BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.360 of 2016

Date of Instt. 19.08.2016

Date of Decision: 11.04.2018

Kunaal Lakhanpal S/o Sh. KK Lakhanpal R/o H. No.71, Sector 37, Arun Vihar, Noida (UP).

..........Complainant

Versus

1. Shoreya Tower Pvt. Ltd. (Formerly known as Nitishri Infrastructure Pvt. Ltd.) Through its Managing Director having Corporate Office at B-111, Sec.-5, Noida, G.B. Nagar, 201301.

2. Manager Shoreya Tower Pvt. Ltd., (Formerly known as Nitishri Infrastructure Pvt. Ltd.) Having corporate office at B-111, Sec.- 5, Noida G.B. Nagar, 201301.

3. Manager Administrative Office at Shourya Green, Surya Enclave Near Trinity College, Amritsar Bye Pass Road, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Ashutosh Sharma, Adv Counsel for the Complainant.

OP No.1 to 3 exparte.

Order

Karnail Singh (President)

1. This complaint is filed by the complainant, wherein alleged that one Flat No.004, Block “G-1” at Ground Floor, allotted to one Santokh Singh R/o Village Karal-Nau-Abad, Distt. Kapurthala. Thereafter, the said flat has been transferred in the name of the complainant Kunal Lakhanpal and then on 09.03.2013, the complainant paid an amount of Rs.3,39,916/- on account of balance payment. As per the allotment letter, the terms and conditions, the complainant has to pay Rs.27,94,650/-. The complainant has paid the amount as per specification of the agreement. The OP has to deliver the possession of the flat upto March, 2010 with a grace period of three months as per terms of the allotment letter/agreement Clause- 9.

2. That as per the agreement, the OP has to deliver the possession by June, 2010 at the most including the grace period. It is worthwhile mentioning that the allotment letter contained number of penal clauses that if the complainant fails to pay the due amount, then the interest and fine 24% shall be charged by the OP as pr Clause-7 of the agreement. The OP has claimed fine from the complainant on account of late payment, copy of the said demand letter dated 12.01.2016 is attached herewith. Whereas as per clause-9 of the agreement, the complainant is also entitled for liquidated damages for delay in handing over the possession @ Rs.5/- per Sq. Ft. per month. The complainant requested the OP to pay the liquidated damages as referred, which comes to Rs.7725/- per month from the date of handing over the possession i.e. June, 2010 to June, 2016 for about 72 months, which comes to Rs.5,56,200/-. The OP refused to acknowledge the request of the complainant for which he is entitled as per clause-9 of the agreement. The OP failed to deliver the possession of the flat as per allotment letter condition and due to which the OP acted negligently and due to its negligence, the complainant suffered heavy loss. The OP also used unfair trade practice by receiving the entire amount, which was scheduled in the allotment letter, but not delivered the possession till date, in contrary to the terms of the allotment letter and now illegally and using unfair trade practice, demanding the amount of Rs.2,52,927/- as per letter dated 12.01.2016, whereas refused to pay the liquidated damages as per Clause-9 of the agreement.

3. That the complainant has purchased the flat for his own use and occupation and have paid the huge amount of Rs.27,94,650/-, but the OP has deprived the complainant from enjoying fruits of the property till date and the complainant has assessed his loss @ Rs.10,000/- per month, which shall be treated as the fair rental value of the property i.e. if the complainant has rented out the said property, then he can easily get Rs.10,000/- per month from the property and the complainant has been paying the rent for his accommodation, where he is residing @ Rs.12,000/- per month, which amounts to Rs.5,40,000/-. The complainant at present not demanding the above said compensation. The complainant assessed the cost for negligent services and unfair trade practice by the OP, to the tune of Rs.5,56,200/- as per clause-9 and the damages of Rs.50,000/-. The complainant due to non delivery of the flat feel harassed in the hands of the OP and at present, the complainant paying heavy interest to the bank on the amount invested in the property.

4. That the complainant has already paid the entire amount as per the agreement and now nothing is due, as per receipt dated 09.03.2013. The said entire payment was handed over by the complainant to the OPs on the oral assurance that they are delivering the possession to the complainant within 30 days from the payment, but the OP failed to deliver the possession till date. On 28.11.2015, the OP issued a letter for offer of possession and on 12.01.2016 raised illegal demand of the OP of Rs.2,52,927/-. The complainant number of times requested to deliver the possession and not to demand illegal amount of Rs.2,52,927/-, but the OP not paying any heed to the genuine request of the complainant as per clause-9 of the agreement and refused to adjust the liquidated damages referred above Rs.5,56,200/- and being aggrieved the complainant on 10.07.2016 handed over a representation to the OP, which was duly received by the Manager on 11.07.2016, but till date, the OP not responded, hence the present complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay a sum of Rs.5,56,200/- on account of loss as liquidated damages as per Clause-9 of the agreement on account of failure of the OP to deliver the possession as per schedule and further OPs be directed to pay a sum of Rs.50,000/- as compensation on account of mental agony, harassment, unfair trade practice and negligence.

