Haryana

StateCommission

CC/496/2017

MANJU SHARMA - Complainant(s)

Versus

TDI INFRASTRUCTURE PVT.LTD. - Opp.Party(s)

PRADEEP SOLATH

27 Sep 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA AT PANCHKULA

         

Complaint Case No.496 of 2017

Date of Institution:16.08.2017

Date of Decision:27.09.2018

 

Manju Sharma W/o Sh. Vikas Sharma, R/o House No.261, Sector-23, Sonepat, Haryana.

…Complainant

                             Vs.

1. TDI Infrastructure Ltd. Vandana Building, Upper Ground Floor 11, Tolstoy Marg, Connaught Place, New Delhi-110001 through its Managing Director.

 

2. Espania Royale Floors, Kamaspur, Sonepat, Haryana through its Site Manager.

…Opposite parties

 

Before:       Sh. Ram Singh Chaudhary, Judicial Member

                   Smt. Manjula, Member

 

Present:     Sh. Satbir Mor, Advocate for the complainant.

                   Sh. Punit Tuli, Advocate for the opposite parties.

                  

                                      O R D E R

 

RAM SINGH CHAUDHARY, JUDICIAL MEMBER

 

The facts arising to the present complaint before this Commission are that on 16^th March, 2012, Sh. Mukesh Khattar booked a floor bearing No.RF-02/SF in the Espania Royale Floor (KRF) project of the opposite parties located at Village Kamaspur, NH-1, Sonepat, having the 1224 sq. foot area. Thereafter, on 7^th November, 2013 complainant  Manju Sharma with the consent of the opposite parties, got transferred the said floor in her name after making the payment of Rs.14,55,935/- to Sh. Mukesh Khattar, which was deposited by him with the opposite parties before the date of transfer of floor. Opposite parties executed an agreement on 07.11.2013 with the complainant through its authorized signatory. The basic sale price of the Floor was Rs.25,50,000/- calculated at the basic rate of Rs.2083.33 per sq. ft. In addition to this, it was also agreed to pay Rs.3,49,085/- being the EDC and IDC charges at the rate of Rs.285.20 per sq. ft. As per the agreement the total price of the floor comes to Rs.29,77,885/- (RS.25,50,000/- + Rs.3,49,085/-). As per Annexure-2 Payment Plan of the agreement, the complainant was to make the payment of the floor as per following schedule:-

Sr. No.	Installment Plan	Percentages (%)
1.	Registration Amount	15%
2.	At the time of the Allotment	15%
3.	Within 60 days from the date of allotment	10%
4.	At the start of Ground Floor	10%
5.	At the start of first Floor	10%
6.	At the start of Second Floor	10%
7.	At the start of Fourth Floor	10%
8.	Completion of Brick Work	10%
9.	At the time of Possession	10%
	Grand Total	100%

Following the payment schedule of the opposite parties, each and every installment was made to the opposite parties in time and at the time of filing of the complaint, Manju Sharma, complainant had paid a sum of Rs.27,53,699/-.

As per clause No.28 of the agreement, opposite parties were duty bound to give absolute possession of the floor in question to the complainant within a period of 30 months from the date of execution of the agreement dated 7^th November, 2013, which period was further extendable for next six months. The period of 30 months expired on 6^th May, 2016 and thereafter, extendable six months expired on 6^th November, 2017. The complainant waited sufficiently, but finding no heed from the opposite parties with respect to the possession of the floor, approached this Commission seeking refund of entire deposited amount of Rs.27,53,699/- along with interest at the rate of 16% per annum along with compensation of Rs.2,00,000/- coupled with the cost of litigation as Rs.50,000/-.

Upon notice, complaint was contested by the opposite parties by filing written statement. In the written statement filed, opposite party took the stand that initially allotment of floor in question was made in favour of one Sh. Mukesh Khattar on 16^th March, 2012, who transferred his rights to the complainant Manju Sharma with the consent of the opposite parties and after complying with the necessary formalities. Fresh independent floor buyer’s agreement dated 7^th November, 2013 was entered between the complainant and opposite parties, which allow the complainant to step into the shoes of earlier owner of the floor. At the same time opposite parties contested the claim of the complainant on the ground that she was defaulter of timely payment of installments of floor price.

Opportunities of evidence was given to both the parties.

