DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,GURGAON-122001.
Consumer Complaint No: 748 of 2009 Date of Institution: 07.09.2009 Date of Decision: 01.12.2015.
Gunvaneet Kaur w/o Late Maninder Singh, R/o 312, Sector 35-A, Chandigarh.
……Complainant.
Versus
Vatika Greenfield Projects Private Ltd, Vatika Triangle, Sushant Lok Phase-I, Block-A, Mehrauli Gurgaon Road, Gurgaon-122002.
..Opposite party
Complaint under Sections 12 & 14 of Consumer Protection Act,1986
BEFORE: SH.SUBHASH GOYAL, PRESIDENT.
SMT JYOTI SIWACH, MEMBER
SH.SURENDER SINGH BALYAN, MEMBER.
Present: Sh. D.D.Sharma Adv for the complainant.
Sh. Mannu Jain, Adv for the opposite party
ORDER SUBHASH GOYAL, PRESIDENT.
The case of the complainant, in brief, is that she booked an apartment No.B-1 Tower IRIS 3 B/R, Ground Floor with super area 2422.58 with the opposite party . The tentative cost of the said flat was at the rate of Rs.1290/- per sq. ft. Thus, the complete cost of the ready flat was about Rs.36,21,257.20 including the 2 Basement Parking, Club Membership, PLC and BMS @ Rs.50/- per sq. ft. The delivery of the said flat was stipulated to be given by 30.11.2005. However, the complainant was called for inspection of the flat on 03.12.2007 which as per the opposite party was ready for possession. The complainant paid the dues from time to time and complainant has paid a sum of Rs.35,65,000/- plus Rs.87,488 (demanded as IDC). The opposite party arbitrarily and unilaterally without any rationable/agreement or any discussion increased the cost of the said apartment to Rs.49,78,550.60. On 03.12.2007 when the complainant visited the flat but she found various shortcomings in the same. On 14.03.2008 the opposite party demanded Rs.68050.27 on account of infrastructural development charge. However, she paid the said amount. Thereafter they also demanded Rs.87,488.83 calculating the super area as 3114.50 not stipulated in the agreement. She also got served a legal notice upon the opposite party but of no use. The complainant prayed that the opposite party be directed not to charge extra money of Rs.13.5 Lacs over and above the agreed amount and to direct them to deliver the possession of the flat immediately after removing the shortcomings. She also claimed rent of Rs.12.5 Lacs and Rs.1 Lac as compensation and Rs.50,000/- as cost of litigation. The complaint is supported with an affidavit and the documents placed on file.
2 OP in its written reply has alleged that increase in the cost of the apartment occurred due to increase in the super area of the apartment in question from 2422.58 sq.ft to 3114.59 sq. ft i.e. by 692.01 sq. The demand of Rs. 16,77,322/-was made by the opposite party which consist of Rs.8,92,693/- due to increase in area by 692.01 sq. ft, Rs.34,600/- as security deposit due to increase in the super area, Rs.30,000/- on account of gas and electricity connections, Rs.4,00,000/- as cost of private lawn attached with the apartment, and Rs.3,20,029/- outstanding dues in terms of original allotment letter. Thus, a sum of Rs.16,77,322/- has been demanded from the complainant in terms of clause 9 of the agreement dated 21.02.2004. However, out of Rs.16,77,322/- , the complainant has paid only Rs.2,50,000/- and as such balance of Rs.14,27,322/- is still payable by her along with penal interest as per the agreement. The complainant has failed to pay the said amount in spite of repeated reminders from the OP. As per terms of the agreement dated 21.02.2004 the complainant could have claimed possession of the apartment in question only after payment of the entire dues at the time of registration of the conveyance deed but she instead of making the payment of balance sale consideration with applicable interest and charges for registration charges, she chose to inspect the apartment in question and to find faults and to raise frivolous objections with regard to minor works therein. On sympathetic ground the opposite party transferred 50 % share of her deceased husband in the name of the complainant in the year 2008 without the intervention of the court. The construction of the apartment in question was to be completed within three years as per clause 10.1 of the Apartment Buyer’s Agreement dated 21.02.2004 subject to other terms and conditions of the said agreement. The complainant was asked to clear the dues vide letter dated 12.10.2007 and she was requested to deposit the entire amount on or before 29.10.2007 but she failed to clear her dues and thus, there was no deficiency in service on the part of the opposite party.
