Haryana

StateCommission

CC/182/2015

INDU GUPTA - Complainant(s)

Versus

SAMAR ESTATE PVT.LTD. - Opp.Party(s)

ABHISHEK SINGH

15 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.182 of 2015

                                                       Date of Institution: 12.10.2015                  Date of Decision: 15.02.2017

 

Indu Gupta d/o Late Sh.Jagdish Chander r/o Flat No.739, R.C.S. Housing Society, Sector 49-A, Chandigarh 160047.

…..Complainant

 

Versus

 

Samar Estates Private Limited through its Managing director, 3531, Sector 12 A, Panchkula 134113.

          …..Opposite Party

 

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

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Abhishek Singh, Advocate counsel for the complainant.

                             Mr. Munish Kapila, Advocate counsel for the opposite party.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It is alleged by the complainant that during his service she was looking for an accommodation to reside after retirement alongwith her ailing mother. During that period she came into contact, the project Manager of opposite party (O.P.) No.1 and booked one flat. It was promised that possession would be delivered in the first half of 2014.  Flat No.K102 was allotted to her for a consideration of Rs.70/- lacs. She deposited Rs.Seven lacs on 17.01.2011  with Real Pro which is agent of O.P. and receipt dated 15.02.2011 was issued to this effect. Flat buyer’s agreement was executed in between them on 27.02.2011 and as per clause 32 of the agreement the possession was to be delivered within 36 months from the date of commencement of construction. She paid instalments detailed as under:-

Amount	Date
Rs.10,50,000/-	03.03.2011
Rs.7,00,000/-	09.09.2011
Rs.68,122/-	18.02.2012
Rs.724037/-	28.12.2012
Rs.721175/-	25.03.2013
Rs.360811/-	19.08.2013
Rs.360700	31.10.2013
Rs.361000/-	10.03.2014
Rs.360200/-	10.04.2014
Rs.285031/-	16.02.2015

  In all she paid Rs.56,910,76/- to O.p. as mentioned in statement of account.  So O.P. be directed to refund the amount deposited by her alongwith interest and other relief as mentioned below:-

“S.No.	Particulars	Amount
1	OP NO.1 and 2 be directed to refund to the complainant the earnest and advances made alongwith interest @ 18% p.a.	Rs.56,910,76/-
2	Cost of agony and mental harassment	Rs.5,00,000/-
3	Cost of litigation	Rs.1,00,000/-
4	Interest @ 18% p.a. on payment
5	Compensation under any other heads	Any other amount which this Hon’ble court may deem fit and proper.
6	Penalty @ Rs. 7 Rs. Per sq. ft. per month for the delayed period as per clause 32 of the agreement.”

 

2.      O.ps. filed reply controverting her averments and alleged that it was construction  linked payment plan as mentioned below:-

Application money at the time of booking	10%
Within 30 days from booking	15%
Within 15 days from the date of start of construction of tower of booked apartment	10%
Casting of stilt floor roof slab of tower of booked apartment	10%
Casting of first floor roof slab of tower of booked apartment	10% + PLC + additional car parking slot, if any.
Casting of third floor roof slab of tower of booked apartment	5%
Casting of fifth floor roof slab of tower of booked apartment	5%
Casting of seventh floor roof slab of tower of booked apartment	5%
Casting of final roof slab of tower of booked apartment	5%
Completion of brick work of booked apartment	5%
Completion of internal plaster of booked apartment	5%
Completion of flooring of booked apartment	5%
Start of internal painting/polishing of booked apartment	5%
At the time of offer of possession	5%”

