Haryana

StateCommission

CC/688/2017

SUNIL DAHIYA - Complainant(s)

Versus

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

BALKAR SINGH

12 Sep 2022

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

                                                Consumer Complaint  No.688 of  2017

Date of the Institution: 02.11.2017

Date of Decision:    12.09.2022

 

Sunil Dahiya S/o Baljeet Singh, R/o 2/350, Arya Nagar, Sonepat.

                                                                   .….Complainant

Versus

1. TDI Infrastructure Ltd.,  Registered office at UG Floor, Vandana Building 11, Tolstoy Marg, Cannaught Place, New Delhi, through its Chief Managing Director.
2. TDI City Kundli, MainNH-1, Kundli, Distt. Sonepat, through its Manager.

                                                          .….Opposite Parties

 

CORAM:   S.P.Sood, Judicial Member

                   Suresh Chander Kaushik, Member

 

Present:-    Mr.Balkar Singh, Advocate for the complainants.

Mr.Manjinder Singh proxy counsel for Mr.Munish Gupta, Advocate for the Opposite Parties.

 

O R D E R

S P SOOD, JUDICIAL MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that on 18.10.2011, a residential floor bearing unit No. EF-30/GF, measuring 1224 sq. ft. Espania Floor at Kumaspur
Sonepat was allotted to Mrs. Deepali Tripathi  as the same was purchased by the complainant. The basic sale price of the unit was Rs.26,78,647/- (Excluding EDC etc.). The complainant had deposited an amount of Rs.27,55,232/- with the opposite parties (OPs).    This is how complainant has already paid almost entire payment of the said property within time. As per the agreement, remaining payment was to be paid at the time of taking possession of the flat.  As per the agreement, OPs have failed to provide  the floor to him within 30 months w.e.f. from 18.10.2011, so the complainant was entitled to get compensation from the OPs.  The complainant has compelled to reside in a rented house and for which the complainant has paying the rent of Rs.8000/- per month from May 2014, which comes to Rs.3,36,000/- approximately. He requested the OPs to give possession, but, OPs neither completed construction work nor handed over the possession of the floor to him till date. Thus there was deficiency in service on the part of the OPs, hence the complaint.

2.                Notice of the complaint was issued against the O.Ps. following which they filed written statement, raising  preliminary objections  against accruing cause of action, , maintainability of complaint, status of complainant being a consumer, jurisdiction, limitation etc. were raised and requested to dismiss the complaint. As a matter of fact, the complainant has always been a defaulter in making various payments. The plan opted by the original  allottee Smt.Deepali Tripathi was a construction linked. The buyer agreement was signed between Smt. Deepali Tripathi and OP company’s authorized signatory qua a residential built up floorNo.EF-30 Ground Floor which was allotted to her.  OPs vide its letter dated 01.02.2012 demanded external development charges  and thereafter again vide another letter dated 06.03.2012 asked for an amount of Rs.2,66,695/- followed by still another demand letter dated 12.07.2012 of an amount of Rs.2,68,034/-, but, no payment was made as desired vide the aforesaid letters. Thereafter a reminder dated 20.08.2012 was sent to clear the dues on or before 31.08.2012, but, still without any avail.  The OP company sent a final reminder for clearance the dues on or before 25.09.2012.  Further demand letter dated 08.11.2012 followed by reminder dated 26.11.2012, final reminder notice of 29.12.2012, but, instead of depositing the amount, initial allottee Smt.Deepali Tripathi sold her rights to the present complainant-Mr. Sunil Dahiya. So the complainant stepped into the shoes of the previous owner by way of an endorsement done on 10.01.2013.  The OP company  sent another demand letter on 29.04.2013 for Rs.2,68,034/-, but needful was not done. Reminder dated 17.05.2013 was also sent to pay the dues, but, again no payments was made. The OPs sent final reminder for clearance the dues on or before 08.06.2013. Finally, in view of the conduct of the complainant and default history a pre cancellation notice dated 18.06.2013 was sent.   Nothing was done on the part o the complainant despite reminders dated 14.04.2015 and 02.07.2015 were sent for making the outstanding payment on or before 24.04.2015 and 13.07.2015.

          On merits, it was submitted that earlier the original allottee, despite number of demand letters and reminders failed to pay the dues within the prescribed time and thereafter the complainant was also issued multiple demand notices and reminders.  However, there was continuous default by the complainant in making the payments for unreasonably over a long period of time. The terms and conditions of the buyer agreement will prevail and as such  the complainant cannot take benefit of his own wrongs by not paying the installments. Thus there was no deficiency in service on the part of the answering OPs.

3.      When this complaint was posted for recording evidence of the parties,  complainant has tendered in evidence  his affidavit as Ex.CA vide which he has reiterated all the averments taken in the complaint and further tendered the documents Ex.CA-1 to Ex.CA-5 and closed his evidence.

4.                On the other hand, in order to rebut the evidence led on behalf of the complainants O.Ps. have also tendered the affidavit of Mr. Vinay Bansal, authorized signatory of OPs as  Ex.OP-1/A alongwith documents Ex.OP-1/1 to Ex.OP-1/17 and closed its evidence.