3 We have heard the learned counsel for the parties 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 besides written arguments of complainant, it emerges that the complainant has filed the present complaint against the OP alleging deficiency in service on their part on the ground that she booked Apartment No.B-1 Tower IRIS 3/B/R Ground Floor with super area 2422.58 with the opposite party and the tentative cost of said flat was at the rate of Rs.1290/- per sq.ft including 2 Basement Parking, Club Membership, PLC and BMS @ Rs.50/- per sq. ft and the delivery of the said flat was to be given by 30.11.2005. However, opposite party called the complainant on 03.12.2007 to take the possession. The complainant has alleged that the opposite party has issued letter dated 12.10.2007 by which the cost of the said flat was increased to Rs.49,78,550.60 and when the complainant visited the said flat on 03.12.2007 for inspection then she pointed out shortcomings to the opposite party and the complainant was willing to take the possession of the flat only after removal of said shortcomings. The complainant has also alleged that the opposite party has demanded a sum of Rs.87,488..83 on account of IDC charges and as such there was deficiency in service on the part of the opposite party.
5 However, the contention of the opposite party is that basic sale price of the apartment has been increased due to increase in area by 692.01 sq.ft which amounts to Rs.8,92,693/-, Rs.34,600/- has been demanded on account of security deposit due to increase in area, Rs.4,00,000/- on account of gas and electricity connection, Rs.3,20,029/- on account of outstanding dues. Thus, a total sum of Rs.16,77,322/- has been demanded from the complainant in terms of clause 9 of the agreement dated 21.02.2004 executed between the parties and the escalation of price is only on account of increase in super area and the said charges are forming part of the agreement. It was also pointed out that out of the demand of Rs.16,77,322/- the complainant has paid only Rs.2,50,000/- and as such a sum of Rs.14,27,322/- is still payable by her along with penal interest as per the agreement. It was also contended that the complainant instead of making the payment in terms of agreement dated 21.02.2004 towards balance amount as well conveyance and registration charges has raised frivolous objections while pointing out alleged shortcomings without any basis. It was also contended that after the death of her husband the OP took sympathetic view and without any order of succession 50 % share of her husband was transferred in the name of the complainant in the year 2008. She has not paid the entire outstanding dues and has filed the present complaint only to harass the opposite party. The opposite party has denied that the complainant was called for inspection on 03.12.2007 and has also denied that the flat was to be delivered on 30.11.2005. The complainant was liable to deposit the entire amount on or before 29.10.2007 but the same has not been paid by her till date and as such the complainant was under an obligation to pay a sum of Rs.14,27,322/- along with interest and penalty besides charges for sale deed.
6 Therefore, after going through the evidence and circumstances of the case it emerges that the cost of the apartment has been increased due to increase in super area of the apartment from 2422.58 sq.ft to 3114.59 sq.ft i.e. by 692.01 sq.ft and the opposite party has demanded the charges on account of increase in super area by 692.01 sq. ft as per clause 9.2 of the Apartment Buyer’s Agreement dated 21.02.2004 which reads as under:-
“In case of any major alteration/modification resulting in excess of + 5% change in the super area of the said Apartment or material/substantial change, in the sole opinion of and as determined by the Company, in the specifications of the materials to be used in the said Building/said Apartment any time prior to and upon the grant of occupation certificate, the company shall intimate the Apartment Allottee in writing the changes thereof and the resultant change, if any, in the price of said Apartment to be paid by him/her and the Apartment Allottee agreed to deliver to the Company his/her written consent or objections to the changes within thirty (30) days from the date of dispatch by the Company of such notice failing which the Apartment Allottee shall be deemed to have given his/her full and unconditional consent to all such alterations/modifications and for payments, if any to be paid in consequence thereof. If the written notice of Apartment Allottee is received by the Company within thirty (30) days of intimation in writing by the Company indicating his/her non-consent/objections to such alternations/modifications as intimated by the Company to the Apartment Allottee, then, in such case alone the company may at its sole option and discretion decide to cancel this Agreement without further notice and in such event the Company shall refund the entire money received from the Apartment Allottee excluding interests on delayed payments and non-refundable deposits with simple interest @ 6 % per annum within ninety (90) days from the date of intimation received by the Company from the Apartment Allottee and upon dispatch of such refund by registered post, the Company shall be released and discharged from all its obligations and liabilities under this Agreement and the Apartment Allottee agrees and authorizes the Company to resell or deal with the said Apartment and parking space thereafter in any manner whatsoever at the Company’s sole discretion.”
