State Consumer Disputes Redressal Commission
Om Krishan Puri vs Emaar Mgf Land Limited on 26 July, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
Consumer Complaint No.09 of 2015
Date of institution : 16.01.2015
Reserved on : 12.07.2017
Date of decision : 26.07.2017
1.Om Krishan Puri son of Late Mansa Ram Puri;
2. Arun Puri son of Om Krishan Puri;
Both residents of H.No.32, Montagu Avenue, Gosforth, New Castle, Upon Tyne, U.K. NE34JJ.
....Complainants Versus
1. EMAAR MGF Land Limited, Ist Floor, SCO No.120-122, Sector 17-C, Chandigarh.
2. EMAAR MGF Land Limited, Registered Office at ECE, House No.28, Kasturba Gandhi Marg, New Delhi.
....Opposite Parties Consumer Complaint under Section 17 of the Consumer Protection Act, 1986.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President Present:-
For the complainants : Sh. Nitesh Singhi, Advocate For the opposite parties: Sh. Ashim Aggarwal, Advocate. JUSTICE PARAMJEET SINGH DHALIWAL, PRESIDENT :
Facts of the Complaint The complainants have filed this complaint, under Section 17 of the Consumer Protection Act, 1986 (in short, "the Act").
2. Brief facts, as set out in the complaint, are that the complainants purchased Flat No.TVM-J3-F07-701, having super area of 1930 sq.ft., from the opposite parties in their project named "THE Consumer Complaint No.09 of 2015 2 VIEWS", vide agreement dated 25.09.2009, at the rate of ₹2,950/- per sq.ft. At the time of execution of the agreement, the opposite parties told the complainants that the covered parking space would be provided for an amount of ₹1.50 lacs. On objection of the complainant that parking space is provided free of costs, the opposite parties told that the matter is pending before the Govt. of India, so the said cost is subject to the decision of the Union of India. Further the opposite parties assured the complainants to provide best location in the project. As such, the complainants agreed to pay Preferential Location Charges (PLC) at the rate of ₹100/- per sq.ft., which came to ₹1,93,000/-. The opposite parties also disclosed that the External Development Charges (EDC) of super area are being charged and paid to the Govt. of Punjab. Thus, the complainant also paid the EDC to them. Therefore, the total cost of the flat came to ₹62,72,558/-, which also included PLC, EDC, parking chares and interest free maintenance security. As per the terms of the agreement, the opposite parties were bound to deliver the possession of the fully furnished flat within 36 months from the date of allotment/agreement, which could be further extended for a period of 90 days. It was also agreed that the possession would be delivered after obtaining Occupation Certificate from the competent authority. In case of failure of the opposite parties to do so, they were liable to pay ₹5/- per sq.ft. of the super area of the flat per month for entire period of delay. It was further agreed that the maintenance charges would be taken by the opposite parties from the complainants in advance for the period of one year after delivering the Consumer Complaint No.09 of 2015 3 possession of the flat. However, the opposite parties did not complete the flat within the stipulated period of 3 years as well as in extended period of 90 days, which expired on 25.12.2012. The complainants approached them for taking the possession, but instead of delivering the possession, they told the complainants that due to some changes the area of the flat had been extended from 1930 sq.ft. to 2051 sq.ft., vide letter dated 16.08.2013. They further assured that the possession of the flat with extended area would be delivered within 2 months and on their assurance, the complainants gave their consent for extension of the area of the flat, subject to the same cost and same site plan, as shown to them before booking of the flat, as per terms of the agreement dated 25.09.2009; to which the opposite parties agreed.
