Haryana

StateCommission

CC/504/2018

RAJNI SAINI - Complainant(s)

Versus

VATIKA LTD. - Opp.Party(s)

ANUJ GARG

09 Jan 2024

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

HARYANA PANCHKULA

                  

  Date of Institution:03.08.2018

                Date of final hearing:09.01.2024

                                                Date of pronouncement:12.01.2024

 

Consumer Complaint No.504 of 2018

 

IN THE MATTER OF

 

Rajni Saini W/o Shri Tek Chand Saini, R/o House No.12, Sultanpur, P.O. Kakru, District Ambala, Haryana.

                                                                                       .….Complainant.

Through counsel Mr. S.R. Bansal, Advocate

Versus

 

Vatika Ltd., Vatika Triangle, 4^th Floor, Sushank Lok, Phae-1, Block-A, Mehrauli-Gurgaon Road, Gurgaon, Haryana.

….Opposite party.

Through counsel Ms. Vartika G. Singh, Advocate

 

CORAM:   S.C. Kaushik, Member.

 

Present:-    Mr. S.R. Bansal, counsel for the complainant.

Ms. Vartika H. Singh, counsel for opposite party.

 

O R D E R

S.C. KAUSHIK, MEMBER:

 

                    The brief facts giving rise for the disposal of the present complaint are that in the year, 2011, complainant booked one residential plot measuring 500 sq. yards bearing No.PK/PKW/24 in residential project of opposite party (“OP”) under the name & style of “Vatika City Central” situated at Ambala (Haryana). Said plot was originally purchased by one Shri Sameer Mathur R/o Ambala City and agreement dated 01.07.2011 was also executed and total sale consideration of the plot was Rs.39,16,000/-. OP transferred the plot in the name of complainant and issued welcome letter dated 04.08.2011 by acknowledging that the OP had received Rs.10,28,500/- till 04.08.2011. It is alleged that as per the terms and conditions of the agreement, the OP was entitled for payments as per the stage of construction of the project, but OP did not follow the same and never informed the complainant about the stage of construction of project. Complainant paid an amount of Rs.27,39,499/- in total to the OP on different dates. It is further alleged that OP vide reallotment letter dated 25.01.2013 changed the plot without consent of complainant. It is further alleged that complainant also visited the OP for possession of originally allotted plot to her and also visited the actual location of project, but she found that the project was not developed for living of the allottees because the roads, sewerage and water lines are not constructed. Thereafter, complainant received a notice dated 16.05.2018 for termination of the allotment according to which she had to deposit an amount of Rs.28,55,963/- within 7 days failing which OP will terminate the plot buyer agreement, which is illegal and amounts to deficiency in service on the part of OP. Upon this, complainant sent one legal notice-cum-reply dated 19.06.2018 to the OP stating that she is ready to deposit the remaining amount out of total sale consideration in case original plot in developed condition will be given to her as per the agreement. It is further alleged that OP failed to deliver the original plot in developed condition as per the agreement despite the fact that complainant is ready to deposit the remaining outstanding amount as per the agreement. Thus, there is deficiency in service on the part of OP and complainant prayed for possession of original allotted residential plot; to pay Rs.2,00,000/- on account of financial loss as the complainant is forced to make alternate arrangement for living elsewhere; to pay Rs.2,00,000/- on account of harassment and mental agony and to pay Rs.55,000/- on account of litigation expenses.

2.                Notice of the complaint was issued against the OP, upon which it appeared and filed its written statement, submitting therein that the complaint is not maintainable as the complainant is not a consumer but she is an investor who applied for purchase of plot in question for earning benefits and not for the residential purpose of her own. However, it was admitted that complainant booked one plot measuring 500 sq. yards bearing No.PK/PKW/24 in residential project of OP under the name & style of “Vatika City Central” situated at Ambala (Haryana) and originally the said plot was booked by one Sameer Mathur. Basic sale consideration of the said plot was Rs.39,16,000/- and total sale consideration was Rs.43,78,653/-. It was submitted that as per the agreement, OP was entitled for payment as per the stage of development. Complainant was duly informed about the stage of development and demand was raised as per development linked plan opted by complainant. It was further submitted that the complainant herself was a defaulter in making the payments and she had paid only an amount of Rs.27,58,519/- and failed to make the payment of outstanding amount of Rs.28,55,963/- i.e. 37% of total amount. It was further submitted that the allotment of initial unit was done purely on tentative and provisional basis and complainant never made any representation pertaining to the re-allotment of unit. Finally, it was submitted that there is no deficiency in service on the part of OP and prayed for dismissal of the present complaint.

