Delhi

StateCommission

CC/13/189

JASPAL SINGH - Complainant(s)

Versus

TDI INFRASTRUCTURE - Opp.Party(s)

28 Feb 2018

ORDER

IN THE STATE COMMISSION : DELHI

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

 

 

Date of Decision:28.02.2018

 

 

Complaint Case No.189/2013

 

Jaspal Singh,

S/o Late Sh. Tejinder Singh,

R/o DA-196, Shalimar Bagh,

Delhi-110088.

…. Complainant

 

Versus

 

 

TDI Infrastructure Ltd.,

Through its Managing Director,

Vandana Building, Upper Ground Floor 11,

Tolstoy Marg, Connaught Place,

New Delhi-110001.

… Opposite Party

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.Whether reporters of local newspaper be allowed to see the judgment?

  

2. To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. Complainant booked a residential flat in the project of OP i.e. TDI City, Kundli, Sonepat on 20.2.06 and paid a sum of Rs.3 lacs vide receipt No.32089 dated 20.2.06.  OP had allotted flat No. H-2/401, Kingsburry Flats, TDI City, Kundli, Sonepat measuring 1110 sq.ft.  It is alleged that at the time of booking, it was assured by the OP that the possession of the flat will be given within 18 months.  Thereafter various demands were raised upon complainant on different dates and the complainant had paid in all Rs.22,09,912/- up till 19.3.12 to the OP against total price of the flat i.e. Rs.22,58,850/-.     
2. It is alleged that before entering into Apartment Buyer’s Agreement dated 12.6.07 (in short, “the Agreement”), the complainant had already deposited a sum of Rs.7,33,071/- as per demand of OP.  It is alleged that the complainant had objected to certain terms and conditions of the aforesaid Agreement.  However, the officials of OP refused to refund the amount deposited by the complainant as such the complainant signed the Agreement under compulsion.  As per aforesaid Agreement, the construction was to be completed within a period of 2 years from date of execution of Agreement.  It is alleged that the same was not completed within aforesaid period.  It is alleged that vide letter dated 28.4.12, offer of possession was given whereby the area of the flat was malafidely enhanced by 154 sq.ft. in the already existing area of 1110 sq.ft. and OP also charged various other charges like EFFC+PB Charges, EDC, increase in basic value due to increase in area, club membership charges, interest free maintenance, security deposit, miscellaneous charges etc.  By the said letter, OP had demanded a sum of Rs.6,68,279.48 from complainant.
3. The complainant contacted the office of the OP and protested against the said demand.  However, the complainant was told either to deposit the amount or forget about the flat.  The complainant kept on pursuing with the OP that unreasonable demands have been raised but all in vain.  Finally complainant received a cancellation notice dated 15.1.13 in which it was clearly mentioned that either to pay a sum of Rs.11,40,000/- in one shot or they will cancel the flat.  It is stated that the market value of the unit has increased and due to said reason, OP wants to grab the unit illegally.  It is stated that the OP has no right to cancel the flat specially when it has increased the area of the flat without prior consent of the complainant.  It is alleged that OP is interested in grabbing the hard earned money of the complainant.  The complainant has made a prayer for refund of the amount of Rs.22,09,912/- along with interest @ 36% from the date of the booking.  Alternative prayer is made for registering the ownership of the documents of the flat in favour of the complainant.   Complainant has also made prayer for compensation of Rs.5 lacs and litigation cost of  Rs.25,000/-.
4. OP has opposed the complaint by filing written statement wherein it is admitted that complainant had booked a flat with OP by filling an advance registration form dated 20.2.06 and had initially deposited a cheque of Rs.3 lacs as token money for offer of provisional allotment.  Thereupon the OP had allotted flat No.H-02/0401 as per the Agreement between the parties.  It is denied that the OP ever assured the complainant that the possession of the flat was to be given within a period of 18 months as is alleged.  It is denied that the Agreement was signed under protest or forceful circumstances as has been alleged.  It is alleged that the complainant after being fully satisfied with the terms and conditions of Agreement had signed the same and the said ‘Agreement’ is binding between the parties.  