Even thereafter, they failed to complete the flat even after the expiry of the said period. Earlier, the opposite parties offered the possession to them, but as the flat was incomplete in all respects, so they had not taken the possession thereof and raised objection in this regard. The opposite parties, vide letter dated 18.12.2013, asked the complainants to take possession of the flat on 07.02.2014, stating that their objections were removed and that the flat was complete in all respects. However, the opposite parties claimed maintenance charges from the complainants, before delivery of possession. Finding no alternative, the complainants had paid those charges to the opposite parties, with the hope that the possession was being delivered. However, even on 07.02.2014, the flat was incomplete, due to which the possession could not be delivered. On visiting the site, the complainants found that Consumer Complaint No.09 of 2015 4 kitchen fittings were improper, doors were moveable instead of being fitted, tiles were broken, windows were not properly fitted and paint was also not properly done. The complainants could not make payment of some instalments, as per the payment plan. So, as per the agreement, they made all the delayed payments along with incidental charges and interest @ 15% per annum to the opposite parties, including penalty due to dishonour of the cheques etc. The complainants are entitled to compensation from the opposite parties from 26.12.2012 onwards, for not delivering the possession of the flat till date, as per the terms and conditions of the agreement. The complainants also paid the balance amount of ₹3,79,604/- on 13.05.2014, vide demand draft dated 09.05.2014. Thus, they paid the entire price of the flat, along with penal interest. The opposite parties received the maintenance charges from them from 22.09.2013 to 30.09.2014 at the rate of ₹2.75/- per sq.ft. plus 12.36% as service tax, the total of which comes to ₹77,938/-. They also charged ₹4,045/- as water charges from the complainants, despite the fact that the possession of the flat has not been delivered, as they did not have Occupation Certificate from the competent authority. The act and conduct of the opposite parties amount to deficiency in service, due to which the complainants suffered mental pain and harassment. Accordingly, they sought the issuance of following directions to the opposite parties:
i) to handover possession of the flat, in question, as per the terms of the agreement;Consumer Complaint No.09 of 2015 5
ii) to refund the parking charges of ₹1,50,000/-, along with interest at the rate of 15% per annum from the date of payment till realization;
iii) to refund the PL charges of ₹1,93,000/-, along with interest at the rate of 15% per annum from the date of payment till realization;
iv) to refund the water charges of ₹4,045/-, along with interest at the rate of 15% per annum from the date of payment till realization;
v) to refund Electrification charges of ₹10,870/-, along with interest at the rate of 15% per annum from the date of payment till realization;
vi) to refund the maintenance charges of ₹77,938/-, along with interest at the rate of 15% per annum from the date of payment till realization;
vii) to refund the excess charges of EDC, along with interest at the rate of 15% per annum from the date of payment till realization;
viii) to refund the excess charges for cost of extended area of 121 sq.ft., along with interest at the rate of 15% per annum from the date of payment till realization;
ix) to pay compensation of ₹2,10,000/- plus ₹10,255/- per month from the date of filing of the complaint till the delivery of possession of the flat; and
x) to pay compensation of ₹15,00,000/-, along with interest from the date of filing of the complaint till realization. Consumer Complaint No.09 of 2015 6
Defence of the Opposite Parties
3. Upon notice, opposite parties No.1 & 2 appeared and filed reply to the complaint, raising certain preliminary objections that the complaint is false and without any basis. The complaint is time barred, as the same has been filed after more than two years of the accrual of alleged cause of action with respect to claim of PLC, EDC and car parking charges. The prayer for handing over the possession is infructuous, as the complainants have already taken the possession on 30.06.2014, but later on returned the keys with malafide intention. The apartment, in question, has been developed/completed, in accordance with the terms of the agreement. The complainants took the possession of the flat, to their full satisfaction and now they are falsely alleging that the flat is not complete/developed as per the agreement. The complainants have not led any evidence to prove that the flat is not complete/developed, as per the agreement. The complainants are guilty of suppressio veri and suggestio falsi, as they concealed the factum of taking the possession of the flat by them. This Commission has no pecuniary jurisdiction to entertain the present