State Consumer Disputes Redressal Commission
Anil Kumar Tyagi vs Niho Construction Limited on 6 March, 2013
IN THE STATE COMMISSION : DELHI Date of Decision: 6.3.2013 Complaint No. 371/2012 1. 2. Shri Anil Kumar Tyagi S/o Sh. Tikaram Tyagi R/o 209, Supertech Residency, Plot No.6A, Sector-5, Vaishali, Distt. Ghaziabad. Smt Kumkum Tyagi W/o Shri Anil Kumar Tyagi R/o 209, Supertech Residency, Plot No.6A, Sector-5, Vaishali, Distt. Ghaziabad. ..Complainants vs 1. 2. Director, Niho Construction Limited, Reg. Office X-22, 1st Floor, Hauz Khas, New Delhi-110 016 Axis Bank, F-3, BF 1A, 1st Floor, Aditya City Center Mall, Plot No.3, Vaibhav Khand, Indira Puram, Ghaziabad-201 001 ---Opposite Parties CORAM V.K.Gupta, Member(Judicial) Salma Noor, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
V.K.GUPTA
1. This is a complaint under Section 17 of the Consumer Protection Act, 1986.
2. Briefly stated factual scenario of the case is that the complainant booked a flat measuring 1075 Sq. ft. (Approx) on 12.6.2008 when the application form was given to the officers of the OP at the Registered Office. The basic cost of the entire Flat was 29,56,000/-, Rs.50,000/- for open parking, and Rs.20,000/- for club membership thus the total amount for the entire flat was 30,26,250/-.
The complainant paid Rs.50,000/- as the booking amount in cash on 8.7.2008 and Flat No.202, Saffron Sector, Mohiuddin Pur Kanwani, Scottish Garden, Indirapuram, Ghaziabad was booked. The complainants have made the following payments:
S.No. Amount (in Rs.) Date Mode of payment 1 50,000/-
8.7.08 Cash 2 2,50,000/-
17.7.08 Cash 3 3,05,515/-
2.12.08 Cash 4 1,00,000/-
17.1.09 Cheque 5 1,50,000/-
31.3.09 Cash 6 1,00,000/-
6.4.09 Cheque 7 1,20,000/-
10.6.09 cheque 8 50,000/-
2.9.09 Cheque 9 1,00,000/-
29.11.09.
cheque 10 2,00,000/-
12.1.10 Cash 11 1,20,000/-
25.1.10 Cheque 12 1,50,000/-
15.9.09 cheque 13 2,00,000/-
11.3.10 Cheque Total 28,95,515 In this way the complainant has already paid Rs.28,95,515/-. The amount of Rs.12,38,371/- was paid by the Axis Bank, from which the complainant has taken loan. In respect of the payment i.e. 28,95,515/-, the OP has issued the receipts. In pursuance of the said allotment, an agreement dated 15.4.2009 was executed between complainants and the OP and according to this agreement, the complainants have to pay Rs.4,53,938/- in respect of the fixture and fitting to be provided by the OP. It was also agreed by the OP that the possession of the said unit shall be delivered within 24 months to the complainants from the date of the execution of the agreement dated 15.4.2009, thus the possession of the flat is to be delivered to the complainant in April, 2011 and the complainants wrote many letters to the OP, but no reply was given. The complainant prays to direct the OP No.1 for the delivery of the possession in question and in the alternative refund of Rs.28,95,515/-, Rupees ten lakh as compensation and Rupees Ninety thousand as the litigation charges.
3. OP No.1 i.e. Hiho Construction Limited filed the written statement and denied the entire allegations. It is agreed that an agreement dated 15.4.2009 was executed between the complainants and the OP No.1 and clause-4 of the said agreement was quoted in para No.3 of the written statement. In para No.4 of the written statement, the payment plan is mentioned. The OP No.1 has sent many letters for the payment of the remaining amount, but it has not been made. In para-6 of the written statement, it is stated that OP No.1 shall be entitled to forfeit the earnest money and recover all the outgoings in respect of the said unit and the balance payment, if any. The amount shall be refunded to the complainant without any interest only after the unit is re-allotted and full consideration is received from the said new allottee. In para No.6 it is admitted that the said unit i.e. Flat No.202, Saffron Sector, Mohiuddin Pur Kanwani, Scottish Garden, Indirapuram, Ghaziabad allotted to the complainant has not been re-allotted yet to new allottee. Further in the project of the OP No.1 in Gurgaon, total number of 504 units were constructed successfully and delivered to the buyers to total sale value of Rupees ninety five crores. The project where the flat of the complainant is situated has four sectors, consisting of 27 high rise buildings comprising of total 678 flats.
