National Consumer Disputes Redressal
Mukesh Gupta & Anr. vs Earth Infrastructures Limited on 29 November, 2017
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 1203 OF 2016 1. MUKESH GUPTA & ANR. S/o. Late Shri S.P. Gupta, R/o. 124-G, Central Avenue, Sainik Farms, New Delhi - 110 062. ...........Complainant(s) Versus 1. EARTH INFRASTRUCTURES LIMITED Having Its Registered Office at: B-100, Second Floor, Naraina Industrial Area, Phase - 1, Delhi - 110 028. 2. Mr. Aseem Gupta S/o. Mr. Mukesh Gupta, 124-G, Central Avenue, Sainik Farms, New Delhi - 110 062. ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE V.K. JAIN,PRESIDING MEMBER
For the Complainant : Mr. Apar Gupta, Advocate
Ms. Disha Gupta, Advocate For the Opp.Party : NEMO
Dated : 29 Nov 2017 ORDER
JUSTICE V.K. JAIN PRESIDING MEMBER (ORAL)
IA/18604/2017 (C/delay)
The delay on the part of the complainant in filing the affidavit is condoned. The application stands disposed of.
CC/1203/2016
The complainants, namely, Mukesh Gupta and his son Aseem Gupta booked a residential flat with the opposite party in a project, namely, 'Earth Copia' which the opposite party was to develop in sector 112 of Gurgaon and Unit No. 401 in Tower-F having super area of 1835 sq.ft. was allotted to them on a basic sale price of Rs.12845000/-. As per clause 11 of the Apartment Buyer's Agreement executed between the parties on 3.1.2013, the possession was expected to be delivered within a period of 36 months though a grace period of 6 months was also available to the opposite party. The possession, therefore, ought to have been delivered on or before 3.7.2016, including the grace period of 6 months. The grievance of the complainants is that the possession has not been offered to them and the construction is far from complete despite they having already paid Rs.3624403/- to the opposite party. The complainants are, therefore, before this Commission seeking delivery of possession of the apartment along with compensation in the form of interest. They are also seeking refund of the amount of Rs.93328/- paid as service tax as well as refund of the amount of Rs.3 lakh paid for car parking.
2. The complaint has been resisted by the opposite party which has taken a preliminary objection that the complainants are not consumers they being owners of the property in which they are residing. It is also pleaded by the opposite party that this Commission lacks pecuniary jurisdiction to entertain the complaint. On merits, the opposite party has interalia stated that the construction has already reached 12th floor but the complainants have made payment of only Rs.3624403/- inclusive of service tax. Thus according to the opposite party the complainants are defaulter in making timely payment of the agreed sale consideration. It is also alleged that the delay in construction has happened due to non-payment of installment by several flat buyers including the complainants.
3. As regards the preliminary objection of the opposite party that the complainants are not consumers they being owners of the property in which they are residing, the learned counsel for the complainants has drawn my attention to the agreement to sell and the Power of Attorney executed in respect of the house in which the complainants are residing. According to the learned counsel for the complainants these documents pertain to House No.G-124, Sainik Farms, New Delhi in which the complainants are residing. As per the above referred documents, it is only complainant No.1 Mukesh Gupta, who has agreed to purchase the aforesaid house by virtue of the agreement to sell and the Power of Attorney executed in his favour. The Complainant No.2 Aseem Gupta therefore has no right, title or legal interest in the aforesaid house. The case of the complainants is that the residential flat with the opposite party was booked for the residence of complainant No.2 who has since become a major. There is no evidence of complainant No.2 owning the above referred house or any other house in which he can re side. Therefore, it cannot be said that the complainants had booked the residential flat with the opposite party for a commercial purpose. Consequently, I do not find any merit in the preliminary objection taken by the opposite party.
4. As far as the pecuniary jurisdiction is concerned, this Commission would have such a jurisdiction to entertain the complaint, if the value of the services hired or availed by the complainant and the compensation, if any, claimed by him, exceeds Rs.one crore. As held by a Three-Members Bench of this Commission in Ambrish Kumar Shukla & Ors. Vs. Ferrous Infrastructure Pvt. Ltd. CC 97 of 2016, decided on 07.10.2016, the value of services in such a cases means the sale consideration agreed to be paid by the buyer to the seller. The said consideration in this case was more than Rs. One crore. Therefore, this Commission does possess the requisite pecuniary jurisdiction.
5. It is not in dispute that the construction of the flat allotted to the complainant is still not complete. The possession of the flat was required to be delivered to the complainant on or before 03.7.2016. The opposite party is required to complete the construction of the flat in all respects and deliver its possession to the complainants.
