National consumer disputes redressalcommission new delhi



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O R D E R 

JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

 

 1.     The petitioner/complainant booked a plot measuring 250 sq. yards in a project named MAPSKO GARDEN ESTATE of the respondents in Sectors 26, 26A and 27 of Sonepat. He paid the booking amount of Rs.1,97,500/- on 11-01-2010. The payment plan agreed between the parties was as under:



PAYMENT PLAN:

INSTALLMENT PAYMENT PLAN

Due Date

Description

Description

Total

11/Jan/10

At the time of Booking

10% of BSP

Rs.212510.00

10/Feb/10

Within 30 days

Booking

10% of BSP

Rs.212510.00

12/Mar/10

Within 60 days of Booking

15% of BSP

Rs.318765.00

11/Sep/10

At the time of Agreement


15% of BSP + 50% of EDC & IDC

Rs.614665.00

11/Nov/10

Within 2 months of Agreement

15% of BSP + 50% of EDC & IDC

Rs.614665.00

11/Jan/11

Within 4 months of Agreement

15% of BSP + 50% of PLC

Rs.318765.00

13/Mar/11

Within 6 months of Agreement

15% of BSP + 50% of PLC

Rs.318765.00

 

At the time of offer of possession

5% of BSP

Rs.106255.00

Total Cost

Rs.2716900.00

 

2.      It would, thus, be seen that the complainant/petitioner was required to make payment to the builder in a time bound manner and 95% of the payment had to be made by 13-03-2011. Only 5% of the basic price amounting to Rs.1,06,255/- was to be paid at the time of handing over possession to the complainant.

3.      The petitioner made a second payment of Rs.1,97,500/- on 05-03-2010 i.e. about 23 days after the scheduled date. Even the said payment was not complete since he had to make payment of Rs.2,12,510/- on or before 10-02-2010. The petitioner/complainant made payment of Rs.2,96,250/- on 22-03-2010 though he had to pay Rs.3,18,765/- on or before 12-03-2010. The installments which fell due on 11-09-2010, 11-11-2010, 01-01-2011, 11-03-2011 and 31-07-2013 were not at all paid by the petitioner/complainant.

4.      Though the petitioner did not make payment within the time stipulated in the agreement, on completion of the development work the respondent/builder issued a letter dated 31-07-2013 to him demanding the outstanding amount alongwith interest for the belated payment. However, instead of making the aforesaid payment and taking possession, the complainant approached the Sonepat District Consumer Disputes Redressal Forum (for short, the District Forum), seeking the following reliefs:

(i)     Not to charge the interest amount of Rs.10,60,000/-, Rs.56,180/- for club membership charges and Rs.26,900/- on account of IFMS and Rs.14,526/- for monthly charges from the complainant.


(ii)      To pay compensation at the rate of Rs.20,000/- p.m. after expiry of one year from the date of agreement till delivery of possession

(iii)     To pay a compensation of Rs.50,000/- for mental shock agony.

(iv)    To pay a sum of Rs.11,000/- as a litigation expenses.”

 

5.      The complaint was resisted by the respondent inter alia on the ground that there was persistent default on the part of the complainant/petitioner in making payment. It was pointed out that the payment due on 10-02-2010 was not paid and the payment due on 12-03-2010 was not paid in full. The installments due on 11-09-2010, 11-11-2010, 01-01-2011, 11-03-2011 and 31-07-2013 were not paid at all. It was further stated in the reply that despite aforesaid lapses on the part of the petitioner, he was offered possession but he did not turn up to take possession against payment of the amount due from him.


6.      The District Forum vide its order dated 18-03-2014 directed the respondent/builder to refund the amount which the complainant/petitioner had deposited with it, along with interest at the rate of 9% p.a..

7.      Being aggrieved from the order of the District Forum the petitioner/complainant preferred an appeal before the Haryana State Consumer Disputes Redressal Commission (for short, the State Commission). The appeal filed by him having been dismissed vide order dated 02-05-2014, he is before us by way of this revision petition.

8.      The learned counsel for the petitioner admits that it is correct that the complainant/petitioner had initially booked a plot measuring 250 sq. yards but had later agreed to take a plot measuring 269 sq. yards as is mentioned in the agreement and he did not make payment as per the schedule detailed in the payment plan annexed to the agreement. That, according to him, happened due to two reasons, the first reason being the respondent/builder did not facilitate grant of loan to the complainant against the mortgage of plot booked by him and secondly, the development of the plot was not carried out within time stipulated in the agreement. He points out that as per the agreement the plot was to be developed within 18 months from the date of the agreement but the possession was offered to the petitioner/complainant only on 31-07-2013.

