Nitishree Infrastructure Consumer Complaint for Delay

Nitishree Infrastructure Consumer Complaint for Delay wherein builder failed to deliver possession within stipulated time.

CASE SUMMARY:

In this case the Learned counsel for the complainants has vehemently contended that the complainants were allotted flat No. E-3/404, measuring 1565 sq. ft. for basic price of Rs.21,91,000/- and Flat Buyer’s Agreement Ex.C-3 was executed between the parties on 23.03.2011. Against the total cost of the flat i.e. Rs.22,61,425/-, the complainants deposited Rs.20,90,000/- by 23.03.2007. The possession of the flat was agreed to be delivered by December, 2011. However, OPs failed to construct the flat and to complete the project. Even they have not obtained requisite permissions/sanctions from the competent authorities for developing their project. On account of their failure to complete the flat, in question, and to hand over its possession, OPs cannot raise any kind of demand from the complainants. As such, due to deficiency in service on the part of OPs, the complainants are entitled to possession of flat in question complete in all respect with requisite approvals and occupation/completion certificate in case of failure to do so, they should refund the deposited amount along with interest and compensation.

Tony Minhas vs Nitishree Infrastructure on 13 February, 2020

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PUNJAB, CHANDIGARH.

Date of institution:11.10.2019Reserved on: 27.01.2020Date of decision: 13 .02.2020

Also Read- Delay in handing over plot costs Mohali builder dear

FACTS OF THE COMPLAINT:

In the year 2005, the OPs, in pursuance of the tenders floated by the Improvement Trust Jalandhar (in short, “the Trust”), gave bid to develop 16.52 acre of land. The tender of the OPs was accepted and they were given possession of the land by the Trust. The OPs were also given the construction and development rights to develop mega housing project namely “Shourya Green”, for which they had entered into a “Memorandum of Understanding” with the Trust on 05.08.2005. As per the MoU, the OPs were required to construct the flats according to the plan approved by the Trust and thereafter were required to obtain completion certificate from the Trust and only thereafter the possession of the constructed flat was to be delivered by the OPs. In pursuance of the MoU, the OPs issued advertisement/ distributed brochures from time to time in public for allotment of flats. The complainants applied for allotment of a flat on 09.03.2016, measuring 1565 sq. Ft. with the OPs in the above project i.e. “Shourya Green”, for the basic sale price of Rs.21,91,000/- and by including the PLC and IFMS charges, the total price of the flat was Rs.22,61,425/-. The OPs issued allotment letter dated 27.03.2006 for flat no.404, block E-3, 4th floor. The complainants are real brothers and have booked two flats together one flat No. E-3/404 and another flat No. F-4/003 with OPs for their personal family use. Flat Buyer’s Agreement was entered into between the parties on 23.03.2011. The complainants opted for Down payment plan and deposited the amounts with OPs as under:

Also Read- Nitishree Infrastructure Pvt. Ltd. (S) v. Kapil Jindal And Others

Receipt No.               Date                  Amounts in Rs.

     193              09.03.2006                  1,00,000.00     573              23.03.2006                  5,00,000.00    5716              07.02.2007                  2,00,000.00    5717              07.02.2007                   20,000.00    5756              05.03.2007                  2,00,000.00    5780              12.03.2007                  1,00,000.00    5800              15.03.2007                   50,000.00    5806              16.03.2007                  5,00,000.00    5834              23.03.2007                  1,00,000.00    5835              23.03.2007                   50,000.00 5836              23.03.2007                     90,000.00Total                  20,90,000.00

Also Read- Kapil Jindal v. Nitishree Infrastructure Ltd.

As per the Buyer’s Agreement, the possession of the flat was to be delivered by December, 2011 after obtaining the completion/occupation certificate. The OPs have failed to complete the construction of the flat or to deliver the possession thereof. On 12.06.2015, OPs issued letter to complainant stating therein that OPs have decided to resume construction at site after holding meeting with the allottees. OPs sent another letter dated 01.08.2016 stating that complainants should not make payment to any unauthorized person or any contractor/broker and should be made in the office of OPs. On 20.05.2018 and 22.11.2018, OPs again sent letters stating that construction work of the flats has not been completed, as finishing work is in progress and likely to be completed by mid-2018 and they demanded Rs.1,91,196/-, as balance payment from complainants. The complainants visited the site on 17.11.2018 and were surprised to see that the flat was incomplete. They issued letter dated 26.11.2018 to OPs for delivery of possession of the allotted flat or to refund the amount already deposited. They have already paid 90% of the cost of the flat, but OPs failed to complete the project and to deliver the possession with completion certificate till date.

