Nikhil Kumar Garg Vs. M/S. Nitishree Infrastructure Limited - Court Judgment

SooperKanoon Citationsooperkanoon.com/1107611
CourtDelhi State Consumer Disputes Redressal Commission SCDRC New Delhi
Decided OnFeb-01-2013
Case NumberComplaint Case No. 2009 of 229
JudgeBARKAT ALI ZAIDI, PRESIDENT & THE HONOURABLE MR. S.A. SIDDIQUI, MEMBER (JUDICIAL)
AppellantNikhil Kumar Garg
RespondentM/S. Nitishree Infrastructure Limited
Excerpt:
barkat ali zaidi, president: 1. facts of the case are that on 16.01.2007, the complainant on entered into a written agreement with the op for purchase/sale of a flat, bearing no.604, block-e, 6th floor in voila apartment of the op at shaurya puram, n.h.–24, ghaziabad, up, and paid the op rs.28,16,283/- towards 90% of the consideration amount, with stipulation that remaining 10% amount will be paid at the time of delivery of possession. a written agreement of this sale purchased agreement was executed between the parties, wherein it was also agreed that therefrom the op will start construction within three months, and subsequent to within 30 months op will hand over the possession, which the complainant failed. complainants grouse is that in september 2009 when he approached the op for taking delivery of the flat it turned out, that the construction of the flat had not even started. he therefore on 18.06.2009 sent a legal notice to the op, calling upon him to repay his amount alongwith interest @20% p.a. but with no result, and that led him to this commission with this complaint, in which his prayer is that op be directed to refund him rs.28,16,283/- alongwith interest @18% p.a. , rs.25,00,000/- as compensation and the costs of the proceedings. 2. the op opposed the claim by filing the written version and averred that this commission has no territorial jurisdiction to hear this complaint for the reason that office of the op is situated in noida, and that the complaint is filed beyond the prescribed limitation, because cause of action in this case for filing it arose on 16.01.2007, while the complaint is filed beyond two years on 10.09.2009. op averred that as provided in condition no.12 of the agreement, in case op fails to give the possession of the flat, within the stipulated period there on receipt of notice from the complainant for termination of agreement, the op shall be responsible only to consider at its own discretion for any alternative property for the complainant or to refund his amount with simple interest @8% p.a. but will not be responsible for any compensation. the op alleged that he is willing to allot an alternative residential plot, to the complainant in the same project in some other project of the company located at ghaziabad, therefore also the complainant is not entitled to receive any interest on his amount or compensation. denying any deficiency on it part the op alleged that acute shortage of labour and material in that area and its availability at the site due to stringent transportation rules resulted in late commencement of the construction. 3. the complainant in replication filed by him denied the complaint to be time barred. he alleged or that this commission has jurisdiction to hear the complaint, since registered office of the op is in delhi. he also alleged that alternate sites suggested by the op are also not ready and that the complainant cannot be compelled to accept the alternate site, the op even in reply to the notice sent by the complainant to the op suggested any alternate site to him. 4. in his evidence the complainant filed the sale purchase agreement dated 16.01.2007, receipts of the payments made by him to the op, letter dated 16.01.2007 written by him to the branch manager, uti bank to mortgage the flat in question for obtaining the loan, copy of letter dated 05.05.2009 sent by axis bank to the complainant regarding closure of home loan, statement of bank account, allotment letter, legal notice and his own affidavit. the op in his evidence has filed no affidavit. 5. we have heard sh. deepak singhal, a/r of the complainant and sh. brijesh jha, counsel for the op. 6. it was argued from the side of the op that this commission at delhi does not have territorial jurisdiction to entertain this case because disputed property is in up and corporate office of the op is also situated there in noida. we are disinclined to agree with this contention of the op. it is undisputed in this case as also conceded by the counsel for the op in course of arguments that registered office of the op is situated in delhi, section 11(2) of the consumer protection act 1986 provides as follows: 11. jurisdiction of the district forum.—(1) subject to the other provisions of this act, the district forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs. (2) a complaint shall be instituted in a district forum within the local limits of whose jurisdiction,— (a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or (b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the district forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. 7. it will thus appear that because of the aforesaid provision the complaint could be filed in delhi. 8. the question of complaint being time was also raised. the limitation for filing the complaint is two years from the date of cause of action arose! condition no.9 of the agreement provides that, the possession of the flat was to be delivered to the complainant from the date of agreement within 30 months with a grace period of three months more. in this case the agreement was entered on 16.01.2007 and the construction was to start within three months by 16.04.2007 and possession was to be delivered thereafter within 30 months in september 2009, therefore complaint is well within the limitation period. the plea of the op that the complaint is filed beyond the prescribed limitation is therefore unacceptable. it is also noticeable that undisputable flat is still not ready for giving delivery of possession which the counsel for op on query has conceded before us. 9. the suggestion of alternate site of the op, to the complainant is an afterthought officer he did not even gave reply to the notice, of the complainant which the complainant had sent calling upon to refund his amount. according to the agreement itself the op could suggest the complainant an alternate arrangement in response to the complainants notice, which the op failed. 10. it is manifest from the facts appearing in the case that the op builder has defaulted and has not been able to deliver as promised. the offer of alternate site now made by the op is neither in accordance with the agreement nor sufficient or substantial. he had to deliver the flat within 33 months as agreed and his offer for plot now is wholly unrealistic and futile. there is hardly any legitimate defence available to the op builder and he is clearly liable for refunding the amount taken by him to the complainant. 11. the agreement postulated payment of interest at a rate of 8% per annum on the amount of refund, but that amount was to be given if the op had replied to the notice of the complainant. since the op has not honoured the agreement, interest cannot be confined to the amount mentioned in the agreement and we propose the interest @9% per annum. compensation for violation of agreement and inconvenience to the complainant is determined to rs.5 lac and not as rs.25 lac as demanded. 12. the op will therefore refund the amount of rs.28,16,283/- to the complainant @9% per annum from the date of filing till the date of payment alongwith compensation of rs.5 lac plus the costs of the case which is determined at rs.5000/-. entire amount to be paid within 30 days from the date of receipt of this order. 13. a copy of this order be provided to the parties as per rules, thereafter the file be consigned to record room.
Judgment:

