Delhi

East Delhi

CC/597/2015

S.C NIRWANI - Complainant(s)

Versus

ULTRA HOME - Opp.Party(s)

18 Dec 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (EAST)

GOVT OF NCT OF DELHI

CONVIENIENT SHOPPING CENTRE, SAINI ENCLAVE: DELHI-92

 

CC. NO-597/15

In the matter of:

•  

Karta, S.C.Nirwani & Sons (HUF)

22, Mausam Vihar, Delhi-110051

         Complainant

Vs

M/S Ultra Home Construction Pvt. Ltd.

Through Its Directors

Regd. Office at: 307, Nipun Towers

Karkardooma Conunity Cenbtre,

•  

                                                                                                                      Opposite Party

 

                                                                                        DATE OF ADMISSION-17/08/2015

                                                                                    DATE OF ORDER       -22/01/2015

ORDER

SH. N.A.ZAIDI, PRESIDENT

This complaint has been filed with the allegation that the Respondent announced their project at IT Park Greater NOIDA and promised to deliver the possession in two years and offered compensation for delay @  15.11%  p.a. i.e. Rs.35.70 per Sq ft. per month w.e.f. from 01/10/2009. Complainant deposited Rs.14,17,500/- on 24/10/2007 for unit of 500 sq ft. The Respondent also promised to buy back the unit @ Rs.3,500/- per sq ft, in case they failed to complete the project. The Respondent made a payment w.e.f. 01/10/2009 @ Rs.17,850/-. He wrote a letter to the Respondent on 30/08/2015 & 15/09/2014 seeking information about the completion of the project. The construction has not commenced even after 93 months. Complainant has lost faith in the Respondent. The Respondent was asked to buy back under clause 14 of the MOU and pay a sum of Rs.17,50,000/-. The Respondent vide their letter dated 29/07/2015 raised the demand of Rs.2,07,500/- without information of completion of the project. The Complainant has prayed for the refund of the amount of Rs.17,50,000/- with 24% interest thereon and Rs.1,00,000/- as compensation.

            Respondent in their reply have taken the plea that the present case is related to space having 500 sq ft booked by the Complainant which has increased to 550 sq ft at the time of allotment. This was done with investment purposes and there was no date of completion of the project. The structural work of the project has been completed. He was intimated on 29/07/2015 for taking the allotment of the said unit. Territorial Jurisdiction has also been raised. The dispute is in civil nature and only of Civil Court has Jurisdiction to adjudicate it. The Complainant invested the amount for commercial purpose as such the Complainant is not a Consumer as defined under Section 2 (d) of the Consumer Protection Act. Rest of the allegations have been denied. The cheques which have been paid regularly in terms of the MOU some of them were have been bounced but the amount was always delivered to the complainant. It was agreed between the parties that the first lease deed of the allotted unit shall be got executed within 3 years at Minimum Rs.35 per sq ft from the date of the possession and the Respondent shall continue to pay the amount till the lease is given.

            Both the parties have filed their respective Affidavits and Evidence.

            Heard and perused the record.

