DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)
GOVT OF NCT OF DELHI
CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92
CASE NO-420/12
1. Dr. Sheel Varma
Residing At:- 558-A, Shipra Sun City,
Indira Puram, Ghaziabad,
U.P.201014
2. Dr. Namrata Varma
Residing At:- 558-A, Shipra Sun City,
Indira Puram, Ghaziabad,
U.P.201014
Complainants
Vs
- M/S Sipra Estate &
Krishna Estate Developers Pvt Ltd.
Add. D-32, Laxmi Nagar, Main Vikas Nagar
New Delhi-110092
- Mr. Mohit Singh
Director
M/S Sipra Estate &
Krishna Estate Developers Pvt Ltd
Add.
KH-4, Kavi Nagar
Ghaziabad, 201001,
U.P. India
3. Bindu Singh
Director
M/S Sipra Estate &
Krishna Estate Developers Pvt Ltd
Add.
KH-4, Kavi Nagar
Ghaziabad, 201001,
U.P. India
4. Shipra Singh
Director
M/S Sipra Estate &
Krishna Estate Developers Pvt Ltd
Add.
KH-4, Kavi Nagar
Ghaziabad, 201001,
U.P. India
5. Ghaziabad Development Authority
Add. Vikas Path,
Ghaziabad- 201001
Opposite Parties
DATE OF ADMISSION-04/07/2012
DATE OF ORDER -17/12/2014
SH. N. A. ZAIDI, PRESIDENT
This complaint has been filed with the allegation that through advertisement, O.P. attracted the Complainant towards the booking of the Flat in “Shipra Krishna Shrishti” at Ahimsa Khand, Indirapuram, District Ghaziabad, in the year 2011. The total cost of Flat being Rs.58,85,200/- and it was assured that the project will be completed in February 2012 and the possession shall be handed over by March 2012. Respondent fails to complete the project. Complainant deposited an amount of Rs.5,73,424/- on various date i.e. 20/04/2011, 08/05/2011, and 17/06/2011, and Unit No. MAL 302, in the said project was allotted. The Flat Buyer agreement was also signed on 17/05/2011, allotment letter was also signed on the same date. As per the allotment letter the project was to be completed on 28/02/2012. The loan was to be facilitated by the O.P. but they fail to provide the sanctioned plan and relevant document, so as to unable the release of loan against the property. The Banking institution assured to release the amount of Rs.40,00,000/- but the same could not be released for want of paper. The Respondent has cancelled the Flat on account of nonpayment which is illegal. The Complainant has sought to revoke the cancellation and in the alternative refund of the amount of Rs.5,73,544/- along with interest @ 24% per annum.
Respondent No.1 filed their reply wherein they have challenged the maintainability of this complaint before this Forum on the basis of pecuniary Jurisdiction. They have also pleaded that the Complainant has himself violated the terms of the Flat Buyer agreement. They have not made the payment as required. As per the condition of the allotment letter if the allottee fails to pay the installment of the allotted Flat, the same can be cancelled and the earnest money that is 10% of the Flat will be forfeited. The earnest money is taken for the due performance i.e., to pay installments in the agreed period, to pay the required stamp and registration fees for executing the sale deed and take possession of the Flat. There is no merit in this complaint and it deserves dismissal.
Both the parties have filed on record their respective Evidence.
