Delhi

East Delhi

CC/243/2015

SHRI KAMAL MITTAL - Complainant(s)

Versus

STAR INFRATECH - Opp.Party(s)

14 Aug 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC. NO-243/15

In the matter of:

1. Sh. KAMAL MITTAL,

S/O LATE JAGDISH CHANDER MITTAL

2. Smt. RASHMI MITTAL

W/O Sh. KAMAL PRAKASH MITTAL

BOTH AT.

E-106, GREATER KAILASH ENCLAVE-1,

 NEW DELHI-110048.      

          Complainant

 

Vs

 

M/S STAR INFRATECH PRIVATE LTD.

THROUGH ITS DIRECTOR

E-310, EAST OFKAILASH, NEW DELHI-110019

                                                                                                                    Opposite Parties

 

                                                                                        DATE OF ADMISSION-09/04/2015

                                                                                      DATE OF ORDER         -16/09/2015

ORDER

SH. N.A.ZAIDI, PRESIDENT

The complainants are the owners of Plot No.E-106, Greater Kailash Enclave, New Delhi-110048. The respondent entered into agreement on 23/02/2013 for developing the building as per the terms of the agreement with in a period of 15 months. The respondent was also to pay Rs.50,000/- per month to the complainant till completion of the entire property. The respondent got number of documents signed by the complainant for the purpose of getting sanctioned building plans, electric connection, water connection, sewer connection etc. and the complainant signed on the dotted line as per the direction of the respondent. The complainant visited the site on July 2014 and discussed ongoing construction work and wrote an E-mail on for giving the shape to things as discussed. The complainant found many short comings in the work done and wrote to the respondent on 15/09/2014. The respondent stopped paying the sum of Rs.50,000/- per month as assured. Complainant received notice for vacation of the rented premises from the landlord. Under these circumstances, he was forced to take possession of the incomplete ground and first floor of the property without basement which has not been completed by the respondent.  The complainant noticed the following short comings as mentioned in Para 10 of the complaint which includes Backside Net Door not fitted, Kitchen Door not fitted and non installment of RO system in Kitchen etc. Despite repeated request, the respondent has not completed the work and has not completed this work and has not removed the defects. He has also not completed the remaining work in the basement. Complainant has claimed Rs.10 lakhs in lieu of the remaining work and sum of Rs.50,000/- per month for the remaining period from July 2010 till April 2015. He has also demanded the original sanctioned plan and completion certificate etc from the respondent.

            Respondent filed their reply wherein the respondent has pleaded that as per the Collaboration Agreement, the area which was allocated to the complainant (owner of the building) and area which was allocated to the builder was specified in the agreement. The payment of the Rs.50,000/- per month was ensured by paying rent of Rs.34,000/- through cheque and Rs.16,000/- in cash to Sh. Kamal Mittal. The entire work was to be completed to the complainant satisfaction before the expiry of the time. The sum of Rs.1.45 crore was given to the owner as non refundable interest free security deposit as per the agreement. The complainant requested the respondent to do some additional work over and above the Annexure-A under the Collaboration Agreement, the amount of August and September was adjusted towards expenditure incurred by the respondent. The statement of Account of the rent amount paid to the complainant in Annexure-3 of the written statement. It is wrong to alleged that the complainant signed on unfilled letters and documents. It was never agreed between the parties that a separate 500 liters tank shall be connected to all the floors, backside grill was also not agreed, the chimney and hob was installed as mutually decided of which Rs.60,000/- additional cost was borne by the respondent. The possession was handed over on 25/092014 of the ground floor and first floor to the utmost satisfaction of the complainant. The possession letter was signed by the complainant. The possession of the basement was to be handed over after the final paint and polish. The complainant is under obligation to pay the service tax of Rs.2,34,593/- and Rs.4,15,188/- towards the VAT liability. This complaint has been filed just with the intention to avoid the payment of service tax and VAT. The sanction documents are for whole of the occupiers of the building. It has not been agreed in the Collaboration agreement that the respondent shall handover the document or takes it from the concerned authority. Plea of Bar of arbitration act has been taken.

Complainant has filed the Rejoinder and denied the allegation of the respondent. They have taken the specific plea that the possession letter was presented to the complainant for signature and after obtaining the signature of the complainant, the respondent has forged the date of 25/09/2014. The possession was not handed over on 25/09/2014, though the complainant shifted in the ground floor and first floor of the building. The respondent never completed the short comings pointed out by the complainant nor made payment of the dues.

Both the parties have filed affidavit in support of their respective cases. Both the parties have also filed the written arguments on record.

Heard and perused the record.

In this complainant the short question which arises is as to whether the respondent has handed over the possession without completion of work as per the agreement arrived at between the parties. The second question which has been raised with regard to the payment of compensation for delay in completion of the work and handover the entire sanctioned plan etc. The respondent have also taken the plea of bar under arbitration law as per the agreement in dispute between the parties was agreed to be referred to the arbitrator as such the present complaint is not tenable. We are taking the 3^rd question regarding the bar of arbitration clause Section 3 of the Consumer Protection Act is specifically provide that the provision of this act shall be in addition to and not in derogation of the provisions of other law for the time being enforced. The Hon’ble Apex Court/ have a rule that the existence of the arbitration clause does not bar the petition before the Consumer Court Ram Nath Vs Trust Bhatinde 1994 (1) CPR 357 may also be seen in this regard. The plea taken by the respondent is devoid of any merit.

