Haryana

Panchkula

CC/239/2015

RAJIV SINGH THAKUR. - Complainant(s)

Versus

SUNCITY PROJECTS PVT.LTD. - Opp.Party(s)

BHAVANA JOSHI.

08 Apr 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.                                                                      

Consumer Complaint No	:	239 of 2015
Date of Institution	:	29.10.2015
Date of Decision	:	08.04.2016

                                                                                          

Rajiv Singh Thakur s/o Sh.Kuldeep Singh Thakur, R/o H.No.2101, Sector 21-C, Chandigarh.

                                                                                          ….Complainant

Versus

 

Suncity Projects Pvt. Ltd., through its Directors.

Registered Office: Suncity Projects Pvt. Ltd., LGF-10, Vasant Square, Plot-A, Sector B, Pocket-V Community Centre, Vasant Kunj New Delhi-110070 (India).

 

Branch Office:      Suncity Business Tower, Second Floor, Golf Course Road, Sector-54, Gurgaon-122002, Haryana.

 

Branch Office (Local):    Suncity Parikrama Group Housing Project, Sector 20, Panchkula-134112, Haryana.

                                                                           ….Opposite Party

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                  Mr.Dharam Pal, President.

Mrs.Anita Kapoor, Member.

                             Mr. S.P. Attri, Member.

 

For the Parties:     Ms.Bhavna Joshi, Adv., for the complainant. 

                             Mr.Jagdeep Rana, Adv., for the OP.

 

ORDER

 

(Dharam Pal, President)

 

