| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.174/2020 Mr. Neeraj Jain S/o Shri Rajendra Kumar Jain R/o D-347, Shastri nagar Meerut-250005 Uttar Pradesh. Mrs. Ritu Jain D/o Rajendra Kumar Jain R/o D-347, Shastri nagar Meerut-250005 Uttar Pradesh. .…Complainants VERSUS VXL Realtors Pvt. Ltd. Regt. Office 503-509 at 5th Floor Ajit Singh House 12 DDA Community Centre Yusuf Sarai, New Delhi-110049. Shri Harpreet Singh Director VXL Realtors Pvt. Ltd. Ajit Singh House 12 DDA Community Centre Yusuf Sarai, New Delhi-110049. ….Opposite Parties Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Present: Adv. Amit Saxena for complainant Present: None for OP. ORDER Date of Institution:29.10.2020 Date of Order :19.08.2024 President: Ms. Monika A Srivastava Complainants have filed the present seeking possession of flat No. 404, 4th Floor, Block B-4 in Eastern Heights and execute all necessary required documents; in alternative make available flat of the same size in the same building or in the building in vicinity having the same configuration of the area; in alternative pay a fair market value of the flat as on the date of payment. They have further prayed for an amount of Rs. 16,06,903/- deposited by complainants from 11.02.2016 @18% per annum till the handing over of possession; compensation of Rs.5 per sq. ft per month from October 2008 till the handing over of possession; compensation of Rs.15,00,000/- for deficiency in services and Rs.2,00,000/- as litigation cost. OP-1 is VXL Realtors Pvt. Ltd. and OP-2 is Shri Harpreet Singh, Director of OP-1. - It is stated by the complainants that on 07.01.2007 allotment letter was issued by the OP and the above mentioned flat was allotted to the complainants. It is stated that as per schedule-A containing payment plan, Rs.16,87,500/- towards the cost of the flat was to be deposited as per the terms. The construction lay out plan is annexed as annexure P-1.
- Complainants by 2016 have paid Rs.16,03,903/- and the receipts issued by OP acknowledging the payment are collectively annexed as P-2 (colly).
- It is stated that the OP vide their letter dated 21.01.2009 informing the complainants that sanction from electricity department has been received and sought the deposit of Rs.22,500/- towards their share which was duly deposited by the complainants.
- It is further stated that vide their letter dated 19.03.2009, OP informed the complainant that four blocks A-1, A-2, A-3 and A-4 were ready for possession and that super structure of most blocks was ready and handing over of possession was likely by December 2009. Copy of the letter dated 19.03.2009 is annexed as annexure P-3. Likewise, another letter was received dated 18.07.2013 by which Rs.2,00,000/- as adhoc payment was sought which had to be adjusted with future dues and thereafter a reminder dated 03.09.2013 was received. In all, the complainants have deposited total payment of Rs.16,03,903/- when the cost of the flat is Rs.16,87,500/-.
- It is stated that as per the allotment letter dated 07.01.2007 the project was to be completed within two years from the start of construction i.e. October, 2006. It is further provided that execution of the sale deed of the unit would be duly registered in favour of the allottee upon completion of project in the month of October, 2008.
- It is the case of the complainants that the OP have neither handed over possession nor executed the sale deed in favour of the complainants till date. In this regard reliance is placed on the judgment of the Hon’ble Supreme Court in Bangalore Development Authority Vs. Syndicate Bank (2007) 6 SCC 711 wherein it was held “in case the possession of the flat was not delivered despite receiving full price within the time fixed, it amounts to deficiency in service”. Reliance is also placed on the judgment passed by Hon’ble Supreme Court in GDA Vs. Balbir Singh (2004) 5 SCC 65.
- It is further stated by the complainant that they have made complete payment to the OP in February, 2016 yet they have not received the possession nor any sale deed has been executed. It is further stated that the present market value of the flat is around Rs.50,00,000/-.
- In their reply, the OP has stated that the complaint is not maintainable as they have already offered possession of flat No. B-4/404, Eastern Heights, Indirapuram Ghaziabad to the complainants on 04.03.2016. It is stated that for reasons best known to the complainants, the complainant have not come forward to take possession of the said flat nor they have paid the balance amount demanded from them vide letter dated 04.03.2016. The said letter along with the postal stamp is annexed as annexure OP-1/1 (colly). It is further stated that the complaint is barred by limitation as it has been filed after four and half years when the possession was offered to the complainants. It is stated that on account of default on the part of the complainants in taking possession, cause of action cannot continue indefinitely. It is stated that the flat is long vacant and the OP is ready and willing to hand over possession of the said flat to the complainants and execute the sale deed in their favour upon receipt of the balance amount as per the letter of allotment dated 07.01.2007.