9.      Clause 14 (a) of the agreement executed between the parties reads as under:

          “That the promoter shall endeavor to complete the development of the said plot within a period of Twelve months from the date of signing of this Agreement with the Buyer or within an extended period of six months, subject to force majeure conditions as mentioned in Clause (b) hereunder and subject to other plot buyer making timely payment as mentioned in payment plan given in Schedule II of this Agreement or subject to any other reasons beyond the control of the promoter. No claim by way of damages/compensation shall lie against the promoter in case of delay in handling over the possession on account of any of the aforesaid reasons and the promoter shall be entitled to a reasonable extension of time for the delivery of possession of the said plot, to the buyer.”

 

10.    It would be seen from a careful analysis of the aforesaid clause that the builder did not commit a definite time frame to handover possession of the plot to the complainant though he did undertake to make all endeavors to complete its development within a period of 12 months from the date of the agreement which could be extended by a period of six months. But the aforesaid obligation of the builder was subject to the plot buyer’s making timely payment as per the payment plan given in the Schedule II of the agreement. Admittedly, the petitioner/complainant did not make payment to the builder as per the time frame stipulated in the Schedule II of the agreement. Since the petitioner failed to perform his part of agreement by making timely payment in terms of Schedule II of the agreement, the builder was not obliged to handover possession to him within a period stipulated in Clause 14 (a) of the agreement.



11.    As regards arranging of the loan, we find from a perusal of the agreement between the parties that the obligation of the petitioner/complainant to make payment as per the time schedule stipulated in Schedule II of the agreement was not in any manner linked to the petitioner being able to arrange loan by mortgaging the plot which he had agreed to purchase from the respondent. Therefore, it was only for the petitioner to arrange funds for making payment to the builder in terms of Clause 14(a) of the agreement read with Schedule II thereof.

12.    The learned counsel for the petitioner/complainant has drawn our attention to the letter dated 27-07-2013 written by the respondent to Housing Development Finance Corporation Limited giving no objection to grant of loan to the petitioner/complainant against the plot booked by him. The contention is that had the permission to mortgage been granted earlier the petitioner would have been able to make payment. However, there is no document on record which would show the date on which the petitioner/complainant applied to the builder for grant of the requisite mortgage permission. In the absence of any document in this regard we cannot say that there was some abnormal delay on the part of the respondent in granting the mortgage permission.

13.    It has been the case of the complainant that a Loan Mela was held by PNB Housing Finance Limited and he had deposited processing fee of Rs.3,309/- with the said company for the purpose of taking loan but the respondent has failed to supply the requisite document to the said company, as a result of which the finance could not be granted. There is no material on record to show that the Loan Mela by PNB Housing Finance Limited was got organized by the respondent. The case of the respondent/builder is that it had nothing to do with organizing the said Loan Mela. The petitioner has not been able to satisfy us that under terms of the agreement the builder was required to furnish some document which it failed to furnish to him for the purpose of getting the purchase of the plot financed from a bank or a financial institution. In these circumstances, we do not find any merit in the contention raised in this regard.

14.    For the reasons stated hereinabove, we find no merit in this revision petition and the same is hereby dismissed.

 ………………………………


V. K. JAIN J.

PRESIDING MEMBER

 

……………………………….



DR. B.C. GUPTA
MEMBER

rk.4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO. 3015 OF 2014

(From the order dated 16.04.2014 in Appeal No. 228/2008 of Uttar Pradesh State Consumer Disputes Redressal Commission)

With I.A.No.4823 of 2014 (For stay)

New India Assurance Co. Ltd. Delhi Regional Office, 5th Floor, Jeevan Bharati Building, Connaught Place, New Delhi

                                                              ...  Petitioner

  Versus

Jatin Sachdeva s/o Shri Yashpal Sachdeva r/o B-63, Gurunanakpura, Modinagar, Ghaziabad, U.P.

Presently residing at: Kailash Colony, (Behind Petrol Pump), Modinagar, Ghaziabad, U.P.

                                 … Respondents

 BEFORE

HON’BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner

 

Mr. Maibam N. Singh, Advocate

 


 

 

 

DATED 31st JULY 2014




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