5.                This argument has been advanced by Sh.Balkar Singh, learned counsel for the complainants as well as Sh. Manjinder Singh proxy counsel for Mr. Munish Gupta, learned counsel for the opposite parties. With their kind assistance entire record including documentary evidence as well as whatever the evidence had been led during the proceedings of the complaint had also been properly perused and examined.

6.                As per the basic averment taken in the complaint and the reply filed thereto including the contentions raised by the learned counsel for the parties, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled for possession of the said unit immediately alongwith compensation as prayed for?

7.                While unfolding the arguments, it has been argued by Sh. Balkar Singh, that as far as the Builder Buyer agreement EX.C-3 is concerned, the same is not in dispute.    It is also not disputed that as per agreement Ex.C-3, the basic price of the unit as per schedule was Rs.26,00,000/-.   However in all a sum of Rs.27,55,232/- has been paid by the complainants to the  O.Ps.  As per the agreement and the terms and conditions incorporated therein including date of delivery of the possession of the flat, the possession complete in all respect  was to be delivered to the complainants by the O.Ps.  within 30 months subject to some reservations which had already expired despite their depositing the amount of Rs.27,55,232/- and till date  offer for possession has not been made. The project of the OPs was utterly incomplete. In these circumstances, the complainants had no other option, but, to seek complete possession of the flat immediately along with interest on the deposited amount and compensation as prayed for.    

8.                On the other hand, it has been argued by Mr.Manjinder Singh  proxy counsel for Munish Gupta, learned counsel for the O.Ps that the flat was purchased by the original allottee Ms.Deepali Tripathi. The complainant purchased the above said flat from said Ms.Deepali Tripathi. The complainant having stepped into the shoes of the previous owner by way of an endorsement done on 10.01.2013.  The original allottee opted for construction linked payment plan, but,  did not stic to the schedule. There was continuous default on the part of the complainant in making due payments for unreasonably over a long period of time. The terms and conditions of the buyer agreement will be binding and as such  the complainant cannot take benefit of his own wrongs of not paying the installments. Thus, the complainants were not entitled for any relief as prayed for.

9.                In view of the above submission and after careful perusal of the entire record, it is not in dispute that upon floating a project by the builders, flat was purchased by the complainants for a cost of Rs.26,00,000/- against which an amount of Rs.27,55,232/-  has already been paid.  Agreement is also not disputed.  Since the original allottee had purchased the flat in the year 2011 and the complainant appeared on the scene in place of original allottee Mrs. Deepali Tripathi in the year 2013. As per agreement, the possession of the flat was to be delivered within period of 30 months complete in all respects subject to some reservation.   To the utter surprise of this Commission and is very pity that inspite of the fact that period of more than 9 years had already expired, long ago, the complete possession of the flat has not been delivered by O.Ps. The construction work of the said unit could not be completed within the tentative time frame of the 30 months is also not acceptable at all.  As such, there is a clear breach of terms and conditions of the buyers agreement on behalf of the O.Ps.   It is the normal trend of the developers/O.Ps. that developer would collect their hard earned money  from  the  individuals and would invest the funds in other projects as a result thereof the project  for which the investors have invested their hard earned money is not completed.  Resultantly, the delivery of possession or completion of the project is delayed as in the present case.  When the project is not complete as such, this Commission is of the considered opinion that there is deficiency in service of opposite parties and thus, complainants are well within their legal rights to get the interest on the deposited amount. Even otherwise also there is a strong element of the physical and mental agony caused to the complainants for investing a huge amount and still deprived of not being put into possession of the same and under these constrained circumstances, they had to knock the door of this Commission even for seeking possession of the flat, interest on deposited amount and compensation for mental agony.  In such like cases the Commission had to deal with the developers/O.Ps. with severe hands who are misusing the funds of the individuals.  As such the question is answered in the affirmative.

10.    In the light of the above observations, we are of the considered view that the opposite parties are found to be deficient in rendering proper service to the complainant and have indulged in unfair trade practice as well.  Accordingly, the complaint stands allowed and opposite parties are directed to hand over the possession of said unit immediately within 30 days  and also to pay interest from deemed date of possession i.e. 03.02.2015  @ 6% p.a. on the deposited amount till delivery of possession. The OPs are also directed to pay compensation of Rs.50,000/- (Fifty thousand only) on account of deficiency in service, harassment and mental agony suffered by the complainant by the  acts of the OPs alongwith Rs.25,000/- as litigation expenses. In case, there is a breach in making payment  as well as delivery of possession within the stipulated period of 30 days, in that eventuality, the complainant would further be entitled to get the interest @ 9% per annum, for the defaulting period.   It is also made clear that for non-compliance, the provisions enshrined under section 72 of the C.P. Act  would also be attracted. 

 

 

September 12^th, 2022     Suresh Chander Kaushik,          S.P.Sood

                                       Member                                    Judicial Member                                 

S.K.(Pvt.Secy)