It is stated that complainant never approached OP to discuss the statement of account which was sent vide letter dated 28.4.12.  It is stated that offer of possession dated 28.4.12 of the flat No.H2-0401 was issued to the complainant subject to clearance of outstanding amount.  However, the complainant did not respond to the said letter and had rather ignored the same.  It is stated that the demands raised vide letter dated 28.4.12 were as per Agreement between the parties.  After sending letter dated 28.4.12, several demand-cum-reminders were sent to complainant vide letters dated 23.5.12, 2.6.12, 2.7.12, 25.8.12, 22.11.12 & 11.12.12 respectively.  The complainant did not come forward to clear dues, left with no option, pre-cancellation notice dated 20.12.12 was issued to the complainant.  Despite that the complainant did not respond.  Finally OP vide cancellation letter dated 15.1.13 had cancelled the said allotment.  It is stated that the cancellation has resulted due to the failure on the part of the complainant in not fulfilling the demand.  It is stated that OP had the intention to give the possession of unit and it is the complainant who has not come forward.  It is stated that a frivolous complaint has been filed.  The same is liable to be dismissed.
5. The complainant has filed rejoinder refuting the allegations of OP and reiterated the averments made in the complaint. Both the parties have filed evidence in the form of affidavits. 
6. By way of evidence, the complainant has filed his own affidavit and has reiterated the contents of complaint case on oath.  Complainant has proved on record the receipts of payments i.e. Ex-CW1/A1-A14, Agreement i.e. Ex-CW1/B.  Complainant has exhibited offer letter dated 28.4.12 along with final statement of account as Ex-CW1/C1-C3; cancellation notice dated 15.1.13 i.e. Ex-CW1/D is also on record.  Complainant has reiterated on oath that he has already paid Rs.22,09.912/-, out of Rs.22,58,850/- as offered by OP at the time of booking of the flat. 
7. OP has filed evidence by way of affidavit of Shri Paras Arora, its authorised signatory.  The said witness has reproduced the contents of written statement on oath and has exhibited Board resolution as Ex-RW-1/1, Advance Registration Form as Ex-RW-1/2, copy of Agreement as Ex-RW-1/3, copy of offer of possession letter dated 28.4.12 is exhibited as Ex-RW-1/4, demand-cum-reminder letter sent to complainant are exhibited a Ex-RW-1/5, copy of pre-cancellation letter dated 20.12.12 and cancellation letter is exhibited as Ex-1/6 (Colly).
8. We have heard the Counsel for the parties and perused the material on record.
9. It is admitted position that the complainant had booked residential flat with OP vide Advance Registration Form dated 20.2.06, Ex-RW-1/2 and paid Rs.3 lacs vide cheque No. 076450 dated 18.2.06.  Thereafter he had paid further payment of Rs.2,50,000/- on 7.9.06 and Rs.1,83,071/- on 16.4.07.  It is also admitted position that thereafter an Agreement, Ex-CW1/B was entered into between the parties whereby OP has agreed to purchase 2 BHK apartment No.0401, 4^th Floor, Tower H, Super Area 1110 sq. ft. 
10. It is also admitted position that the agreed price of the flat was Rs.22,58,850/- and till 19.3.12, the complainant had deposited a total sum of Rs.22,09,912/-.  As per clause 6.1 of the ‘Agreement’, Ex-CW1/B the construction was to be completed within a period of two years from the date of execution of the Agreement.  The aforesaid clause is reproduced as under:

                       “6.1         Schedule for possession of said Apartment

 

                                      That, the Company based on its present plans and estimates and subject to force majeure and all just exceptions, contemplates to complete construction of the said Building/said Apartment within a period of two years from the date of execution of this Agreement unless there shall be delay or there shall be failure due to reasons mentioned in this Agreement or due to failure of Apartment Allottee(s) to pay in time the price of the said Apartment along with other charges and dues in accordance with the schedule of payments given in Annexure II or as per the demands raised by the Company from time to time or any failure on the part of the Apartment Allottee(s) to abide by all or any of the terms or conditions of this Agreement.”