We have heard the Ld. Counsel for the parties after providing the opportunity as per direction of the Hon’ble National Commission in Revision Petition No. 1358 of 2014. The Hon,ble National Commission has given specific direction to disposed off this complaint expeditiously. The Respondent has raised the legal issue regarding the maintainability of this complaint on the ground that the value of the involved Flat is Rs.58,85,200/- as such the relief sought in the complaint regarding the cancellation made by the Respondent cannot be tried before this Forum as it is beyond the pecuniary Jurisdiction of Rs.20,00,000/- as provided under the Act. The contention of the Ld. Counsel for the Respondent in this regard is that the relief of revoking of cancellation involves the House No. MAL 302 of which the total value is more than Rs.58,00,000/-. The Complainant, on the contrary submitted that he is seeking the revocation of the cancellation of letter dated 22/03/2012 and not seeking any relief in respect of the Unit No. MAL 302. The Counsel for the Respondent submitted that the letter in question could not have been issued, had there been no interest of the complainant in the unit in question and the interest of the complainant is not confined to the amount he has paid but it involves the total cost of the unit which was allotted to the Complainant. He placed reliance on “Quality Foils India Pvt. Limited Vs Bank of Madura Limited 1996 (2) CPJ 103 which says that aggregate value of the goods and compensation shall be considered for the purposes of Jurisdiction. The aggregate value in this case is more than Rs.58,00,000/- as such the same is beyond the pecuniary Jurisdiction. The Counsel for the Complainant submitted that he has claimed alternative relief of the refund of the amount of Rs.5,73,424/-, and he has not claimed any compensation over any amount and this amount is within the pecuniary Jurisdiction of this Forum. The alternative relief is triable before the Forum. The Forum can ignore the relief about which they have no Jurisdiction and can adjudicate the relief which is within their Jurisdiction. We find substance in the submission of the complainant since the complainant has confined himself to the alternative relief, which is triable by this Forum. We have to examine if the amount of Rs.5,73,424/- deposited by complainant could be ordered to be refunded. The Complainant has filed Annexure-2 the receipt issued by the O.P. showing the deposit of amount of Rs.3,00,000/- another receipt on 17/06/2011 of Rs.6,864/-, on 20/04/2011, an amount of Rs. 1,00,000/- was deposited, on 08/05/2011 Rs.1,66,560/- was deposited that makes the total deposit amount to Rs.5,73,424/-. The contention of the Complainant is that as per the agreement executed between the parties on 17/05/2011 and allotment letter dated 17/05/2011, this project was to be completed by 28/02/2012, and in case it is not completed the allottee shall be entitled for discount of Rs.5/sq ft., they further argued that as per the Ghaziabad Development Authority, this project “Shipra Krishan Shrishti” was never sanctioned by the Ghaziabad Development Authority. The project which is being developed on Plot No.15 of Ahimsa Khand by the M/s Shipra Estate & Krishan Estate Developers Pvt. Ltd., No completion certificate has been issued. This information was given on 09/08/2011, and on the basis of this information under the RTI Act, the complainant argued that on 09/08/2012 the project was not completed. The counsel for the Respondent submitted that the complainant was well aware with the project in question that it is a joint venture of the M/s Shipra and Krishna Estate Developers with GDA. This has been clearly mentioned in the Flat buyer agreement, and also in the allotment letter that GDA is a collaborator in the project. It was known to the complainant that the plan has already sanctioned and the GDA shall execute the lease deed and sale deed. As such when the sanctioning authority is itself the Co-developer the question of the non sanctioning of the plan does not arise. In so far as the non completion is concerned the Complainant cannot go beyond the terms of the agreement, he has to perform his part according to agreement by paying the dues in time and if he fails to make any payment as agreed upon then, he cannot allege deficiency in providing the services by the O.P. The Respondent has never agreed for helping the allottee for raising the finance for the house in question on the contrary the documents which has been filed shows that the India Bulls have sanctioned to the complainant an amount of Rs. 42,00,000/- on 24/03/2012, that is after the period of the completion of this project, that is 28/04/2012. These documents nowhere show that the disbursement of the sanctioned loan was in any way dependent upon the Acts and omission of the opposite party. The Respondent has given notice repeatedly right from 06/06/2012 to 10/01/2012 for remitting the amount of Rs. 51,20,066/- which includes the interest on the delayed payment, making it clear to the complainant that it is not the fault of the Respondent to cancel the allotment but the failure of the outstanding dues are compelling the Respondent to served the final notice to remit the due amount which is to be paid by 25/02/2012. It is only after the complainant has failed as has been acknowledged by him in his hand written letter dated 26/03/2012 that Rs.42,00,000/- sanctioned by the Indian Bulls is likely to be released on 21/04/2012. This letter confirms the default on the part of the complainant as well as it also negativate the contention of the complainant that the Respondent is responsible of the non arrangement of the finance of this project.
Since the complainant himself have failed to fulfill his obligation, to pay in time he cannot claim, that the respondent has exceeded in cancellation and forfeiture of the amount as per the terms of the agreement. Complaint fails and dismissed accordingly.
Let it be informed to both the parties.
(POONAM MALHOTRA) (N.A.ZAIDI)
MEMBER PRESIDENT
