Shanat Paul vs Reliant Infrastructure Private Limited

THE complainant/petitioner no. 1 alongwith his father late Captain Surinder Kumar Paul booked an apartment measuring 1394 sq. feet with Reliant Infrastructure Pvt. Ltd. making an initial payment of Rs. 1 lac. The total consideration for the aforesaid flat was agreed between the parties at Rs. 29,32,976/ - in addition to the cost of parking, club membership fees and power backup charges. The father of the complainant no. 1 having died on 23.06.2009, his name in the agreement was substituted by the name of complainant/petitioner no. 2 Mrs. Rajneesh Kaur Paul who is wife of complainant no. 1 Mr. Shanat Paul and a fresh agreement dated 23.09.2009 was executed. Even in the subsequent agreement, the date stipulated for handing over the possession to the buyers was maintained as December 2008. The case of the complainants is that the opposite party/respondent did not complete the construction in time though 90% payment had been made by them by January 2009. The complainants took possession of the flat in question from the opposite party on 28.03.2011, after making payment of the balance amount and other charges as demanded by the said opposite party.

ACCORDING to the complainants, on taking possession of the said flat it was found that it was not habitable since there were several deficiencies such as no door video phone and Wi -Fi facility. It was also found by them that the quality of modular kitchen was cheap and 3 -4 tiles installed in the drawing/dining area had cracked. Certain other deficiencies in the flat were also found by them. The agreement between the parties obligated the opposite party to pay Rs. 5 per sq. feet per month as compensation for the delay in handing over the possession of the flat. Alleging deficiency on the part of the opposite party in rendering services and failure to pay compensation for the delayed possession, the complainant approached the concerned District Forum by way of a complaint seeking payment of compensation @ Rs. 5 per sq. feet per month for two years alongwith Rs. 2 lacs as compensation for the deficiency in service and Rs. 33,000/ - as the cost of litigation.

THE complaint was resisted by the respondent/opposite party. It was stated in the reply that the possession was to be handed over to the complainant only after receiving 100% payment, but the complainant had failed to make the entire payment. It was also stated in the reply that there was a typographical error in the second agreement and infact, the date of handing over of the possession agreed between the parties was December 2010. It was further stated in the reply that the complainant delayed taking possession of the flat on the ground that final coat of paint had not been applied. As regards video phone, it was stated in the reply that it was to be installed after the complainant had shifted in the flat. The opposite party also denied the other deficiencies alleged in the complaint. As regards club house, it was stated that it was under construction and till its completion, the facility of club house was being provided from Flat No. D1 -02 which had been taken on rent. Vide its order dated 25.09.2014, the concerned District Forum dismissed the complaint primarily on the ground that all the defects pointed out in the complaint had been rectified by the opposite party. Reliance in this regard was placed upon the Project Engineer of the respondent Mr. Sonal Soni.

BEING aggrieved from the above said order passed by the District Forum in the present case, the petitioner/complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 24.11.2014, the State Commission dismissed the appeal filed by the petitioner. Being aggrieved, the petitioner/complainant is before us by way of this revision petition.

THE first question which arises for our consideration in this case is as to whether possession was to be delivered to the complainant by December 2008 or by December 2010. It is an admitted position that at the time of execution of the first agreement which was executed between the complainant no. 1 and his father on one hand and the opposite party on the other hand, the date of handing over possession of the flat was agreed to be December 2008. The aforesaid agreement was executed on 14.08.2007. No mistake in the stipulated date of possession, in the first agreement is even alleged by the opposite party. We are unable to accept the plea of the opposite party that there was a typographical error as regards the agreed date of possession, in the second agreement which was executed between the complainants on one hand and the opposite party on the other hand. It is true that December 2008 had already expired when the second agreement was executed on 23.09.2009, but we cannot lose the sight of the fact that there was no fresh transaction between the complainants on one hand and the opposite party on the other hand when the said agreement was executed. In fact, the second agreement was to be a reproduction of the first agreement except for the name of one of the buyers was replaced on account of his death. Therefore, logically, the date agreed between the buyer and the seller would not change on account of substitution of one of the buyers by another buyer. Moreover, no communication was sent by the opposite party to the complainant at any point of time claiming that there was a typographical error as regards the agreed date of possession in the agreement executed on 23.09.2009. Therefore, we have no hesitation holding that December 2008 continued to be the agreed date of possession even after substitution of the name of the father of complainant no. 1 by the name of complainant no. 2.

