Haryana

StateCommission

CC/232/2017

DR. SUKHDA PRITAM - Complainant(s)

Versus

UNIVERSAL BUILDWELL PVT.LTD. - Opp.Party(s)

AMAN PAL

12 Mar 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

Complaint No     :    232 of 2017

Date of Institution:    21.04.2017

Date of Decision :    12.03.2018

 

Dr. Sukhda Pritam w/o Sh. Rupender Sheoran, Permanent Resident of Flat No.F-103, Alaknanda Society, Plot No.45, Sector-56, Gurgaon.

                                      Complainant

Versus

1.      Universal Buildwell Private Limited, Corporate Office at 8^th Floor, Universal Trade Tower, Sector 49, Gurgaon through its Managing Director.

2.      The Regional Manager, Universal Buildwell Private Limited, 102, Antriksh Bhawan, 22, Kasturba Gandhi Marg, New Delhi-110001.

                                      Opposite Parties

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                         

Argued by:          Shri Rajender Helwa, Advocate for Complainant.

                             Shri Anshul Jindal, Advocate for Opposite Parties.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        Universal Buildwell Private Limited-Opposite Parties (hereinafter referred to as the ‘builder’) developed a residential construction project known as Universal Aura situated in Sector-82, Gurgaon. Applications were invited for booking of the flats in the above mentioned project.  Dr. Sukhda Pritam -complainant was allotted Flat No.604, Tower G on 6^th Floor, measuring 1179 square feet after receiving booking amount in the month of October, 2010. The basic sale price of the flat is Rs.35,07,525/- at the rate of Rs.2975/- per square feet.  Apartment Buyer’s Agreement (Exhibit C-1) was executed in between the complainant and the builder on September 19^th, 2011. The opposite parties charged Preferential Location Charges (PLC) at the rate of Rs.75/- per square feet of the super area. According to the complainant the opposite parties charges the PLC, mentioned above, wrongfully as the flat is not of preferential location situated on 6^th floor of the tower. As per terms and conditions mentioned in the buyer’s agreement, the opposite parties were required to deliver possession of the flat to the complainant up to the month of March 2015 within 42 months including six months grace period.  As per terms and conditions of the buyer’s agreement, the opposite parties were required to pay compensation to the allottee on account of delay in delivery of possession at the rate of Rs.10/- per square feet of the super area per month.

2.                Facing this situation, earlier the complainant filed a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act, 1986’) before the State Consumer Disputes Redressal Commission, Haryana which was dismissed as withdrawn vide order dated September 10^th, 2015 (Exhibit C-5) after assurance given by the opposite parties that possession of the flat will be delivered up to the month of December, 2015. The opposite parties also agreed to pay compensation for default of delay in delivery of possession.

3.                The complainant filed Complaint No.284 of 2014 before the District Consumer Disputes Redressal Forum, Gurgaon and that complaint was also dismissed as withdrawn on October 21^st, 2015 after assurance was given by the opposite parties to adjust the illegal charges of parking space amounting to Rs.2,50,000/-. The complainant remained willing to make payment of the remaining sale price amount in case possession is delivered to the complainant.

4.                Again the complainant filed a complaint bearing No.05 of 2016 before the State Commission. The opposite parties in their reply took plea that the Hon’ble National Consumer Disputes Redressal Commission, New Delhi (for short ‘National Commission’) has already granted stay regarding delivery of possession vide order dated August 24^th, 2014 passed in Consumer Complaint No.86 of 2014.  In this way, the opposite parties gave a false and vague statement before the State Commission that the possession would be delivered up to the month of December, 2015.  After filing reply complaint No.05 of 2016 was also dismissed as withdrawn vide order dated January 23^rd, 2017.  During this period, a demand notice was also received by the complainant for depositing VAT at the rate of 1.05% on the amount already deposited. The complainant had to face un-necessary harassment and mental agony and had to spend lot of money by involving herself in litigation due to faults of the opposite parties.

5.                The complainant has filed the present complaint under Section 17 of the Act, 1986 with a prayer to direct the opposite parties to hand over possession of Flat No.604, Tower G on 6^th Floor, Sector-82, Gurgaon immediately or in the alternative to refund an amount of Rs.42,80,910/- already deposited by the complainant with interest at the rate of 18% per annum from the date of deposit till its realisation. In case possession of the flat is given, in that eventuality the opposite parties be directed to pay delayed penalty amount in terms of Clause 13.4 of the buyer’s agreement (Exhibit C-1) till delivery of possession; to pay an amount of Rs.2.00 lacs as compensation on account of un-necessary harassment, mental agony and an amount of Rs.55,000/- as litigation expenses.

6.                The opposite parties in their written version have taken plea that the complaint is not maintainable in the present form; that the complainant has purchased the flat for commercial purpose and therefore the complainant is not covered under the definition of ‘Consumer’; that the dispute of pricing of the flat cannot be considered as a consumer dispute; that this Commission has no jurisdiction to decide this complaint and that the Consumer Forum cannot go into the question of pricing of the flat. The flat No.604, Tower G on 6^th Floor, Sector-82, Gurgaon was allotted to the complainant after receiving booking amount in the month of October, 2010 but the area of the flat has been increased to 1331.93 square feet. No extra amount has been charged from the complainant. The complainant was informed about the preferential location charges at the time of applying to the opposite parties as well as at the time of execution of the buyer’s agreement. In the buyer’s agreement it is also mentioned that the developer shall be liable to pay compensation on account of delay in delivery of possession to the allottee as mentioned in Clause 13.4 of the buyer’s agreement. It is pleaded that construction work is going on and possession will be delivered to the allottee within a shortest possible time. The above mentioned Universal Aura project consists approximately 500 housing flats. The construction work is to be completed and payment is to be made as per Construction Linked Plan. It is admitted that the opposite parties have given undertaking that an amount of Rs.2,50,000/- paid by the complainant as parking charges will be adjusted in some other heads at the time of delivery of possession. The builder shall make all possible efforts to deliver possession of the flat at the earliest.  Otherwise to pay delayed penalty charges. It is prayed that the complaint filed by the complainant be dismissed.

7.                The complainant in her evidence tendered her affidavit and also produced the following documents:-

1	Apartment Buyer’s Agreement	Exhibit C-1
2	Statement of account as on 05.05.2015	Exhibit C-2
3	Arrangement Letter dated 05.09.2012 issued by State Bank of India	Exhibit C-3
4	Sanction Letter	Exhibit C-4
5	Order dated 10.09.2015	Exhibit C-5
6	Reply filed by opposite parties No.1 to 3 in Complaint No.05 of 2016 alongwith order dated 20.08.2014 passed by Hon’ble National Commission	Exhibit C-6
7	Letter dated 19.12.2016 sent by Builder to the complainant regarding payment request towards Unit No.G-604	Exhibit C-7
8	Legal notice dated 24.12.2015	Exhibit C-8
9	Receipts of Courier	Exhibit C-9

 

8.                The opposite parties in their evidence examined Pyar Chand, Sales Executive who tendered his affidavit Exhibit OPW1/A and produced Resolution dated February 15^th, 2018 as Exhibit OP-1.

9.                We have heard learned counsel for the parties and perused the case file.

10.              During the course of arguments, there was no controversy of any type that considering request of the complainant Flat No.604, Tower G on 6^th Floor, measuring 1179 square feet in Universal Aura, Sector-82, Gurgaon was allotted to the complainant after receiving booking amount in the month of October, 2010. It is also admitted fact that in the beginning super area of the flat was 1179 square feet but lateron the area was increased to 1331.93 square feet. The allotment of the flat was at the rate of Rs.2975/- per square feet. It is also admitted fact that buyer’s agreement dated September 19^th, 2011 (Exhibit C-1) was executed in between the complainant and the opposite parties. It is also admitted fact that by this time the complainant has already deposited an amount of Rs.42,80,910/- with the opposite parties which is mentioned in the statement of account dated January 09^th, 2017 (Annexure C-2) also. Out of the total amount paid, an amount of Rs.21,00,000/- was borrowed from State Bank of India on interest at the rate of 10.25% as mentioned in the arrangement letter Annexure C-3.  Annexure C-4 is the sanction letter.

11.              The complainant in his complaint has requested for delivery of possession of the flat allotted to her immediately and in the alternative to refund the total amount already deposited by the complainant with interest at the rate of 18% per annum. The present complaint was filed by the complainant on May 09^th, 2017 and prior to it also earlier complainant filed complaint No.58 on May 08^th, 2015 before this Commission. Apart from it, two more complaints were filed by the complainant out of which one was filed before the District Forum, Gurgaon as mentioned in earlier part of this order. It is evident from the copy of order dated September 10^th, 2015 (Exhibit C-5) that complaint No.58 of 2015 was dismissed as withdrawn as the opposite parties had given assurance that the possession of the flat shall be delivered to the complainant up to the month of December, 2015.

12.              Admittedly, Flat No.604 was allotted in the name of the complainant in the month of October, 2010 and till today also the opposite parties could not complete construction of the allotted flat and other flats in the same tower. Pyar Chand, Sales Executive of the opposite parties appeared in the witness box as OPW-1 and tendered his duly attested affidavit Exhibit OPW1/A and Resolution Exhibit OP-1.  Pyar Chand, Sales Executive in his cross-examination admitted that as per terms and conditions of the Buyer’s Agreement the possession was to be handed over to the complainant up to the month of December, 2013 and the opposite parties shall be in a position to hand over possession of the flat only up to the month of December, 2018. Buyer’s Agreement was executed on September 19^th, 2011.  So, it is clear that the opposite parties have already caused a delay of approximately five years in delivery of possession of the flat and at this stage also the opposite parties have made it clear that possession can be delivered up to the month of December, 2018. It is also only an assurance. Same type of assurance was given by the opposite parties on September 10^th, 2015 also, to hand over possession up to the month of December, 2015 when complaint No.58 of 2015 was dismissed as withdrawn considering assurance given by the opposite parties.

13.              The complainant has already filed three complaints and always has shown willingness to obtain possession of the allotted flat and to make payment of the balance amount, if any. In this way, it is clear that the opposite parties have violated the terms and conditions of the buyer’s agreement and failed to deliver possession of the flat within 42 months including six months grace period from the date of allotment. The opposite parties earlier also gave a false assurance of delivery of possession up to the month of December, 2015 only with the purpose to gain more time. In these circumstances, certainly assurance given by the opposite parties as per statement of the OPW-1 Pyar Chand, Sales Executive, also cannot be believed.

14.              Learned counsel for the opposite parties argued that construction work could not be completed in time and possession could not be delivered due to force majeure situation. Our attention was drawn towards the order dated August 20^th, 2014 passed by the Hon’ble National Commission while deciding Consumer Case No.86 of 2014 Universal Aura Welfare Association versus Universal Buildwell Private Limited and another decided on August 20^th, 2014. In that order, the opposite parties were directed to maintain status quo in respect of allotment of flats till next date of hearing September 15^th, 2014.  The above mentioned order passed by the Hon’ble National Commission is of no help to the opposite parties in this case. Firstly, status quo order was passed only regarding allotment of flats. There was no stay order regarding delivery of possession or construction work. Moreover, despite the above mentioned order, the opposite parties had given assurance on September 10^th, 2015 to deliver possession of the flat to the complainant up to the month of December, 2015 as mentioned in the copy of the order dated September 10^th, 2015 passed while deciding complaint No.58 of 2015 (Exhibit C-5).  Delay has been caused by the opposite parties regarding construction and delivery of possession of the flat without any sufficient cause.

15.              Learned counsel for the complainant also desired that keeping in mind all the circumstances, directions be given to the opposite parties to refund the amount already deposited by the complainant with interest as per terms and conditions mentioned in the buyer’s agreement.

16.              As a result as per discussions above in detail, in the above mentioned circumstances it will be justified to give direction to the opposite parties to refund the total amount already deposited to the complainant with interest at the rate of 12% per annum from the date of deposit till realisation; to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses.  

17.              Hence, the complaint is accepted. The opposite parties are directed to refund the total amount of Rs.42,80,910/- to the complainant with interest at the rate of 12% per annum from the date of respective deposits till realisation; to pay an amount of Rs.25,000/- as compensation on account of un-necessary harassment and mental agony and an amount of Rs.11,000/- as litigation expenses. 

 

Announced: 12.03.2018

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL