Haryana

StateCommission

CC/106/2014

Ms. Neeru Gupta - Complainant(s)

Versus

Vinod Bhagi - Opp.Party(s)

09 Feb 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA.

 

                                                Complaint No.106 of 2014

                                             Date of Institution: 10.10.2014        

Date of Decision: 09.02.2017

 

Ms. Neeru Gupta W/o Sh.Naresh Kumar No.1423, First Floor, Sector-4, Panchkula.

…..Complainant

 

Versus

 

1.      Vinod Bagai S/o Nand Lal, R/o 1110, Sector-7, Panchkula, the Managing Director the M/s Ess Vee Apartments, Samar Estates, Ner GH-94, Sector 20, Panchkula.

          (ii) Second Address office of M/s Ess Vee Apartments, Samar Estates, Near GH-94, Sector 20, Panchkula.

          (iii)     Third Address: House NO.87, Sector 7 Panchkula.

 

2.      M/s Ess Vee apartments, Samar Estates, Near GH-94, Sector 20, Panchkula.

3.      M/s Real Pro Assets Ltd., SCO 218-219, Sector 34-A, Chandigarh.

          …..Opposite Parties

 

CORAM:             Mr. R.K.Bishnoi, Judicial Member.

                   Mrs.Urvashi Agnihotri, Member.                                    

For the parties:  Mr.Gitish Bhardwaj, Advocate counsel for the complainant.

                             Mr.Munish Kapila, Advocate counsel for the opposite party Nos.1 and 2.

                             Mr.Ankur Bali, Advocate counsel for the opposite party No.3.

 

O R D E R

 

R.K.BISHNOI, JUDICIAL MEMBER :-

It is alleged by the complainant that she booked an apartment measuring 1725 sq. feet, No.F-702, type Three bedroom with servant room having value of Rs.67,70,000/- with opposite party on 05.05.2011.  It was told that possession would be handed over within 36 months, but, till date only structure upto ten storey has been completed. If speed of construction is taken into consideration the possession will not be offered till 15 years.  She deposited Rs.16,92,500/- as mentioned in receipts attached with as (colly3). She also paid Rs.Eight lacs lateron, but, no proper receipt was issued. As per complainant construction started in the year 2007.  So O.ps. be  directed to handover the possession of the flat  in question, otherwise to refund paid amount alongwith compound interest @ 12% per annum, besides other relief as mentioned in para No.13 of the complaint.

2.      O.ps. filed reply controverting her averments and alleged that it was construction linked payment plan as detailed below:-

“Application money at the time of booking	10%
Within 30 days from booking	15%
Within 15 days from the date of start of construction of tower of booked apartment	10%
Casting of stilt floor roof slab of tower of booked apartment	10%
Casting of first floor roof slab of tower of booked apartment	10% + PLC + additional car parking slot, if any.
Casting of third floor roof slab of tower of booked apartment	5%
Casting of fifth floor roof slab of tower of booked apartment	5%
Casting of seventh floor roof slab of tower of booked apartment	5%
Casting of final roof slab of tower of booked apartment	5%
Completion of brick work of booked apartment	5%
Completion of internal plaster of booked apartment	5%
Completion of flooring of booked apartment	5%
Start of internal painting/polishing of booked apartment	5%
At the time of offer of possession	5%”

Till date complainant has deposited Rs.16,92,500/- only. Rs.51,34,784/- are due towards her.  Letters dated 23.01.2015, 24.10.2014, 21.04.2014, 28.01.2014, 02.09.2013, 23.06.2013, 01.02.2012 and 01.09.2011 were sent to make payment, but, without any result.  Construction of this phase started on 15.01.2012 and was to be completed up to 15.01.2015.   As complainant has not deposited amount in time she is not entitled for the relief claimed by her. Complaint has no merits and the same be dismissed.

3.      Arguments heard. File perused.

4.      Learned counsel for the complainant vehemently argued that appellant buyer’s agreement Ex.C-6 was executed in between them on 05.07.2011.  As per clause ‘32’ of the agreement O.Ps. were supposed to deliver possession within 36 months from the date of commencement of construction.  As per O.ps. construction started in the month of March 2007, but, possession is not delivered as yet. She has already deposited Rs.16,92,500/- + Rs.8,00,000/-=24,92,500/-, but, O.Ps. did not issue receipt qua Rs.Eight lacs. When the possession is not delivered as per agreement, O.ps. be directed to refund that amount alongwith  compound interest @ 24% besides other relief as mentioned in the complaint.

5.      This argument is devoid of any force. As per agreement it was construction linked payment plan as mentioned above. Though it is alleged by complainant that she deposited Rs.24,92,500/- but she has not produced any receipt qua deposit of Rs.eight lacs.  It cannot be presumed that she made such huge payment without obtaining any receipt.  From the perusal of letters dated 23.01.2015, 24.10.2014, 21.04.2014, 28.01.2014, 02.09.2013, 23.06.2013, 01.02.2012 and 01.09.2011 it is clear that complainant was asked time and again to make payment, but, to no result.  When complainant has not made any payment in time she cannot ask to penalize the builder as alleged by her.  Had she made payments periodically then naturally O.Ps. could have been burdened with exemplenary cost etc. complainant herself admitted in the pleadings that construction upto 10^th floor is complete, but, she has failed to show that she ever made payment floor wise.  In these circumstances at the most she can ask to refund amount deposited by him.  This fact shows that complainant did not make payment in time. As per opinion of Hon’ble National Commission expressed in First appeal No.06 of 2014 titled as  Randhir Singh Vs. Omaxe Chandigarh Extension Developers (P) Ltd. decided on 27.11.2014 complainant cannot ask for interest when one is also at fault.  For ready reference Para No.10 of the said judgement is reproduced as under:-

“It is an admitted fact that both parties are at fault in this case.  As per above findings of the State Commission, admittedly the respondent had not developed the site and was not in a position to deliver the possession.  Be that as it may, the appellants also in this case were defaulters. When appellants themselves were the defaulters, therefore under such circumstances, they are not entitled for any interest.  On this issue, we are in full agreement with the reasonings given by the State Commission.”

6.     If the same analogy is applied in this case, then complainant is also not entitled for interest or litigation expenses etc.

7.      As a sequal to above discussion, complaint is allowed to the effect that the O.P. Nos.1 and 2 are to refund the amount of Rs.16,92,500/- as shown in the statement of account Ex.R-2.  As there is no evidence on file showing that any amount was paid to O.P.No.3, so no liability can be fastened upon it.

 

February 15th, 2017

Mrs.Urvashi Agnihotri Member, Addl.Bench

R.K.Bishnoi, Judicial Member Addl.Bench

S.K.