3.                When the complaint was posted for recording evidence of the parties, learned counsel for complainant has tendered into evidence affidavit of Smt. Rajni Saini-complainant as Ex.CA/1 & Ex.CA/2 vide which she has reiterated all the averments taken in the complaint alongwith other documents Ex.C-1 to Ex.C-13 and closed the evidence.

4.                On the other hand, learned counsel for OP has tendered into evidence affidavit of Shri Vipin Kumar Marya, DGM (Legal), authorized signatory of OP as Ex.OP-A alongwith other documents Ex.OP-1 to Ex.OP-7 and closed the evidence on behalf of OP.

5.                The arguments have been advanced by Mr. S.R. Bansal, learned counsel for the complainant and Ms. Vertika H. Singh, learned counsel for OP. With their kind assistance entire record including documentary evidence as well as whatever evidence had been led during the proceedings of the complaint have been properly perused and examined.

6.                As per the basic averments raised in the complaint including the contentions raised by the learned counsel for the complainant, the foremost question which requires adjudication by this Commission is as to whether the present complainant is entitled to get the possession of plot in question or not? 

7.                While unfolding his arguments, it has been argued by Mr. S.R. Bansal, learned counsel for the complainant that one Shri Sameer Mathur was allotted a plot No.24 at Street PKW Avenue by the OP vide agreement dated 01.07.2011 (Ex.C-1), which was later on transferred in the name of present complainant-Rajni Saini and the same was duly signed by OP vide assignments and endorsements letter (Ex.C-2). Complainant had paid an amount of Rs.27,39,439/- in total to the OP till 20.11.2017 and OP transferred the said plot in the name of complainant vide letter dated 04.08.2011 (Ex.C-3). He further argued that the OP without consent of complainant issued re-allotment letter (Ex.C-4) regarding change of plot. Thereafter, complainant made an application dated 25.01.2015 regarding change of plot with any other number instead of plot number re-allotted by the OP, but the same was denied. However, assurances were given to the complainant that original plot was allotted to her at the time of possession. He further argued that complainant had already paid more than 80% of total cost of the plot in question and only two installments are pending i.e. only 20% of total cost and despite this on 16.05.2018, complainant received termination notice from the OP with the warning either to deposit pending payment of Rs.28,55,963/- within seven days otherwise, they will cancel the buyer’s agreement as the balance amount was not paid against total sale consideration of Rs.39,16,000/-. Complainant replied this letter vide legal notice dated 12.06.2018 (Ex.C-9), but all in vain. He further argued that the project in question was not developed for living humans as the sewerage and roads were not developed and water lines were not constructed. In support of his version, he also annexed some photographs which is (Ex.C-7). Moreover, plot No.24 was also not existing as per the site plan. Finally, he argued that there is grave deficiency in service on the part of OP and prayed that the directions may be issued to the OP to hand over the possession of plot No.BLW-11 situated in the project namely Vatika City Central, Ambala City (Haryana) with fully developed conditions as per agreement along with cost and compensation.

8.                On the other hand, Ms. Vertika H. Singh, learned counsel for OP has argued that complaint is not maintainable as the complainant is not a consumer but he is an investor who applied for plot in question for earning benefits and not for the residential purpose of her own. She further argued that the plot in question was originally booked by one Shri Sameer Mathur, thereafter, present complainant bought the said plot from Sameer Mathur and consequently the said plot was transferred in the name of complainant. However, it was admitted that total sale consideration of the said plot was Rs.39,16,000/- excluding other charges and OP was entitled for payment as per the stage of development. She further argued that complainant was duly informed about the stage of development and demands were raised, but complainant herself was defaulter in making payments. Complainant had paid only an amount of Rs.27,58,519/- out of total sale consideration of Rs.43,78,653/-. She further argued that OP had sent termination letter dated 04.12.2019 to the complainant and demanded remaining amount of Rs.28,55,963/-. However, as per clause 1.3 of the agreement, the allottee shall be liable to pay any increase in the EDC, all type of security, deposits and charges etc. to the OP. She further argued that the plot in question which was prayed for possession is not possible without the payment of balance sale consideration and other allegations levelled in the complaint were denied.