In the evidence of the complainant, Manju Sharma, complainant tendered her affidavit  as Exhibit C/A reiterating the stand taken in her complaint and exhibited the documents, letter of confirmation of transfer dated 21.10.2013 (Ex.C-1), buyer’s agreement dated 7.11.2013 (Ex. C-2), copy of detailed accounts statement dated 7.6.2017 (Ex. C-3). On the other side opposite parties tendered into evidence affidavit of Sh. O.P. Gupta s/o Sh. Khem Chand, Liaisoning Assistant, TDI Infrastructure Limited, 241, Sector 19-A, Chandigarh, as Ex. RA and exhibited the documents Registration Form dated 16.3.2012 as Exh.R-1, Buyer’s Agreement dated 7.11.2013 Ex.R-2, Demand Letters dated 23.5.2012, 7.1.2013, 12.8.2013, 28.8.2013, 19.9.2013, 21.10.2013, 1.11.2013, 7.11.2013, 5.12.2013, 12.2.2015 and 2.7.2015 as Ex.R-3 to R-13.

Heard.

It is contended by the learned counsel for the complainant that opposite parties have miserably failed to give the actual possession of the floor in question and to complete the project within the stipulated period of agreement. It is further contended that on 1^st September, 2018, opposite parties sent a letter to the complainant with the subject “offer of possession for fit out of your unit booked in “ESPANIA ROYALE FLOOR (KRF)” Kamaspur, NH-1, Sonepat and raised the demand of Rs.9,65,185.84 from the complainant. The subject of the letter itself shows the fit out of unit and not the project. Even the opposite parties have no Occupation Certificate with respect to the project in question. In the absence of Occupation Certificate opposite parties cannot make offer of possession. In support of his arguments, learned counsel for the complainant has made reference of the order passed by the Hon’ble National Commission in complaint case No.1878 of 2016 titled Rohit Agarwal and Another Versus M/s Parsvnath Developers Ltd. and Another”, wherein opposite parties could not give possession of the flat to the complainant for want of occupancy certificate from the Government. In that circumstances, Hon’ble National Commission allowed the complaint of the complainant and ordered for refund of the entire deposited amount along with interest in favour of the complainant.

On the other side, it is contended by the learned counsel for the opposite parties that no doubt there is a delay in possession of the floor, but the eventuality of the delay the opposite parties can only pay the penalty at the rate of Rs.5/- per square foot to the complainant for the delayed period as per clause No.28 of the Agreement.

On the asking of this commission, it is not disputed by the learned counsel for the opposite parties that till date occupation certificate has not been issued by the Government with respect to the project in question and even the so called letter dated 01.09.2018 as offer of possession for fitout of unit is not offer of possession rather an attempt to mislead the commission. Admittedly, in the absence of occupation certificate neither the possession of the floor can be given to the complainant nor the period of further delay in possession can be assessed. The arguments advanced by the learned counsel for the opposite parties that in the eventuality of the delayed possession, the opposite parties can only pay penalty to the complainant at the rate of Rs.5/- per Sq. Ft. is not acceptable, because learned counsel failed that how many time will take the opposite parties to take occupation certificate of the project from the Government. When the opposite parties has failed to give the possession of the floor within the stipulated time or even after the lapse of huge delay, the complainant cannot be allowed to wait further more. It is a case, where complainant has deposited her hard earned money of Rs.27,53,699/- with the opposite parties and opposite parties are enjoying the hard earned money of the complainant in careless manner. Though the opposite parties have taken a stand in the written statement that there was default on the part of the complainant in making the installments as per the schedule of the opposite parties, but the statement of account placed on shows that there is no delay on the part of the complainant in making the payment of installments. As and when, demand of installment was raised by the opposite parties, complainant had deposited the same well in time. Rather, there is deficiency in service on the part of the opposite parties, in not giving the absolute possession of the floor of the complainant. The latest case supra Rohit Agarwal relied upon by the learned counsel for the complainant fully supports her case. In these circumstances, complainant is entitled to refund of the entire amount deposited by her.

The complaint is, therefore, allowed and opposite parties are directed to refund the entire deposited amount of Rs.27,53,699/- to the complainant along with compound interest at the rate of 12% per annum from the date of respective deposits till realization. In addition to this complainant is awarded compensation of Rs.1,00,000/- on account mental agony and physical harassment and Rs.21,000/- as litigations expenses.

 

September 27^th, 2018               Manjula                Ram Singh Chaudhary

                                                Member                Judicial Member