DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 228/07
Rajiv Bakshi,
S/o Bakshi A.K. Datta
Through Special Power of Attorney
Bakshi A.K. Datta,
R/o House No. 530, Sector 8-B,
Chandigarh -Complainant
Vs
M/s Suneja Towers Pvt. Ltd.,
Suneja House, 21, Community Centre,
Yusuf Sarai, New Delhi – 110019
Through its Director -Opposite Party
Date of Institution: 29.01.2007 Date of Order: 09.08.2016
Coram:
N.K. Goel, President
Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
S.S. Fonia, Member
Briefly stated, the case of the complainant is that he booked a flat in the Group Housing Residential Project Siddarthshila Apartments now known as “Gateway Towers”, Vaishali Township, Ghaziabad (UP) on 12.8.1989 by paying an amount of Rs. 60,000/- to the OP (Annexure I). The complainant was assured by the OP that the Housing Scheme floated by the OP Company would be completed with a span of 3 years and possession would also be delivered in the time period of 3 years with further understanding that there would not be any escalation in the prices. Consequently, the complainant paid timely instalments fulfilling his obligations of the agreement. On completion of 3 years’ period, the possession of the flat was not delivered. Accordingly, the complainant approached the OP and asked about the delivery of the possession of the flat. OP told him that it would take some more time for construction to complete. The complainant alleges that in order to satisfy him the OP issued allotment letter dated 2.7.1992 (Annex. C-2) showing allotment of residential flat No. B-701 in the proposed multi-storeyed Group Housing Residential Project, namely, Siddarthshila Apartments with an approx. super-built area of 1375 sq. ft. including common area of 7th floor for a sum of Rs. 7,49,375/- calculated at Rs. 545/- per sq. ft. of super-built area of the flat including common areas. The complainant states that “a perusal of this allotment letter would clearly show the one sideness and the complainant accepted this allotment letter only under duress as a lot of money was involved”. Thereafter, the complainant again started paying the instalments towards the price of the flat. When by the end of year 1994, there were no signs of delivery of possession of the flat as the construction was not complete, the complainant again approached the OP and asked about the delivery of possession of his flat and again no satisfactory reply was given to him. Thereafter, there was complete silence for about 9 years on the part of the OP and the complainant time and again kept on approaching the OP for delivery of his flat. On 26.12.2001 letter (Annx. 3) was received from the OP by the complainant in which it was stated that the area of the flat which was allotted to the complainant was changed from 1375 sq. ft. to 1585 sq. ft. and along with this a demand for 8th and 9th instalment of payment was also made and the balance amount due was shown to be Rs. 2,10,121.25p. This was followed by another letter dated 8.4.2002 (Annex. 4) in which a demand of aforementioned amount was repeated and consequent to this the complainant sent to the OP Rs. 1,55,000/- by way of Demand Drafts which were duly encashed by the OP and it was made clear by the complainant that the remaining amount of Rs. 56,000/- would be given at the time of possession of the flat. Thereafter, the complainant did not hear anything from the OP despite approaching the OP constantly and again the avoiding tactics were preferred by the OP. The complainant sent reminder dated 29.9.2005 (Annx. C-5) in which it was stated that the possession of the flat be delivered immediately. Again when nothing was heard the complainant through registered AD letter dated 10.1.2006 sent the balance amount of Rs. 56,000/- by way of Demand Drafts which was full and final payment of the flat (Annex. 6). Thereafter, the OP returned the aforementioned Demand Draft and it was stated in this letter dated 14.2.2006 that the price of the flat has been increased to Rs. 597/- per sq. ft. and the amount outstanding was shown to be Rs. 16,94,800/- which the complainant alleges to be totally wrong, miscalculated and shown only to extract illegal gains from the complainant. Further, instead of allotting and giving the possession of the flat to the complainant, OP cancelled the allotment of the flat to the complainant vide letter dated 28.6.2006 and returned the amount of Rs. 6,79,130/- which the complainant had deposited with the OP. Copy of this letter is appended as Annex. 