STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 09.05.2017
Date of final hearing: 08.12.2023
Date of pronouncement: 05.02.2024
CONSUMER COMPLAINT NO. 297 of 2017
IN THE MATTER OF: -
- Rekha Gupta W/o Ramesh Kumar Gupta, R/o 956B, Sector-25, Panchkula -134113, Haryana.
- Ramesh Kumar Gupta aged about 57 years, S/o Late Sh. Sat Parkash, R/o 956B, Sector-25, Panchkula -134113, Haryana.
-
Versus
M/s Suncity Projects having Corp. Office at Suncity Business Tower, Second Floor, Golf Course Road, Sector-54, Gurgaon-122002, Haryana through its Managing Director. …..Opposite Party
CORAM: Sh. Naresh Katyal, Judicial Member
Argued by:- Sh. Dixit Garg, counsel for complainants.
Sh. Ashim Aggarwal, counsel for opposite party.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Facts are: OP started Group Housing Residential Scheme named: “Parikrama” in Sector-20 at Panchkula and given advertisements. Complainants purchased apartment from one Bijaya Kapur and Umesh Kapur and their Apartment Buyer Agreement dated 15.12.2010 was endorsed between complainants and OP. Total cost of apartment No.703, Tower-5A was fixed at Rs.54,15,330/-. 90% payment was paid within stipulated time and same retained by OP.
2. As per clause 25 of Apartment Buyer Agreement dated 15.12.2010; OP was bound to give possession of apartment to complainants within three years i.e. on or before 14.12.2013, but it failed and offered possession of apartment to complainants on 25.01.2016 i.e. after delay of two years and ten months and it also demanded final installment amount with allied charges. Complainants requested OP to compensate them for delayed possession @24% on payment received, and sent representation dated 15.02.2016 through e-mail, which, as per their case, was never replied by OP. They also sent reminders dated 27.02.2016 & 24.05.2016. OP sent reply dated 08.06.2016 and tried to escape from its liability by saying that: issue of compensation after taking possession of apartment is not legal. It is pleaded that complainants raised demand in month of February-2016 i.e. much prior to taking possession of apartment in April-2016, which was acknowledged by OP in its letter dated 08.06.2016. Complainants have alleged deficiency in service of OP and unfair trade practice on its part. In Apartment Buyer Agreement it is mentioned that: in case of delayed payment by buyer, he is liable to pay interest @24% and in case of delay of possession by builder, they (builder) are liable to pay compensation @Rs.10/- per sq. ft. per month. By asserting cause of action; complainants have filed this complaint to direct OP: (i) to pay interest @24% p.a. on amount taken from them for delayed period of possession (ii) to pay Rs.5.00 lacs on account of mental agony and harassment and Rs.33,000/- towards litigation expenses. Entire text of complaint is supported by affidavit of complainant No.2-Ramesh Kumar Gupta.
3. Upon notice, OP raised contest. In its defence, it is pleaded that: complaint is a gross abuse of process of law; it is frivolous and vexatious. Complainants do not fall in ambit of definition of “consumer”. It is admitted that complainants had taken physical possession of flat on 24.04.2016, unconditionally and without protest. Apartment Buyer Agreement executed between parties come to an end, when complaint was filed and there was no privity of contract between parties. OP has asserted that there is arbitration clause No. 81 in the agreement and matter ought to be referred to arbitration. OP offered and handed over possession of apartment to complainants upon completion of all amenities and receipt of occupation certificate from competent authority. As a gesture of goodwill, OP also granted compensation to complainants for alleged period of delay. On merits, it is pleaded that: complainants on 29.06.2012 acquired allotment rights and liabilities in apartment in question from persons (Bijaya Kapur and Umesh Kapur) and they are 2nd allottees. It is admitted that agreement was executed on 15.12.2010 between original allottees and OP. It is denied that OP was bound to give possession of apartment to complainants within three years. Clause 25 of agreement stated that “Owner contemplates to complete construction of building/apartment within three years from date of execution of apartment or approval of all service plans, whichever is later. Service plans were approved on 27.12.2013; occupation certificate was granted for tower in question on 18.01.2016 and possession was offered to complainants on 25.01.2016 i.e. well within period of three years from approval of service plans, set out in agreement. As a gesture of goodwill, and in view of complainants being valuable customer, OP also granted compensation of Rs.4,60,650/- for alleged delayed possession to complainants, calculated from 3 years of agreement. Time was not the essence of agreement. Complainants also acknowledged vide para 1 and 9 of acknowledgment letter dated 24.04.2016 that: “they were fully satisfied and were left with no claim, demands or grievances of any nature against company and that all liabilities & obligations of company are hereby discharged/satisfied. It is denied that complainants are entitled for compensation along with interest @24%.