Barkat Ali Zaidi, President:

1. Facts of the case are that on 16.01.2007, the complainant on entered into a written agreement with the OP for purchase/Sale of a flat, bearing No.604, Block-E, 6th Floor in Voila Apartment of the OP at Shaurya Puram, N.H.–24, Ghaziabad, UP, and paid the OP Rs.28,16,283/- towards 90% of the consideration amount, with stipulation that remaining 10% amount will be paid at the time of delivery of possession. A written agreement of this sale purchased agreement was executed between the parties, wherein it was also agreed that therefrom the OP will start construction within three months, and subsequent to within 30 months OP will hand over the possession, which the complainant failed. Complainants grouse is that in September 2009 when he approached the OP for taking delivery of the flat it turned out, that the construction of the flat had not even started. He therefore on 18.06.2009 sent a legal notice to the OP, calling upon him to repay his amount alongwith interest @20% p.a. but with no result, and that led him to this Commission with this complaint, in which his prayer is that OP be directed to refund him Rs.28,16,283/- alongwith interest @18% p.a. , Rs.25,00,000/- as compensation and the costs of the proceedings.

2. The OP opposed the claim by filing the written version and averred that this Commission has no territorial jurisdiction to hear this complaint for the reason that office of the OP is situated in Noida, and that the complaint is filed beyond the prescribed limitation, because cause of action in this case for filing it arose on 16.01.2007, while the complaint is filed beyond two years on 10.09.2009. OP averred that as provided in Condition No.12 of the Agreement, in case OP fails to give the possession of the flat, within the stipulated period there on receipt of notice from the complainant for termination of agreement, the OP shall be responsible only to consider at its own discretion for any alternative property for the complainant or to refund his amount with simple interest @8% p.a. but will not be responsible for any compensation. The OP alleged that he is willing to allot an alternative residential plot, to the complainant in the same project in some other project of the company located at Ghaziabad, therefore also the complainant is not entitled to receive any interest on his amount or compensation. Denying any deficiency on it part the OP alleged that acute shortage of labour and material in that area and its availability at the site due to stringent transportation rules resulted in late commencement of the construction.

