Haryana

StateCommission

CC/56/2015

DEVENDRA MOHAN GAUTAM - Complainant(s)

Versus

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

A.P.S. GULIANI

22 Apr 2016

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :        56 of 2015

Date of Institution:      01.05.2015

Date of Decision :       22.04.2016

 

1.     Devendra Mohan Gautam, aged about 61 years son of late Sh. R.D. Gautam.

2.     Suman Sharma, aged about 55 years w/o Sh. Devendra Mohan Gautam,

         Both Resident of House No.A-2/02, Azad Apartments, Sri Aurobindo Marg, Hauz Khas, New Delhi-110016.

                                      Complainants

Versus

1.      M/s Sweta Estates Private Limited, Golbal Business Park, Tower D, 3^rd Floor, Mehrauli Gurgaon Road, Gurgaon-122002 through Sh. Amarjit Bakshi, Managing Director.

2.      Department of Town and Country Planning Department, Government of Haryana through its Director General, HQ SCO 71-75, Sector 17-C, Chandigarh-160017.

3.      Haryana Urban Development Authority, (HUDA) through its Chief Administrator, C-3, Sector 6, Panchkula, Haryana-134102.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                                      

 

Argued by:          Shri A.P.S. Guliani, Advocate for complainants.

Shri Vishal Gupta, Advocate for Opposite Party No.1.

(Opposite Parties No.2 and 3 dispensed with)

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

One Shri Anish Dhawan applied for flat in the project known as Central Park-II, situated in Sector-48, Gurgaon, being developed by Sweta Estates Private Limited-Opposite Party No.1 (hereinafter referred to as ‘the builder’). Department of Town and Country Planning Department, Haryana and Haryana Urban Development Authority (HUDA)-Opposite Parties No.2 and 3, only granted license to the builder to develop the Housing Project, otherwise they have no role to play.

2.      Anil Dhawan was allotted apartment No.7-H, Wing-1 in “The Room” on Seventh Floor, having super area 1321 Square Feet including car parking. Apartment Buyer Agreement (Exhibit C-1)       was executed between the builder-opposite party No.1 and Anish Dhawan on January 16^th, 2012. Anish Dhawan transferred the said flat to Shri Anup Chandra Srivastav and Mrs. Deepa Srivastav, on March 23^rd, 2012, vide letter Exhibit C-2. They further transferred it to the complainants vide agreement dated 16^th August, 2014 (Exhibit C-4). However, the transfer was actually effected with the builder on September 20^th, 2014, when the final payment was to be made. As per agreement (Exhibit C-1) the construction was to be completed within 18 months from the date of the execution of buyers’ agreement and the possession was to be offered thereafter. After the purchase, the complainants were offered possession on 23^rd September, 2014 vide letter Exhibit C-5. The complainants also took physical possession on December 17^th, 2014, vide letter Exhibit C-14, that is, upon payment of final dues to the builder. The conveyance-deed was executed by the builder in favour of the complainants on 23^rd February, 2015 vide Exhibit C-20. After execution of the conveyance-deed, the complainants started correspondence with the builder that there were certain deficiencies viz. the park was not developed, the entrance was not complete etcetera, besides that excess amount was charged for electric connection and also claimed compensation for delayed possession. The builder failing to compensate, the complainants filed the instant complaint seeking compensation of Rs.50.00 lacs under different heads.

3.      The Opposite Party No.1 contested the complaint by filing reply raising preliminary objections regarding maintainability of the complaint, pecuniary jurisdiction etc. It was pleaded that the complainants calculated and claimed the interest of Rs.24,01,411/-  on the amount (paragraph No.23 of the complaint) which was not paid by the complainants to the Opposite Party No.1 but to the previous allottee from whom they have purchased the flat and got the same transferred in their favour. However, the buyers/allottee(s) of the flat defaulted every time for the payment of instalment except the last installment. The flat was allotted on the basis of time linked payment plan and the buyers were required to pay the installments as per time line agreed in the ABA/Payment Plan and no reminder or notices were required to be sent to the buyers but despite that the Opposite Party No.1 sent reminders and notices thereby requesting the buyers to make the payments of due instalments.  The delay in construction/possession was due to shortage of the funds. The complainants had applied for the transfer of the flat from previous allottees viz Anup Chandra Srivastava and Deepa Srivastava vide application dated 16.08.2014. The transfer was approved by the opposite party No.1 vide endorsement dated 02.09.2014 i.e. a few days before the offer of possession. The complainants were well aware about the status of the flat i.e. the construction of the flat etc, so they could have avoided the purchase of the flat in view of the delay in construction/possession. The complainants have no cause of action against the opposite party No.1 complaining about the delay in the construction of the apartment or project. The offer of possession was given to the complainants within a month of the transfer of the flat in the name of complainants. Denying the other averments made in the complaint, it was prayed that the complaint be dismissed.

