State Consumer Disputes Redressal Commission
Col. V.K. Pant(Retd.) vs M/S Gtm Builders & Promotors Pvt. Ltd. & ... on 3 June, 2019
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
CONSUMER COMPLAINT NO. 16 / 2015
Col. V.K. Pant (Retd.)
R/o C-1, Tula's Green's, Johari-Jakhan Road
Dehradun - 248003
...... Complainant
Versus
1. M/s GTM Builders & Promoters Pvt. Ltd.
Registered & Corporate Office at
GTM House, G-5, Pushkar Enclave, Outer Ring Road
Paschim Vihar, New Delhi - 110063 through its Managing Director
2. Sh. Tushar Kumar, Vice Chairman cum Managing Director
M/s GTM Builders & Promoters Pvt. Ltd.
Registered & Corporate Office at
GTM House, G-5, Pushkar Enclave, Outer Ring Road
Paschim Vihar, New Delhi - 110063 through its Managing Director
3. M/s GTM Builders & Promoters Pvt. Ltd.
Registered & Corporate Office at
GTM House, G-5, Pushkar Enclave, Outer Ring Road
Paschim Vihar, New Delhi - 110063 through its Authorised Signatory
...... Opposite Parties
Complainant present in person
None for the Opposite Parties
Coram: Mr. Balveer Prasad, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 03/06/2019
ORDER
(Per: Balveer Prasad, Member):
This consumer complaint under Section 12 read with Section 18 of the Consumer Protection Act, 1986 has been filed by Col. V.K. Pant (Retd.) (hereinafter to be referred to as the "complainant") against M/s GTM Builders & Promoters Pvt. Ltd. and others, alleging negligence as well as deficiency in service on their part. By way of 2 the consumer complaint, the complainant has prayed for the following reliefs:
(a) Direct the opposite parties to hand over the possession of the Flat No. FH-2(302) in habitable / livable condition complete in all respects to the complainant immediately and execute all the necessary and required documents in respect of the flat in favour of the complainant at the committed price of Rs. 29,50,200/-.
(b) Direct the opposite parties to pay a sum of Rs. 5,00,000/-
(Rupees Five Lacs only) towards damages / compensation for the delayed possession, mental torture, agony, discomfort and undue hardships caused to the complainant as a result of the above acts of omission on the part of the opposite parties.
(c) Direct the opposite parties to pay a sum of Rs. 50,000/- (Rupees Fifty Thousand only) to the complainant towards the cost of litigation.
(d) Any other order(s) as may deem fit and appropriate, may also kindly be passed.
2. The case, as set up by the complainant in the consumer complaint, is that -
(a) The opposite party No. 1 is the Builder and Promoter of the Housing Project etc., a company incorporated under the Companies Act, 1956; opposite party No. 2 is the Vice Chairman of opposite party No. 1 and opposite party No. 3 is the authorised signatory of opposite party No. 1. In the year 2006-07, the builder company launched a housing project under the name and style of "GTM Forest & Hills, Dehradun". The 3 complainant through application dated 18.05.2006, applied for a flat comprising 3BHK plus study room in the aforesaid project. The booking amount of Rs. 2,95,020/- in respect of the prospective flat No. FH-2(302) was paid by the complainant by way of cheque dated 19.05.2006. The complainant had opted for construction linked payment plan. As per condition No. 5 of application form, prices were free from escalation and as per condition No. 9, the possession was to be handed over within 30 months' from the date of booking. The opposite parties through letter dated 03.07.2006, demanded payment of Rs. 5,90,040/- against the booked flat. However, in view of the fact that the housing project was kept in hold for consideration period of time at the end of the company, the complainant did not adhere to the payment schedule, which was bonafide on his part. Thereafter, when some construction progressed upto ground level, stilts and pillars, the complainant paid sum of Rs. 3,00,000/- vide demand draft dated 15.10.2008.
