Delhi

StateCommission

CC/693/2016

PREETI YADAV & ANR. - Complainant(s)

Versus

SUPERTECH LTD. - Opp.Party(s)

21 May 2019

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :21.05.2019

Date of Decision : 18.06.2019

COMPLAINT NO.693/2016

In the matter of:

 

1. Preeti Yadav,

W/o. Shri Sumit Mahajan.

 

2. Shri Sumit Mahajan,

S/o. Shri J.S.K. Mahajan,

Both R/o. A-363-A,

Chattarpur Enclave,

Phase-II, New Delhi-110074.………Complainants

 

Versus

 

Supertech Ltd.,

Through its Chairman,

Shri R.K. Arora,

Regd. Office:

1114, 11^th Floor,

Hemkunt Chamber,

89 Nehru Place,

New Delhi-110019.……..Opposite Party

 

 

CORAM

Hon’ble Sh. O. P. Gupta, Member (Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                      Yes/No

2.      To be referred to the reporter or not?                                                                                                           Yes/No

Shri O.P. Gupta, Member (Judicial)

JUDGEMENT

1. The  complainants are wife and husband.  Their case is that in December, 2010 they came across advertisements for launching Cape Town housing project, Sector-74, Noida, U.P. The OP assured that possession would be positively handed over within 24 months of booking, the rate was settled at Rs.42,14,000/- all inclusive. It was conveyed that entire cost of flat excluding 10% booking amount and margin money required for releasing bank instalment, were to be paid from loan sanctioned by bank. The executive of OP assured to get the housing loan sanctioned from the bank at the earliest and much before payment of first instalment of 40% (under flexi payment plan). The limit of 60 days would be counted from date of release of first installment after sanction of the loan by the bank. They paid Rs.50,00/- vide cheque dated 30.12.10. They were shocked on receipt of demand letter dated 01.02.11 for payment of balance of 10% booking amount, 40% of total cost and service tax totalling Rs.21,11,266/-  payable by 28.02.11. The letter also mentioned that OP would charge interest @24% per annum on delayed payment from due date till actual payment. They contacted executive of OP who assured that no interest would be charged till disbursement of first instalment after loan sanction.
2. In mid of Feb. 2011 Manager of Axis Bank (Home Loan) Noida Branch conveyed approval stating that formal loan letter would be issued in due course of time. The complainants  proceeded to book flat on 17.02.11 by giving  remaining amount of Rs.3,83,008/- vide cheques dated 17.02.11. The OP prepared one sided allotment letter on 28.02.11 and got it signed from the complainants. The letter put one sided arbitrary condition of demanding 68% of the total cost on one time on 28.02.11. The OP deceptively  raised demands despite being fully aware that the complainants would not be payable to pay huge amount of total cost without sanction of loan. Work stages of both foundation and casting of basement can not be completed on one and the same date i.e. 28.02.11. The act of the OP was malafide with intention to earn illegitimate interest of 24% per annum.
3. Another demand letter dated 05.03.11 for demand of Rs.22,80,294/- payable by 20.03.11 was received. The same included additional demand of Rs.3,79,262/- (for laying foundation) which  was raised in addition to the amount mentioned in first letter dated 01.02.11. Letters dated 04.04.11 and 08.05.11 for payment of Rs.21,17,286/- were sent by OP.
4. In May, 2011 complainants visited the site and were shocked to learn that construction had not been started by that time.
5. Finally home loan of Rs.34,58,026/- was sanctioned on 24.05.11. First disbursement of Rs.20,37,286/- was drawn and deposited with OP on the same day. The OP issued other remaining demand letters dated 06.06.11 for payment on casting of basement slab (payable by 17.06.11), dated 06.09.11 on casting of 4^th floor slab (payable by 20.09.11), dated 09.01.12 on casting of 8^th floor slab (payable by 20.01.12). Last demand letter dated 19.05.12 before ‘offer of possession’ (on casting of 12^th floor slab and payable immediately) was issued. The same was finally paid on 28.05.12. Demand for last and final payment of 5%  was to be made well before  16.04.13/ date of offer of possession fixed by OP in the allotment letter. The complainants received letter dated 15.05.15 relating to offer of possession, pertaining to possession payment demand letter.
6. The OP vide its second letter (Annexure-P/8) further demanded payment of Rs.4,60,845/- including last installment of 5%, interest amount of Rs.2,34,188/- and other charges of Rs.2,52,441/- which were not part of allotment letter.
7. The OP kept mum for payment of penalty @Rs. 5 per sq. ft. per month as per terms of the allotment letter for failure to deliver possession by April, 2013. The complainants paid last and final instalment of Rs.2,18,816/- on 15.06.15. The complainants wrote email  letter on 20.02.16 to resolve illegal and arbitrary anomalies. They further sent another letter dated 08.03.16. The complainants have been living in rented accommodation much  prior to booking of the flat and were paying exorbitant rent of Rs.25,000/- per month out of their monthly salaries. In addition to same, complainants were also paying instalment of Rs.33,000/- every month toward repayment of housing loan. They have lost tax benefit because of failure of OP to hand over possession within 3 years.
8. The OP has forced other charges in the name of ‘holding charges  of Rs.52,675/- vide letter received on 18.01.16. The same letter contained threat of cancellation. Hence this complaint for directing OP to hand over possession, to pay Rs.23,57,364/- as interest/ penalty compensation @18% per annum, to restrain OP from claiming Rs.4,86,629/- as interest for delayed payment and illegal and unjustified charges, to reject demand of Rs.52,675/- as holding charges.
9. OP filed WS raising preliminary objection that as per clause A (1) timely payment of instalments as indicated in the payment plan was essence of the agreement. The parties are bound by unchallenged terms of contract. This commission has no territorial jurisdiction as the complainant has not filed any document to show any cause of action accrued within  territorial limits of this Commission. There was clause 48 regarding arbitration. On merits it denied the case of the complainants. It prayed for dismissal of the complaint.
10. The complainants filed rejoinder and evidence of complainant no.1 in evidence.
11. The OP filed affidavit of Shri Jaybir Singh, AR. Both the parties have filed written arguments.
12. I have gone  through the material on record and heard the arguments. The objection of territorial jurisdiction can not be sustained as the registered office of the OP is in Delhi.,
13. Objection regarding arbitration clause is not tenable as per recent decision of Hon’ble Supreme court in  Emarr MGF vs. Aftab  Ahmed I (2019) CPJ 5.
14. Booking by complainants and payment of Rs.41,10,311/- is not in dispute. The booking was done in 2010, possession was to be delivered in 2013 and the OPs have failed to do the needful till date. Thus it is a clear case of deficiency on the part of OP. The OP can not claim holding charges till delivery of possession.
15. In the circumstances there is no option but to direct the OP to refund the amount. Accordingly OP is directed to refund Rs.41,10,311/-  with interest @9% per annum from the dates of respective payment till the date of refund, within 45 days from receipt of copy of this order. The OP would first pay the amount outstanding, if any, to Axis Bank, Noida which had advanced the loan and thereafter the balance would be paid to the complainants.
16. Copy of the order be sent to both the parties free of cost.
17. File be consigned to record room.

 

(O.P. GUPTA)                                                     

MEMBER (JUDICIAL)