Also Read- Delay in possession a double blow for homebuyers

PRAYER BY THE COMPLAINANT:

The complainants have filed this complaint against the OPs seeking following directions to them:

1. i) to hand over the actual legal physical possession of the allotted flat complete in all respects, as per specifications laid down in the flat buyer’s agreement with completion/occupation certificate or in the alternative to refund the deposited amount with interest @15% per annum from the date of deposit till the date of realization;
2. ii) to pay compensation of Rs.10,00,000/- for causing mental tension and harassment to the complainants and escalation of construction cost; and

iii) to pay Rs.1,00,000/-, as litigation expenses.

Also Read- There Is No Per Se Bar To Grant Relief Of Interest On Refund To A Subsequent Purchaser Of Flat: Supreme Court

OBJECTION BY OPPOSITE PARTY (OPs):

OPs in their joint reply have raised preliminary objections that complainants filed the complaint withmalaise intentions of deriving undue monetary benefit from OPs. This complaint falls out of the realm of the jurisdiction of State Commission. The State Commission does not have the pecuniary jurisdiction to entertain and adjudicate the complaint. The complainants are not consumers, as they invested in multiple properties for earning speculative gains. The power of attorney given by the complainants is not in proper form as prescribed under law. The complainants cannot seek the benefit out of their own negligence and wrong doing and then arm-twist the OPs into acceding to its unreasonable and unlawful demands. The complainants are in breach of their obligations under the Buyer’s agreement and they cannot claim refund under the said agreement. The Civil Court has the jurisdiction/competence to rescind the contract. The complainants have suppressed the material facts from this Commission and have no cause of action to file the complaint against OPs. The complaint is alleged to be time barred. The company has been impleaded through the authorized representative and the project manager in the memo of parties, who are only the employees of the company and as such are not liable for any act and conduct on behalf of OPs, since they are not taking care of the day-to-day affairs of the company and as such the complaint is liable to be dismissed on the said ground. On merits, OPs have averred that complainants are defaulters. They controverted the other averments of the complainants and denied any deficiency in service on their part. OPs prayed for dismissal of the complaint.

Also Read- Builders can be arrested for not delivering: National Consumer Commission

ORDER OF THE COURT:

In view of above as well as the reasons and discussion held in Consumer Complaint No.749 of 2019 titled as “Tony Minhas & another Vs. Nitishree Infrastructure Ltd.”, this Consumer Complaint No.750 of 2019 titled as “Tony Minhas & another Vs. Nitishree Infrastructure Ltd.” is accepted and the following directions are issued to the OPs:

1. i) to deliver actual and physical possession of the flat, in question, complete in all respects, along with agreed facilities and amenities with Completion/Occupation Certificate, subject to payment of balance sale consideration by the complainants, without any interest and penalty thereon and to execute the Sale/Conveyance Deed in favour of the complainants;

Also Read- Delay in possession of flat costs company dear

1. ii) to pay composite litigation expenses and compensation for the mental and harassment suffered by the complainant to the tune of Rs.40,000/-.

In case OPs fail to comply the directions, as ordered above, then in the alternative, they shall:

1. i) refund the entire amount deposited by the complainants i.e. Rs.24,00,000/-, along with compensation in shape of interest @12% per annum from the date of respective deposit till realization, as per Rule 17 of PAPRA.; and
2. ii) pay Rs.40,000/-, as compensation for the harassment and mental agony suffered by the complainants, including cost of litigation.
3. The compliance of this order shall be made by the OPs within a period of 60 days of the receipt of certified copy of the order.

Also Read- Possession date binding on builder: RERA tribunal

This judgment digest is noted by Gurleen Kaur Anand.

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