She did not deposit the amount as per this payment plan. Construction work of this tower started on 15.06.2011. She was to deposit 80% of agreed price, due towards her, till 19.02.2015. Finishing work is also going on and it is hopeful to give possession upto the end of 2016 subject to payment of due installment by all allottees. Delay in construction is not due to it’s fault rather  due to fault on the part of allottees. It has already paid Rs.29.66 crores for  licence fee, conversion charges, service charges, scrutiny fee, etc. to the authorities concerned, as mentioned in reply. It has spent Rs.141.52 crores towards development, construction etc. Whereas buyers have paid only Rs.88.64 crore. In all it has incurred cost of Rs.184.42 crores up to 31.12.2015 whereas payment is received to the extent of Rs.90.42 crores. Even if possession is not delivered complainant should avail alternative remedy as provided under  clause 46 of the agreement i.e. taking matter  to the arbitrator. It is liable to pay penalty @ Rs.7/- per sq. feet per month for the delayed period and Rs.72450/- are already credited to her account up to December 2014. Vide letter dated 26.02.2014 she was informed that casting of sixth floor was going on and should make balance payment of Rs.3,49,755/- when the  payment was not made in time she is not entitled for the relief claimed. Objections about non joinder and misjoinder of parties, accruing cause of action etc. were also raised and requested to dismiss the complaint.

3.      Arguments heard. File perused.

4.      Learned counsel for the O.P. vehemently argued that complainant did not deposit amount as per payment plan, mentioned above. When payment is not made in time she cannot ask for any relief. Even otherwise he has spent Rs.184.42 crores and allottees have paid only Rs.90.42 crores.  So it cannot be presumed that there is any fault on it’s part. Even otherwise when complainant entered witness box it was admitted by her in cross-examination that she was residing in a flat at Chandigarh and has made part payment of the same. It shows that she booked this flat for the purpose of investment and earn profit after selling the same. When money is invested for earning profit one cannot be considered  consumer and complaint be dismissed.

5.      This argument is devoid of any force. As per facts mentioned above, it is clear that value of the flat was Rs.70/- lacs and she has already deposited Rs.56,910,76/- as shown in statement of account supplied by O.P. As per statement of account she has already paid more than 80% of the sale price, but, even then O.P. has not offered possession. As per Para No.2 of preliminary submissions of O.P. construction work of this tower started on 15.06.2011.  As per agreement possession was to be delivered within three years  i.e. upto 15.06.2014 thereof, but, till date of filing of complaint i.e. 12.10.2015 there was no offer of possession.  Rather it is alleged by O.P. that possession can be offered in the year 2016. If other allottees have not paid amount, complainant cannot be made to  suffer. She is responsible only for herself and not others.  When she has paid amount regularly there is no fault on her part rather builder is on the wrong side and has to compensate her as opined by Hon’ble Supreme Court in HUDA Vs. Darsh Kumar 2004 (3) CPJ 34 and opinion of Hon’ble National Commission expressed in complaint No.232 of 2014 titled as Puneet Malhotra Vs. Parsvnath developers ltd decided on 29.01.2015 and  in consumer case NO.118 of 2012 titled as Smt. Reshma Bhagat & Anr. Vs. M/s Supertech Ltd. Decided on 04.01.2016.

6.      Now the question comes whether complainant booked this flat for investment purpose as argued by learned counsel for the O.P, the answer is to ‘No’. As per facts mentioned above, it is clear that complainant booked this flat before her retirement. When complainant did not handover possession of flat till her retirement, she was left with no other alternative except to arrange another flat in Chandigarh.  It is specifically stated by her that she has made part payment only. So, it cannot be opined that this flat was booked for earning profit.  O.P. is also liable to pay penalty of Rs.7/- per sq. feet as per clause 32 of the buyer’s agreement.

7.      Taking into consideration all the facts and circumstances, the complaint is allowed and O.P. is directed to refund the amount deposited by her alongwith interest @ 09% per annum from the date of filing of complaint. O.P.  is also liable to pay penalty @ Rs.7/- per sq. feet per month as per clause 32 of agreement from 16.06.2014 onwards. She is also held entitled for compensation to the tune of Rs.31,000/- qua mental agony, physical harassment etc. and Rs.15,000/- as litigation expenses. 

 

February, 16th, 2017

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

 

S.K.