- It is further stated that OP-2 has resigned from the Directorship of OP-1 w.e.f. 27.01.2017. Copy of the Form No.DIR-12 filed with the Registrar of Companies is annexure OP-1/2.
- It is further stated that by the OP that Rs.16,87,500/- was the cost of the flat however, the complainants were also liable to pay escalation charges and therefore as per the letter dated 04.03.2016, the complainants were required to pay a sum of Rs.1,46,700/- towards escalation charges. In this regard, reliance has been placed on Clause-1(v) of the letter of allotment dated 07.01.2007. It is further stated that apart from the escalation charges, complainants were also liable to pay maintenance and sinking funds, dual meter charges, electricity connection charges and power backup and therefore the complainants were required to pay a total sum of Rs.21,49,684/- out of which they have paid a sum of Rs.16,03,903/-. It is denied by the OP that the present market value of the flat is around Rs.50,00,000/-
- In their rejoinder, the complainants have mostly reiterated the averments made in the complaint. It is denied by the complainants that they were liable to pay any maintenance and sinking funds, dual meter charges, electricity connection charges and power back up charges. It is further stated that complainants were ready to pay escalation charges only till October 2008 i.e. the date on which the OP ought to have offered possession of the flat to the complainants. It is further denied by the complainants that the letter dated 04.03.2016 offering possession to the complainants was sent to the complainants. It is further denied that complainants undertook to pay for maintenance and sinking funds, dual meter charges, electricity connection charges and power back up charges on their own expense and that they have to pay the balance payment of Rs.83,597/-.
- OP was proceeded exparte as OP did not appear after filing his reply. Complainant has filed their exparte evidence and written arguments. This Commission has gone through the entire material on record.
- It is seen from the documents on record filed that the complainants have placed on record all the receipts issued by the OP. Complainants have also placed on record letter dated 19.03.2009 wherein the OP has categorically stated that “As per our original understanding possession was to be offered to allottees including your goodself by end of October 2008….”. It is further stated by them “…..we are planning to hand over the possession in a phased manner and we hope to hand over most of the 2 BHK flats by the end of December 2009”. Complainant has also placed on record letter dated 13.07.2013 wherein Rs. 2,00,000/- adhoc payment was sought by the OP against future dues payable to them and the reminder dated 03.09.2013.
- Complainant have also placed on record letter of allotment dated 07.01.2007 wherein as per clause-2 which deals with construction/completion of unit. Project was to be completed within 24 months from the start of construction i.e. October 2006. As per Clause-2(1) the generator/power back system was to be provided on extra payment. As per clause-5(e), the developer may offer possession before the due date and it also carries the penalty on the developer of Rs.5 per sq. feet per month for the period of delay.
- It is further seen from the said allotment letter that no other term deals with maintenance and sinking funds, dual meter charges. Clause-1 deals with payment plan deals with escalation where it is stated in the said clause “However, if there is any increase in the said prices on account of any reasons and whatsoever then the same should be borne by allottee and as determined by the developer, the decision of the developer in this regard shall be final and binding upon the allottee …….”.
- In the present case, an amount of Rs.1,46,700/- is imposed on the complainants as escalation charges as per the alleged possession letter dated 04.03.2016 sent by OP.
- It is undisputed that possession in this case was to be offered in 2008 and as per the version of the OP itself, the possession was only offered in 2016 therefore, this Commission is of the view that OP is not entitled to take benefit of its own wrong by offering possession eight years after the proposed date and then saddling the complainant with extra amounts to be paid in the name of escalation.
- Further, in the said allotment letter dated 07.01.2007 there is no mention of maintenance, sinking fund and dual meter charges which also is not chargeable by the OP to the complainants. It is also seen that OP has placed on record a letter dated 04.03.2016 offering possession of the said flat to the complainants on record along with postal receipt, however, there is no report supporting the delivery of the said letter to the complainants. Therefore, this Commission is of the opinion that OP has been deficient in its services by offering possession at a much later point of time than promised to the complainants. OP has also been unfair in its practice by asking for extra payments from the complainants which do not find any mention in the allotment letter dated 07.01.2007.
Though OP-1 has placed on record the information to RoC regarding OP-2’s resignation however it is seen that OP-2 has only resigned in 2017 and was a director at the time when the execution in the case of the complainants arose. Both the OPs are directed to refund Rs.16,03,903/- with interest @12% per annum from 11.02.2016 till realisation. OPs are further directed to pay Rs.5,00,000/- as compensation on account of harassment caused to the complainants. Copy of the order be given to the parties as per rules. File be consigned to the record room. order be uploaded on the website. | |
