Anju Sharma vs M/s Negolic India Ltd

Heard Mr. Prabhakar Tiwari, Advocate, for the complainant and Mr. Praveen Bahadur, Advocate, for the opposite party.

Mrs. Anju Sharma has filed above complaint for directing M/s. Negolice India Limited, (the opposite party) to (i) pay Rs.19258110/- with interest @24% per annum; (ii) pay Rs.2000000/-, as compensation for deficiency in service; (iii) pay Rs.1000000/-, for mental agony and harassment; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

The complainant stated that M/s. Negolice India Limited (the opposite party) was a company, registered under the Companies Act, 1956 and engaged in the business of development and construction of group housing project. The opposite party launched a group housing project, in the name of “M2K Victoria Gardens”, at village Azadpur Mauza Malikpur Chauni (adjacent to Model Town), Ring Road, Delhi, in the year 2008 and made wide publicity of its facilities and amenities. Allured with the representations, the complainant approached the opposite party and expressed her desire to purchase a flat in the project. The officials of the opposite party informed that booking had come to an end and she can approach one Deepak Jain, who was willing to sell Unit no. A-103, allotted to him. The complainant approached Deepak Jain, who agreed to sell his unit to her. With the consent of the opposite party, Deepak Jain executed an assignment deed dated 11.06.2008 in favour of the complainant on Unit No.A-103, admeasuring covered area as 2242 sq.ft and super area as 3450 sq.ft. basic sale price @Rs.4500/- per sq.ft. The complainant and Deepak Jain moved an application dated 14.06.2008 to the opposite party for endorsement of her name in the records of the opposite party, which was accepted and the opposite party informed the complainant vide letter no. NEG/2008/248/686 that an amount of Rs.8777223/- was in the account of Deepak Jain, which stood credited in her account. The opposite party executed a fresh Buyer’s Agreement in her favour on 31.07.2008. Article-5 of the agreement provides 36 months period from the date of the agreement or from the date of commencement of the Tower, whichever is later with grace period of six months, for offer of possession. Annexure-C of the agreement provides payment plan as “construction link payment plan”. As per demand of opposite party, the complainant deposited total Rs.19306090/- till 28.07.2014 (including the amount deposited by Deepak Jain). The period of 42 months expired on 30.01.2012. The opposite party, however, offered possession vide letter dated 02.03.2015. The complainant, through letter dated 09.03.2015 and reminders dated 26.03.2015 and 14.04.2015, claimed for compensation for delay in possession but the opposite party did not pay any heed. The complaint got the area of the flat No.A-103 measured by Er.J.K. Singhal, who after measurement submitted his report dated 20.04.2015, mentioning therein that covered area was 2100 sq.ft., in place of 2242 sq.ft. On inspection, it was also revealed that the unit of the complainant was not garden facing. The complaint with her husband visited the office of the opposite party on 22.04.2015 and brought to their notice about shortage of area, lac of garden view and non-payment of delayed compensation. The opposite party assured that delayed compensation would be paid at the time of possession. The complainant took possession and executed possession letter dated 11.06.2015, which contained a clause that the allottee would have no claim against the company in any manner. The complainant and her husband visited the office of the opposite party on 01.07.2015, 27.07.2015, 11.08.2015, 28.08.2015 and 15.09.2015 and requested to solve her pending issues but nothing was done. Then the complainant gave a legal notice dated 20.11.2015, calling upon the opposite party to pay Rs.19542962.44, in aforesaid heads within fifteen days. The opposite party, vide his reply notice dated 16.01.2016, denied any liability. Then this complaint was filed on 20.07.2016, alleging deficiency in service and unfair trade practice.

