DISTRICT   CONSUMER   DISPUTES   REDRESSAL FORUM, GURGAON-122001

                                                                                                                Consumer Complaint No: 954 of 2010                                                                                                                                                        Date of Institution: 21.12.2010                                                                                                                                                                  Date of Decision: 01.02.2016.

Neeraj Aggarwal, A-202 First Floor, Blossoms-I, Opp. Mayfield Garden, Sector 47, Gurgaon.

                                                                                        ……Complainant.

                                                Versus

Today Homes and Infrastructure Pvt. Ltd, 8th Floor, Statesman House, Barakhamba Road, New  Delhi through its Managing Director G.K.Gambhir.

                                                                              ..Opposite party

Complaint under Sections 12 & 14 of Consumer Protection Act,1986                                                                 

BEFORE:     SHRI SUBHASH GOYAL, PRESIDENT

SMT JYOTI SIWACH, MEMBER

                   SH.SURENDER SINGH BALYAN, MEMBER.

Present:        Shri Neeraj Aggarwal, complainant in person.

                    Shri Mannu Jain, Adv for the opposite party

ORDER       SUBHASH GOYAL, PRESIDENT.

The case of the complainant, in brief, is that Satish Kumar Setia, predecessor-in-interest of the complainant entered into an agreement to sell a residential unit with the OP on 20.11.2006 and thereafter the complainant got the said booking transferred on 19.09.2007 in his favour.  Therefore, in view of the endorsement dated 19.09.2007 of the agreement to sell the complainant has stepped into the shoes of original allottee Satish Kumar Setia regarding rights and liabilities over the said unit and as such complainant has become consumer of the opposite party.

2                 The complainant further alleged that opposite party has wrongly and illegally charged Rs.60,000/- as Preferential Location Charges (PLC) for corner non-park facing floor flat whereas per clause 3 of the agreement this PLC should have been Rs.50,000/- and thus, has charged excess amount of Rs.10,000/-. The complainant has also alleged that he is entitled to compensation @ Rs.5/- per sq. ft per month i.e. Rs.1,66,500/- for a delayed period of 18 months from 20.05.2008 to 20.11.2009. The complainant has also alleged that he is entitled to interest on the amount of Rs.10,80,000/- on his investment for 18 month’s delay. He is also entitled to Rs.2,70,000/- towards rent . He is also entitled to compensation of Rs.50,000/- towards non-construction of parking space and Rs.4, 00,000/- as cost of getting the fittings and fixtures replaced. He requested the opposite parties to make the above payments but of no use. Then he served a legal notice upon the opposite party dated 02.03.2010 but of no avail and thus, the opposite party is deficient in providing services to the complainant. On the aforesaid allegations the complainant has filed the present complaint.

3                 In support of his complaint the complainant has filed his affidavit, agreement to sell dated 20.11.2006 (Ann A), specifications (Ann-B),  copy of endorsement of transfer dated 19.09.2007 and correspondence made between the parties  besides producing  8 photographs and copy of legal notice.

4                 OP in its written reply has alleged that this Forum has got no jurisdiction to adjudicate upon the matter. There was no intentional delay in completion of construction work. The delay in construction was on the part of contractor due to strike of its labour and its internal financial problems and the contractor could not complete the construction work by April, 2008 and thus, the delay in completion of construction work was beyond the control of the OP and as per clause 20 of the agreement the opposite party was not liable to pay any amount to the complainant. The complainant has taken the possession of the flat on 21.11.2009 and at the time of taking the possession of the unit he has stated that he has taken the possession of the unit in satisfactory condition and is satisfied with the quality or material and construction. He has also given an undertaking that he will neither claim or require any change or modification against the OP-company in respect of any item, workmanship, work, facility whatsoever. The complainant has also failed to pay even a single penny towards maintenance charges. The OP has waived the maintenance charges of the complainant in order to compensate the delay in delivery of possession of the unit although the delay was beyond the control of the opposite party. The complainant himself alleged that he sent a letter to the opposite party on 11.08.2009 and received the offer of possession letter dated 08.09.2009.  It was denied that there was seepage at several parts and water was dripping out of almost all taps or that electric wires had been kept loose in the stair case posing a risk to life and limb as alleged. The opposite parties have denied  all the allegations of the complainant. There was no deficiency in service on the part of the opposite party and as such the present complaint is liable to be dismissed.

3                 We have heard the complainant and the earned counsel for the opposite party and have perused the record available on file carefully.