IT is claimed in the reply filed by the opposite party that the complainant did not make 100% payment and therefore, they were not required to hand over possession of the flat to them in terms of the agreement between the parties. The learned counsel for the petitioner/complainant has led us to the agreement executed between the parties. The aforesaid agreement contains a payment plan which envisaged payment in the following manner: JUDGEMENT_109_LAWS(NCD)5_2015.htm It would thus be seen that after initial payment of 10% on booking and next payment of 35% within 30 days thereof, the subsequent payments were linked with the construction of the flat. 10% each was payable on construction of ground floor slab, second floor slab, fourth floor slab and sixth floor slab, 5% was payable after completion of brick work and lastly at the time of possession. There is no evidence as to when the opposite party completed construction of the ground floor slab, second floor slab, fourth floor slab and sixth floor slab. This is not the case of the opposite party in the reply filed by it that they had intimated the construction of ground floor slab, second floor slab, fourth floor slab and sixth floor slab and had asked the complainant to make payment of 10% each on construction of each of the aforesaid slabs, but the complainant failed to make payment in terms of the said demand letter. There is no evidence that the construction of the sixth floor slab was complete before receipt of 85% payment from the complainant. Similarly, there is no evidence that the brick work was complete before receiving 90% payment from the complainant and the plaster work was complete before receiving 95% payment from them. Unless the opposite party completed the various stages of construction and demanded payment accordingly, the complainants were under no obligation to make payment in terms of the payment plan agreed between the parties. The onus was on the opposite party to prove that the complainant had failed to make payment despite various stages of construction having been completed by them. That having not been done, it cannot be said that there was deficiency on the part of the complainants in making payment to the opposite party. In fact, the learned counsel for the petitioner/complainant has drawn our attention towards the letter dated 12.10.2010 whereby it was intimated to the complainants that the apartment shall be ready for occupation by 31.10.2010. This letter clearly shows that the construction of the flat in question was not complete even on 12.10.2010 though it ought to have been completed by December 2008. In these circumstances, there is no escape from the conclusion that there was deficiency on the part of opposite party in handing over of possession to the complainants.

CLAUSE 4.c.ii of the agreement to the extent is relevant and provides as under: ii) That the developer will be liable to pay charges @ Rs. 5/ - (Rs. Five) per sq. ft. per month for the period of delay in offering the possession of the said apartment beyond the period indicated in clause 4.a.i save and except for reasons beyond the reasonable control of the developer. These charges would be adjusted at the time of Notice of Possession.

In view of the aforesaid clause, the respondent is required to pay compensation @ Rs. 5 per sq. feet per month for the period of delay in offering possession to the complainants. It has come in the pleadings of the parties that the construction of the flat was complete by March 2011. Therefore, the opposite party is required to pay compensation to the complainants @ Rs. 5 per sq. feet per month for 26 months i.e. from 01.01.2009 to 28.02.2011. The amount of compensation for 26 months at the aforesaid rate comes to Rs. 1,81,220/ -. Since the aforesaid payment ought to have been made at the time of handing over of possession of flat on 28.03.2011, the opposite party is also required to pay interest on the aforesaid amount w.e.f. 01.04.2011.

FOR the reasons stated above, impugned orders are set aside and the opposite party is directed to pay Rs. 1,81,220/ - to the complainants within 4 weeks from today alongwith interest @ 10% per annum w.e.f. 01.04.2011 till the date aforesaid amount is actually paid. The opposite party is also directed to pay a sum of Rs. 20,000/ - as cost of litigation to the complainants. The revision petition stands disposed of accordingly.