Haryana

StateCommission

CC/112/2016

SHASHANK SINGH - Complainant(s)

Versus

SRS REAL ESTATE LTD. - Opp.Party(s)

IN PERSON

13 Feb 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

                                                Complaint No.112 of 2016

                                                       Date of Institution: 04.05.2016         Date of Decision: 13.02.2018

Mr. Shashank Singh S/o Paras Nath Singh R/o SH-17/23 K-2, Indrapur Shivpur Varanasi 221003 Cell No9953941343 Email”singh.shashank04@gmail.com

…..Complainant

Versus

SRS Real Estate Ltd. (through the Managing Director) SRS Multiplex, City Center, Sector 28 Faridabad 121008 Tel No.0129-6101111, Email: …..opposite party

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

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.D.K.Jangra, Advocate counsel for the complainant.

                             Mr.Sikander Bakshi proxy counsel for Mr. Arvind Sood, Advocate counsel for the opposite party.

O R D E R

R.K.BISHNOI, JUDICIAL MEMBER :-

As per complainant he was allotted flat No.1304, A-2 vide letter dated 24.06.2011 having basic sale price of Rs.19,99,000/- and possession was to be delivered within two years therefrom. In case of failure  opposite party (O.P.) was liable to pay Rs.3/- per square feet as of compensation for the period of delay.  As O.P. did not complete unit within given time it amounts to unfair trade practice. So it be directed to refund Rs.19,99,000/- equivalent to ruling market price of the flat besides compensation as mentioned in the relief clause alongwith interest @ Rs.12% per annum.

2.      In reply,  it is alleged that the period qua possession is to be calculated after six months of providing infrastructural facilities by Government as per clause 21 of allotment agreement and not from the date of agreement.  Possession of the flat was offered to him vide letter dated 29.09.2015 subject to payment of remaining amount and completing necessary formalities, but, he failed to comply with that letter.  Due to fault on his part he could not take physical possession of the flat.  Government has not provided infrastructure facilities as yet.  As per clause 24 of allotment letter six months were to be added in two years besides force majeure. Huge amount is due towards so many allottees.  Amounting to Rs.1,58,00417/-, but, despite that the construction of the flats was completed and letter to grant occupation certificate was issued to concerned authorities on 25.02.2014.  Directorate of Town & Country Planning, Haryana (In short “DTCP”) Haryana granted occupation certificate on 16.04.2015.  Time consumed by DTCP was beyond their control.  EDC was charged as per agreement in between them and it does not amount to unfair trade practice.  There is no deficiency in service on it’s part. Other averments are also denied and requested to dismiss complaint.

3.      After evidence of parties arguments are heard. File perused.

4.      Learned counsel for complainant vehemently argued that as per clause 24 (a) of agreement dated 24.06.2011 Ex.C-1 possession was to be delivered within two years from the date of execution with a grace period of six months i.e. up to the month of 24.12.2013.  He deposited entire amount as mentioned in customer ledger Ex.C-4, but, even then the possession was not delivered. So O.P. be directed to refund the amount and give compensation @ Rs.3/- per sq. feet of super area as mentioned in clause 24 (d) of agreement Ex.C-1 besides other compensation as prayed for.  Version of O.P. cannot be taken into consideration because no witness appeared on it’s behalf.  He placed reliance upon the opinion of coordinated Bench of this Commission expressed in complaint No.17 of 2016 titled as Anil Kumar Lal Vs. Landmark Apartments Private Limited decided on 26.09.2016. 

5.      On the other hand learned counsel for O.P. vehemently argued that as per clause 21 of agreement Ex.C-1/ Ex/R-2 liability to offer possession of unit was to begin after expiry of six months from the date of making availability of all infrastructural facilities by authorities mentioned therein.  Government has not provided infrastructure facilities as yet so it cannot be presumed that there is delay in handing over a possession.  Despite non-payment of huge amount by the allottees, the unit was completed. Letter dated 20.02.2014 Ex.R-11 was sent to DTCP to issue occupation certificate  qua tower Nos.BI, B7, A (2Nos.), C (2nos.), D(1No.), Pocket P8 (A1,A2) EWS towers 1 and 2. DTCP granted sanction vide letter dated 16.04.2015 EX.R-4 (colly).  Thereafter letter dated 29.09.2015 Ex.R-3 (colly) was sent to complainant to complete formalities and make remaining payment as mentioned therein and take possession.  He was also asked to clear previous balance vide letters dated 22.07.2016 Ex.R-6, but, he did not make any payment.  He was again asked vide letter dated 20.12.2016 to pay vat and balance amount copy of which is Ex.R-9, but, he did not make any payment.  So there is no deficiency in service on it’s part and it cannot be asked to refund the amount and pay other compensation. 