(b) The buyer and seller agreement in respect of the flat was executed between the parties on 16.02.2009, whereas the flat was booked on 18.05.2006. As per the agreement, the committed price of the flat was Rs. 29,50,200/- and the possession was to be delivered within 30 months' from the date of the agreement. After signing the agreement, the complainant vide application dated 25.02.2009 applied for housing loan from State Bank of India, RACPC, Dehradun and the term loan of Rs. 20,00,000/- was sanctioned in his favour on 04.03.2009 in regard to the concerned flat.
(c) Since the progress of the work in the housing project was very slow, the complainant did not immediately paid his contribution 4 for disbursing the loan amount. However, vide cheque dated 08.07.2009, the complainant paid Rs. 95,000/- towards payment of margin money for disbursing the loan amount and the bank accordingly disbursed sum of Rs. 18,37,000/-. By August, 2009, the complainant had paid total sum of Rs. 21,85,020/- to the opposite parties, as against the demand of Rs. 22,37,650/-. Vide letter dated 08.01.2010, the opposite parties informed that the possession of 6 towers (72 flats) would be offered within next four months, i.e., May, 2010. However, on account of slow work progress, the company failed to deliver possession of 72 flats by May, 2010. Through letter dated 18.11.2011, it was informed that the lift will be installed by April, 2012 and fire-fighting work will be completed by March, 2012. However, till date, the lift has not been installed in the tower and fire-fighting work has also not yet been completed.
(d) The opposite parties inspite of having failed in delivering the possession of the flat within the stipulated time, are demanding Rs. 2,10,000/- towards external electricity charges; Rs. 55,000/- towards fire-fighting charges and sewer treatment plan; Rs. 20,000/- towards filing charges and Rs. 37,118/- towards external development charges over and above the committed price. The aforesaid demands are wholly unacceptable and amounts to unfair trade practice. Instead of offering possession of the flat in habitable and fit condition, the opposite parties are insisting for clearance of the aforesaid dues. The complainant has already paid a sum of Rs. 29,37,020/- to the opposite parties, which is Rs. 13,180/- less than the agreed / committed price of the flat amounting to Rs. 29,50,200/-. The complainant having opted for construction linked payment plan, paid the 5 demanded amount much prior to the actual work having been carried out at the project site.
(e) Inspite of expiry of 9 years' from the date of booking, the flat is still incomplete and is not in habitable condition and the following works are still to be completed:
(i) Sanitary fitting in bathroom.
(ii) Modular kitchen and wood work in bedrooms.
(iii) Door and windows.
(iv) Installation of lift.
(v) Electricity fitting.
(vi) Fire-fighting system is incomplete.
(vii) Work of club house not started.
(f) The opposite parties, instead of handing over the possession of the flat in habitable and fit condition, informed the complainant through letter dated 11.04.2013 that the allotment of the flat has been cancelled with immediate effect. On receipt of cancellation letter, the complainant wrote a letter dated 15.05.2013 to the opposite parties, apprising them at 95% payment has already been made by him and as the flat in question has not yet been ready, he has been burdened with the payment of EMI's to the bank. The opposite parties through letter dated 03.06.2013, again reiterated that the work will be completed soon once the demanded dues are cleared. Regarding delay in delivery of possession, the opposite parties are taking shelter of Force Majeure clause in the agreement.
(g) The complainant served legal notice dated 04.12.2014 and 04.02.2015 upon the opposite parties. The opposite parties 6 through reply dated 13.02.2015, stated that the company is still ready and willing to give the possession of the flat, provided full and final dues are cleared. The opposite parties are not only bound to hand over the possession of the flat in habitable and fit condition, but they are also duty bound to provide complete certificate from the competent authority, i.e., MDDA. Inordinate delay in delivering the possession of the flat in livable and fit condition amounts to negligence and deficiency in service. With the above allegations, the consumer complaint was instituted.
3. Upon being served with the notice of the consumer complaint, the opposite parties put in appearance before the Commission, but inspite of being granted sufficient opportunity, did not file any written statement and later, also failed to appear before the Commission and neglected the proceeding of the consumer complaint. Consequently, the consumer complaint was directed to proceed ex-parte against the opposite parties and an order was passed that in case the opposite parties fail to turn up, the consumer complaint shall be heard in their absence and decided as per law.