7. The complainant states that this money was used by the OP for about 17 years and after such a long period the OP is trying to ditch the complainant by cancelling his allotment. The complainant further states that “it is a matter of common knowledge that the rates of property in the year 1989 were very low as compared to today and the complainant has invested his money for buying a flat in the Group Housing Scheme of the OP in the year 1989 by paying lakhs of rupees. Complainant further states that the amount of Rs. 6,79,130/- sent by the OP towards cancellation of the flat has not been encashed as the complainant wishes to take possession of this flat and intends to set up his home over there. Having experienced the aforesaid misdeeds and deficient services of the OP, the complainant through his counsel issued a legal notice dated 6.7.2006 mentioning therein that the flat in question be given to the complainant within a week of receiving of this notice (Annx. C-8). Feeling aggrieved by the conduct of OP in not giving the possession of the flat and subsequently cancelling the allotment, the complainant has moved this forum praying for directing the OP to allot the flat as so agreed between the parties in the proposed multi-storeyed Group Housing Residential project, namely, Siddarthshila Apartments, now, known as “Gateway Towers”, Vaishali Township, Ghaziabad (UP) to the complainant alongwith suitable compensation and damages.
The OP has filed reply to the complaint by making counter allegations against the complainant that he has failed to disclose letter dated 14.2.2006 and 28.6.2006 which clearly reveal the fact that the complainant was a chronic defaulter in paying instalments right from the beginning for the flat in question despite the fact that payment was the essence of contract in the instant case. OP further states that the complainant failed to pay 8th & 9th instalments and after keeping silence for over more than 5 years, the complainant sent a letter along with Cashiers order for Rs. 56,000/- to the OP. OP vide letter dated 14.2.2006 informed the complainant about the cancellation of allotment but for good relationship OP still agreed to offer possession of flat after paying the balance amount with agreed rate of interest as per allotment letter. True copies of the letters issued on 10.1.1992, 10.2.1992, 19.2.1992, 29.2.1992, 11.4.1992, 13.10.1992, 19.2.1993, 31.5.1993, 22.11.1993, 21.12.1993, 1.4.1994, 26.12.2001, 25.1.2002, 6.3.2002, 8.4.2002, 14.2.2006 and 28.6.2002 have been filed on behalf of OP. These letters bear ample testimony to prove delay of payment of all instalments by the complainant. Thereafter, the amount paid by the complainant was refunded to the complainant in June 2006 and flat in question was sold to third party subsequently. Accordingly, OP states that the complaint in not maintainable. It is prayed that the complaint be dismissed.
Complainant has filed rejoinder to the written statement of OP reiterating his own averments and denying the allegations made by the OP.
Affidavit of Bakshi A.K. Datta, Attorney has been filed in evidence on behalf of the complainant while affidavit of Sh. K.L. Suneja, Director has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of both the parties.
We have perused the file very carefully and also examined all the material on record dispassionately.
Now, we straightway advert to the question, whether the relief sought by the complainant is admissible?
In order to determine the admissibility of the complaint, it is important to examine the terms and conditions of allotment of flat. We find that as per Annex. C-10 of the complaint, the complainant has relied upon a Brochure for Sidharth Shila Apartments which is merely an information brochure and not an agreement between the complainant and the OP. The complainant has also relied upon Annex. C-2 in his complaint which is a contract between the complainant and the OP for the reasons that it contains detailed terms and conditions of allotment of flat and is duly signed by both the parties on 2.7.1992. Thus, we shall take into consideration this document. Having signed this document with open eyes and ears, the complainant cannot take defence that he accepted this allotment letter only under duress as lakhs of money was involved. As per Annex. C-5, one Mr. Bakshi A.K. Dutta IPS who as power of Attorney of complainant has written letters to OP on 29.9.2005 regarding the payment and progress of work. Thus, with this background of the complainant’s AR being an IPS officer it is all the more clear that the complainant is not justified in raising the plea of signing the contract under duress.