Therefore, in view of terms and conditions of 9.2 of the Apartment Buyer’s Agreement the area of the apartment was liable to be increased or decreased to the extent of + 5% and it was for the competent authorities to grant occupation certificates or not if the said increase or decrease was not permissible. In the instant case the competent authority has given occupation certificate and as such the increase/decrease made by the opposite party shall tantamounts to valid modification in terms of clause 9.2 of the Apartment Buyer’s Agreement and as such the demand raised by the OP on account of increase of the super area was valid and legal. However, no objection whatsoever was made by the complainant prior to issuance of letter dated 12.10.2007 which was issued during the life time of Maninder Singh, husband of complainant and after the death of the husband of the complainant 50 % share of Maninder Singh was transferred in the name of complainant in the year 2008 and thereafter instead of making the payment as demanded by the opposite party vide letter dated 12.10.2007 the complainant has filed the present complaint after approximately after two years on 31.08.2009.
7 It is pertinent to mention here that the complainant had deposited only a sum of Rs.2,50,000/-on 06.04.2009 and the balance amount of Rs.14,27,322/- was still due during the pendency of the complaint and as such the possession of the flat could not be delivered because the complainant was under an obligation to clear all dues in order to take possession of the apartment in question and the complainant paid a sum of Rs.66,654/- on 28.12.2010 vide receipt (Ann R-2)and Rs.13,76,038/- on 29.12.2010 vide receipt (Ann R-3)and after clearing all the dues the possession of the flat was delivered within 7 days i.e. on 07.01.2011 as is evident from copy of possession letter (Ann R-4).
8 No doubt, the construction was to be completed within 3 years in terms of clause 10.1 of the Apartment Buyer’s Agreement dated 21.02.2004 and the possession was to be handed over after clearing all the dues and the complainant was asked to clear all the outstanding dues vide letter dated 12.10.2007 i.e. approximately two years prior to the filing of the present complaint. Therefore, the argument on behalf of the complainant that there was delay in delivering the possession is totally whimsical and contrary to the factual position rather the complainant herself was at fault in not clearing all the dues in order to take the possession of the flat in question by complying the letter dated 12.10.2007. Therefore, the argument in not delivering the possession in time is totally unwarranted and unsustainable in the eye of law because it was the complainant herself who was under obligation to clear all the dues and as such the complainant is not entitled to claim any amount on account of delayed delivery of possession in terms of clause 10.1 of the agreement. Since the complainant himself was at fault in not making the payment in terms of the agreement and when she deposited the payment then possession was delivered within 7 days and as such the provisions of clause 10.1 of the Flat Buyer’s Agreement cannot be said to have been attracted and as such the complainant is not liable to get any payment on account of delay in delivery of the possession because the complainant herself was at fault.
9 The complainant has also claimed loss of rent but since as observed above the complainant herself was negligent in not making the payment and as such she is not entitled to any compensation on account of any kind of rent. The complainant has also challenged charging of IDC and EDC but the said charges are statutory charges and as such are beyond the scope of Consumer Foras.
10 Challenge to the claim of Car Parking is also devoid of merit because as per the Apartment Buyer’s Agreement the complainant had agreed to pay Rs.1,50,000/-Lacs on account of Car Parking and Rs.2,50,000/- as Club Membership and had further agreed to pay Rs.50,000/- on account of Preferential Location Charges and the present apartment is situated on Ground Floor and as such the Preferential Location Charge has rightly been charged from the complainant.
11 In view of our above discussion, we hold that there is no deficiency in service on the part of the opposite party and the complaint is devoid of merit and as such it is dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the records after due compliance.
Announced (Subhash Goyal)
01.12.2015 President,
District Consumer Disputes
Redressal Forum, Gurgaon
(Jyoti Siwach) (Surender Singh Balyan)
Member Member
