TDI Infracorp State Commission Haryana Complaint

JUDGEMENT SUMMARY

GIAN DEVI V. T.D.I. INFRACORP LTD, 12^th September, 2017

Today we are going to talk about the case of Gian Devi v. T.D.I. Infracorp Ltd, 12^th September, 2017. The advocates for the complainant side were J.P. Chaudhary and for the respondent (opposite party) Shri. Ajay Ghangas the date of institution for the case was on 28^th October, 2016 and was being held at state consumer disputes redressal commission Haryana, Panchkula.

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The case was about the possession of the flat not given to the complainants till the completion of the time promised to them as the substantial amount was also given to the respondent but they haven’t done anything to it as they haven’t sent the proper receipts of the payment done and haven’t use the resources that have been given by the complainants that’s why they have filed the case in the court. Now to state the facts, issues and judgements regarding the case are as follows:

Gian Devi with her daughter Ms. Nirmal complainants have filed the present complaint under section 17 of the Consumer Protection Act, 1986 which states the jurisdiction of the state commission averting that the builder was a promoter and developer of group housing project in the name of waterside floors, lake grove city at Kundli, Sonipat Haryana. The complainant booked a flat in the above, mentioned project by paying booking amount of Rs.6,00,000/- dated on 25^th April, 2013 and was therefore allotted to them.
On 7^th January, 2014 a flat measuring 500 sq. foot was allotted to the complainants and the buyer’s agreement was executed on 9^th April, 2014 mentioning basic sale price of the flat as 62,99,900/- at the rate of 4200/- per sq. foot. As per clause 28 of the agreement, the builder was required to hand over the possession of the flat after completion of the construction within 30 months. The complainants deposited an amount of 49,78,140/- on different dates up to 26^th November, 2015. During this period on 31^st August, 2013 the complainants received a reminder from the opposite party to clear understanding dues against the flat.

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Although, neither the complainants ever applied for change of flat nor the opposite party sent any proposal to the complainants in this regard. On 18^th January, 2014 the opposite party issued receipt regarding payment of an amount of 6.5 lacs mentioning the flat again on letter dated 21^st September, 2015 which was received by the complainants as a demand notice against the flat raising demand of 3,27,804/-. It was done without obtaining consent of the complainant. thereafter, demand letter on 14^th January, 2016 for an amount of 6,52,642/- was received in connection with the flat. The opposite party failed to deliver the possession of the flat in terms of the buyer’s agreement within a period of 30 months despite payment of the amount made by the complainants regularly.
The complainants prayed that the opposite party be directed to refund the total amount deposited by the complainants of amount 49,78,140/- to pay amount of 1lacs as compensation on account of un-necessary harassment and mental agony with interest at rate of 21% p.a. and an amount of 25,000/- as litigation expenses. The complainants filed consumer complaint on 22^nd April, 2016 before the Infracorp Limited. That complaint was dismissed on 26^th September, 2016 as value of the property was more than 20 lacs.

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The opposite party said that the complaint was not maintainable in the present form that complainants have concealed true and material facts that complainants were not covered under definition of consumer as provided under the Consumer Protection Act and that complaint was barred by limitation. It was admitted that after receiving booking amount of 6lacs was allotted to the complainants and later on buyer’s agreement regarding the flat executed on 9^th April, 2014. It was also pleaded as provided under section 28 of the buyer’s agreement dated on 9^th April, 2014, the complainants were entitled fixed monthly compensation @ Rs.5 per sq. foot of total super area of the floor if possession was delayed beyond a period of 30 months from date of agreement. It was a fact that 49,78,149/- was already been received from the complainants mentioned in the complaint.
It was clarified that reminder was sent by the opposite party on 21^st August, 2013. On 21^st August, 2014, the complainants were required to make payment of outstanding amount up to 31^st August, 2014. The complainants visited the office and on their request the flat was changed from WF-28/GF to WF-30/GF. They told that now the complainants were taking this plea so that they may get refund of total amount paid due to slump in the real estate. Opposite party also clarified were also informed vide letter on 21^st September, 2015 in this regard that there was no change in the allotment of the flat. The complainants sent number of reminders mentioning unit number of the property. Complaint filed by the complainants was pre-mature and they were not entitled for refund of the amount deposited and other relief claimed in the complaint.

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The court finds that there was no controversy in this regard that after receiving an amount of Rs.6lacs as booking amount on 25^th April, 2013, flat measuring 1500 sq. foot was allotted to the complainants dated on 7^th January, 2014. A demand notice on 21^st September, 2015 was also issued to the complainant mentioning flat details for a payment of 3,27,804/-. The opposite party has taken plea that it happened due to clerical and inadvertent mistake and regarding this mistake another letter was issued to the complainants on 21^st September, 2015. That’s why there remains no controversy on this point that no findings were required to be given in connection with any payment or allotment of flat because this flat number was mentioned in the official correspondence by mistake.

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Main point between the parties regarding the allotment of the flat. The opposite party was bound to hand over possession of the flat after completion of the construction within the prescribed time. Allotment of flat was changed without the consent of the complainants and even no proposal was sent by the opposite party to complainants regarding the change of flat for acceptance to the complainants. If the opposite party was willing to change allotment of the flat, a separate buyer’s agreement should have been executed. They are entitled to receive total amount already deposited with the opposite party along with interest as claimed in the complaint. Nirmal in her affidavit and statement version of the complainants in their complaint and Raju Ashok when appeared in the witness box, deposed corroborating the version of the opposite party in their written version. Nirmal denied that allotment of the flat was changed on request of the complainants. Raju Ashok on behalf of opposite party has stated that possession of the unit can be handed over to the complainants within five months and construction of the unit has not been started till now.

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Till the above discussion it was clear that complainants were allotted initially flat no. WF-28/GF vide allotment on 7^th January, 2014 and buyer’s agreement was also executed in connection with flat no.28 on 9^th April, 2994. The possession was to be delivered after completion of the construction on or before 9^th April, 2016 as per clause 28 of buyer’s agreement. After expiry for the period of 30 months even construction work has not been started regarding the flat. The complainants were unmindfully making payment of the remaining sale price paid regarding allotment of flat. The opposite party must have obtained consent of the complainants. The opposite party cannot be allowed to play clever tactics with the purchaser. The complainants had to face unnecessary harassment and mental agony and had to spend a lot of money in this litigation due to faults of the opposite party. It will be justified to award an amount of 25,000/- as compensation to the complainants on account of unnecessary harassment and mental agony and an amount of 10,000/- as litigation expenses.
Resultantly, complaint filed by the complainants was allowed. The opposite party was directed to refund an amount of Rs.49,78,140/- to complainants with interest at 12% p.a. from the dates of respective deposits till its realization. the judgement in this case was being decided by Balbir Singh (judicial member) Nawab Singh president.

Also Read-Complaint No. 1238-2018 – Haryana Real Estate Regulatory Authority Panchkula

CONCLUSION

The judgement decided in this case was at all justified from all sides of the judicial system and for both of the parties the justice has been done according to the facts only which was proved from the legal point of view.

This post is written by Sammyak Jain.

For case specific advice please contact Haryana State Consumer Disputes Redressal Commission Lawyer Advocates in Chandigarh Panchkula Mohali Kharar Zirakpur.