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Judgment
Subhash Chandra, Presiding Member
This is a complaint under Section 21 (a) (i) of the Consumer Protection Act, 1986 (in short, ‘the Act’) filed by the complainant alleging deficiency in service by the opposite party for delay in handing over possession of a flat booked by the complainant in its project “Park View SPA”, Sector – 47, Gurgaon.
In brief, the facts of the case are that on 16.02.2006 the opposite party issued an allotment letter in the name of the complainant allotting him Flat No. A-1501, Park View SPA, Sector-47, Gurgaon for a sale consideration of Rs.95,25,500/- along with the details of payment of the balance amount as per a payment plan. On 10.05.2006 a Flat Buyer Agreement (In short ‘Agreement’) was executed between the parties in respect of the above flat with an approximate super area of 2875 sq. ft. The possession was assured after a period of 30 months as per the Agreement. The complainant avers that construction of the flat had not started till November, 2006 and that on 20.09.2008 the opposite party asked for payment of Rs.1,76,900/- along with Rs.10,310/- and compound interest of Rs.1,66,590/- for delay in making payments. On 05.02.2009, the opposite party again reminded the complainant to remit Rs.10,309.41/-. On 09.05.2009 the opposite party conveyed to the complainant that the plans for the project had been approved on 08.05.2009 and subsequently informed on 19.05.2009 that the project had been formally launched on 13.07.2009 with Towers A, E & B on 15.07.2009. Receipt of Rs.28,84,896/- was acknowledged against Rs.37,24,921.79/- which was due leaving a balance of Rs.8,40,025.79/- payable by the complainant. On 01.08.2009 it was contended by the opposite party that the floor area of the flat had been increased to 3125 sq. ft. Thereafter, on 07.09.2009 a demand of Rs.7,42,500/- was raised on account of increase in the floor area which escalated the cost of the flat to Rs.1,02,68,100/-. As per the statement of account dated 22.06.2010 furnished by the opposite party, it has been acknowledged that Rs.43,48,990.38/- has been paid by the complainant towards the sale consideration of the flat.
On 13.03.2013, the opposite party informed the complainant about the additional features of LPG supplied to the flat and on 03.10.2013 of engaging an external facility management company for the project and intimated that the charges for the same would be payable at the time of handing over the possession of the flat.
The complainant has submitted that he has paid approximately 50% of the sale consideration but the opposite party is illegally withholding the delivery of possession. The complainant states that although he is a non-resident Indian, he is desirous of settling in Gurugram due to his old age and that he is a consumer within the provisions of the Act. The complaint is before this Commission seeking following reliefs:
a) A direction to the Opposite Party to hand over the ownership rights and possession of Flat No. A-1501-Park View SPA Sector 47 Gurgaon to the Complainant after receiving the balance payment of the same.
In case prior to or during the pendency of this complaint the Opposite Party alienates the said flat to any third person than:
b) A direction to the Opposite Party to allot the ownership rights and possession of any alternative flat of the same size and market value as that of the said flat.
c) A direction to the Opposite party to pay Rupees Seventy eight lacs (rs.78,00,00/-) to the complainant on account of damages and compensation under various heads as detailed above in the complaint.
d) A direction to the Opposite Party to award the complainants Rupees fifty thousand (Rs.50,000/-) as litigation charges.
e) Any other relief as deemed proper by this Hon’ble Commission in the circumstances of the case may also be graciously granted.
The complaint was contested by way of a reply by the Opposite Party. Objections have been taken that the complainant has concealed material facts and documents with the intention to mislead this Commission. It is submitted that the allotment was terminated on 04.03.2010 but restored at the request of the complainant on 23-04-2010 and thereafter again cancelled on 07.07.2010 on account of delay in payments. However, allotment was again restored at complainant’s request and on 05.04.2011 the allotment was finally cancelled due to default in payment which was acknowledged on 08.04.2011 by the complainant. The complainant thereafter sent an e-mail on 18.05.2013 on the basis of which the present consumer complaint has been filed without an application for condonation of delay. According to the opposite party there has been no wilful delay and that the delay was for the reasons beyond the control of the opposite party for which it was entitled for extension of time as per clause 28 of the Buyers Agreement (in short, the ’Agreement’) dated 10.05.2006. Reliance is placed on the order of the District Consumer Disputes Redressal Forum, Gurgaon (in short, ‘District Forum’) in C.C. No. 24 of 2013 in the case of Mr. Anil Yadav & Anr. Vs. M/s Bestech India Pvt. Ltd. and the order of the State Commission in First Appeal No. 648 of 2013 dated 01.04.2014 in which held that the delay in the project was due to the reasons beyond the control of the opposite party and therefore no deficiency in service can be attributed to it.