complaint. This Commission has also no jurisdiction to decide this dispute, because as per clause 43 of the agreement, all disputes are to be referred to the arbitrator. The complainants are not consumers, under the Act, as they are BRITISH citizens and have purchased the apartment, in question, only for investment/speculative purposes. On merits, purchasing of the flat, in question, and execution of the agreement were admitted. It was pleaded that the opposite parties charged ₹1,50,000/-, as the price of Consumer Complaint No.09 of 2015 7 the car parking space as well as the PLC charges, as per the terms of the agreement. The total sale consideration of the unit was ₹62,72,558/- at the time of booking. However, since the areas were subject to change till final possession was offered and Govt. Taxes and levies could also change, so there was always possibility of change of total sale consideration of the unit. There was no definitive agreement stating that possession would definitely be delivered within 36 months. The time was not the essence, in cases of building contracts; especially where penalty clause for delay has been incorporated therein,which safeguards the interest of the buyers. As per clauses 23.1 and 23.2 of the agreement, the compensation for delays in delivering the possession would only be applicable in those cases, wherein the customers/complainants have not defaulted/delayed the remittance of instalments by the due dates. From the account statements of the complainants, it is clear that they have been remitting the payments with delay. It was further pleaded that the Occupation Certificate for the tower, in which the unit in question is situated, was granted by the competent authorities on 10.06.2013 and the opposite parties sent Intimation of Possession letter dated 16.08.2013 to the complainants in this regard. The date of handing over possession i.e. 07.02.2014 was communicated to them, along with settlement of final dues, vide letter dated 09.12.2013. They were also asked to remit the other charges, including stamp duty, registration charges, electricity, water, maintenance etc., vide that letter. The amount due in January, 2014 was remitted by the Consumer Complaint No.09 of 2015 8 complainants in April/May, 2014, subsequent to which the unit was handed over to them. They paid ₹3,79,000/- on 13.05.2014, which were demanded, vide letters dated 16.08.2013 and 09.12.2013. Thus, due to delay in paying the instalments, the complainants are not entitled to any compensation, as per clause 23.2 of the agreement. It was further pleaded that there is no change in the site plan of the unit and the allegation of the complainants in this regard is false. The complainants themselves inspected the unit on 30.06.2014 and accorded their satisfaction, vide letter of the same date. The handover of possession commenced on the same date and inventory sheet was prepared, listing out various fittings like ACs/furniture/kitchen fittings etc. and the complainants duly took the possession of the unit. It was denied that PLC and EDC have been illegally charged. All other allegations of the complainants have been denied and it was prayed that the complaint be dismissed, with costs.
Evidence of the Parties
4. To prove their claim, the complainants tendered affidavit of Sh. Om Krishan Puri, complainant No.1 as Ex.C-A, along with documents Ex.C-1 to Ex.C-8.
5. On the other hand, the opposite parties tendered affidavit of Sh. Gurdeep Singh, Sr. Manager Legal and Authorized Representative Ex.OP-1/A, along with documents Ex.OP/1 to Ex.OP/10.
Consumer Complaint No.09 of 2015 9Contentions of the Parties
6. I have heard learned counsel for the parties and have gone through the record carefully.
7. Learned counsel for the complainants vehemently contended that the opposite parties failed to complete/develop the flat, in question, in all respects as well as to deliver the possession thereof within the stipulated period. The opposite parties illegally charged the Preferential Location Charges, EDC, car parking charges, water charges, electrification charges and maintenance charges. The opposite parties enhanced the super area of the flat, in question, and received the excess price towards the cost of the flat. The possession of the flat was agreed to be delivered within 36 months from the date of allotment/agreement with extended period of 90 days, which expired on 25.12.2012. The possession was offered only on 30.06.2014, but as the flat was incomplete and was not developed as per the agreement, so the complainants did not take the possession. They illegally charged ₹4,35,853/- as excess EDC, which they are liable to refund to the complainants. By not completing the flat, in question, and delivering its possession within the stipulated period, the opposite parties committed deficiency in service and unfair trade practice. It was, thus, contended that the complaint be allowed and all the directions, as sought for in the complaint, be issued to the opposite parties.
