Haryana

StateCommission

CC/121/2016

DEV ARORA - Complainant(s)

Versus

SWETA ESTATES PVT.LTD. - Opp.Party(s)

SUDHIR MALIK

10 Jun 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA,          PANCHKULA.

 

                                                Complaint No.121 of 2016

                                                       Date of Institution: 12.05.2016                            Date of Decision:10.06.2015

 

Dev Arora S/o Late Sh.B.D.Arora Currently resident of flat No.8-A,tower-7, Central Partk-2, Sector 48, Sohana Road, Gurgaon, Haryana.

…..Complainant

 

Versus

 

M/s Sweta Estates Pvt. Ltd., Regd. Office, 21/48, Malcha Marg, Diplomatic Enclave, New Delhi 110021 through its Managing Director Sh.Amarjit Singh Bakshi.

…..Opposite Party

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Sudhir Mittal, Advocate counsel for the complainant.

                            

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

          It is alleged by the complainant that flat No.9-B, Belgravia, Tower-F, Central Park-2,  Gurgaon having area of 2350 sq. feet was originally allotted to Raj Kumar Budhiraja and Anita Buidhiraja.  They applied for allotment of flat under possession linked plan.  Vide letter dated 26.06.2013 they were  informed  that  flat No.9-B  Belgravia   was  provisionally  allotted  to them.  Apartment  buyer  agreement  was  executed  in between them on 29.07.2013.  The total cost of the flat was Rs. 2,82,00,000/- plus service tax @ Rs.12,000/- per sq. feet. The possession was to be delivered within six months from the date of agreement.  He was attracted by the promise of timely delivery of possession contained in brochure issued by O.P. and apartment buyers agreement. Vide agreement dated 19.07.2013 he purchased this plot from Raj Kumar Budhiraja and Anita Budhiraja consequently copy of apartment buyers agreement was handed over to him with endorsement dated 31.07.2013 in his favour. He acted upon the agreement executed in between O.P. and Raj Kumar Budhiraja and Anita Budhiraja.  As per agreement the possession was to be delivered by 28.01.2014.  Authorised representatives of O.P. promised timely delivery of possession when aforesaid  transfer deed was executed.  He was required to pay 50% amount within 45 days of the date of booking.  Hence the same was deposited by 13.12.2013. As there was some delay on his part to pay the amount, so he paid interest @ 15% per annum which comes to Rs.3,01,800/-. He paid Rs.1,60,95,145/- up to 24.12.2013 including interest.  Vide letter dated 11.06.2015 O.P. demanded Vat @ Rs.135/- per sq. feet amounting to Rs.3,32,000/- payable by 10.07.2015.  That payment was raised allegedly on the basis of the orders of Hon’ble Punjab and Haryana High court.  Though, he was not liable to pay VAT as fresh assessment was pending. Vide letter dated 12.08.2015 possession was offered and asked to deposit Rs.1,79,88,951/- by 11.09.2015.  It was told that possession would be delivered within 30 days after completion of all the formalities. Promise made by O.P. was misleading because even occupancy certificate was not obtained. The said certificate was obtained in the month of August 2015.  Demand of extra charges about increase in super area to the tune of Rs.14,39,250/- @ Rs.12625/- per sq. ft. was also not justified.  It was the unilateral decision of O.P. and was not binding upon him. He refused to make payment of balance 50% because respondent did not do any work in the flat in dispute or the tower in which it was situated.  He took another flat on rent vide agreement dated 01.08.2013 he informed O.P. that unless interest on the amount, already paid by him is refunded and was compensated qua the rent, he would not make further payments as possession was already delayed by two years.  O.P. sent letters dated 09.11.2015, 04.12.2015, 05.01.2016 about balance payment and he submitted reply alleging that due to their act he has suffered loss to the tune of Rs.82,20,524/-.  As there is deficiency in service on the part of the O.P., so it be directed to pay the interest @ 15% per annum on the amount already deposited by him till the date of handing over of actual physical possession,  which comes to Rs.62,65,824.22 up to 07.05.2016.  It be also directed to reimburse rent amounting to Rs.11,78,200/- and not to charge any amount on account of alleged increase in super area and it be also restrained from charging service tax and vat and refund the amount already recovered.  Rs.10,00,000/- be paid for mental harassment etc. and Rs.One lac for litigation expenses.