4. Parties to this lis; led their respective evidence. Ramesh Kumar Gupta-complainant No.2 has tendered his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath. Complainants have also relied upon documents Ex.C-1 to C-14. Complainants closed their evidence on 08.02.2019. OP has tendered duly sworn affidavit- Ex.OPW1/A of its authorized representative Sh. Ashwani Sharma and relied upon documents Ex.OP-1 to Ex.OP-4. OP closed its evidence on 16.12.2019.
5. OP filed written arguments on 08.12.2023. Oral submissions were addressed by learned counsel for both parties on 08.12.2023.
6. Learned counsel appearing for complainants has urged that Apartment Buyer Agreement was executed on 15.12.2010. OP was to handover possession of apartment to complainants (who were second allottees) within three years w.e.f. 15.12.2010 i.e. on or before 14.12.2013. OP offered possession of apartment to complainants on 25.01.2016 i.e. after delay of two years and ten months from deadline date viz. 14.12.2013. Complainants took physical possession of apartment on 24.04.2016, but before that; they have submitted their claim of interest/compensation for delayed possession through their representation dated 15.02.2016 sent vide email to OP and through their subsequent reminders dated 27.02.2016 and 24.05.2016. It is urged that OP has not compensated complainants for delayed possession which amounted to deficiency in service of OP towards complainants and unfair trade practice on its part. Thus, as per contention, complainants are entitled to relief.
7. Refuting the contention, learned counsel appearing for OP has urged that there is no deficiency in service of OP towards complainants or unfair trade practice on its part. OP has strictly adhered to clause 25 of Apartment Buyer Agreement dated 15.12.2010. It offered possession of apartment to complainants on 25.01.2016, well within the period of three years from date of approval of service plan (approved on 27.12.2013). Date of grant of occupation certificate of tower in question is 18.01.2016 and possession of apartment was offered to complainants immediately thereafter on 25.01.2016. In addition, OP has also granted compensation of Rs.4,60,650/- to complainants as a goodwill gesture and complainants through their acknowledgment letter dated 24.04.2016 expressed their full satisfaction by stating that they are left with no claim, demand or grievance against OP. Lastly, it is urged that complainants are not entitled to any relief as they are guilty of suppression of material fact because they have concealed material fact of taking compensation of Rs.4,60,650/- from OP for alleged delayed possession, in their complaint and oral evidence.
8. Admittedly, Apartment Buyer Agreement dated 15.12.2010-Ex.C1 got light of its day between complainants and opposite party. Complainant has relied upon this agreement to urge that as per Clause 25 thereof; OP was to offer possession of apartment to them within three years from 15.12.2010 i.e. on or before 14.12.2013 whereas possession of apartment was offered to them by OP, on 25.01.2016 i.e. after delay of two years and ten months from deadline date (14.12.2013). This contention has been strongly refuted by OP on the ground that possession was offered to complainants within the period enshrined in clause 25. In wake of this fact; it would be pertinent to state clause 25 of Apartment Buyer Agreement –Ex.C-1 which reads:-
“25. Based upon the present plans and estimates and subject to all the description, the Owner contemplates to complete the construction of the said building/“Apartment” within three years from the date of execution of this agreement or approval of all Service Plans whichever is later subject to timely payment by the Allottee(s) of sale price, stamp duty and all other charges/dues and payable according to Payment Plan applicable to him/her or as demanded by the Owner. Subject to the terms and conditions of the Agreement, in case of delay by the Owner in completion of the construction of the said Apartment (except for Force-Majeure Conditions as stipulated in this agreement), the Owner shall pay a compensation @Rs.10/- per sq. ft. per month to the Allottee(s) and the Allottee(s) agrees that it shall have no other rights/claim whatsoever against the owner in this regard, provided the Allottee(s) is not in breach of any of the terms of this Agreement. The adjustment of such compensation will be done at the time of execution of conveyance/sale deed.”
9. Clause 25 in unambiguous term is explicit in itself. Service plan of tower were approved on 27.12.2013 as it is proved from document Ex.OP-3. As per Clause 25 of Apartment Buyer Agreement Ex.C-1, three years period to offer possession of apartment to complainants, would reckon from date of approval of service plan i.e. 27.12.2013. Possession of apartment was offered to complainants on 25.01.2016 which is well within the period three years from date of approval of service plan. Before offering possession of apartment to complainants; occupation certificate of tower in question was obtained by OP on 18.01.2016. It is visible as such from perusal of document Ex.OP-2. Possession of apartment was obtained by complainants on 24.04.2016 which is an admitted fact. Meaning thereby, OP has strictly adhered to clause 25 of Apartment Buyer Agreement dated 15.12.2010. There is no deviation from clause 25 of Apartment Buyer Agreement Ex.C-1 at the behest of OP. Consequently, there is no deficiency in service of OP towards complainants or unfair trade practice on its part, as alleged. Contention of complainants on this arena, stood traumatized. In any case, there is no semblance of any fact/evidence, even remotely from complainants proving that OP offered possession of apartment to them, belatedly.