4                 Therefore, from the facts and circumstances of the case, evidence on the file and the arguments advanced by the learned counsel for the parties, it emerges that the complainant has filed the present complaint against the OPs alleging deficiency in service on their part on the ground that the complainant has stepped into the shoes of original allottee Sh. Satish Kumar Setia who has entered into an agreement to sell with the OP on 20.11.2006 (Ann-A). He has also challenged Preferential Location Charges (PLC). The complainant has contended that he is entitled to penalty @ Rs.5/- per sq. ft per month for delayed period of 18 months in delivering the possession. He is also entitled to interest on the amounts deposited by him @ 15 %. He also claimed rental charges of Rs.2,70,000/-besides claiming Rs.50,000/- for non construction of parking space and Rs. 4 Lacs as cost for getting the fittings and fixtures replaced. Thus, the services provided to the complainant were deficient.

5                 As per the contention of the opposite party there was no deficiency in service on part of the opposite party. The delay in construction was caused by the contractor due to strike of labour and its internal financial problems and thus, as per clause 20 of the agreement the opposite party was not liable to pay any amount to the complainant. The possession of the flat was taken by the complainant on 21.11.2009 in absolutely perfect and satisfactory condition. The OP has denied that there was seepage at several places and waster was dripping out of almost all taps or that electric wires  had been kept loose in the stair case posing a risk to life and limb as alleged. The fittings and fixtures used in the flat were not of sub-standard quality. The complainant was not entitled to rental charges of Rs.2,70,000/-. He was also not entitled to interest on the amounts deposited by him. The opposite party has also denied that complainant was entitled to Rs.50,000/- towards non construction of parking space. Thus, the complainant was not entitled to any relief against the opposite party and as such the present complaint is liable to be dismissed.

6                 Therefore, after going through the facts and circumstances of the case and the evidence placed on file it emerges that previous allottee of complainant i.e. Satish Kumar Setia has entered into an agreement to sell dated 20.11.2006 with the OP  and thus, the complainant  stepped into the shoes of original allottee Satish Kumar Setia and thus, the complainant was governed by the terms and conditions of agreement to sell which was executed by predecessor-in-interest with the OP. The complainant has challenged charging of Preferential Location Charges (PLC) more than the amounts stipulated in the agreement to sell. However, after going through the payment plan which is part of agreement to sell it emerges that Preferential Location  Charges have been mentioned as Rs.60,000/- and in clause No.3 of the Agreement to Sell a sum of Rs.60,000/-has been mentioned. Therefore, there is no deficiency in service on account of charging of PLC.

7                 The complainant has alleged that there was delay of 18 months in delivering the possession and thus, he is entitled to compensation @ Rs.5/- per sq. ft. per month. A perusal of the clause 19 reveals that

“ if the Company (OP) fails to complete the construction of the said unit within the stipulated period as aforesaid i.e. 18 months then the company shall pay to the Allottee compensation @ Rs.5/- per sq. ft per month for the period of such delay after expiry of initial period of three months from the stipulated date for delivery of possession.”

The complainant has placed on record copy of letter regarding  offer of possession and final demand notice  dated 08.09.2009 (Ann Z) in which the opposite party has specifically mentioned that:

“Aforesaid unit is in pre-final stage and shall be ready for the possession within two months from the date of issuing this letter.”

Thus, it is clear that the unit was not ready up to 08.11.2009 for possession. Admittedly, the possession was delivered on 21.11.2009 which was to be delivered within a period of 18 months as per clause 10 of the agreement and thus, there was delay of 18 months in delivering the possession of the unit and after excluding three months as per clause 19 of the agreement, the delayed period comes to 15 months and as such the complainant is entitled to compensation @ Rs.5/- per sq. ft. per month. Argument on behalf of the opposite party that the delay in construction was caused by the contractor on account of strike of labour and its internal financial problem is not sustainable in the eye of law. Thus, the above said ground of the opposite party is not sufficient to attract clause 20 of the agreement.

8                 There is no cogent evidence on the file in order to come to the conclusion that the construction was defective. The complainant is also not entitled to rental charges as well as interest on the deposits made by him as for the delay he has been compensated in terms of clause no.19 of the agreement.

9                 Therefore, in view of our above observation we direct the opposite party to pay penalty @ Rs.5/- per sq. ft per month for 15 months with interest @ 9 % p.a. from the date of filing of the present complaint i.e. 21.12.2010 till realization. The complainant is also entitled to compensation for harassment and mental agony Rs.10,000/-. The opposite party shall make the compliance of the order within 30 days from the date of receipt of the copy of the order. The parties be communicated of the order accordingly and the file be consigned to the records after due compliance.

Announced                                                                                                                 (Subhash Goyal)

01.02.2016                                                                                                                     President,

                                                                                                                     District Consumer Disputes

                                                                                                                       Redressal Forum, Gurgaon

(Jyoti Siwach)        (Surender Singh Balyan)

Member                 Member