Kartar Singh Kochhar vs Vatika Limited

SARDAR Kartar Singh Kochhar, the complainant, applied for allotment of an apartment in a residential complex, floated in the Name and Style of "Vatika City " in Sector 56, Gurgaon, Haryana, by Vatika Limited, the opposite party. The complainant paid advance an amount of Rs. 13.00 lakh and the complainant was informed vide letter dated 29.4.2006 that his application had been accepted. The complainant was allotted Apartment No. 1/003, Ground Floor, Block Sovereign-1, a copy of the letter was placed before us as Exb. CW-1. The complainant signed the Apartment Buyer ''s Agreement dated 9.5.2006, the copy of which was placed on record as Exb. CW-2. The complainant obtained a home loan @ 10%. floating rate of interest, from IDBI Bank Limited which was intimated to the opposite party. Subsequently, the complainant transferred the home loan from IDBI Bank Limited to Kotak Mahindra Bank Limited and accordingly the opposite party was again informed.

THE complainant religiously paid the instalments through its banker, total amount being Rs. 1,24,71,624 to the opposite party. At the time of purchase of the said apartment, the complainant was informed that possession of the apartment shall be handed over to the allottees within three years from the date of agreement but they failed to do the needful. The complainant was compelled to pay huge EMIs and interest to banks, without enjoying the property. Instead of giving the possession of the apartment to the complainant, the opposite party sent a notice dated 12.7.2011, threatening to terminate the Apartment Buyer ''s Agreement, which is totally illegal and against the settled principles of law. A copy of the order was attached with the complaint as Exb. CW-5. Regarding agreement CW-2, dated 9.5.2006, it is stated that this is one sided agreement. In this agreement, the opposite party reserved its right to reject and refuse to execute the agreement wherein the intending allottee has made any corrections/cancellations/ alterations/modifications, and the such decision of the opposite party shall be final and unchallengeable. It is alleged that the complainant was compelled to sign it.

THEREFORE , the instant complaint was filed. The agreement CW-22, has been called into question. The following prayers were made in the complaint: (i) The opposite party should be directed to hand over the possession of the apartment in favour of the complainant with all amenities and facilities as agreed. (ii) To pay compensation of Rs. 20 lakh for harassment and mental tension and agony suffered by the complainant. (iii) The opposite party should be directed to discontinue with the unfair and restrictive trade practice. (iv) To allow cost of the case.

THE opposite party contested the present case. It is averred that the petition is barred by time. The jurisdiction of this Court has also been challenged. It is stated that this complaint should have been filed before the District Forum because the Complainant is claiming compensation of Rs. 20.00 lakh only. Again, Vatika City is located in Sector 49 and not in Sector 56, Gurgaon, and this fact goes to show that the complainant is ignorant about the project/apartment and has made allegations in the present case on the basis of hearsay information. Again the complainant is not the original allottee of the apartment, but got it transferred in his name from one, Ms. Amrit Kaur, who was original allottee of the said apartment. It may be mentioned here that Ms. Amrit Kaur is the daughter of the complainant. The complainant was never assured that the apartment would be handed over to him, within three years. The opposite party has cited certain clauses of the agreement. These clauses go to show that the company contemplated to complete the construction of the said building, within a period of three years, but if there was delay in delivery of possession on the grounds mentioned in Clauses (11.1), (11.2) and (11.3) and Clause (39) or due to apartment allottees to pay in time the price of the said apartment along with other charges and dues, in accordance with the schedule of payments, given in Annexure 3, or as per the demands raised by the company, from time-to-time, or any failure on the part of the allottee to abide by the terms and conditions of this agreement, the apartment allottee was entitled to give notice of the company, within 90 days from the expiry of said period of three years, or such extended periods, as the case may be, for terminating this Agreement.

THE opposite party has also produced a chart showing that the complainant has committed defaults in payment of the instalments. The said chart is reproduced as follows: Amount Due (Rs.) Due on Amount Date paid Remarks (Inst. No.) 1914761 27.7.2006 1913768 23.8.2006 Instalment paid late by 27 days (2nd Instt.) 638254 (3rd Instt.) 31.7.2006 638254 23.8.2006 Instalment paid late by 23 days 2314761 14.10.2006 400000 4.10.2006 Amount deposited in bits and pieces. (4th Instt.) 1855136 4.10.2006 Rs. 59625 was deposited late by three 59625 24.1.2007 and a half months 1276508 24.1.2007 240375 24.1.2007 Amount deposited in bits and pieces. 1036133 29.1.2007 Major portion deposited late by 5 days. 1276508 16.4.2007 382953 16.4.2007 Amount deposited in bits and pieces (6th Instt.) 893555 29.6.2007 and major portion deposited late by more than two months 1276508 6.6.2008 697583 23.6.2008 Amount deposited in bits and late (7th Instt.) 578925 1.7.2008 1276508 (8th Instt.) 6.6.2008 1276508 1.7.2008 Amount deposited late by 26 days 638253 26.11.2008 235150 26.11.2008 Amount deposited in bits and pieces and (9th Instt.) 403107 1.12.2008 major portion deposited late by a week. 638253 5.5.2009 155939 13.5.2009 Amount deposited in bits and pieces, (10th Instt.) 404619 19.5.2009 late and after reminders. Rs. 77695 still unpaid.