6.      The arguments of learned counsel for complainant that the copies of documents produced by O.P. cannot be looked in the absence of statement of any witness cannot be accepted because documents produced by any party can be looked into.  Both the parties have relied upon agreement dated 24.06.2011 and whatever is mentioned therein can be looked into. For want of oral evidence documentary evidence cannot be thrown away.  Even otherwise proceedings under Consumer Protection Act, 1986 (In short “Act”)  are summary in nature and hard and fast

principles of evidence act are not applicable as per opinion of Hon’ble Supreme Court in V.Kishan Rao Vs. Nikhil Super Speciality Hospital & Another (2010) 5 SCR 12.

7.      Now the question comes about deficiency in service.  From the perusal of clause 21 of Ex.R-1/C-1 it is clear that liability to offer possession was to start after expiry of six months from the date of availability of infrastructural facilities.  For ready reference clause 21 is reproduced as under:-

“Company shall provide internal services within the said colony, which interalia include (i) laying of roads, (ii) laying of water lines (iii) laying of sewer lines (iv) laying of electrical lines. However, it is understood that external or peripheral services such as, water lines,  sewer lines, storm water drains, roads, electricity, horticulture are to be provided by the Government or the concerned Local Authority up to the periphery of said colony.  If there is any delay on the part of Government or Local Authority to provide said infrastructural facilities, allottee shall not hold company responsible for the same.  Notwithstanding anything contained in this allotment letter, company’s liability to offer possession of said unit to allottee shall begin only after expiry of six months from the date of availability of all the aforesaid infrastructural facilities, which are to be provided by Government/Local Authority.”

8.       As per clause 24 (b) of agreement company cannot be held responsible or liable for not performing any of it’s obligations due to delay on the part of any authority. For ready reference clause 24 (b) is also reproduced as under:-

“Company shall not be held responsible or liable for not performing any of its obligations or undertakings provided for in this letter of Allotment if such performance is prevented, delayed or hindered by an act of God,  fire, flood, explosion, war, riot, terrorist acts, sabotage, inability to procure or general shortage of energy, labour, equipment, facilities, materials or supplies, failure of transportation, strikes, lock outs, action of labour unions, delay in receiving necessary sanctions/approvals from Govt. agencies or delay in providing infrastructural facilities by Government/ Local  Authority (specially those mentioned in clause 21, above) or any other cause (whether similar or dissimilar to the foregoing) not within the reasonable control of the company.”

As per these clauses it is clear that time of two years with grace period  of six months is to be calculated after expiry of six months as provided in clause 21 and not only from the date of agreement i.e. 24.06.2011.  Complainant submitted affidavit Ex.R-3 wherein it was alleged that he would abide by terms and conditions of allotment letter and would make all payments. As per O.P. complete infrastructure facilities were not provided as yet. Not only O.P. has alleged that complete infrastructure facilities are not provided but complainant has also alleged in his affidavit Ex.CA that O.P. has failed to offer possession of fully developed flat alongwith the facilities mentioned therein. It is also alleged that there is no upto date development at the spot. This fact corroborates the version of the O.P. about infrastructure facilities or granting licence by the concerned authority.  It is not-where proved that O.P. has not approached concerned authorities in time to issue required services. As already mentioned above vide letter dated 29.09.2015 Ex.R-4 the complainant was asked to take possession after paying remaining amount and completing formalities upto 30.10.2015, but, he never came forward to complete formalities to take possession.  Thereafter reminder dated 22.07.2016 Ex.R-6 was sent. The amount due towards complainant is shown in Ex.R-6 as well as EX.R-7 including holding charges etc.  Letter Ex.R-9 dated 20.12.2016 was also sent to him to deposit remaining amount alongwith VAT, but, he failed to comply with the same.  Moment occupation certificate dated 16.04.2015 Ex.R-12 was received possession was offered to him.  So, it cannot be presumed that there is any lapse on the part of O.P. and it cannot be directed to refund the complete amount as prayed by him.  He can ask for refund of the amount deposited by him minus the earnest money and holding charges to be assessed by O.P. as provided under buyer’s agreement. As there is lapse on his part by not depositing remaining amount as demanded by O.P. he cannot ask for any interest keeping in view the opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014. The complainant cannot derive any benefit from the cited case law because these points were not discussed therein and that case was based on different footings. With this observation complaint is dismissed qua the refund of the total amount but refund can be made as mentioned above. Complaint is disposed of accordingly.

S.K.