8. Per contra, learned counsel for the opposite parties contended that the complaint is not maintainable, as the complainants Consumer Complaint No.09 of 2015 10 are not consumers, because they are British citizens and purchased the flat, in question, for investment/speculative purposes. It was further contended that the prayer for handing over the possession has become infructuous, as the complainants have already taken the possession of the flat on 30.06.2014, but later on they returned the keys thereof with malafide intention. The complainants have concealed the factum of taking over the possession of the flat in the complaint with malafide intention. The apartment has been developed/completed, as per the terms of the agreement Ex.C-1. The Preferential Location Charges, EDC, car parking charges, water charges, electrification charges and maintenance charges were received by the opposite parties, in accordance with the terms of the agreement. The total sale consideration of the flat was ₹62,72,558/- at the time of booking, but as the area of the flat was subject to change, so there was every possibility of change in sale consideration of the unit, if the area thereof changes. The PLC have been charged as per clause 6 of the agreement Ex.C-1. As per clause 7.1, the EDC have been legally charged from the complainant. The complainants themselves inspected the unit, in question, on 30.06.2014 and requested for handing over the possession thereof. Thus, the possession of the unit was delivered to them on the same day i.e. 30.06.2014, without any objection. Since the complainants made the payments of instalments towards the sale price of the flat with delay, so for the delayed delivery of possession, the complainants are not entitled to any compensation. Once the complainants themselves took the possession and signed Consumer Complaint No.09 of 2015 11 the documents in this regard, now it does not lie in their mouth to say that the flat is not completed/developed. The complainants have themselves abandoned the possession of the flat, without any rhyme and reason and there is no deficiency in service on the part of the opposite parties and the complaint is liable to be dismissed. In support of his submissions, learned counsel for the opposite parties relied upon Harpal Arya v. Housing Board Haryana R.P. No.3338 of 2007, decided on 04.01.2016 (National Commission).
Consideration of Contentions
9. I have given my thoughtful consideration to the rival contentions of the parties.
10. Admittedly, the flat, in question, was allotted to the complainants by the opposite parties, vide Unit Buyer Agreement dated 25.09.2009, Ex.C-1, for the total sale price of ₹62,72,558/- and that the total sale price of the flat has been deposited by the complainants with them. The possession of the flat was agreed to be delivered within 36 months from the date of allotment, with a grace period of 90 days i.e. till 25.12.2012. However, the same was not delivered within that period. As per clause 23.1 of the agreement, in case of failure of the opposite parties to deliver the possession within the agreed period, they were liable to pay compensation to the complainants at the rate of ₹5/- per sq.ft. per month of the super area till the date of notice of offering the possession. The super area of the said flat was 1930 sq.ft. Ultimately, the opposite parties delivered the possession of the flat, in question, to the complainants on 30.06.2014 Consumer Complaint No.09 of 2015 12 i.e. after the delay of about 1 and a half year. The Handover of Keys, furniture inventory, kitchen inventory etc. Ex.OP/9 (colly.) were signed by the complainants in respect of taking the possession of the flat, in question. It is also an admitted fact that after taking the possession of the flat, in question, the complainants had returned the keys thereof to the opposite parties.
11. The complainants have claimed refund of Preferential Location Charges (PL charges) of ₹1,93,000/-. However, it is relevant to mention that they themselves agreed to pay the PL charges to the opposite parties, as per clause 6 of the agreement Ex.C-1. Therefore, they are not entitled to the refund of the said charges.
12. Similarly, the complainants have claimed refund of excess External Development Charges (EDC). However, perusal of clause 7 of the agreement shows that they duly agreed to pay those charges at the time of purchasing the said flat. Accordingly, they are not entitled to the refund of EDC. Further clause 6.1 of the agreement itself shows that the complainants had agreed to pay the car parking charges and now they are estopped to allege that the car parking charges were illegally charged from them.