            This is admitted case between the parties that the Complainant booked the space in the project of the Respondent of 500 sq ft. The amount paid was Rs.14,17,500/- which is also not in dispute. The first question which has been raised by the Respondent is that this Forum has no territorial Jurisdiction to decide this complaint as the project in question is located in Greater NOIDA. The Counsel for the Complainant submitted that the office of the complainant is located in Nipun Tower Karkardooma, Delhi within the Jurisdiction of this Forum. Memorandum of understanding was also signed by the Complainant in Delhi in their registered office. The entire communication with the complainant has taken place at Delhi. The allotment letter which has given this cause of action is dated 29/07/2015 was also served upon the Complainant at Mausam Vihar within Jurisdiction of this Forum. This is admitted by the respondent that the allotment letter was sent to the Complainant. In these circumstances when there was no intimation from 2009 to 2015 regarding the progress made in the project, the sudden increase of the area in the allotment space of 50 sq ft without consent of the Complainant and asking for the additional cost through letter dated 29/07/2015 gives cause of action to the complainant which has arisen well within the territorial jurisdiction of this Forum, since the cause of action has arisen within the territorial jurisdiction of this Forum. This Forum has jurisdiction to entertain and decide this complaint. The second question which has been raised by the Respondent is with regard to the applicability of the act and bar of Section 2 (d) of the Consumer Protection Act on the ground that the space in question was purchase by the Complainant for the commercial purposes and there is no averments in the complaint that is was purchased for the self employment or self use. It has been contended by the Ld. Counsel for the Complainant the MOU has not been denied by the Respondent. The terms and conditions of the MOU are binding between the parties. There is not a single averments in the MOU that the space in question was ever agreed to be sold to the Complainant for the commercial purposes or Complainant ever disclosed that he will use this space for any commercial activity. The entire MOU is silent, that it was a shop or a space for any commercial activity. It could be said by the Respondent that the Complainant has booked his space for carrying out Commercial activity one of the signatory of the MOU Mr. Sanjeev Nirwani is a leading practitioner of Delhi. There is nothing on record that he has other office space available with him it may be that he wishes to establish his chamber in the purchased space which has been jointly acquired by depositing the full amount of this space with the Respondent. Secondly this has been argued by the Counsel for the Complainant that the tenure of the MOU put it out of the financial services to be rendered by the Respondent as there is specific clause added in the form of clause No.5 that the first party has assured the second party to get the first lease done for three years period minimum @ Rs. 35/ sq ft from the date of possession. The first party shall continue paying 35.70 per sq ft per month till the lease is given for the unit and this return would be given for a maximum period of three years more after possession. Clause 6 also relevant which talks about the rent and sharing of the rent. This rules out the commerciality in the booking bill and point out towards the financial agreement, in so far as income generated from the space concerned. In these circumstances the argument advance and the law relied are not applicable to the facts and circumstances of this case. The Complainant is a Consumer within the ambit of Consumer Protection Act and this complainant is legally maintainable. The Respondent has raised the plea that the Complainant has not fulfilled his obligation by not paying the demanded amount as such the question of delivery of possession does not arise. The Respondent has relied upon the Prakash Shah Vs Ghaziabad Authority (2000) 4 SCC 120 where in Hon’ble Apex Court has said that the Authority in the absence of the agreed amount is not bound to deliver the possession and the Complainant having failed to perform his part of the agreement, the Complainant cannot be permitted to urge that he was not liable to pay the interest etc. The law relied upon by the Respondent is not applicable on the facts and circumstances of this case. Para 1 of the MOU is very clear about the facts, the total consideration of 500 sq ft space was Rs.14,17,500/- and this is admitted in this MOU that total amount of Rs.14,17,500/- was paid by the Complainant before signing the MOU. If the Respondent unilaterally increased the area regarding which there is no consent of the Complainant. The same cannot be covered by the MOU not Complainant can be forced to buy the excess area. There is nothing on record that the Complainant has ever been informed regarding the fact of this additional 50 sq ft. area nor there is any fresh MOU executed between the parties. In these circumstances the demand raised by the Respondent through letter dated 29/07/2015 and the allotment is directly contrary to the agreement arrived at between the parties. In these circumstances there is no default at the end of the Complainant, no question of imposing of any interest on the balance amount arises. As per the MOU the Respondent has bound himself in case of the non completion of the project to buy back the said unit at the rate of Rs.35,00/- sq ft which include the penalty and compensation. The Complainant has booked the space of 500 sq ft @ Rs.3500/- Total value cost of Rs. 14,17,500/-. The Complainant has deposit this amount in 2007. Although there is no time limit set in the MOU for the construction and delivery of the possession. The allotment letter dated 29/07/2015, is not disclosing that the project has been completed.

 In Para 18 of the written statement, the Respondent has mentioned that the structural work of the project is completed and only internal work is on the verge of completion. Even on the date of receiving this letter the project was not completed. In these circumstances the Complainant is within his right to get back the money as per the MOU. There is definitely deficiency on the part of the Respondent in the construction of the project and causing unilaterally variation in the terms and condition of the MOU. We allow this complaint, the Respondent is directed to refund to the complainant the amount of Rs.17,50,000/- together with 9% interest thereon from the date of filing this complaint till it is finally paid. We further award the compensation of Rs.50,000/- on account of harassment and mental pain and agony which also include the cost of litigation. The amount return has been paid by the Respondent to the Complainant between this period shall be adjusted while making the payment of Rs.17,50,000/- plus interest.

The copy of the order be sent to the parties as per rules.

 

 

(DR.P.N.TIWARI)                        (POONAM MALHOTRA)                                (N.A.ZAIDI)

         MEMBER                                          MEMBER                                        PRESIDENT