 

9.                In view of the above submission and after careful perusal of the entire record, it stands proved that upon floating a project by the OP-builder under the name & style of “Vatika City Central” situated at Ambala (Haryana), a plot bearing No.PK/PKW/24, measuring 500 sq. yards @ Rs.6825/- per sq. yard plus EDC @ Rs.1007/- per sq. yard for total sale consideration of Rs.39,16,000/- was booked by one Shri Sameer Mathur S/o Shri Tarsem Lal, R/o Ambala City and builder buyer’s agreement dated 01.07.2011 (Ex.C-1) was also executed between the Sameer Mathur and OP. Thereafter, said plot was bought by complainant and OP transferred the said plot in the name of complainant and issued welcome letter dated 04.08.2011 (Ex.C-3) by acknowledging that the OP had received Rs.10,28,500/- till 04.08.2011. It is also not disputed that as per the terms and conditions of the agreement, the OP was entitled for payments as per the stage of construction of the project. However, as per the complainant OP did not follow the same and never informed the complainant about the stage of construction of project. It is also not disputed that complainant paid an amount of Rs.27,39,499/- in total to the OP on different dates and OP vide re-allotment letter dated 25.01.2013 (Ex.C-4) changed the plot without consent of complainant. However, as per the complainant she also visited the OP for possession of originally allotted plot to her and also visited the actual location of project, but she found that the project was not developed for living of humans because the roads, sewerage and water lines are not constructed. In support of her version she also annexed some photographs (Ex.C-7) of site where the project was located and it appears that the project was not fully developed. To the utter surprise of this Commission, it is quite surprising as to how inspite of the fact that possession of the plot in question was offered to the complainant and thereafter, OP changed the plot without consent of complainant and thereafter issued a notice dated 16.05.2018 (Ex.C-6) for termination according to which she had to deposit an amount of Rs.28,55,963/- within 7 days failing which OP will terminate the plot buyer agreement. As such, there was a clear breach of terms and conditions of the Plot Buyer’s Agreement on behalf of the OP. It is the normal trend of the developers that developer would collect their hard-earned money from the individuals and would invest the funds in other projects and as a result thereof the project for which the investors have invested their hard earned money is not completed.  As such, this Commission is of the considered opinion that there is deficiency in services of OP. Even otherwise also, there is a strong element of physical and mental agony caused to the complainant for his having invested a huge amount and thereafter the plot was changed that too without intimating or obtaining consent of complainant and under these constrained circumstances, she had to knock at the door of this Commission even for getting physical possession of plot in question. In such like cases, the Commission had to deal with the developers 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 observation and discussion, there are sufficient grounds to accept the complaint. Since, the complainant is willing to get the possession and OP admittedly ready to hand over the possession of plot in question, the OP is directed to hand over the physical possession of plot bearing No.PK/PKW/24, measuring 500 sq. yards in the residential project of OP under the name & style of “Vatika City Central” situated at Ambala (Haryana), complete in all respects, within a period of 60 days from the date of issuing the copy of this order and before taking over the possession of the plot, the complainant shall pay the outstanding dues to the OP i.e. Rs.11,76,501/- (Total sale consideration was Rs.39,16,000/- minus total amount paid by complainant Rs.27,39,499/- = Rs.11,76,501/-). It is pertinent to mention here that in the agreement also total sale consideration was mentioned as Rs.39,16,000/-. Now coming to the part of interest, in this regard it is pertinent to mention here that as per clause-7 of the agreement, in case allottee failed to pay the amount as per schedule, in that eventuality, allottee shall be liable to pay interest @18% p.a. on account of delayed period, but as per the clause-14 of said agreement, in case builder delayed in handing over the possession within stipulated period, in that eventuality builder will be liable to pay interest @ 9% p.a. to the allottee. Here in the case in hand, though the complainant has not deposited the amount in time, but the builder has also not completed his work within the stipulated period. So, it would be just appropriate and in the interest of justice, if the complainant would pay interest @ 9% on the outstanding amount.  So, the complainant is directed to pay outstanding amount of Rs.11,76,501/- to the OP alongwith interest @ 9% interest from the due dates of deposits till actual payment. However, the complainant is also entitled to an amount of Rs.11,000/- (Rs. Eleven thousand only) on account of compensation for mental and physical agony.  In addition, the complainant is also entitled to an amount of Rs.11,000/- (Rs. Eleven thousand only) as litigation charges. It is also made clear that in case of non-compliance of the aforesaid order by the OP, the provisions enshrined under section 72 of the C.P. Act would also be attractable.

11.              Application(s) pending, if any, stand disposed off in terms of the aforesaid order.

12.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019. This order be uploaded forthwith on the website of the Commission for perusal of the parties.

13.              File be consigned to record room alongwith a copy of this order.

 

 

Pronounced on 12^th January, 2024

 

                                                                                                            S.C Kaushik,

Member        

Addl. Bench-III