6. The opposite party should also pay a fair compensation to the complainants for the delay n offering possession of the said flat, from the committed date of possession i.e. 03.7.2016 till the date on which the possession is actually offered after completing the construction in all respects and obtaining the requisite occupancy certificate.
7. As regards the plea that the complainants are defaulters in payment of the balance sale consideration, it is an admitted position that the allotment made to the complainants has not been cancelled by the opposite party. By not cancelling the allotment, the opposite party is deemed to have condoned the default on the part of the complainants though in all fairness it would be entitle to interest on the due amount, from an appropriate date.
8. The following was the payment plan agreed by the complainants with the opposite party:
S. No.
Occasion name
Charge name
Percentage
Due amount
Net amount
1.
Booking BSP 10 7,11,062 7,11,062
2. Within 45 days from booking BSP 15 10,66,594 10,66,594
3. Within 120 days from booking BSP Development charges 10 50 7,11,062 3,42,228 10,53,290
4. At the start of excavation work BSP 10 7,11,062 7,11,062
5. At the start of basement slab BSP Development charges 10 50 7,11,062 3,42,227 10,53,289
6. At the start of second floor work BSP Car parking charges 5 50 3,55,531 1,50,000 5,05,531
7. At the start of 4th floor work BSP 5 3,55,531 3,55,531
8. At the start of seventh floor work BSP 3rd and 4th floor PLC Park facing PLC Road/corner PLC 5 50 50 50 3,55,531 1,37,625 2,06,438 68,812 7,68,406
9. At the start of 10th floor work BSP 5 3,55,531 3,55,531 10 At the start of 12th floor work BSP Car parking charges 5 50 3,55,531 1,50,000 5,05,531 11 At the start of 14th floor work BSP Club charges 5 100 3,55,531 1,00,000 4,55,531
12. On the start of internal plaster BSP 3rd and 4th floor PLC Park facing PLC Road/corner PLC 5 50 50 50 3,55,531 1,37,625 2,06,437 68,813 7,68,406
13. On laying of flooring BSP 5 3,55,531 3,55,531 14 On offer of possession BSP ECC IFMS EEC AND FFC Power backup charges 5 100 100 100 100 3,55,535 1,00,000 1,83,500 1,83,500 1,00,000 9,22,536 Total Cost Rs.
96,87,830 95,87,830 It would thus be seen that the total payment made by the complainants till date covers only the first four installments. The fifth installment is Rs.10,53,289/- which was payable at the start of basement slab has not been fully paid. However, it is not known on which date the installments No. 5 to 10 became due. It is not known when the basement slab of second floor, fourth floor work, seventh floor work, tenth floor work and twelfths floor work actually commenced. The opposite party would be entitled to interest on the fifth, sixth, seventh, eighth, ninth and tenth installments with effect from the date on which the basement slab, second floor work, fourth floor work, seventh floor work, tenth floor and twelfth floor work respectively had started.
9. Considering all the facts and circumstances of the case, including the interest rates prevailing at the relevant time, I am of the view that the opposite party should pay interest to the complainants @ 8% per annum for the period the possession is detailed. Similarly, the complainants should also pay interest at the same rate i.e. 8% per annum on the delayed payment of installments with effect from the date on which the said installments had become due in terms of this order.
10. The complaint is therefore disposed of with the following directions:
(i) The opposite party shall complete the construction of the flat allotted to the complainants in all respects, obtain the requisite occupancy certification at its own responsibility and offer possession to them on or before 30.6.2018.
(ii) The opposite party shall pay compensation in the form of simple interest @ 8% per annum to the complainants on the entire amount paid by them i.e. Rs.36,24,403/- with effect from 3.7.2016 till the date on which the possession after completing the construction and obtaining the occupancy certificate is actually offered to the complainants. The compensation shall be credited / adjusted in the balance amount payable by the complainants.
(iii) The opposite party shall be entitled for the simple interest @ 8% per annum on the arrears of fifth, sixth, seventh, eighth, ninth and tenth installments with effect from the date on which the basement slab of second, fourth, seventh , tenth and twelfth floor work had actually commenced, till the date on which the said installments are actually paid.
(iv) The opposite party shall pay Rs.25,000/- as the cost of litigation to the complainants.
(v) In the event of the opposite party failing to complete the construction, obtaining the requisite occupancy certificate and offering possession of the flat to the complainants on or before 30.6.2017 in terms of this order, it shall refund the amount of Rs.36,24,403/- to the complainants along with simple interest on that amount @ 10% per annum from the date of each payment till the date of refund.
......................J V.K. JAIN PRESIDING MEMBER