10. Ex.C-6 is letter dated 24.04.2016 which is an acknowledgment by purchaser (complainants herein) for taking over the vacant physical possession of apartment No. 703. This acknowledgment has been addressed to OP. Clauses 1 and 9 of this document Ex.C-6, while imparting a conjoint reading, would remarkably depict about full satisfaction of complainants with regard to physical and legal status of captioned apartment and also with regard to amenities and services provided therein by OP. It also recites that captioned apartment is complete in all respect and in accordance with Apartment Buyer Agreement. As per clause 9, complainants have expressed that they had been left with no claim demand or grievance of any nature against company; or liabilities and obligations of company are hereby discharged/satisfied.
11. Obviously, this document Ex.C-6 which is acknowledgment by purchasers has acquired enormous ramifications at legal pedestal. Complainants cannot be allowed to wriggle out from legal import flowing therefrom. Having consciously expressed their complete satisfaction and having absolved OP from their liabilities and obligations; through document Ex.C-6 dated 24.04.2016; complainants, after more than one year thereafter, cannot be allowed to open their mouth too wide in order to claim compensation for alleged delayed possession by filing this complaint on 09.05.2017. Complainants ceased to be consumer of OP after obtaining physical possession of apartment on 24.04.2016 to their complete satisfaction. There remain no privity of contract between complainants and OP.
12. It is specific case pleaded by OP in para 4 and 6 of its written version filed in its defence that: it had paid a sum of Rs.4,60,650/- to complainants by way of compensation for alleged delayed possession, if any, as their goodwill gesture towards complainants being a valuable customer. This amount has been received by complainants as there is no denial on this score during arguments. Having already received Rs.4,60,650/- from OP, complainants cannot be permitted to use the shelter of Consumer Protection Act as a ‘halter around the neck of OP’ on baseless assertions, particularly when they have already expressed their full satisfaction of grievances against OP and absolved OP of their liabilities against them through clause 9 of document Ex.C-6. In wake of above, it would be travesty of justice for OP to fasten any further liability upon it, in form of further compensating complainants. It would be pertinent to hold right here that compensation of Rs.4,60,650/- was given to complainants by OP only as a goodwill gesture towards them and not for the reason of any delay of offering possession. Accordingly, it is held that this compensation received by complainant was not because of any fallacy on the part of OP.
13. Matter does not end here. Nowhere, in body of complaint, complainants have ever pleaded that they received Rs.4,60,650/- from OP, allegedly on ground of delayed possession. Nowhere, Ramesh Kumar Gupta-complainant No. 2 has testified above fact in his duly sworn affidavit Ex.CW-1/A towards his affirmative statement on oath. In firm opinion of this Commission; this was a material fact, always in the realm and knowledge of complainants, at every time, yet, very conveniently they have suppressed this fact in complaint and also in affirmative statement of complainant No.2. This has been done by them, palpably, to claim relief of compensation for delayed possession, to which they know that they were no more entitled to claim from OP. Why a material fact has been concealed by complainants in their complaint and why, such material fact should be unveiled by OP in their written statement? Courts of law, over centuries, have frowned upon litigants with heavy hand, who tend to approach and spoil the pure fountain of temple of justice, with tendency of concealment of material facts. Any litigant, who suppresses and conceals material facts in pleading, is not entitled to claim any equitable relief. Such type of litigations should be thrown overboard, and litigants be shown the door. There can be no exception, so far as complainants of this case are concerned. Having concealed material facts in their complaint and oral evidence of complainant No.2; regarding receipt of Rs.4,60,650/- from OP, complainants are not entitled to any relief as claimed by them in complaint which is otherwise not tenable.
14. As a sequel to above subjective and critical discussion; this complaint be devoid of merits is hereby dismissed with cost. Keeping in view the dubious, mischievous and ill motivated conduct of complainants, accentuated by active concealment and suppression of material fact on their part as discussed above; this Commission before parting, while non-suiting them, also impose exemplary cost on them (complainants). Misuse of Consumer Protection Act cannot be allowed, as any misuse would hinder the very purpose of Act. Consumer Protection Act is a beneficial legislation. Justice Administration system is founded on principles of purity which pre-supposes presentation of true facts. Whosoever, try to transgress the fountain of purity with ill motive to secure gain, must face flowing consequences. There can be no exception to complainants, who have resorted to Consumer Protection Act, on basis of concealment of fact. They have to be dealt with sternly. Accordingly, this Commission imposes exemplary cost of Rs.25,000/- upon complainants named herein above to be deposited by them jointly or severally, within 60 days from date of receipt of this order in this Commission. Amount, on being deposited with this Commission, by complainants, be kept in Legal Aid Account, maintained by this Commission.
15. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
16. Copy of this judgment be provided to parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
17. File be consigned to record room.
Date of pronouncement: 5th February, 2024.
Naresh Katyal
Judicial Member
Addl. Bench-II
