CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

Udyog Sadan, C – 22 & 23, Institutional Area

(Behind Qutub Hotel)

New Delhi – 110016

    Case No.115/2016

1. ASHOK KUMAR JAIN

S/O. SH. RAJ KUMAR JAIN

R/O. 156, VEER NAGAR

GURMANDI, DELHI - 110007                                                      

2. SMT. CHANCHAL JAIN

W/O. SHRI ASHOK KUMAR JAIN

R/O. 156, VEER NAGAR

GURMANDI, DELHI – 110007                 …..COMPLAINANTS

M/S. VATIKA LIMITED

HAVING REGISTERED OFFICE AT:

FLAT NO. 621-A,

6^TH FLOOR, DEVIKA TOWERS, 6,

NEHRU PLACE, NEW DELHI – 110019                  .…..RESPONDENT

Date of Institution-31.03.2016

Date of Order- 27.03.2023

O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on part of OP in delay in handing over of flat/ plot developed by OP.

2. The brief facts are stated in complaint are that the complainant booked a 3BHK flat in group housing project by OP In April 2008 after paying an initial amount of Rs.2,50,000/-. OP allotted a 3 BHK apartment bearing No. E-1/403 in a project namely GGN-21 for total consideration of Rs.54,57,720/-. The complainant alleges that possession of the aforesaid flat was to be given within 3 years commencing from the date of first instalment as per the builder-buyer agreement.

3. The complainant had made a total payment of Rs.57,60,122.59/- from 5.4.2008 to 5.4.2015. It is stated that the compensation for delay in possession were to be paid as per clause 11.5 of builder-buyer agreement. OP also gave an assurance to pay the penalty for delay @5 per square feet per month for first 12 months and thereafter, @10 per square feet per month vide its letter dated 23.11.2009.

4. The complainant states that the possession was offered vide letter dated 30.10.2015 wherein it was mentioned that the possession can be taken by 21.11.2015.

5. It is alleged that the complainant repeatedly asked OP for adjustment of delay charges. A final demand letter dated 30.9.2014 was sent to the complainant wherein total dues payable was Rs.6,83,700.43/- which included Rs.1,42,437.33/- as penal interest. He also raised the issue of delay in compensation and requested the OP to provide occupation certificate issued by Government of Haryana. OP vide email dated 27.10.2014 requested the complainant to make the payments and refused to pay the compensation for the delay. Various correspondences were exchanged between the parties in the same vein.

6. The possession of the flat was offered in 13.10.2015. The complainant tried to make the payment of final demand under protest which was not accepted. He was forced to make payment without any remark. The complainant prays for delay compensation of Rs.8,32,100/-, Rs.10,00,000/- as compensation for mental harassment and Rs.1,00,000/- as litigation expenses.

7. Notice was issued to OP but none appeared. OP was proceeded Ex-parte vide order dated 28.9.2016.

8. Complainant has filed its evidence by way of affidavit and exhibited the following documents:-

1. Copy of letter dated 23.11.2009 is exhibited as CW-1/1.
2. Copy of builder-buyer agreement is exhibited as CW-1/2.
3. Copy of receipts of the payments issued by the OP is exhibited as CW-1/3.
4. Statements of account dated 06.01.2016 is exhibited as CW-1/4.
5. Copy of letter dated 30.10.2015 is exhibited as CW-1/5.
6. Copy of letter dated 30.09.2014 is exhibited as CW-1/6.
7. Account Statement is exhibited as CW-1/7 (Colly).
8. Copy of E-mail dated 12.08.2014 is exhibited as CW-1/8.
9. Copy of letter dated 19.10.2014 is exhibited as CW-1/9(Colly).
10. Copy of e-mail dated 27.10.2014 is exhibited as CW-1/10.
11. Copy of letter dated 26.11.2014 is exhibited as CW-1/11.
12. Copy of e-mail dated 05.12.2014 is exhibited as CW-1/12.
13. Copy of letter dated 11.12.2014 is exhibited as CW-1/13(Colly).
14. Copy of refusal of the company is exhibited as CW-1/14.
15. Copy of letter dated 06.01.2015 is exhibited as CW-1/15.
16. Copy of e-mail dated 09.01.2015 is exhibited as CW-1/16.
17. Copy of e-mail dated 18.01.2015 is exhibited as CW-1/17(Colly).
18. Copy of letter dated 30.04.2015 is exhibited as CW-1/18.

9. We have considered the material placed on record by the complainant. Receipt dated 5.4.2008 shows that Rs. 2,50,000/- has been received by the OP from the complainant. Thereafter, various receipts shows that complainant has paid Rs.2,08,652.48/-,Rs.5,02,086/-, Rs.3,86,585/-, Rs.6,77,086/-,Rs.7,53,128/-,Rs.17,720/-,Rs.2,00,000/-,Rs.1,27,318/- and so on. It is also admitted by complainant that the possession of the disputed plot in question has been accepted by the complainant.