4. In evidence, the complainant filed his affidavit dated 10.11.2016, thereby testifying on oath the averments made by him in the consumer complaint and to prove the version as set up in the consumer complaint. The opposite parties did not file any evidence, in order to rebut the evidence so adduced by the complainant in support of his case. Thus, the evidence filed by the complainant remained unrebutted and is to be accepted as such.
5. On the date of hearing arguments in the matter, the complainant appeared in person before the Commission and submitted arguments.
7There was no representation from the side of the opposite parties. We have heard the complainant in person and thoroughly examined the material available on record available before us.
6. The documentary evidence on record shows that the complainant has booked flat No. 302 (FH-02) with the builder company at the price of Rs. 29,50,200/-. In the application form, it was clearly provided that prices are free from escalation and that the possession of the flat would be delivered within 30 months'. The booking of the flat was made on 18.05.2006, thus, the possession of the flat complete in all respects ought to have been delivered to the complainant latest by 18.11.2008. It would not be out of place to mention here that inspite of booking of the flat having been made on 18.05.2006 and earnest money received, the agreement was executed by the builder as late as on 16.02.2009, i.e., even after expiry of the last date for delivery of possession mentioned in the application form. Since there was no required construction at the site, the complainant was well within his rights to go against the construction linked payment plan opted by him and in doing so, no malafide can be attached to the complainant.
7. As is stated above, the price of the flat was agreed at Rs. 29,50,200/-, against which, the complainant has paid a total sum of Rs. 29,37,020/-, leaving the balance payment as Rs. 13,180/- only, which the complainant has very fairly admitted as being due against him, in para 14 of the consumer complaint. It would also not be out of place to mention here that inspite of receiving the payment of Rs. 29,37,020/- against the agreed price of Rs. 29,50,200/-, the opposite parties did not complete the construction of the flat and did not hand over the possession thereof to the complainant, rather they were dare enough to cancel the allotment of the flat, which goes to 8 show malafide on the part of the opposite parties. As the complainant has paid almost the entire agreed price of the flat, he is entitled to the possession of the flat, completed in all respects.
8. The complainant has categorically stated that the flat is still not complete in all respects and certain works are still to be carried out in the concerned flat. The complainant has filed the affidavit of Er. K.A. Khan, B. Tech. Civil (A.M.U.), wherein the said deponent has deposed that total amount of Rs. 15,00,000/- is required to be spent in completing the work of the flat, in order to make it suitable for residential purposes. The said Engineer has also filed his valuation report dated 07.05.2019, which is on record. The said Expert is a Civil Engineer by profession and is an Architect, Valuer, Surveyor, Real Estate Consultant etc. and, as such, can very well be regarded as the technical expert in the field and there appears no reasoning to deny the valuation so made by the expert, more so, in view of the fact that there has not been any objection to the same from the side of the opposite parties, as the opposite parties chose not to adduce any evidence in the case. This way, the complainant has filed the expert evidence in support of his case, to show that the above sum of Rs. 15,00,000/- is required to be spent in completing the required work in the flat in question, in order to make the flat in habitable / living condition. Thus, the complainant is entitled to sum of Rs. 15,00,000/- from the opposite parties for carrying out the remaining required work in the flat after adjusting sum of Rs. 13,180/-, admittedly due against the complainant to the opposite parties. Therefore, the complainant is entitled to sum of Rs. 14,86,820/- (Rs. 15,00,000/- minus Rs. 13,180/-) from the opposite parties for carrying out the remaining work in the flat on his own, in order to make the flat in question habitable / living, so that he can comfortably live therein, along with his family members.