5. Notice of the complaint was given to the OPs and accordingly, OPs appeared and filed joint written reply, whereby contested the complaint by taking preliminary objections that in the present complaint, it is alleged part consideration for flat is paid by the complainant to the OP and the complainant herein is admittedly in default of making the payment said fact of default is admitted by the complainant as the reminder letter dated 12.01.2016 is produced by the complainant, which clearly shows the outstanding balance of Rs.2,52,927/-. Hence, the complainant being defaulter is not entitled for any relief at all as in present case only part consideration is paid to OP as detailed in present written reply, hence the present complaint is liable to be dismissed. It is further alleged that the OPs, vide letter 28.11.2015 has already offered the possession of flat and called upon the complainant to take physical possession of flat, which is admitted by the complainant as the offer for possession letter dated 28.11.2015 is annexed by the complainant himself with the complainant, hence, in view of the offer of possession, the complainant is not entitled to maintain the present complaint as he ceased to be consumer in the present case and further averred that the complainant is not entitled to claim the alleged liquidated damages from the OP since he himself defaulter in payment and as per Clause-7 of the agreement, in case of default of the allottee, the compensation is not payable at all as same constituted the force majeure condition as per term of the agreement itself, hence the complainant cannot read the clause in skewed manner and for his benefit only rather the clause have to read in whole for proper interpretation, whereas the complainant is not reading the part of the agreement, which relates to default of allottee in same Clause-7 hence, as per the clause relied upon the complainant he is not entitled for any claim from the OP. It is further alleged that as per agreement, there is a Clause for referring the matter to the arbitration and accordingly, the matter be referred to the arbitration being reason, this Forum has no jurisdiction to entertain the present complaint and further alleged that the complaint of the complainant is hopelessly time barred. On merits, the factum in regard to allotment of the flat to original allottee and then the same was transferred to the complainant, is admitted, but it is alleged that the complainant is defaulter for making outstanding balance amount of Rs.2,52,3927/- and as such, the possession was not delivered to the complainant for which he himself at fault and other averments made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

6. In order to prove the case of the complainant, complainant himself tendered into evidence his own affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-8 and closed the evidence.

7. After filing written statement, the complainant led evidence and when case was fixed for evidence of the OPs, the OPs took numerous date and ultimately, last date was given with cost, but neither the OPs nor their counsel appeared and ultimately, OPs were proceeded against expare, vide order dated 18.09.2017.

8. We have heard the learned counsel for the complainant and also gone through the case file very minutely.

9. No doubt, the version of the complainant in regard to allotment of one Flat No.004 at ground floor on 08.05.2008 to one Santokh Singh and the same was later on transferred to the complainant Kunal Lakhanpal, is not denied by the OP, who appeared and only filed the written reply and thereafter, they become exparte.

10. Now, question remains whether the complainant is entitled for liquidated damaged for not delivering the possession of the flat within a stipulated period. The complainant demanded the liquidated damages @ Rs.5/- per Sq. Ft. per month in view of the Clause-9 of the Agreement and copy of the Agreement is Ex.C-3 and accordingly, we have gone through the Clause-9 of the Agreement coupled with Clause-7 of the said agreement and find that as per Clause-7, if the complainant/allottee failed to deposit the balance price of the flat, then he is not entitled for any liquidated damages or his allotment can be canceled without any notice. Though the OPs are exparte in this case and OPs have not led evidence, but if we considered the case of the complainant from the documents produced by the complainant himself, then we can say without any hesitation that the OP has issued a letter on 08.11.2015, copy of the same is available on the file Ex.C-5, whereby possession was offered to the complainant, but subject to condition that the complainant will produced No Due Certificate from the company, showing that no outstanding amount is due towards the complainant, within 15 days from the date of issue of letter, as the said letter is produced by the complainant himself, which shows that he had received the said letter Ex.C-5 and did not bother to comply the condition mentioned therein within 15 days. The said letter is dated 08.11.2015 and thereafter, the complainant submitted a request to the OP on 10 July, 2016, means after gap of about 8 months, which shows that there is no fault on the part of the OP rather the complainant himself is negligent for not complying the letter dated 08.11.2015 Ex.C-5, although if, there was no due towards the complainant, he has to get a No Due Certificate from the company and if company compel the complainant to pay any excess amount, then he can challenge the same immediately, but the complainant himself remained mum for a long period and then again reminder was given by the OP in the month of January, 2016, copy of the same is produced on the file by the complainant himself Ex.C-4, wherein the details of the payment made by the complainant and amount remained due towards the complainant is clearly mentioned, if the detail of the payment and due amount is mentioned, then the complainant has to contact the OP within a reasonable time, but instead of making a payment of the due amount of Rs.2,52,927/-, the complainant has filed the instant complaint just to save his skin from the payment of aforesaid due amount and moreover, in this complaint, the complainant has not challenged the said demanded amount of Rs.2,52,927/-, if so then, the complainant cannot made any allegation on the OP in regard to unfair trade practice or deficiency in service. The liquidated damages can only be allowed to pay to the consumer if he has paid the entire price amount of the flat, but in this case, some amount is still due as per letter produced by the complainant himself and thus, the complainant is not entitled for the relief and therefore, the complaint of the complainant is dismissed with no order of cost. Parties will bear their own cost. The complaint could not be decided within stipulated time frame due to rush of work.

11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

11.04.2018 Member President