3. The complainant in replication filed by him denied the complaint to be time barred. He alleged or that this Commission has jurisdiction to hear the complaint, since registered office of the OP is in Delhi. He also alleged that alternate sites suggested by the OP are also not ready and that the complainant cannot be compelled to accept the alternate site, the OP even in reply to the notice sent by the complainant to the OP suggested any alternate site to him.

4. In his evidence the complainant filed the Sale purchase Agreement dated 16.01.2007, receipts of the payments made by him to the OP, letter dated 16.01.2007 written by him to the Branch Manager, UTI Bank to mortgage the flat in question for obtaining the loan, copy of letter dated 05.05.2009 sent by Axis Bank to the complainant regarding closure of Home Loan, Statement of Bank Account, Allotment letter, legal notice and his own affidavit. The OP in his evidence has filed no affidavit.

5. We have heard Sh. Deepak Singhal, A/R of the complainant and Sh. Brijesh Jha, counsel for the OP.

6. It was argued from the side of the OP that this Commission at Delhi does not have territorial jurisdiction to entertain this case because disputed property is in UP and corporate office of the OP is also situated there in Noida. We are disinclined to agree with this contention of the OP. It is undisputed in this case as also conceded by the counsel for the OP in course of arguments that registered office of the OP is situated in Delhi, section 11(2) of The Consumer Protection Act 1986 provides as follows:

11. Jurisdiction of the District Forum.—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs.

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

7. It will thus appear that because of the aforesaid provision the complaint could be filed in Delhi.

8. The question of complaint being time was also raised. The limitation for filing the complaint is two years from the date of cause of action arose! Condition No.9 of the Agreement provides that, the possession of the flat was to be delivered to the complainant from the date of agreement within 30 months with a grace period of three months more. In this case the agreement was entered on 16.01.2007 and the construction was to start within three months by 16.04.2007 and possession was to be delivered thereafter within 30 months in September 2009, therefore complaint is well within the limitation period. The plea of the OP that the complaint is filed beyond the prescribed limitation is therefore unacceptable. It is also noticeable that undisputable flat is still not ready for giving delivery of possession which the counsel for OP on query has conceded before us.

9. The suggestion of alternate site of the OP, to the complainant is an afterthought officer He did not even gave reply to the notice, of the complainant which the complainant had sent calling upon to refund his amount. According to the agreement itself the OP could suggest the complainant an alternate arrangement in response to the complainants notice, which the OP failed.

10. It is manifest from the facts appearing in the case that the OP builder has defaulted and has not been able to deliver as promised. The offer of alternate site now made by the OP is neither in accordance with the agreement nor sufficient or substantial. He had to deliver the flat within 33 months as agreed and his offer for plot now is wholly unrealistic and futile. There is hardly any legitimate defence available to the OP Builder and he is clearly liable for refunding the amount taken by him to the complainant.

11. The agreement postulated payment of interest at a rate of 8% per annum on the amount of refund, but that amount was to be given if the OP had replied to the notice of the complainant. Since the OP has not honoured the agreement, interest cannot be confined to the amount mentioned in the agreement and we propose the interest @9% per annum. Compensation for violation of agreement and inconvenience to the complainant is determined to Rs.5 Lac and not as Rs.25 lac as demanded.

12. The OP will therefore refund the amount of Rs.28,16,283/- to the complainant @9% per annum from the date of filing till the date of payment alongwith compensation of Rs.5 lac plus the costs of the case which is determined at Rs.5000/-. Entire amount to be paid within 30 days from the date of receipt of this order.

13. A copy of this order be provided to the parties as per rules, thereafter the file be consigned to Record room.