10. The builder buyer agreement duly signed by both the parties is undated. The relevant clause are 10.1, 11.1,11.2,11.3,11.4,11.5 and wherein possession has to be delivered.

11. Clause 10.1 explains gives schedule of possession wherein possession has to be delivered within the period of 3 years from the date of execution of this agreement unless there is a delay as per reasons mentioned in 11.1,11.2,11.3,11.4 and 11.5.

12. Clause 11.1 explains that OP is entitled to extension of time due to the reasons beyond the control of the company. Clause 11.2 explains failure to deliver possession due to non-approval of Building/Sectoral/ Other Plans, OP Company will refund the amount with 6% interest Clause 11.3 explains failure to deliver possession due to Government Rules, Orders and Notifications etc. Clause 11.4 explains Failure to deliver the possession by the company: Remedy to Allottee. Clause 39 is force majeure clause. 11.5 explain Failure to deliver possession: Remedy to the Company-“The Company’s liability shall be limited to the refund of the amounts paid by the Allottee with simple interest @6% per annum for the period such amounts were lying with the Company and to pay no other compensation whatsoever. However, the Company may at its sole option and discretion, decide not to terminate this Agreement in which event the Company agrees to pay only to the Allottee first named in this Agreement and not to any one else and only in cases other than those provided in Clauses (11.1), (11.2), (11.3) and Clause (39) and subject to the Allottee not being in default under any terms of this Agreement, compensation @ Rs.5/= per sq. ft of ht super area of the said Apartment per month for the period of such delay beyond three (3) years or such extended periods as permitted under this Agreement. The adjustment of such compensation shall be done only at the time of conveyancing the said Apartment to the Allottee first named in this Agreement and not earlier.”

13.           Account statement dated 6.1.2016 shows that the first payment was due on 2.5.2008. A total amount of Rs.57,60,121.15/- has been paid by the complainant and there were no dues.

14. OP letter dated 23.11.2009 to complainant is as follows:-

We shall further like to state that it was made very clear that we shall be paying Rs.5 per Sq. Ft. per month, in the event of the Developer being unable to offer possession within three years commencing from the date of completion of payment of 1^st instalment for first 12 months of delay and Rs.10/- psft for the period beyond 12 months till the time the offer for handing of possession is made.

The penalty clause shall be unconditional and applicable in the case of any delay that in an account of omission or commission, lack of planning or any other deficiency in performance of the developer except however for reasons that are clearly beyond any reasonable control of the developer.

15. As per account statement of OP dated 14.02.2012, OP received/ encashed first instalment of 02.05.2008. Agreement executed between the parties and letter dated 23.11.2009 reveals that the OP had to hand over the possession by 02.05.2011 failing which penalty will be paid by OP. E-mail dated 27.10.2014 by OP is as follows :-
16.  

3.We do have all approvals to initiate the possession. As per clause no.10.2 all the certificates and approval has been acquired. We are unable to share the same with individual client as those are submitted with various financial institutions for further disbursal and approval. ”

16. E-mail dated 5.12.2014 by OP is as follows :-
17.  

The prime reasons for delayed possession are:-
(a)Laying down of the pipeline by Gas Authority of India Limited for supplyingnatural gas and the consequent litigation for the same, due to which the Company was forced to change its building plans, project drawings, green areas, laying down of the connecting roads and complete lay-out of the Township, including that of GGn21.

(c)Labour Issue, disruptions/ delays in supply of stone aggregate and sand due to court orders of the Courts, unusually heavy rains, delay in supply of cement and steel, declaration of Gurgaon as Nullified Area for the purpose of Ground Water, re-routing of 66 KVA high tension electricity wire.

The above eventualities, circumstances and reasons find mention in the clauses of the Apartment Buyer Agreement executed between the parties. Request you to refer clauses delay due to building other plans: failure to deliver possession due to government rules, orders.

17. OP has not supported its reasons for delay by any cogent or documentary evidence. Mere bald assertions made in e-mails to complaint cannot be relied upon as evidence.

18. Hence, The Commission finds OP guilty of deficiency in service and direct it pay the penalty as per clause 11.5 of Agreement i.e. :-

1. Rs.5/- per square feet per month from 2.5.2011 to 2.5.2012.
2. Rs. 10/- per square feet from 2.5.2011 to date of possession.
3. To pay Rs. 25,000/- as compensation for mental harassment along with litigation expenses.

19. This order be complied with within 30 days from the date of uploading of the order. Copy of the order be supplied/ sent to the parties free of cost as per rules.

20. File be consigned to record room.