The relevant terms and conditions having strong bearing on the case are contained in Para 4 regarding mode of payment which is linked with progress of construction right from stage I at the time of provisional allotment till the time of possession, after final coat of polishing and painting. This scheme under Plan A emphasises 9 stages upto completion of brick work and internal plaster. The 10th and 11th stages are pertaining to completion of external plaster/cladding and completion of woodwork flooring except final polishing. The last stage is at the time of possession after final coat of polishing and painting. Under Para 5 (a), certain additional facilities are not inclusive in the above cost. Under Para 6, the allotment is subject to the flat buyer accepting the terms imposed by the Ghaziabad Development Authority. Under Para 9, the construction of the building is likely to be completed as early as possible subject to certain exceptions but no firm period is envisaged. Under Para 12(a), the construction cost may show escalation and it categorically states that the rate per sq. ft. of saleable space fixed above has been based on costs as on 1.6.1989 which shall further be enhanced if the cost of construction increases. It also specifies formula for working out escalation. Under Para 12(d), the date of completion means the date when the builder would submit application to GDA for issuance of completion certificate. As per clause 4 (a), the instalment due towards payment of the flat will be at the intervals as laid down by the builder. If the payment is not received within stipulated period given in the instalment call notice or in the event of breach of any of the terms and conditions of this allotment by the flat buyer, the allotment is liable to be cancelled and 20% of the price of the flat will be forfeited and the balance amount will be refunded without any interest. As per clause 4(b), it is stated that it is made clear that “time for payment is the essence of the contract”.
Scrutiny of details of payment falling due for various instalments (in Annex. A colly) and details of reminder issued by OP demonstrate that the complainant was in fact a chronic defaulter in making payment of all instalments. OP vide letter dated 26.12.2001 raised demand of Rs. 2,10,121/- (as per Annex. A colly) and letter dated 29.9.2005 as per Annex. C-5 of complainant amply demonstrates that even this payment towards 8th and 9th instalments was delayed by more than 5 months. As regards delay in construction of flat, letter of complainant dated 29.9.2005 indicates that D block will be ready in another six months i.e. after 29.9.2005. Therefore, the complainant knew about delay and could have withdrawn his allotment.
The OP vide his letter dated 14.2.2006 had called upon the complainant to make the payment of the due amount along with interest of Rs. 93,547/- towards delayed payment and additional amount of Rs. 23,73,930/- towards differential area charges and various charges contained in its letter giving him the opportunity to pay the aforesaid amount within 15 days of the receipt failing which it was stated that no flat would be available for allotment to the complainant. Subsequently, OP vide letter dated 28.6.2006 drew attention of its letter dated 14.2.2006 cancelled the provisional allotment and refunded the amount paid by the complainant amounting to Rs. 6,79,130/- vide draft No. 074873 dated 20.6.2006 towards full and final refund of the amount to the complainant. The complainant has pleaded that he has not encashed the said draft so far. It was well understood by both the parties that the cost was based upon cost on 1.6.1989. Therefore, it is quite reasonable that cost in 2006 would have increased abnormally. It is established on record that the draft of Rs. 6,79,830/- refunded by the OP has not been encashed by the complaint so far and also the OP did not satisfy this forum about allotment of flat of complainant to some other person. Be that as it may be, these points melt into insignificance for the fault of complainant in violating the terms of contract wherein timely payment of instalments was essence of the contract and the original cost of the flat was based upon cost on 1.6.1989 and thus cost in 2006 must have increased to a reasonable extent.
Viewed from above background, we hold that the OP did not commit any deficiency in service and, hence, the complaint is dismissed with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
Announced on 09.08.2016
Case No. 228/07
09.08.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