1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Op with the averments that he purchased apartment, measuring 1850 Sq. Ft., Flat No.1302, 13^th Floor, Tower 8-B, Suncity Parikrama Group Housing, Panchkula from opposite party for an amount of Rs.55,62,950/- and the basic price was fixed at the rate of Rs.3007/- per sq. ft. The complainant paid Rs.5,56,295/- i.e. 15% of the sale price towards booking amount on 09.05.2010 and Rs.8,34,442/- i.e. 10% on start of excavation (Annexure C-1). The agreement was executed between the parties on 24.07.2010 (Annexure C-2) according to which the possession of the flat was to be given within 3 years from the date of agreement and the possession was to be handed over to the complainant by 24.07.2013. The complainant had paid all the installments as and when demanded by the Op i.e as per schedule of payments (Annexure C-3) and he paid total amount of Rs.59,75,988/- i.e. 95% to the Op. As per the agreement dated 24.07.2010, the Op was to hand over the possession of the apartment within 3 years but they failed to do so. The complainant visited the site in August, 2014 and he was assured that the construction work was in progress and possession would be offered very soon but to no avail. The complainant issued legal notice on 23.05.2014 (Annexure C-4) in this regard but in vain. Thereafter, the complainant contacted the Op telephonically and Sh.Amit Gupta, representative of the Op assured him that the construction would be completed soon and compensation for delay in possession would also be paid to the complainant but till date neither the possession has been delivered nor the compensation or interest have been paid. This act of the opposite party amounts to deficiency in service on its part. Hence, this complaint.
2. The OP appeared before this Forum and filed written statement by taking some preliminary objections & submitted that the complainant does not fall within the definition of consumer. It is submitted that the complaint is not maintainable. It is submitted that the complainant himself out of his free will & desire accepted the terms and conditions of the allotment of the Op company and has also made the payment against the same. It is denied that the Op company induced the complainant to enter into any agreement to buy flat from them. It is submitted that the complainant through its agent namely GSC Estates has approached the Op company for booking of apartment in question vide Application Form dated 08.05.2010 and in pursuance thereof had entered into the Apartment Buyer’s Agreement dated 24.07.2010 at his free will and consent. It is submitted that the Apartment Buyer’s Agreement dated 24.07.2010 clearly stipulated only to complete construction of the said building within three years from the date of execution of the agreement or approval of all service plans whichever is later subject to force majeure conditions etc. It is submitted that the Op has demanded only 90% of the Basic Sale Price as per opted payment plan. It is denied that the complainant had paid 95% of the payment which was supposed to be paid before possession. It is submitted that the development status of the project was communicated to the complainant at every possible occasion. It is submitted that the Ops were ready and willing to deliver the possession of the flat in question at its earliest and the compensation, if any, for the delayed period should be calculated at the time of execution of conveyance deed in his favour. It is submitted that no legal notice has been served upon the OP. Thus, there is no deficiency in service on the part of OP and prayed for dismissal of the complaint with costs.
3. The counsel for the complainant has tendered into evidence by way of affidavit Annexure C-A & C-B alongwith documents Annexure C-1 to C-5 and closed the evidence. On the other hand, the counsel for the OP has tendered into evidence by way of affidavit Annexure R-A alongwith document Annexure R-1 and closed the evidence.
4. We have heard the learned counsel for the parties and have also perused the record.
5. After going through the material available on the case file, it is ample clear that the complainant had booked a residential flat bearing No.1302, 13^th Floor, Tower 8-B, Suncity Parkarma Group Housing, Panchkula with the OP. Learned counsel for the complainant has drawn the attention of this Forum towards Clause 25 wherein it has been mentioned that in case of delay by the owner in completion of the construction of the apartment (except for Force-Majeure Conditions as stipulated in this agreement), the owner shall pay an compensation @ 10/- per sq. ft. per month to the Allottee(s). The execution of agreement between the complainant and Op is not disputed. The complainant has come with the plea that he has paid 95% of the total amount to the Op but the Op has submitted in its written statement that it has demanded 90% of the basic sale price as per opted payment plan. The basic price of the booked flat was Rs.55,62,950/- but perusal of the file reveals that the complainant had deposited an amount of Rs.5,56,295/- through cheque No.287766/- dated 09.05.2010, Rs.8,34,442/- through cheque No.287765 dated 09.06.2010, Rs.5,56,296/- through cheque No.366425 dated 14.10.2010, Rs.4,17,221/- through cheque No.389880 dated 06.01.2011, Rs.7,17,221/- through cheque No.476958 dated 18.05.2011, Rs.6,24,437/- through cheque No.057902 dated 09.11.2011, Rs.5,81,363/- through cheque No.277176 dated 09.02.2012, Rs.4,27,965/- through cheque No.255136 dated 26.04.2012, Rs.2,57,150/- through cheque No.363160 dated 31.07.2012, Rs.4,30,113/- through cheque No.363151 dated 31.07.2012, Rs.2,86,743/- through cheque No.363417 dated 22.10.2012 and  Rs.2,86,743/- through cheque No.440918 dated 26.04.2013 i.e. total amount of Rs.59,75,989/-. As per the version of the complainant, the possession of the apartment was to be given by 24.07.2013 as he had booked the same on 09.05.2010 but till today the Op has not deliver the possession of the same after receiving 95% of the total amount. Per contra, it has been argued by learned counsel for the Op that Apartment Buyer’s Agreement dated 24.07.2010 clearly stipulated only to complete construction of the said building within three years from the date of execution of the agreement or approval of all service plans whichever is later subject to force majeure conditions etc. It has been further argued that the complainant has committed defaults in making the payments in time which was supposed to be paid before possession. Moreover, he had been intimated about the development status of the project on every occasion and the Op is ready and willing to deliver the possession of the flat in question at its earliest and the compensation, if any, for the delayed period should be calculated at the time of execution of conveyance deed. The Op has never breached any terms and conditions of the Agreement as the delay in completion of the project were not intentional.
6. We carefully considered the above arguments but we are not impressed with the submission made by the Op. It is settled principle of law that he who seeks equity must do equity with others but in the present matter the Op has not acted as per law rather violated the provisions of CP Act because on one hand it has not disclosed all the material information to the complainant/purchaser. Other surprising factor which this Forum has noticed that the OP has not placed on file any document to show on which date the construction of specific tower was started. The complainant had booked the flat on 09.05.2010 under the impression that the possession of the flat would be delivered within stipulated period keeping in view the terms and conditions mentioned in the agreement. We are, therefore, left with no option but to hold that the Op has been highly unreasonable in not handing over the possession by 24.07.2013 of the flat to the complainant within a reasonable period of time i.e. thirty six (36) months, of commencement of construction period subject to force majeure, restrains or restrictions from any courts/authorities, non availability of building materials, disputes with contractors/work force etc and circumstances beyond the control of the Developer and subject to timely payments of the Apartment Buyers. It is established on the case file that the Op has failed to complete the construction within the aforesaid time.  The terms of agreement between the parties do not justify either the delay in completion of the project or delivery of possession of the apartment. This is not the case of the opposite party that the construction could not be completed due to any restriction from any court/authority or due to non availability of building material. The Op in para 8 of the written statement has stated that OPs are ready and willing to deliver the possession of the flat in question at the earliest but no specific date has been mentioned.
7. Since the opposite party could not deliver the possession of the apartment and even the clauses have been drafted in a manner having potential to mislead the prospective apartment buyer not confirming till date any firm date of handing over of the possession of the apartment amounts to deceptive practice which falls within the meaning of unfair trade practice as defined under the CP Act. The Op should have given firm date of handing over possession at the time of taking of booking amount itself. But by not indicating the true picture with regard to its project to the complainant the Op induced him to part with his hard earned money, which also amounts to unfair trade practice.  
8. Before we conclude, we must record our disapproval of the manner of conduct exhibited by the OP in the matter of causing unjustified delay in delivering the possession of the flat to the complainant and further also in the matter of making pleadings based upon apparently indefensible foundational premise. Though the adjudication of this complaint is on the merits of its own, it is a matter of public knowledge that instances are available aplenty wherein the builders have been proved to have taken the flat applicants for a ride, on one pretext or the other. There are reports in the print-media from time to time that such like aberrant builders are getting burdened with damages etc. at the hands of the consumer dispensation. It is time the builders community realizes that any delay in delivery of a habitable flat causes emotional as well as economic trauma to the persons who has booked it. The complainant has fully proved on the case file that the Op had violated the provisions of CP Act by leading cogent and reliable evidence, therefore, the complaint deserves acceptance.
9. For the reasons recorded above, we find merit in the complaint and the same is hereby allowed. The Ops are further directed as under:-

(i)      To handover the physical possession to the complainant within a period of 6 months complete in all respect from the date of receipt of a certified copy of this order failing which the Op should pay interest @ 12% p.a. on the deposited amount from the date of deposit till handover the physical possession of the flat.

(ii)     To pay compensation @ Rs.10/- per square yard per month from 24.07.2013 (the promised date of delivery of possession) onward to the complainant as per clause 25 of the Buyer Agreement (Annexure C-2).

(iii)    To make payment of an amount of Rs.50,000/- to the complainant as compensation for harassment, mental agony, unfair trade practice and deficiency in service.

(iv)    To make the payment of Rs.10,000/- for litigation expenses.

10. This order shall be complied with by the Op within one month from the date of receipt of the certified copy. A copy of this order be supplied to both the parties free of costs.  File be consigned to records after due compliance.

 

 

Announced           (S.P.Attri)             (Anita Kapoor)          (Dharam Pal)

08.04.2016           Member                 Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

                         

                                                          Dharam Pal,                                                                                                        President