99. The complainant has claimed sum of Rs. 5,00,000/- towards damages / compensation for delayed possession etc. As is stated above, as per the application form, the possession of the flat was to be delivered to the complainant latest by 18.11.2008, i.e., more than 10 years' ago, but the possession of the flat has not yet been handed over by the opposite parties to the complainant and they have been enjoying the hard-earned money of the complainant since long. The complainant is a senior citizen and has retired from the post of Colonel in the Indian Army. He has served the nation for long and the builder can not be spared for committing such an illegal act and committing unfair trade practice as well as deficiency in service and also for usurping the money of the consumer, which he had invested with the builder, with a view of getting a flat for his residential purpose, which purpose has been defeated by the builder for no fault on the part of the consumer, inspite of receiving almost the entire consideration amount from the consumer. Therefore, in the given set of facts and circumstances, the complainant is definitely entitled to sum of Rs. 5,00,000/- as compensation on account of delayed possession as well as hardship undergone by him for such a long time, in getting the possession of the flat. One can easily imagine the sufferings of the complainant, who had invested his hard-earned money in buying the flat for his residential purposes and inspite of having made almost the entire payment towards the agreed price of the flat, he has been deprived of the flat till date and the builder has been enjoying his money and earning interest on the same by investing the said sum in his business work etc. It is worth to mention here that the complainant had taken term loan of Rs. 20,00,000/- from the bank and had been paying EMI's of the said loan to the bank. Thus, the hardship suffered by the complainant is also writ large, by paying the loan installments to the bank and the purpose for which the 10 loan was obtained, has also not been accomplished as yet and the possession of the flat is still wanting at the end of the builder for no justified ground / reason. We also do not find any Force Majeure circumstances as reason for delaying the possession of the flat. As is stated above, the opposite parties have not been courageous enough to come up before the Commission and to have their say in order to deny the allegations levelled by the complainant and to show that there has not been any inaction on their part and that they were forced / compelled by the circumstances beyond their control, which caused delay in delivering possession of the flat to the complainant - consumer.
10. The principles of law postulated by the Hon'ble National Commission in M/s Vora Land Developers through Mr. Shailesh P. Vora, Partner Vs. Jayantilal Hirji; [2014] 1 CPR (NC) 21, deserve special mention in this case; depicted as under:
"Firstly that, "the complainant might be expecting possession within reasonable time of 2 years which is a reasonable expectation of every flat buyer." Loss caused by the opposite party to the complainant is enormous.
Secondly that, "unscrupulous builders who after taking substantial cost of building do not perform their part of obligation, should not be spared."
11. Looking to the facts in hand and law on the point, we are of the considered view that the opposite parties had malafide intention to grab the hard-earned money of the complainant, the senior citizen. Admittedly, the builder had been enjoying the money of the complainant right from the year 2006 onwards; even after making requests after requests, the builder is in no mood to hand over the 11 possession of the flat to the complainant and is delaying / lingering on the matter without any justification and inspite of receiving almost the entire price of the flat agreed between the parties. Since the case of the complainant is well-merited and he has been made to run from pillar to post in order to get redressal of his grievance and to move this Commission, he is also entitled to litigation expenses quantified at Rs. 20,000/-.
12. For the reasons aforesaid, the consumer complaint is allowed ex-parte against the opposite parties and the opposite parties are directed to hand over possession of flat No. 302 (FH-02), GTM Forest & Hills, Dehradun to the complainant, within a period of one month from the date of the order and to execute the necessary documentation in that regard in complainant's favour. The opposite parties are further directed to pay sum of Rs. 14,86,820/- (Rupees Fourteen Lacs Eighty Six Thousand Eight Hundred Twenty Only) to the complainant for carrying out the remaining work in the subject flat; Rs. 5,00,000/- (Rupees Five Lacs Only) as compensation on account of delayed possession as well as hardship undergone by the complainant and Rs. 20,000/- (Rupees Twenty Thousand Only) towards litigation expenses. In case the order is not complied with by the opposite parties within the stipulated period of one month, the complainant shall be entitled to seek execution of this order in accordance with law.
(MRS. VEENA SHARMA) (BALVEER PRASAD) K