9.10.14. By - M K Gupta, Convener, NCR Property Buyhers Association. email: ncrpba@gmail>. National Forum on ordering compensation for delay while rejecting the the revision petition filed by Vatika Ltd. in the case filed by Shri Rajneesh Aggarwal. Link to the decision . Extracts from judgment: 4. Learned Shri S.K. Sahni, Advocate has appeared for the petitioner and the respondent has chosen to present his case himself. Learned counsel for the petitioner submitted that the Fora below have failed to appreciate that even though clause 11.4 provided for compensation for delay, the same had to be read with provisions of clauses 11.1., 11.2, 11.3 and 39 which laid down various eventualities which could delay the construction of the apartment in question and for which the petitioner company was entitled for extension in the aforesaid tentative period of completion of 3 years. He submitted that the complainant was kept informed about the likely delay in the completion of the construction work on account of reasons beyond the control of the petitioner and as such the petitioner could not be held liable to pay compensation for the same. Besides this, the contention raised by learned counsel was that the apartment in question was initially allotted to one H. Vikram (HUF) vide agreement dated 9.3.2004 but in August 2004, aforesaid allottee approached the petitioner company for reallotment /assignment of the apartment in favour of one Shri Inderjeet Garg and the same request was allowed by the petitioner company. Thereafter again in April 2006, said reallottee Shri Inderjeet Garg approached the petitioner company for further reallotment/reassignment of the said apartment in favour of the respondent/complainant which request was accepted upon acceptance of the terms and conditions of the said reallotmemt/reassignment and the agreement by the respondent/complainant. Thus, the respondent is a second reallottee of the original allotment, more than 2 years later. In view of this, learned counsel submitted that the respondent is not a consumer being a reallottee and for that matter the second reallottee keeping in view the law laid down by the Apex Court in the case of H.U.D.A Vs. Raje Ram [1 (2009) CPJ 56 (SC) decided on 23.10.2008. Thus learned counsel submitted that the respondent/complainant is neither entitled to any relief for the so-called delay in terms of the provisions of the original agreement to which the respondent had become a party having accepted its conditions on assignment of the flat consequent upon reallotment in his favour and also the complaint itself is not maintainable in terms of the ratio laid down by the Apex Court in Raje Ram’s case (supra). He, therefore, strongly pleaded for allowing the revision petition and setting aside the impugned order of the Fora below. 5. On the other hand, the respondent/ complainant has submitted that both the Foras below have returned their concurrent finding after carefully considering different provisions of the agreement and keeping in view the facts and circumstances in which the delay occurred for which the petitioner company was squarely responsible. He supported the impugned orders and submitted that the ratio of the Raje Ram’s case would not be attracted to the present case because the facts and circumstances of that case were different. He, therefore, prayed for dismissal of the revision petition with costs. 6. Both the parties have also filed their written submissions. 7. We have gone through the record before us and also considered the submissions made by the parties before us. In this case, we may note that both the Foras below have returned their concurrent finding in favour of the complainant/respondent while non-suiting the defence of the petitioner company and giving relief to the complainant. The District Forum has returned the following finding after appraising the evidence before it while accepting the complaint and the same is reproduced thus:- “5. It was argued by the counsel for the opposite party that delay in completion of the project was because of the circumstances beyond the control of the opposite party i.e. change in project drawings due to realignment of the sector road passing in front of the Vatika City Project, disruptions/delays in supply of stone aggregate and sand due to orders of the courts, unusually heavy rains, delay in supply of cement and steel etc. As such the complainant was not entitled to any penalty from the opposite party as per clauses 11.1, 11.2, 11.3 and 39 of the Apartment Buyer’s Agreement. In this regard he has referred to the letter dated 14.5.2007 which was written by the opposite party to the complainant. We have gone through the case file. There was nothing on file to show that delay in completion of the project was because of change in project drawings due to realignment of the sector road passing in front of the Vatika City Project, disruptions/delays in supply of stone aggregate and sand due to orders of the courts, unusually heavy rains, delay in supply of cement and steel etc. as argued by the learned counsel for the opposite party. A perusal of the case file shows that total consideration of the plot was Rs.28,35,190/-. Out of this as per the schedule of down payment 95% of the total sale consideration was paid by the complainant with the opposite party. In the down payment schedule it has been mentioned that on final notice of possession 5% + Stamp Duty Charges, registration expenses and other charges were to be paid by the complainant. In this regard notice was given by the opposite party to the complainant on 7.10.2008 and thereafter all the payments demanded by the opposite party were deposited by the complainant. The Buyer’s Agreement was executed between the parties on 9.3.2004. According to the said agreement the opposite party was bound to give possession within 3 years i.e. up to 8.3.2007. However, the possession was delivered by the opposite party to the complainant on 27.10.2008 after the delay of more than 18 months. As per requirement in 11.4 of the agreement notice in writing was to be given in 90 days after the expiry of three years from the date of buyer’s agreement which was executed on 9.3.2004. The total area of the plot was 1955 Sq. ft. As per clause 11.5 of the Buyer’s Agreement the complainant was entitled to compensation from the opposite party at the rate of Rs.5/- per sq.ft. per month for the delay in delivering the possession. Thus, in this case the complainant was entitled to a compensation to the tune of Rs.1,75,950/-. This amount has not been paid by the opposite party. In our opinion there was deficiency in service on part of the opposite party.” (Emphasis provided by us).
Posted on: Thu, 09 Oct 2014 09:32:33 +0000
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