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High Court Of Delhi|18 December, 2012


* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of Decision: 18.12.2012 + CS(OS) 2359/2011 SANDEEP SINGH Plaintiff Through: Mr Harkirat Sawhney, Adv.
versus AJS BUILDERS (PVT) LIMITED Defendant Through: None.
1. The plaintiff before this Court booked a three-bed room flat with servant quarter bearing No. 004 in Block B-3, admeasuring 1550 sq. feet in a project “AJS HILL VIEW APARTMENTS” of the defendant company on 26.10.2007 at the rate of Rs 2800 per sq. feet. The plaintiff made an initially payment of Rs 4,34,000/- to the defendant on 26.10.2007 followed by a further payment of Rs 4,34,000/- on 14.09.2008. It is alleged that after making the aforesaid payments, when the plaintiff went to the site, where the defendant was to carry out development, it transpired that there was no sight of construction and development activity. It is alleged that at the time the plaintiff booked the aforesaid flat, the rates in the locality were in the range of Rs 2600/- to 2800/- per square feet though the rates now prevailing are minimum of Rs 4500/- per square feet. The plaintiff is now seeking refund of the amount of Rs 8,68,000/- which he deposited with the defendant along with compensation amounting to Rs 26,35,000/- calculated at the rate of Rs 1700/- per square feet, thereby making a total claim Rs 35,03,000/-.
2. The defendant was proceeded ex parte vide order 05.12.2012. The plaintiff has filed his own affidavit by way of evidence in which he has stated on oath the case set out in the plaint. The learned counsel for the plaintiff states that there is a typographical error in the affidavit of the plaintiff since the rate at which the flat was booked has been wrongly types as Rs 2700/- per square feet though it has been correctly mentioned as Rs 2800/- per square feet in the plaint and can also be confirmed by registration form Ex.PW-1/1 where the rate per square feet has been recorded at Rs 2800/-.
3. Ex.PW-1/3 is the receipt dated 26.10.2007 issued by the defendant while receiving Rs 4,34,000/- from the plaintiff. Ex.PW-1/4 is another acknowledgment of receipt of Rs 4,34,000/- from the plaintiff on 18.12.2007. Ex.PW-1/1 is the registration form, whereby a flat admeasuring 1550 square feet was booked by the plaintiff with the defendant at the rate of Rs 2800/- per square feet in AJS HILL VIEW APARTMENT, Gurgaon. Ex.PW-1/5 and Ex.PW-1/6 are the demand letters issued by the defendant to the plaintiff. Ex.PW-1/13 is the copy of legal notice which the plaintiff sent to the defendant. The notice was refused when tendered by the postman as would be evident from the endorsements made on the envelope Ex.PW-1/14.
4. As many as 11 suits which were almost identical to the present suit and pertained to the bookings made with the defendant company, in the same project, were decided by me vide judgment dated 13.08.2012. While deciding those suits, I, inter alia¸ observed as under:-
“The price of flat varies from project to project and sometimes even in respect of flats in the same project. It depends upon host of factors such as location of the plot on which the flats have to be constructed, the quality of the building material to be used, specification as per which the construction is to be raised the quality of the fittings and fixtures such as electrical fittings, hardware fittings , sanitary fittings , CP Fittings and the amenities to be provided by the builder in the flats.
To take an example, if marble stones/wooden flooring is being provided in a flat, its price would be higher than the price of the flat in which cement/mosaic flooring is to be provided. Even the quality of the marble/wooden flooring may vary from project to project or sometime even flat to flat. To take another example, if superior quality hardware and electrical fittings are to be provided in a flat, the price would be higher compared to the flat in which fittings and fixtures with lower specification and of inferior quality are to be provided. To take yet one more example, if the flat has air-conditioning, its price would be higher than the price of a flat which is not air conditioned. There are many other variables, which affect the price of the flat. Even on the same road, the location may not be comparable and a flat at a prime location would fetch higher price than compared to that flat at an inferior location.”
5. In this suit, the plaintiff has placed on record Ex.PW-1/12 specifications of AJS HILL VIEW APARTMENT. The learned counsel for the plaintiff fairly concedes that this is the specification which the defendant had given to some other buyer and not to the plaintiff though it pertains to the same project in which the defendant had agreed to sell a flat to the plaintiff. There could be variation in the specifications promised to the plaintiff in this case, and the specifications agreed with another buyer. In the absence of evidence of the specifications which the defendant had agreed with the plaintiff, as regards quality of the material being used in construction, specifications of fittings and fixtures to be installed in the flat and the amenities to be provided therein, it is not possible to compare the flats of other builders in the locality with the flat which the defendant had agreed to sell to the plaintiff. Therefore, it cannot be said that the flat which the plaintiff had booked with the defendant, would have the market price of at least Rs 4500/- per square feet. In any case, no document evidencing the market value of similar flats in the locality on the date of filing of the suit has been proved by the plaintiff in accordance with law and, therefore, the plaintiff has failed to substantiate the plea that on the date of filing of the suit, the market price of the flat which the defendant had agreed to construct and sell to the plaintiff was Rs 4500/- per square feet.
6. However, since the defendant failed to deliver the flat to the plaintiff within one year from the date of booking, it is liable to refund the whole of the amount which the defendant has deposited with it along with interest on that amount at the rate of 09% per annum with effect from one year after the date of booking till the date of filing of the suit. The learned counsel for the plaintiff states that the total amount, after adding interest in terms of this order comes to Rs.10,98,020/-.
For the reasons stated hereinabove, a decree for Rs 10,98,020/- with proportionate cost and pendente lite and future interest at the rate of 9% per annum is passed in favour of the plaintiff and against the defendant.
Decree sheet be drawn accordingly.
V.K. JAIN, J DECEMBER 18, 2012 bg
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High Court Of Delhi

18 December, 2012