed Sunrise Greens, Zirakpur for which complainant was to pay Rs.21,40,270/-. However, subsequently OP No.1 changed the interiors of the flat without informing the complainant. Thereafter, vide allotment letter No.153 dated 16.4.2008 complainant was allotted Unit NO.G-201 and complainant made down payment of its cost to the tune of Rs.35,11,470/-. The final installment i.e. 5% of the total amount was to be paid by the complainant at the time of possession. As per agreement entered between the parties, the possession was to be delivered on 31.5.2009 but OPs No.1 & 2 failed to deliver the possession despite repeated requests . 4. OPs No.1 & 2 filed a joint reply inter-alia stating therein that the complainant was allotted flat NO.G-202 in Jaipuria Sunrise Greens, Zirakpur vide allotment letter annexure OP-1 wherein indicative date of possession was 30.5.2009 but the whole project was delayed due to some unforeseen circumstances. Now the construction was in full swing and the possession would be delivered by 31.3.2011. It was pleaded that in case there was any delay due to some unavoidable circumstances or force majeure, OPs No.1& 2 were liable to pay to the allottee compensation @ Rs.5/- per sq. feet of the Super Area per month for the period of delay as per Condition No.30 of the allotment letter. In case complainant wanted to cancel his allotment at this stage, then it would govern by clause-3 of the terms and conditions of the allotment whereby 10% of the basic price of the unit, constituting the Earnest money would be forfeited and the balance, if any without any interest would be refunded. Pleading that there was no deficiency in service on the part of OP company, a prayer was made for dismissal of the complaint. Similar reply was filed in the second complaint taking identical pleas. 5. Parties adduced their evidence by way of affidavits and documents. Complainant placed on record Anenxure C-1 copy of the brochure of the housing scheme floated by OP company. C-2 is copy of the allotment , C-3 is copy of tripartite agreement, C-4 is copy of the sanction letter whereby complainant was sanctioned loan by HDFC Housing Development Finance Corporation Ltd.C-5 is copy of the letter written by complainant to OPs requiring them to intimate the status repot of the project. On the other hand, OPs placed on file copies of Emails about the progress report of the project. 6. We have heard learned counsel for the parties and gone through the file carefully. The main point of arguments raised on behalf of the complainant is that he had made the down payment of the cost of the flats allotted on the commitment given by OPs that the possession would be delivered by 31.5.2009 but the same was not delivered and now the OP company has postponed the date of possession to 31.3.2011 and there is no likelihood of completion of the project by that time. The complainant has been paying interest on the loan amount and also house rent for rented residential accommodation , so he requested OP company to refund the amount. On the other hand, the case of OP Company is that due to unavoidable circumstances and force maejure the project was delayed and it would be completed by 31.3.2011. However, OP would pay compensation @ Rs.5/- per sq.ft of the Super Area per month for the delay. . 7. We have given our thoughtful consideration to the above submissions put forth on behalf of the parties and find that the complainant had made down payment of the total price of the flats allotted to him. It is also admitted that the possession of the flats to be constructed was to be delivered on or before 31.5.2009. During the course of arguments, it was fairly admitted by learned counsel for OPs No.1 &2 that the construction of the flats has not been completed so far. However, at the same time it was argued that the construction is still going on. From the material placed on file and after hearing both the parties, it is made out that there is no lapse or any kind of default on the part of complainant in making payment of the cost of the flats whereas OP company has committed default by not handing over possession of the flats well in time as per terms and conditions of allotment Annexure OP-1 duly singed by the parties. It is apparent that OPs No.1 & 2 could not point out any such force majeure and other circumstances which could be taken as defence in any of the two cases before us for not completing the project within the stipulated period. The contention of the OPs that in case of cancellation of allotment, 10% of the basic price would be forfeited is untenable and unjustified in the circumstances of the case as OPs could not fulfill their commitment of delivering the possession well in time and even did not pay compensation @ Rs.5/- per sq. ft of the Super area per month for the period of delay as per condition NO.30 of the terms and conditions of the allotment letter. 8. According to condition No.1 of terms and conditions of the , OP company was to charge interest @ 18% p.a. on the delayed payment for the period of delay. The said conditions reads as under ; “1. That the timely payment of installments as indicated in the Payment Plan is the essence of the scheme. If any Installment as per the schedule is not paid by the due date, the company will charge 18% per annum on the delayed payment for the period of delay. However, if the same remains in arrear for more than three consecutive installments, the allotment will automatically stand cancelled without any prior intimation to the allottee/and the allotment will have no lien on the unit. In such a case, the amount deposited up to 10% of the basic price of the unit, constituting the earnest money will stand forfeited and the balance amount paid, if any, will be refunded without any interest. However, in exceptional and genuine circumstances the company may, at its sole discretion condone the delay in payment exceeding three months by charging interest @ 18% per annum and restore the allotment in case it has not been allotted to some one else on the waiting list. In such a situation, an alternate unit, if available may be offered in lieu of the same.” A perusal of the aforesaid condition goes a longway to show that in case of any default of payment, for delayed period OP company was entitled to charge interest @ 18% p.a. from the allottee. Thus, this condition should also be made equally applicable to OP company who inspite of having received full cost of the flats has failed to deliver the possession well in time. OP company has been using the huge amount of more than Rs.35.00 lacs in each case and till today not even a single penny has been paid to the complainant inspite of the fact that as per condition No.30 of the aforesaid terms and conditions it (OP company) was liable to pay compensation @ Rs.5/- per sq.ft of the super area per month for the period of delay. This tantamounts to deficiency in service and unfair trade practice on the part of OPs NO.1 & 2. 9. In this view of the matter, we are of the considered opinion that complainant is entitled to refund of whole amount of Rs.35,76,983/- in complaint case NO.4/2010 and Rs.35,11,470/- in complaint case NO.5/2010 alongwith interest @ 18% p.a. from the respective dates of deposits in each complaint till actual realization. This would also take care of compensation part. 10. In the result, both complaints succeed with costs of Rs.5,000/- each. OPs No.1 & 2 jointly and severally shall refund the amounts alongwith interest as indicated above, within one month from the receipt of copy of the order.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE PRITAM PAL, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |
