State Consumer Disputes Redressal Commission
Sri Varun Kumar vs L D A on 3 February, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UP C-1 Vikrant Khand 1 (Near Shaheed Path), Gomti Nagar Lucknow-226010 Complaint Case No. CC/112/2016 1. Sri Varun Kumar Lucknow ...........Complainant(s) Versus 1. L D A Lucknow ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN PRESIDENT For the Complainant: For the Opp. Party: Dated : 03 Feb 2017 Final Order / Judgement
RESERVED STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTAR PRADESH, LUCKNOW COMPLAINT NO. 112 OF 2016
01.Sri Varun Kumar S/o Sri Narendra Nath Mehrotra R/o 474-A/60 (30 New), Brahm Nagar Sitapur Road, Lucknow-226020.
02.Smt. Nisha Mehrotra W/o Sri Narendra Nath Mehrotra R/o 474-A/60 (30 New), Brahm Nagar Sitapur Road, Lucknow-226020.
... Complainants Versus
01.Lucknow Development Authority Through Vice Chairman (LDA) Vipin Khand, Gomti Nagar Lucknow
02.Vice Chairman Lucknow Development Authority (LDA) Vipin Khand, Gomti Nagar Lucknow
03.Property Officer Lucknow Development Authority (LDA) Vipin Khand, Gomti Nagar Lucknow ....Opposite Parties BEFORE:
HON'BLE MR. JUSTICE A. H. KHAN, PRESIDENT For the Complainant : Dr. Shailendra Kumar, Advocate.
For the Opposite Party : Sri Malesh Kumar Pandey, Advocate. Dated : 13-07-2017 JUDGMENT PER MR. JUSTICE AKHTAR HUSAIN KHAN, PRESIDENT
This is a complaint under Section-17 of the Consumer Protection Act 1986 filed before State Commission by complainants Sri Varun Kumar and Smt. Nisha Mehrotra against three opposite parties namely Lucknow Development Authority, Vice Chairman, Lucknow Development Authority and Property Officer, Lucknow Development Authority.:2:
According to complaint version of complainants is that the complainants booked a 2 BHK flat in Multi-stories Residential Apartments Scheme of opposite parties known as Srishti Apartments at Sector-J Extension, Jankipuram, Kursi Road, Lucknow after having deposited booking amount of Rs.2,10,000/-. Thereafter allotment letter was issued to the complainants for Flat No. 1104 D-Block in the year 2010 and complainants deposited amount of Rs.19,24,190/- as per details given below.
Sl.No. Challan No. Date of Deposit Deposit amount(in Rs.) 0122 05-11-2009 2,10,000/- 2331076 06-06-2010 2,10,000/- 3107625 29-09-2010 2,53,834/- 3002447 01-01-2011 2,53,834/- 3061962 31-03-2011 2,53,834/- 3264161 07-12-2011 2,10,000/- 3264062 12-08-2014 5,07,688/- 3515246 04-09-2015 26,000/- Total Rs. 19,24,190/-
It has been further stated in complaint that despite full payment of agreed price of Rs.19,24,190/- the complainants were not given possession of flat rather they were served with demand notice dated 26-04-2013 making demand of Rs.7,11,108/- wherein penal interest was charged. Consequently the complainants wrote letter to opposite parties on 29-05-2013 which was replied by opposite party no.1 vide letter dated 26-09-2013 and the complainants were informed about reasons for delay in construction with further information that most likely possession of flat would be given in November, 2014. Thereafter complainants made representation again vide letter dated 26-04-2014 for waiver of penal interest whereupon opposite party no.1 informed complainants vide letter dated 26-04-2014 that the provision of waiver of penal interest has been stopped by opposite party no.1 vide resolution dated 30-06-2008. Latter on the complainants deposited two instalments on 12-08-2014 and wrote letter on 02-09-2014 to opposite party no.1 seeking information as to when possession of flat shall be delivered with reference to letter dated :3: 26-09-2013 sent by opposite party no.1 wherein it had been stated that the possession of flat would be given by November, 2014 but instead of delivery of possession in November, 2014 opposite parties again sent demand notice to complainants on 11-11-2014 for Rs.3,47,374/- as penal interest.
In complaint it has been further contended by complainants that the opposite parties are charging penal interest for the second time although they have failed to deliver possession of flat within stipulated period of 24 months from the date of starting of scheme in 2009 as indicated in para 24 of the scheme. As such charging of penal interest from complainants is neither legal nor fair. However, complainants deposited Rs.26,000/- on 04-09-2015 as registration amount under one time settlement scheme while there is no clause of penalty or one time settlement in original terms of contract as mentioned in the booklet which was sold by the opposite parties.
In complaint it has been further stated by complainants that they received a demand note dated 04-01-2016 again wherein it was intimated that a sum of Rs.3,78,252/- was due against them. Further it was mentioned that one time settlement application of complainants has been accepted and Rs.1,89,126/- has to be deposited as first instalment by 28-01-2016 and second instalment of Rs.1,89,126/- shall be deposited by 27-02-2016. It was further mentioned that if the above amount was not deposited within time the one time settlement demand memo will be treated as cancelled. It was also stated that if first instalment is deposited after the due date but before the second instalment due date then simple interest at the rate of 15% per annum will be payable on the first instalment amount for the delayed period.
The complainants have further stated in complaint that the above demand has been raised by opposite parties despite the fact that they have failed to fulfil their part of the contract under scheme. In view of above averments complainants have made following prayers in complaint.
For completion of the flat No. 1104-D Block in Srishti Apartments, situated at Sector-J Extension, Kankipuram, Kursi Road, Lucknow, Sitapur Road Scheme which was booked in :4: 2009 and handover the same to complainants/applicants at the earliest and To not only waive off the penal and compound interest on the value of the above flats but also pay interest to the complainant @ 18% per annum on the amount deposited by complainants for the delay on the part of Lucknow Development Authority amounting to Rs.6,11,040/- and To pay compensation of Rs.2,00,000/- @ 1,00,000/- per year from 2014 to 2016 for financial loss/mental agony.
Opposite parties have filed written statement before State Commission wherein it has been stated that the penal interest has been charged because the complainants have made default in payment of instalments after allotment. They have not committed any deficiency in service. The complaint has been filed with false and vague version.
In written statement it has been stated on behalf of opposite parties that the estimated price of flat was Rs.19,43,000/-. The complainant have deposited Rs.2,10,000/-on 30-06-2010. Thereafter remaining amount was to be paid in six quarterly instalments of Rs.2,53,834/- on 30-09-2010, 31-12-2010, 31-03-2011, 30-06-2011, 30-09-2011 and 31-12-2011. It has been further stated on behalf of opposite parties in written statement that it has been clearly mentioned in allotment letter that the final price shall be assessed after completion of construction work of flat and the difference shall be paid by the complainants.
In written statement it has been further stated on behalf of opposite parties that under one time settlement scheme started by opposite parties, complainants got registration on 04-09-2015 and statement of account of complainants was prepared under one time settlement scheme whereby they have to pay first instalment of Rs.1,89,126/- on 28-01-2016 and second instalment of Rs.1,89,126/- on 27-02-2016 and it was clarified that complainants shall be treated defaulter in case balance amount is not paid within time. Consequently notice was sent to complainants on 07-06-2016 whereupon they have filed complaint before State Commission making concealment of facts with false allegation. In written statement it has been :5: stated on behalf of opposite parties that in para 11.1 of brochure it has been specifically mentioned that if possession is not delivered within 24 months from the date of allotment, the allottee shall have option to get 4% simple interest on the amount deposited by them. As such the complainants are not entitled to make any other claim except as provided in paragraph 11.1 of brochure.
Both parties have filed affidavits with annexures to support their version.
I have heard learned Counsel for the parties and perused records carefully.
After having gone through the pleadings of the parties it transpires that indisputably complainants have booked flat in the above scheme of opposite parties after having paid Rs.2,10,000/- and thereafter allotment letter was issued in favour of complainants for the flat in question and complainants have deposited total amount of Rs.19,24,190/- till 04-09-2015.
It has been contended by learned Counsel for the complainants that in brochure price of 2 BHK flat was mentioned Rs.18,50,000/- subject to condition that the price declared is an estimated price but in this declared price no increase shall be made above 5%.
The allotment letter is at page 43 of complaint. Admittedly it is a true copy of allotment letter. It is dated 25-05-2010. Rs.19,43,000/- estimated cost of flat has been mentioned in it which is payable in six quarterly instalments of Rs.2,53,834/- and the due date for payment of above instalments is 30-09-2010, 31-12-2010, 31-03-2011, 30-06-2011, 30-09-2011 and 31-12-2011. The payment chart given by complainants in paragraph 8 of complaint shows that complainants have made regular payment of instalments till 31-03-2011 but thereafter they have committed default in payment of instalments. As such opposite parties are entitled to claim interest as per agreement as well as rules. Further more complainants have accepted one time settlement scheme of opposite parties and deposited Rs.26,000/- for getting registration under this scheme and under this one time settlement scheme final account of :6: statement has been prepared whereby Rs.3,78,252/- payable in two instalments each of Rs.1,89,126/- has been settled as due against complainants. After accepting one time settlement scheme of opposite parties and depositing registration fees there-under the complainants cannot deny the settlement reached in this scheme. As such I am of the view that the demand notice sent to complainants in pursuance of one time settlement scheme as mentioned above cannot be said to be against law.
In para 11.1 of brochure it has been provided that after payment of whole price and other dues sale deed shall be executed and possession of flat shall be given. It has been further provided in para 11.1 of brochure that in case possession is not delivered within 21 months from the date of allotment, the allottee shall be entitled to refund of his amount deposited by him with simple interest at the rate of 4% per annum. Indisputably the complainants have deposited Rs.19,24,190/- till 04-09-2015 but this amount was liable to be paid in terms of allotment letter till 31-12-2011. As such they have committed default in payment of agreed estimated cost of Rs.19,43,000/- mentioned in allotment letter and they are liable to pay penal interest in terms of agreement and rules but they have not made payment of amount arising out of penal interest even after availing benefit of one time settlement scheme of opposite parties. Judgment of Honourable Apex Court rendered in the case of K A Nagamani V/s Housing Commissioner, Karnataka Housing Board and reported in III(2016) CPJ 17 SC which has been referred by learned Counsel for the complainant is not applicable on the facts of present case.
In view of above I am of the view that the complainants themselves have committed default. No deficiency of service or unfair trade practice has been committed by opposite parties. As such complainants are not entitled to get any relief claimed in complaint.
In view of above complaint is dismissed.
Parties shall bear their own costs.
Let copy of this order be made available to the parties within 15 days positively.
( JUSTICE A H KHAN ) PRESIDENT [HON'BLE MR. JUSTICE AKHTAR HUSAIN KHAN] PRESIDENT