Delhi

East Delhi

CC/458/2015

ARUN KUMAR - Complainant(s)

Versus

SUPER REALTECH - Opp.Party(s)

01 Jun 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. NO.  458/15

 

Shri Arun Kumar

924/4, Urban Estate

Gurgaon                                                                      …….Complainant

 

Vs.

 

M/s. Super Realtech Pvt. Ltd.

4, Savita Vihar, Main Road

Delhi – 110 092                                                               ….Opponent

 

 

Date of Institution: 08.07.2015

Judgment Reserved on: 01.06.2017

Judgment Passed on: 05.06.2017

 

CORUM:

Sh. Sukhdev Singh (President)

Dr. P.N. Tiwari  (Member)

Ms. Harpreet Kaur Charya (Member)

 

Order By : Sh. Sukhdev Singh (President)

 

 

JUDGEMENT

          This complaint has been filed by Shri Arun Kumar against       M/s. Super Realtech Pvt. Ltd. (OP) under Section 12 of the Consumer Protection Act, 1986. 

2.       The facts in brief are that complainant Arun Kumar have been allotted a 2 BHK flat no. H-1005 at Bhopura Chowk, Loni (Ghaziabad) for Rs. 17,99,300/-.  The super area of the flat was 950 Sq. Yards and the rate was Rs. 1,894 per Sq. Yards + IFMS of Rs. 19,000/- + service tax.  The complainant has made the payment as follows:-

S. No.	Date of payments	Amount paid in Rupees
	03.12.2010	35,000
	29.01.2011	50,453
	08.04.2011	1,91,396
	14.02.2012	3,00,000
	25.06.2012	5,90,000
	01.01.2013	1,00,000
	20.02.2013	50,000
	29.05.2013	50,000
	05.07.2013	50,000
	05.08.2013	50,000
	31.08.2013	25,000
	11.09.2013	50,000
	18.06.2014	1,00,000
	21.07.2014	50,000
	28.07.2014	50,000
	15.04.2015	1,00,000

 

          Thus, he has stated that he has paid an amount of                    Rs. 18,41,849/- and has been told by the company that a sum of        Rs. 90,000/- was still outstanding.  The seller is said to have been realizing an amount of Rs. 19,31,849/- against Rs. 18,00,000/- being the cost of the flat.  The company demanded money every month, though the work had not progressed so quickly.  The demand letters as Annexure C-1 have been stated as:-

Date	Amount demanded	Amount of interest
01.05.2012	4,64,688	25,511
01.06.2012	5,66,236	33,034
01.07.2012	6,55,585	30,914
01.08.2012	7,78,327	60,911
01.09.2012	2,76,362	56,200
03.12.2012	2,89,088	68,941
16.01.2013	4,05,538	92,647
18.05.2013	2,50,799	37,908
03.08.2013	2,44,728	39,093
12.06.2014	2,46,264	31,555
29.03.2015	1,39,008	nil

 

          It is further stated that an interest of Rs. 50,000/-, Rs. 41,330/- and Rs. 31,555/- have been deducted from the basic sale price on 18.05.2013, 12.06.2014 and 29.03.2015 respectively without taking the consent of the complainant.  The total interest taken comes to            Rs.1,22,885/-, whereas registered letters dated 22.08.2013, 18.07.2014, 29.07.2014 and 15.04.2015 regarding the interest have been placed as Annexure C-2. 

          It has further been stated that the flat was booked on 03.12.2010 and the company as per builder buyer agreement was to deliver the possession by 31.12.2013 and in case of delay, it has to pay the compensation at the rate of Rs. 5/sq.ft./month, but he has been told by the company that they shall not give the amount of penalty and compensation to him on account of late payment.  He has also stated that the complainant has paid the interest on delayed payments, his payments cannot be termed as delayed.  Thus, the complainant has prayed for compensation and penalty for late delivery of flat amounting to Rs. 90,000/- to  Rs. 1,00,000/- alongwith cost. 

3.       In the WS, M/s. Super Realtech Pvt. Ltd. (OP) have taken various pleas such as complaint is not maintainable as per arbitration agreement.  There was no deficiency on the part of OP as the dispute was with regard to charging of interest and service tax.  The claim made by OP has been in accordance with the terms of contract.  The complainant has not given any reason as to how calculation made by OP has any error.  They have replied to the last letter of dated 15.04.2015 vide mail of dated 06.06.2015.  Other facts have also been denied. 

4.       The complainant has filed rejoinder to the WS of OP, wherein he has controverted the pleas taken in the WS and reasserted his pleas.

  5.     In support of its complaint, the complainant has examined himself on affidavit.  He has deposed the contents of the complaint.

          In defence, M/s. Super Realtech Pvt. Ltd. (OP) has examined  Shri Jatinder Gupta, Director, who has also deposed on affidavit.  He has narrated the facts which have been stated in the WS.  He has also got exhibited documents such as Builder-Buyer Agreement alongwith schedule of payment (Ex.RW1/1 & ½) and demand letters (Ex.RW1/3).

6.       We have heard the complainant and have perused the material placed on record.  No one appeared to argue on behalf of the company.  The case of the complainant has been with regard to compensation on account of delay in possession.  It has been argued on behalf of the complainant that since the company have taken interest on the delayed payment, similarly, the company have to pay compensation on account of delay in giving possession. 