Further, the OP has completed 25 towers of the project covering about 720 units apartments in all and buyers have already successfully taken possession of 687 units. The complainants booked flat bearing Flat No.202, Saffron Sector, Mohiuddin Pur Kanwani, Scottish Garden, Indirapuram, Ghaziabad for a total cost of Rs.30,26,500/-, therefore, the complainants are not entitled to claim any relief as they have not paid the outstanding amount.
4. OP No.2 has not filed any reply.
5. The complainants have filed the rejoinder and denied the fresh allegations.
6. Both the parties have filed the evidence by way of affidavit.
7. We have heard Counsels for both the parties and perused the material on record.
8. At the outset, it would be germane to mention that some of the facts are admitted by both the parties.
It is an admitted fact that on 12.6.2008 the complainant booked a Flat No.202, Saffron Sector, Mohiuddin Pur Kanwani, Scottish Garden, Indirapuram, Ghaziabad for a total consideration of Rupees forty one lakhs. This has not been denied by the OP No.1.
9. The material on record goes to show that an amount of Rs.12,38,371/- has been paid by Axis Bank from whom the complainants have taken a loan. It is also admitted by both the parties that an agreement was executed on 15.4.2009 by both the parties. The counsel for the complainant very vehemently submitted that 90% of the total cost has been paid by the complainant to OP No.1, and the remaining amount of the 10% of the total cost shall be paid at the time of the delivery of the possession, to which the complainants have no objection. In para No.8 of the written statement, it is admitted by the OP No.1 that four sectors consisting of 27 high rise buildings comprising of total 678 flats were ready and most of the buyers have already taken the possession.
10. In para No.6, it is further admitted by OP No.1 that the unit, which was allotted to the complainants has not been re-allotted yet to new allottee and the amount paid by the complainant shall be refunded after it has been re-allotted to the new allottee and amount received by OP No.1. This goes to show that the flat/unit, which has been allotted to the complainants, has not been re-allotted to any new alottee and it is ready and now is in the possession of the OP No.1. The complainants are ready to pay the remaining outstanding amount, therefore, in the interest of justice and equity, a person who has paid near about Rupees thirty three lakhs, after taking loan of Rs.12,38,371/- from OP No.2, should be given the possession of the flat, after making payment of the remaining amount.
11. The 90% of the total consideration was paid till March, 2010 and it is more than four years that an amount of about Rupees twenty nine lakhs is used by OP No.1 and the complainants are deprived of the use of this amount and complainants are not getting any interest thereon, therefore, the complainants suffered mental agony, harassment and sheer suffering in as much as the complainants are residing in the rented house.
12. Under these circumstances we quantify Rs.50,000/- as compensation for mental agony, harassment and sheer suffering and Rs.5,000/- as the cost of litigation.
We hereby direct:
I. That OP No.1 shall deliver the possession of the Flat No.202, Saffron Sector, Mohiuddin Pur Kanwani, Scottish Garden, Indirapuram, Ghaziabad to the complainants within 60 days from today and the remaining amount, if any, as per the terms and conditions of the agreement dated 15.4.2009, executed by both the parties, shall be paid by the complainant at the time of delivery of possession. The OP No.1 shall also execute the other formalities including the registration of the lease deed in favour of the complainant within 60 days.
II.
The OP No.1 shall pay Rs.50,000/- as compensation causing mental agony, harassment and sheer suffering to the complainant and Rs.5,000/- as the litigation charges.
(Salma Noor) Member (V.K.Gupta) Member(Judicial)