13. The only grievance, which survives for consideration, is with regard to the actual delivery of possession of the flat, in question. Perusal of Ex.OP/2 proves that the opposite parties were issued Partial Completion Certificate on 10.06.2013, meaning thereby that the project of the opposite parties was still incomplete on 10.06.2013, whereas the possession was agreed to be delivered by 25.12.2012, as already Consumer Complaint No.09 of 2015 13 discussed above. Therefore, the complainants were justified in returning the keys of the flat to the opposite parties, as the project/flat was partially completed at that time. Document Ex.OP/2 shows that the opposite parties were granted Partial Completion Certificate on 10.06.2013, meaning thereby that the flat/project, in question, was not fully completed even by 10.06.2013. Just to avoid the various clauses of the agreement as well as the provisions of the Punjab Apartment and Property Regulation Act, 1995 (in short, PAPRA"), the opposite parties are playing a smart game, by indulging into correspondence and creating fear in the minds of the buyers. Since the project has not been fully completed, so the possession delivered on 30.06.2014 cannot be treated as valid possession, for the reason that the complete possession has to be given, in all respects. It also needs to be emphasized that the delay in delivery of possession is not disputed.
14. As already discussed above, the possession of the flat was agreed to be delivered till 25.12.2012. However, the same was not delivered within that period. The possession offered on 30.06.2014 was not complete in all respects, as proved from partial completion certificate Ex.OP/2. As per clause 23.1 of the agreement, in case of failure of the opposite parties to deliver the possession within the agreed period, they are liable to pay compensation to the complainants at the rate of ₹5/- per sq.ft. per month of the super area till the date of notice of offering the actual and physical possession, complete in all respects.
Consumer Complaint No.09 of 2015 14
15. The complainants have alleged that the opposite parties enhanced the super area of the flat, in question, without charging any extra amount. The opposite parties have denied this fact in their reply. However, the perusal of letter Ex.C-2 shows that the area has been increased and the excess area price has been demanded vide this letter. There is no evidence that the opposite parties agreed to deliver the possession of flat, in question, with increased area on the same price. As such, the complainants are liable to pay cost of the increased area of the flat, in question.
16. The other grievance of the complainants is that they are not liable to pay the interest free maintenance security, water charges and electrification charges. It is relevant to mention that since the complete possession of the flat, in question, has not been delivered, so the complainants are not liable to pay those charges and the said charges can only be demanded after delivery of actual, physical and complete possession, which has not been delivered so far. The authority relied upon by the learned counsel for the opposite parties is not applicable to the facts of the present case, in view of the fact that the opposite parties themselves have not completed the project/flat in all respect and this fact is proved by Partial Completion Certificate produced by the opposite parties themselves as Ex.OP/2. Moreover, the opposite parties have not produced any document to show the status of the construction at the spot. In my view, the complainants are entitled to the possession of the flat, in question, complete in all respects and for delay in delivery of possession, the opposite parties Consumer Complaint No.09 of 2015 15 are liable to pay penalty to the complainants at the rate of ₹5/- per sq.ft. per month of the super area measuring 1930 sq.ft. till the date of notice of offering the actual and physical possession, complete in all respects. Any amount due towards the complainants in respect of the flat, in question, can be adjusted by the opposite parties towards the penalty payable by them to the complainants.
17. Accordingly, the complaint is partly allowed and the following directions are issued to the opposite parties:
i) to deliver the actual, physical and complete possession of the flat, in question, to the complainants;
ii) to pay penalty to the complainants at the rate of ₹5/- per sq.ft.
per month of the super area measuring 1930 sq.ft. from 01.01.2013 (25.12.2012 being agreed date of delivery of possession) till the delivery of actual, physical and complete possession of the flat, in question;
iii) to pay compensation of ₹20,000/- for the mental agony and harassment suffered by the complainants; and
iv) to pay ₹11,000/-, as litigation expenses.
It is made clear that the amount payable by the opposite parties shall be adjusted towards the price of the excess area of the flat, in question, and remaining amount, if any, shall be paid to the complainants.
18. The opposite parties shall comply with the order within 45 days of the receipt of the certified copy of the order.
19. The complaint could not be decided within the stipulated timeframe, due to heavy pendency of Court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT July 26, 2017.
(Gurmeet S)