          As per builder buyer agreement, the company was to issue letter of possession by 31.12.2013 and if there has been any delay in issuing letter offering possession, the company was to pay compensation at the rate of Rs. 5/sq.ft./month for the period of delay.  Timely possession of flat was as per the terms of agreement including timely payment as per payment plan.  This has been reflected in Clause 14 and 15 of the agreement, which reads hereunder:-

 

          “That subject to the terms, including but not limited to timely payment of the total price, stamp duty and other charges due and payable according to the payment plan or as per demand raised by the COMPANY and the APARTMENT OWNER complying with all the terms and conditions, the COMPANY shall complete the construction of the SAID APARTMENT latest by 31.12.2013.  The COMPANY, on obtaining certificate for occupation and use, from the competent authorities, shall issue letter to the APARTMENT OWNER offering possession.  if the APARTMENT OWNER fails to take over possession of the SAID APARTMENT within 30 days from such date, the APARTMENT OWNER shall be liable to pay charges @ Rs. 2 per sq. ft. per month for such period of delay.

          That the COMPANY shall issue letter offering possession of the SAID APARTMENT to the APARTMENT OWNER latest by 31.12.2013 subject to force majeure.  In case, due to the circumstances, beyond the control of COMPANY (e.g. non availability of any building materials, war or enemy action or natural calamities or any act of God, act of terrorism, floods, earthquake, political and civil unrest of such a nature etc.) and/or due to any notice order, rule, notification of the Government, Public or other Competent Authority, the completion gets delayed, the COMPANY shall not be held responsible.  Under such compelling circumstances the COMPANY shall be entitled to a reasonable extension of time and as such the period of possession shall be deemed to be automatically extended accordingly.  The APARTMENT OWNER shall have no right to claim any damages for such delay.  However, if there is any delay on the part of the COMPANY in issuing letter offering possession of the SAID APARTMENT in, then the COMPANY shall pay the compensation @ 5/- per Square Feet per month for the period of delay to the APARTMENT OWNER.”

   

          Timely payment has been made essence of the agreement.  A duty has been cast upon the apartment owner to ensure that all payments are made on or before the due date as per the payment schedule.  However, the company has been given discretion to accept the late payment alongwith interest @ 1.5% per month.  It has further been conditioned that delayed payment made by the apartment owner will first be adjusted towards the interest due and thereafter the balance will be adjusted towards the principle amount due.  Clause 10 of the agreement says so, which is reproduced hereunder:-

          “That timely payment is the essence of this agreement.  The APARTMENT OWNER shall ensure that all payments are made on or before the due date(s), as per the Payment Schedule.  However, the COMPANY may accept late payment at its sole discretion, along with interest @ 1.5% per month.  Delayed payments made by the APARTMENT OWNER will first be adjusted towards the interest due and thereafter the balance will be adjusted towards the principal amount due.  It is understood that the COMPANY may refuse to accept the payment beyond a period of two months from its due date and in such an event, this agreement will be treated as cancelled.”

 

          Thus, the combined reading of Clause 10,14 and15 makes it clear that timely payment has been made essence of the agreement, discretion has been given to the company to accept the late payment alongwith interest @ 1.5% per month.  The payment made on account of delay has to be adjusted first towards the interest and the balance towards the principle amount.  The offer of possession of flat by 31.12.2013 has been made subject to timely payment and compliance of other terms and conditions.  In case of delay, the company has to pay compensation at the rate of Rs. 5/sq.ft./month for the period of delay. 

          As to whether there has been any delay on the part of company to offer possession to the complainant the evidence on record has to be looked into.  It is evident from the builder buyer agreement that the possession was to be handed over by 31.12.2013.  If the demand letter “one month before possession” issued by the company on 29.03.2015 is perused, it is noticed that the company have raised a demand of outstanding amount of Rs. 1,39,008/-, which was to be paid within 15 days from the date of demand raised.  Non payment within the grace period was to attract interest @ 18% p.a.  Thus, from this letter, it is evident that the company have not offered possession till the writing of this letter, which is of dated 29.03.2015.  This letter shows an amount of Rs. 1,22,885/- towards the interest received.  It means that the company have charged interest on account of delayed payment.  When the company have charged interest on delayed payments as per the agreement, certainly, the company have to pay compensation on account of delayed possession.  Since the possession was to be offered by 31.12.2013 and as per its letter of dated 29.03.2015, there has been a delay of about 15 months.  When there has been delay on the part of company in offering possession to the complainant, the complainant has to be compensated on account of delayed possession.  No doubt, the complainant was to act as per the terms of agreement, the record shows that the complainant have made payment above 99% of cost of the flat. 

          Complainant have also made reference to the foot note of letter dated 29.03.2015 which says “interest amount will be settled at the time of possession”.  His plea has been that the interest paid by the complainant was subject to settlement at the time of possession.  However, this plea cannot be accepted as this has reference to the balance amount of Rs. 1,39,008/-, which has been demanded through this letter.

          In view of the above, it is ordered that M/s. Super Realtech Pvt. Ltd. shall pay compensation on account of delayed possession for a period of 15 months at the rate of Rs. 5/sq.ft./month.  The amount towards compensation has to be adjusted towards the late payment / outstanding amount, if any.  Further, this compensation will be subject to handing over possession within a period of three months.  If the complainant does not take possession of the flat, this compensation will not be payable to him.  If the possession is not handed over within the period of three months, the amount of compensation shall carry interest @ 9% p.a. from the date of filing the complaint.  Cost of Rs. 15,000/- is also awarded to the complainant. This order be complied within the stipulated period.      

          Copy of the order be supplied to the parties as per rules.

          File be consigned to Record Room.

 

 

(DR. P.N. TIWARI)                                              (HARPREET KAUR CHARYA)

Member                                                                                Member    

 

 

(SUKHDEV SINGH)

                                                          President