It has also been contended that this Commission lacked pecuniary jurisdiction in the matter since the complainant has admittedly only paid Rs.43,48,990/-. It is contended that the complainant had been a persistent defaulter in payment of instalments and therefore, the opposite party was within its rights to cancel the allotment as per Clause 1 (f) of the Agreement dated 10.05.2006. The reasons for delay have been attributed to procedural delays by the Haryana Urban Development Authority (HUDA) in exchange of land forming part of the licence with the land acquired by the State of Haryana in order of regulate the boundaries of the opposite party land and the related litigation before the Hon’ble Supreme Court. It is, therefore, the opposite party’s contention that the complaint be dismissed.
Parties led their evidence and filed their written submissions. I have heard the learned counsel for both the parties and perused the records carefully.
During the course of arguments, learned counsel for the complainant averred that the Agreement had provided for construction of the flat within 30 months. However, construction did not start till 2009. It is argued that the payment plan was linked to a construction schedule and that since construction did not start till 2009 on account of legal issues with HUDA, the question of payment by the complainant or the imposition of charges for delay in payments are not justifiable. It is averred that cancellation of the allotment is not valid and that there is no delay in filing of the complaint, as contended by the opposite party.
The opposite party has stated that on three occasions the cancellation of allotment was done on account of default in payment by the complainant. These facts have been concealed by the complainant according to him. It is also submitted that the cancellation dated 04.03.2010 has not been challenged. Reliance has been placed on the case of Anil Yadav & Anr. (supra), where it has been held that the delay was on account of reasons not attributable to the opposite party. It has also been submitted that as per Hon’ble Supreme Court in the case of V.N. Shrikhande (Dr.) Vs. Anita Sena Fernandes in Civil Appeal No. 8983 of 2010 decided on 20.10.2010 the limitation period for filing of a complaint under the Act was held to be two years and that Consumer Forums have no option but to dismiss a complaint filed beyond the limitation period without an application for condonation of delay.
Admittedly, the allotment letter issued by the opposite party is dated 06.02.2006 and the Buyers Agreement is dated 10.05.2006. The construction of the project, however, commenced only on 13.07.2009 as per the opposite party’s communication with the complainant intimating the formal launch of Towers A, E & B. It is also apparent from the records that on 07.09.2009 an additional amount of Rs.7,42,500/- was asked to be deposited on account of increase in super area from 2875 to 3125 sq. ft. As per the statement of accounts furnished by the opposite party dated 22.06.2010, it was acknowledged that Rs.43,48,990.38/- had been paid by the complainant towards the flat allotted to him. The cancellation of the flat dated 05.04.2011 was not contested by the complainant till 18.05.2013 when he sent an e-mail.
From the above, it is apparent that while the complainant defaulted in payment of the instalments as per the schedule date of payment, the opposite party restored the cancellation of allotment on two occasions. Despite the delay in the execution of the project, the opposite party did not revise the schedule of payments which was to be as per a construction linked payment plan. It is seen that instead it went on raising various demands along with payment of penalty charges for delayed payments. The Flat Buyers Agreement was clear in indicating a construction schedule spread over 30 months as per which possession should have been handed over as on 10.11.2008. Admittedly, on that date the project was not complete. In fact the project commenced only on 13.07.2009 as per the communication sent by the opposite party to the complainant.
In view of the fact that the schedule of payment provided at the time of the allotment and the Agreement had not been revised by the opposite party, even though the project was admittedly considerably delayed and commenced only on 15.07.2009, the action to cancel the allotment on 04.03.2010 is not justifiable. In view of this delay, it would have been appropriate for the complainant to be provided a final opportunity to decide whether to continue to remain an allottee or to seek to exit the project. In any case, there was a provision for accepting payment even with a penalty for delayed payment. It is apparent from the record that this opportunity was not provided to the complainant.
Inter alia, a prayer of the complainant is that a direction be issued to the opposite party to allot ownership rights to him. In view of the foregoing, it is evident that the cancellation of the allotment was without opportunity to the complainant, it would be appropriate if the same is provided to the complainant before the drastic step of cancellation of allotment is restored to by the complainant.
In view of the reasons given above, the complaint is partly allowed. The opposite party is directed to issue a final notice to the complainant regarding the cancellation of his booking after giving him a reasonable period of time to make the outstanding payment and thereafter to offer position of either flat number A-1501 in the project or to offer an alternative flat. It is made clear that there was no order as to compensation or costs.