2.      Arguments heard. File perused.

3.      Learned counsel for the complainant vehemently argued that keeping in view the brochure and advertisement he purchased flat in question.  As per advertisement this unit was fit for delivery of possession in the month of December 2011 vide clause No.9.11 of buyers agreement dated 29.07.2013 the possession was to be delivered within six months from the date of execution of the agreement i.e. January 2014.  When flat was booked, project was already constructed so there was no question of any increase  in the area mentioned in agreement which was 2350 sq. feet. This unilateral decision and is not binding upon him. O.P. cannot ask to pay for additional area at the  new  rate  whereas  it  should have been as per rate prevailing at the time of booking. He had already deposited 50% amount as per possession linked plan.  When the flat is not ready for possession he cannot be asked to pay the remaining amount including the electricity connection charges, which he is not liable to pay.  So O.Ps. be directed to make payment to him and not to recover any amount from him, as mentioned above.  He placed reliance upon the opinion of Hon’ble National Commission expressed in consumer case No.1479 of 2015 titled as Developers Township property owners welfare society Vs. Jaiprakash Associates Limited decided on 02.05.2016,   Swarn Talwar & 2 Ors. Vs. Unitech Ltd in complaint No.347 of 2014, decided on  14.08.2015, Abhishek Agarwal and anr. Vs. M/s Unitech Limited decided on 08.06.2015 and opinion of this commission in Vinita Goyal Vs. Unitech Limited 2014 (3) CPJ 139.

4.      This argument is devoid of any force.  As per facts mentioned above, it is clear that complainant purchased this flat from Raj Kumar Budhiraja and Anita Budhiraja he is subsequent purchaser and is not initial allottee.  He was never misguided by the O.P.  He purchased this flat from the previous owner with open eyes.  It cannot be alleged by him that due to persuasion by O.P. he purchased this flat.  Agreement was signed in between Raj Kujmar Budhiraja and Anita Budhiraja and O.P.  Complainant was never assured that he will be deliver possession within six months from the date of agreement.  Agreement in between complainant and Raj Kujmar Budhiraja and Anita Budhiraja was executed on 19.07.2013 whereas buyers agreement was executed in between Raj Kujmar Budhiraja and Anita Budhiraja on 29.07.2013.  If he was having interest on the said date then whey he did not execute agreement with O.P. When there was no agreement in between complainant and O.P. so it cannot be alleged by him that he was misguided by O.P.

5.      Further it is no-where mentioned the agreement dated 29.07.2013 that area of flat cannot be increased. As per this agreement there can be increase or decrease up to 10% of the super area. It is no where mentioned therein that consent of the allottee was required.  As per facts mentioned above, it is clear that the complainant has not paid remaining 50%, so he is also defaulter. As he did not make payment in time he was not entitled for interest as opined by Hon’ble National Commission in First appeal No.06 of 2014 in  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. dated 27.11.2014. When possession is offered he is not entitled for interest as claimed by him as per opinion of Hon’ble Supreme Court Commission expressed in Haryana Urban Development Authority Versus Raje Ram, 1(2009) CPJ, 56 wherein the Hon’ble Supreme Court has opined as under:-

 “Housing-Re-allotment-Interest-Award of-Where possession given at old rate, party has got benefit of escalation in price of land, interest should not be awarded on amounts paid by allottees due to delay in allotment-Respondents re-allottees aware about delay – Cannot be compared with original allottees, who waited for a decade or more for delivery of possession-Possession delivered-Consumer complaint filed within short period from date of re-allotment, without paying full price-Award of interest neither warranted, nor justified- Orders of District Forum, State and National Commission awarding interest set aside.”

6.      More so, the compensation claimed by complainant is highly exaggerated and not borne out by the material placed on the record.  At the time of the admission of complaint Commission can see whether the compensation claimed is inflated or not just to bring complaint within it’s pecuniary jurisdiction.  The instant complaint is nothing but an abuse of process of law.  He cannot derive any benefit from the cited case laws because they are based on altogether different facts.  In those cases either the consent of allottees was required or there was lapse on the part of builder only, whereas in this case there is fault on the part of the allottee also.  Hence, the complaint is not maintainable before the Commission and the same is hereby dismissed.

 

June, 10th, 2016

Mrs.Urvashi Agnihotri, Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.