The opposite party filed its written reply on 29.09.2016, in which, booking of the flat by Deepak Jain, allotment of the flat to him, assignment of the flat by Deepak Jain to the complainant, execution of  Buyer’s Agreement in her favour and payments made by her and Deepak Jain, have not been disputed. The opposite party stated that the complainant had been defaulter in payment of instalment and on her request, interest of Rs.18000/- for delayed instalment was waived on 19.02.2011, as acknowledged by her vide letter dated 10.03.2011, specifically mentioning that all claims/demands/disputes were settled. Payment plan was “construction link payment plan” as the construction was delayed as such demand for instalments were also delayed. The opposite party completed the construction and applied for issue of “completion certificate” on 11.09.2013. The opposite party offered “fit-out possession” to the complainant through letter dated 18.09.2013. Pursuant to which, the complainant took possession and carried out interior decoration of her choice. Issuance of “completion certificate” was delayed by the statutory authority and it was issued in February, 2015. The opposite party was entitled for extension of period, for which, “completion certificate” was delayed. The opposite party issued letter of offer of possession on 02.03.2015, along with final statement of account, demanding Rs.1546923/-, payable within 30 days. The complainant claimed for delayed compensation and requested for adjusting it in her account, vide email dated 14.04.2015. She was informed that no delay compensation was provided in the agreement. The complainant then moved an application on 20.05.2015 for waiver of interest and holding charges. The opposite party agreed to waive of interest and holding charges. Then the complainant deposited balance amount on 26.05.2015 and vide email dated 08.06.2015, requested to hand over possession. She settled all disputes, executed Indemnity-cum-Undertaking dated 11.06.2015; possession acknowledgement letter dated 11.06.2015 and took possession, without any protest. After 5 months of taking possession, the complainant gave legal notice dated 20.11.2015, which was replied by the opposite party. It has been denied that covered area was reduced to the extent of 142 sq.ft. The unit of the complainant is still garden facing belonging to Delhi Development Authority. The complaint has been filed supressing material facts and liable to be dismissed. After settling the dispute relating to account and taking possession, the complaint has been filed after one year and is not maintainable. The agreement contained an arbitration clause and the complainant be relegated for arbitration.

The complainant filed Rejoinder Reply, Affidavit of Evidence and Affidavit of Admission/Denial of documents of Mrs. Anju Sharma and documentary evidence. The opposite party filed Affidavit of Evidence, Affidavit of Admission/Denial of documents of Manoj Kumar and documentary evidence. Both the parties have filed their short synopsis. Through IA/120/2019, the opposite party has filed conveyance deed dated 04.12.2018, executed in favour of the complainant, relating to the flat in dispute.

We have considered the arguments of the counsel for the parties and examined the record. Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that execution of conveyance deed would not disentitle the home buyer from claiming his relief in the complaint. Although the complainant has stated that the covered area had been reduced to the extent of 142 sq.ft. but Affidavit of Evidence of Architect has not been filed. On the other hand full area has been mentioned in the conveyance deed dated 04.12.2018. Similarly, the opposite party has stated that the flat of the complainant is garden facing. As the garden belongs to Delhi Development Authority, the opposite party has no jurisdiction to make any change in it. As such these issues relating to reduction of area or preferential location charge, have no merit.

Article 5(A)(i) of the agreement provides that the construction is likely to be completed within a period 36 months from the date of commencement of the construction on receipt of sanctioned building plan and other requisite approvals for construction, subject to force majeure or the date of execution of agreement whichever is later, with a grace period of six months. The agreement was executed on 31.07.2008. The date of commencement of construction has not been given, as such the period of 42 months has to be counted from 31.07.2008 and due date was 30.01.2012. The construction was completed in September, 2013 as such there was delay of 19 months. The opposite party took plea that issuance of “completion certificate” has been delayed by statutory authority, which is liable to be extended. The agreement does not contain any clause for compensation for delay in possession but Supreme Court in Wg. Cdr. Arifur Rahman Khan Vs. DLF Southern Homes Pvt. Ltd., (2020) 16 SCC 512, held that the home buyer would be entitled for compensation for the delayed period in the form of interest @6% per annum on his deposit.

ORDER

In the result, the complaints are partly allowed. The opposite party is directed to pay compensation for delay in the form of interest @6% per annum for the period of 19 months on the deposit of the complainant as in August, 2013, within a period of two months from the date of this judgment.