State Consumer Disputes Redressal Commission
Parul Aggarwal And Another vs M/S Spaze Towers Pvt. Ltd. on 13 January, 2020
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA Complaint No. 536 of 2018 Date of Institution: 24.09.2018 Date of Decision: 13.01.2020 1. Mrs. Parul Aggarwal wife of Neeraj Aggarwal 2. Neeraj Aggarwal son of Dr. I.P. Aggarwal Through Shri I.P. Aggarwal son of late Sh. J.P. Aggarwal GPA, resident of House No.1483, Sector 9, Faridabad, Haryana. ....Complainants Versus M/s Spaze Towers Private Limited, Spazedge, Sector 47, Gurgaon-Sohna road through its Managing Director/Authorized Representative. ....Opposite Party CORAM: Shri Harnam Singh Thakur, Judicial Member.
Ms. Manjula, Member.
Argued by: Shri Gaurav Singla, counsel for the complainant.
Opposite party ex parte O R D E R MANJULA, MEMBER The complainants, namely, Mrs. Parul Aggarwal and her husband Neeraj Aggarwal have filed the instant complaint under Section 17 of the Consumer Protection Act, 1986 for committing deficiency in service and unfair trade practice by the opposite party.
2. The complainants alleged that they purchased a flat in the project namely "Spaze Privy" at Gurgaon floated by the opposite party. They were allotted Flat No.101, Tower F, 10th Floor, Sector 72, Gurgaon. At the time of allotment, super area of the flat was stated to be 1900 sq. feet but lateron it was increased to 2085 sq. feet. The opposite party demanded the enhanced cost of 185 sq. feet area of the flat from the complainants. Flat Buyer's Agreement was executed between the complainants and the opposite party on 06.01.2009. As per clause 30(a) of the agreement, in case the opposite party does not provide the possession of the flat within a period of 36 months, the opposite party will pay Rs.5/- per sq. feet. Clause 30(a) of the Agreement reproduced as under:-
"In case within a period of 36 months from the date of signing of this Agreement, which may be extended under the circumstances mentioned in clause 28(b), the Developer is not able to hand over the possession to the Flat Allottee(s), the Flat Allottee(s) shall be entitled to payment of compensation at the rate of Rs.5/- per sq. feet per month of the super area for the period of delay in offering the possession of the said Flat under the provision of Clause 29(a)."
3. The possession of the flat was to be offered on or before January, 2012 from the date of signing of the agreement. The opposite party offered the possession to the complainants on 17.12.2013. Thus, the complainants entitled for the compensation of Rs.2,50,200/- as per clause 30(a) of the agreement referred to above from January, 2012 to December 2013. The complainants made the final payment of the flat on 27.12.2013. Vide letter dated 12.05.2009, the rebate of 7% on Basic Sale Price was offered to the complainants by the opposite party on the flat for making the payments as per construction linked plan but when the complainants deposited the full and final payment on 27.12.2013 the benefit of aforesaid letter dated 12.05.2009 was not given to the complainants. The complainants asked the opposite party regarding the said benefit but no satisfactory reply was given by the opposite party. The complainants were also asked to make the payment of Rs.1,75,703/- as transfer charges to which they paid to the opposite party. The opposite party assured the complainants that their benefits would be given to them within a period of 7-10 days but despite assurance, the benefits were not released. The opposite party again demanded a sum of Rs.17,782/- on account of common area facility charges from the complainants vide invoice dated 01.01.2014. The complainants served legal notice dated 21.03.2014 upon the opposite party. The opposite party vide its reply dated 11.04.2014 refused to give the benefits to the complainants. Hence, the complaint.
4. Upon notice, Shri Puneet Tuli, Advocate appeared on behalf of the opposite party. Thereafter on 20.03.2019, Shri Puneet Tuli, Advocate recused himself from the case. Again fresh notice was issued to the opposite party. Vide order dated 05.07.2019, the opposite party was ordered to be proceeded against ex parte, which reproduced as under:-
"As per report notice issued to opposite party received back duly served, but, nobody has appeared on behalf of opposite party. Case called several times since morning. Waited sufficiently. It is already 1:00 P.M. No further wait is justified. It shows that the opposite party is not interested in continuing this appeal. Hence, opposite party is hereby proceeded against ex-parte.
Adjourned to 14.08.2019 for recording ex-parte evidence of complainant."
5. In their evidence, the complainants submitted affidavit (Exhibit CA) of Shri I.P. Aggarwal son of late Shri J.P. Aggarwal, G.P.A, resident of House No.1483, Sector 9, Faridabad alongwith the following documents:-
1) General Power of Attorney dated 15.06.2018 Exhibit C-1
2) Flat Buyer's Agreement dated 06.01.2009 Exhibit C-2
3) Notice for Offer of Permissive Possession dated 17.12.2013 Exhibit C-3
4) Letter dated 21.05.2009 issued by Spaze Towers Private Limited to Mrs. Parul Agarwal-complainant Exhibit C-4
5) Invoice dated 01.01.2014 Exhibit C-5
6) Order dated 24.07.2017 passed by District Forum, Gurgaon Exhibit C-6
6. Since, the opposite party has been proceeded ex parte, the complaint was adjourned for arguments.
7. After hearing learned counsel for the complainant and on going through the pleadings as well as the evidence led by the complainant, the State Commission finds that the possession of the flat was to be handed over on or before January, 2012 from the date of signing of the agreement. The opposite party offered the possession to the complainants on 17.12.2013. Thus, there was delay in handing over of the possession to the complainants. Accordingly, the complainants entitled for the compensation of Rs.2,50,200/- as per clause 30(a) of the agreement referred to above from January, 2012 to December 2013. The complainants are also entitled to Rs.4,74,337/- on account of refund @ 7% on Basic Sale Price. As such, the opposite party committed deficiency in service and unfair trade practice.
8. Resultantly, the complaint is allowed and opposite party is directed to pay compensation to the tune of Rs.2,50,200/- on account of delay in handing over of the possession to the complainants. The opposite party is also directed to pay Rs.4,74,337/- on account of refund @ 7% on basic sale price. The above said amounts would be paid by the opposite party alongwith interest @ 12% per annum from the date of filing of the complaint till realization within a period of 45 days or else the complainants shall be entitled to ask for interest @ 18% per annum. The opposite party is further directed to pay an amount of Rs.50,000/- as compensation for mental agony and harassment and also a sum of Rs.25,000/- as litigation expenses to the complainants.
Announced 13.01.2020 (Manjula) Member (Harnam Singh Thakur) Judicial Member