            The Ld. Counsel for the respondent submitted that the possession has been delivered to the complainant on 25/09/2014 and the complainant has signed the satisfaction note regarding the material used to his complete satisfaction and as per specification. As such the present complaint is not tenable and is a misuse of process of law. The counsel for the complainant draw our attention to the document filed as Annexure-C5 which has been signed by both the parties and the date has been mentioned below the signature of respondent signatory. The allegation of the complainant is that their signature was obtained on the dotted lines and this document has been later on fabricated by the respondent by putting the date of the possession was never delivered. The complainant along with the complaint has filed paper No.C-5, the same possession letter which was not signed by them and it was only signed by the representative of the respondent without putting any date thereon. They have also filed on record the photographs showing the short comings which has been mentioned in the complaint and have filed their affidavit in support thereof. The respondent has not dare to deny on oath the facts mentioned in complainant affidavit. Affidavit of Sh. Sandeep Soni, is silent with regard to fabrication of possession letter and photographs which has been filed along with the complaint. In these circumstances both the facts shall be deemed to be admitted to the respondent. The fabrication of possession letter appearing on the face of it, if executed on 25/09/2014, the same date should have been on the C-5 which has been filed by the complainant on record, there is no signature of the witness before whom their document was executed and possession was handed over on 25/09/2014. On the contrary the case of the complainant is that they were forced under the circumstances when the landlord of the accommodation where they were residing on rent have forced them to vacate their premises and they took the possession incomplete condition of 1^st floor without basement in October 2014. The complainant has also filed on record in support of his contention the E-mail dated 18/07/2014 which has been admitted by the respondent in written statement, requesting the respondent for 500 liter tank for servants which is to be connected to all the floors, backside grills, chimney installation of the modular kitchen and changes in the stair case grill. This shows up to the July 2014 the kitchen was not constructed and lot of work was still to be finished. They further write in the month of August 2014, pointing out problem with the wardrobes, final paint and polishing etc which has not been done. The respondent in their written statement have admitted this & discussion had and have pleaded in Para 6 of the written statement that they incurred an additional cost of Rs.60,000/- for carrying out that repairs. The burden lies upon the respondent to prove under the above circumstances that the possession was in fact delivered on 25/04/2014 after delay construction and providing the fixtures and fittings as per the agreement arrive at between the parties. This is an admitted case that the respondent have not handover the possession of the basement as yet and there is no evidence placed with the affidavit of the respondent that they have completed the work of the basement as per the specification in the agreement. In these circumstances the respondent cannot escape from their liabilities of making the payment as per the agreement of Rs.50,000/- per month up to October 2014. The respondent have filed on record statement of account showing the payment which they have made towards the rented accommodation and have also filed the receipt signed by Smt. Roshini Mittal. This receipt does not reflect the payment as demanded by the complainant. The statement of account of Sh. Kamal Mittal ledger shows that last payment was made on 07/07/2014, the sum of Rs.34,000/-, there is no proof that they made any payment for the month of July to October. The respondent was under obligation to pay Rs. 50,000/- per month from July on ward till the possession in October. They were under obligation to pay them the total sum of Rs.2 lakhs which the complainant is entitled to receive from the respondent.

            The short comings which have been mentioned in the Para 10 of the complainant have not been controverted by the respondent by any cogent evidence when on the contrary the case of the complainant from the document on record establishes that possession letter showing complete satisfaction was manufactured by the respondent and the complainant has never given their satisfactory note regarding the work done by the respondent in the premises in questions. Since the respondent have not denied specifically the allegation of the complainant is shall be taken that these short comings are existing in the premises in question which respondent is under obligation to remove the defects and carried out the repairs and get the accommodation completed as per the terms of the agreement. The respondent is directed to carry out the repairs and making things functional as mentioned in Para 10 of the complaint with in a period of one month from the date of the order. If the respondent fails to carried out the repairs and making things functional as per the agreement, the complainant shall be at liberty to carried out all these repairs at his own cost under the direction of the experienced Architect who shall certify the amount spent on the repairs and installation and the bills of repair and installation so submitted shall be paid by the respondent along with 9% interest thereon till the amount is paid to the complainant.

The respondent has raised the issue of service tax and VAT liability the complainant under obligation as per the collaboration agreement to pay. This issue cannot be looked into by this forum. The respondent has alternate remedy for enforcing the terms of the agreement and for recovery of the dues if any towards VAT and service tax.

            The other prayer which has been sought by the complainant is with regard to providing the original sanctioned plan, completion certificate etc. This is an admitted fact that the complainant is owner in possession of E-160 Greater Kailash Enclave, New Delhi. He has every right to keep in his possession,  the documents pertaining to owner ship right, the plan according to which the construction has been raised, the completion certificate, these documents which are necessary for availing the services from the Municipal Corporation, Electricity Department and other departments. These documents are also required by the owner in possession for availing the facility from the bank and financial institutions. In these circumstances, it is the duty of the respondent to provide the complainant as well as to any other person to whom he has sold other portions certified copies of the original sanction plan and completion certificate etc. Respondent is directed to provide to the complainant a certified copy of the original sanctioned plan, completion certificate and the other relevant documents with regard to the property in question within 30 days from the date of this order. We further direct the respondent to complete the basement work as per the agreement and make it completely habitable within 30 days from the date of this order. The respondent is defaulted in his obligation to carry out the obligation cost upon him under the agreement and as cost mental pain, agony and harassment to the complainant. In these circumstances we award the sum of Rs.50,000/- towards the compensation on account of harassment, mental pain and agony. We further award the sum of Rs.15,000/- towards the cost of the litigation.

The copy of the order be sent to the parties as per rules.

 

SUBHASH GUPTA                          POONAM MALHOTRA                            N.A.ZAIDI

   MEMBER                                                MEMBER                                         PRESIDENT