4.      In evidence of the complainants, affidavit of Devendra Mohan Gautam-complainant was tendered, besides documents Exhibit C-1 to C-28.

5.      The opposite party No.1-builder, in its evidence tendered affidavit of Shri Dushyant Upadhyay, besides documents Exhibit R-1/1 to R1/13.

6.      Arguments heard. File perused.

7.      The complainants have sought compensation under different heads including that there was delay in handing over possession stating that as per Clause 9.1 of the Apartment Buyer Agreement dated 16^th January, 2012 (Exhibit C-1), the builder was required to complete the construction  of the apartment and hand over the possession thereof to the buyer within 18 months from the execution of buyers agreement, however, subject to timely payment by the buyer, stamp duty and other charges according to the Payment Plans. As per Clause 9.2 of the agreement, the builder upon obtaining certificate for occupation and use from the competent authorities, was to offer in writing to the buyer to take over the physical possession of the apartment, in terms of the agreement within sixty days of issue of the notice subject to the buyer having complied with all the terms and conditions of the agreement. However, the possession was offered on 23^rd September, 2014 vide letter Exhibit C-5.

8.      Undisputedly, the agreement Exhibit C-1 was executed between the opposite party No.1 (builder) and Anish Dhawan. Anish Dhawan transferred his rights in the said flat in favour of Shri Anup Chandra Srivastav and Mrs. Deepa Srivastav, vide assignment-deed dated March 23^rd, 2012 (Exhibit C-2), from whom the complainants purchased the flat vide agreement dated 16^th August, 2014 (Exhibit C-4). The endorsement dated 5^th September, 2014 (Exhibit C-3) was effected in the record of the builder, however, the transfer was to be effected from September 20^th, 2014, when the final payment was to be made. Thus, the complainants came into picture on 20^th September, 2014.  The possession was offered to them on 23.09.2014 vide letter Exhibit C-5, that is, in less than a week. Neither Anish Dhawan nor Anup Chandra Srivastav and Mrs. Deepa Srivastav, exercised their right of claiming any compensation on account of delay in possession. Neither Anish Dhawan, the original allottee, nor transferee Shri Anup Chandra Srivastav and Mrs. Deepa Srivastav, exercised their right seeking any compensation for any delay in possession. The complainants who stepped into the picture w.e.f. 20.09.2014 and possession being offered to them on 23.09.2014, in the considered opinion of this Commission, the complainants cannot seek any penalty or compensation on account of any delay in delivery of possession. Once predecessors-in-interest of complainants did not exercise their right to seek compensation for delay, it would be deemed to have been waived of by them, it is not open to claimants to seek that compensation.

9.      The other contention that the flat was not fit for occupation on the date the possession was handed over, except own affidavit, the complainants have not led any evidence in support of the contention that the flat was not livable. Merely because during the course of arguments, the complainants placed on file some pictures that the club and multi purpose hall became ready for use at later date, it cannot be presumed that flat No.7-H, Wing-1 in “The Room” Sector-48, Gurgaon, of which possession was taken over by the complainants, was not livable and was not fit to be moved in.

10.    The complainants have sought interest on the amount which was deposited by the earlier allottee, which they cannot claim because at the time of purchase, they were well aware about the flat. when the original alllottee did not chose to take any action for delay in possession, the complainants purchasing the same with the menance cannot seek any compensation, as the right to complainants would accrue only when they derive the title. Admittedly, the complainants derived the title though vide agreement dated 16.08.2014, however, the final payment was made on 20.09.2014 and the endorsement was made by the builder on 02.09.2014. The possession was offered on 23.09.2014. Thus, the complainants for all intents and purposes derived the title with effect from 20.09.2014 and the possession being offered on 23^rd September, 2014 vide letter Exhibit C-5, the builder cannot be forced to pay interest for the preceding period. 

11.    As a sequel to the aforesaid discussions, no deficiency in service can be attributed to the opposite parties qua the claim of the complainants. Hence, the complaint is dismissed being devoid of merits.

 

 

Announced: 22.04.2016

(B.M. Bedi) Judicial Member

(Nawab Singh) President

 

CL