AGAIN , letter dated 12.7.2011 is not at all a notice threatening of termination of the Apartment Buyer ''s Agreement. As a matter of fact, it is only a reminder for payment of long pending dues, giving further time for payments thereof stating that notice of termination shall be issued in case, the dues were not cleared. The opposite party is ready to deliver the possession as per letter written on 9.3.2012. The possession can be delivered by the opposite party, right now, after the final price was paid. It is explained that super area of the apartment mentioned in the agreement was tentative and subject to change till the construction of the building was complete. The super area of the apartment in question underwent only a minor change from 2934.50 sq. ft., to 2971.62 sq. ft. which is less than +1.30 % of the area cited in the agreement. The change in the arithmetical number of the apartment, from 1/003 to 1/002 is concerned, the same is only a technicality and does not affect the complainant at all. The apartment of the complainant is situated on the Ground Floor of Tower/Building Sovereign-1. There are only two apartments on Ground Floor, one is of smaller one, having super area of approximately 2133.80 sq. ft. carrying arithmetic number 1/001, and the other bigger one, having super area of 2,971.62 carrying arithmetical Number 1/002. It is averred that the complainant is the allottee of the bigger apartment. Consequently, the change in the arithmetical number of the apartment of the complainant does not amount to any material change in the apartment in question. However, if the complainant wishes to retain arithmetical Number 1/003, the opposite party has no objection to the same, since there is no apartment with Number 1/003. All the other allegations have been denied.

WE have heard the learned Counsel for the parties. Learned Counsel for the opposite party at the very outset argued that the apartment is ready and the opposite party can take the possession right now subject to the condition that as per the agreement he would deposit the last installment covering more than Rs. 1 lakh and registered amount covering Rs. 50,000 approximately. The learned Counsel for the opposite party further submitted that the complainant is not a consumer, being the re-allottee, in view of the law laid down by the Apex Court in the case of HUDA v. Raje Ram, I (2009) CPJ 56 (SC), decided on 23.10.2008. On the other hand, learned Counsel for the complainant vehemently argued that he has paid a sum of Rs. 1,24,71,624. There has been delay in delivering the possession of the apartment in dispute. He contended that some compensation should be ordered. He argued that the change of number is confusing.

WE are unable to locate substance in the arguments advanced by the learned Counsel for the complainant. The complainant himself waddled out of his commitments. He wants to have the benefit of both the worlds. He wants the delivery of possession without paying the entire amount. He has made a vain attempt to make bricks without straw. He has failed to pay the instalment despite service of notice. His intention is to delay the recovery of possession on one pretext or the other. It is well said, "Time was when philosophers said that the rights and duties of the citizens were actually two-sides of same coin and you cannot demand your rights without performing your duty ". The complainant should have paid the last instalment and registration charges instead of coming to this Commission. The necessity of this case being filed would have arisen when after full payment the opposite party had refused to hand over the possession. Under the circumstances, no interest or compensation can be granted to the complainant because the prices of flats have gone up by leaps and bounds. He has not been asked to pay the escalation charges. It is therefore ordered that the petitioner will deposit the last instalment and registration charges within 90 days from today failing which the respondent will be at liberty to return the purchase price along with interest @ 9% p.a. from the date of that deposit till their realization and as has been agreed by the Counsel for the opposite party. After receipt of the entire consideration and registration charges, the opposite party would put the complainant in possession of the apartment, within a week failing which, he would pay compensation of Rs. 10,000 per day.

THE second submission made by the learned Counsel for the petitioner was that the opposite party is changing the number of the property. It is apparent that the opposite party is giving flat which is larger than the previous one. There is wee bit benefit in favour of the complainant. However, he is given the choice to keep any of the two flats as offered by the opposite party in their reply, in case it is found that the area given to the complainant is short, the opposite party would return the money proportionately.

NO other point was urged before us. The complaint is not barred by time because the period of limitation will continue till the petitioner gets the possession. Moreover, it cannot be said that this Court has got no jurisdiction. The complainant has already incurred a sum of Rs. 1,24,71,624 and has further demanded compensation in the sum of Rs. 20 lakh. The total amount comes to. more than Rs. 1.50 crore approximately. By no stretch of imagination, it can be said that this Commission has no jurisdiction to try this case. In view of the facts and circumstances detailed above, the parties are left to bear their own costs.

THE complaint stands disposed of. Ordered accordingly.