 

11. Reading the above clause, subject to force majeure OP had contemplated to complete construction of apartment within a period of 2 years from the date of execution of Agreement i.e. by 12.6.09.  As per aforesaid clause, there can also be delay/failure due to reasons mentioned in the Agreement.  No reasoning is given by OP as to why the construction was not completed within aforesaid period.  The delay is of 2 years and 10 months.  There is no default in making payment on the part of complainant till 28.4.12.  It is also not disputed that vide letter dated 28.4.12, Ex-C1/C1-3, OP had raised a demand of Rs.6,68,279.48 upon the complainant for alleged increase in super area as well as towards external development charges and other charges as are stated above. 
12. As per clause 1.2 of the Agreement, Ex-CW1/B, the total price of the flat is subject to increase in the super area or apartment area and external development charges, increase on account of fire safety measures, increase in all types of security etc.  The relevant clause is reproduced as under:

“1.2   That the total prices are escalation-free, save and except increases which the Apartment Allottee hereby agrees to pay, due to increase in super area, increase in external development charges increases on account of additional fire safety measures undertaken increases in all types of securities to be paid by the Apartment Allottee, deposits and charges and all other increases in cost/charges, specifically provided for in this Agreement.”

 

13. As per stand of OP, additional demand was raised as per Agreement between the parties.  On the other hand, complainant has alleged that to raise the illegal demands, the size of unit has been malafidely increased. We find force in the stand of complainant. The demand towards increase in size is substantial i.e. Rs.3,33,273.97.  No document is placed on record by OP to prove its stand that there is a increase in size by 154 sq.ft. in the unit offered to complainant.  The burden was on the OP to prove the same.  However, OP has failed to discharge the burden. The maintenance charges for alleged increase in size are also added in demand letter, Ex-CW1/C1-C3. Even external development charges have been calculated on the alleged increase size despite the fact that no material for increase in size has been placed on record.  By the aforesaid demand letter i.e. Ex-CW1/C1-C3, more than 25% of the agreed price is demanded from the complainant.  Since the same was not paid, the same has been raised to Rs.11,40,000/- i.e. more than 50% of the agreed price by adding interest thereon.  Fulfilment of additional demand is a pre condition for taking the possession.
14. As noted above, OP has not given any reasoning for the delay in completion of the project.  There is no clause in the Agreement, Ex-CW1/B for payment of compensation to the complainant for delayed possession.  The Agreement is worded in favour of the OP.  If the delay in payment exceeds 10 days, the consumer has to pay interest @ 24% per annum.  Though the OP has sent the cancellation notice dated 15.1.13, the entire amount deposited by the complainant had remained with OP.  There is no whisper of refund of any amount in the cancellation notice.  The entire amount of Rs.22,09,912/- as on today is with OP.  It is also not the stand of OP that when offer of possession was made along with additional demand, OP was having occupancy certificate/completion certificate.  In the facts and circumstances of the case, we find that OP has adopted unfair trade practice. Further the Agreement was got signed for complainant after having received payment of Rs.7,33,071/- from complainant.  In these circumstances, the contention of complainant that he had signed the Agreement under protest cannot be brushed aside lightly. 

15.         During the course of arguments, the OP has offered to reduce some of the demands, however, complainant has stated that due to bad financial condition, he is unable to pay any further amount and has prayed for refund of the deposited with interest @ 36% from date of booking till payment.                    

16.         In view of above discussion, we are of the view that the unit has been cancelled by the OP by adopting unfair trade practice to avail the benefit of forfeiture of earnest money.  The complainant is also not interested in possession of the unit as much time has elapsed now.  As noted above, there is also delay in the construction of project which has not been explained in any manner.  In these circumstances, complainant cannot be compelled to take possession. The complainant has also submitted that he is financially not sound to meet further demand.  We, therefore, direct the OP to refund the amount deposited by complainant along with compensation in the form of simple interest @ 10% on the aforesaid amount w.e.f. date of each deposit up till the date on which the said amount is paid in full along with compensation ordered above.  There is no order as to costs.

17.         Complaint stand disposed of accordingly.

18.         A copy of this order as per the statutory requirement be forwarded to the parties free of charge. Thereafter the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member