State Consumer Disputes Redressal Commission
Ms Sarita Kashyap vs Premium Acres Infratech Pvt. Ltd on 1 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 20 of 2015 Date of Institution : 02.02.2015 Date of Decision : 01.04.2015 Ms. Sarita Kashyap wife of Charan Dass Kashyap, resident of House No.204, Sector 38-A, Chandigarh. .....Complainant Versus Premium Acres Infratech Pvt. Ltd., through its Managing Director, SCO No.139-141, First Floor, Sector 17, Chandigarh Parminder Singh Sehgal, Director, Premium Acres Infratech Pvt. Ltd., House No.1227, Sector 42-B, Chandigarh. Premium Acres Infratech Pvt. Ltd., through its General Manager, having its Office at Villa No.154, TDI City Premium Acre Courtyard, Sector 110-111, S.A.S. Nagar, Mohali. .... Opposite Parties Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
MRS. PADMA PANDEY, MEMBER Argued by: Sh. N.S. Jagdeva, Advocate for the complainant.
Sh. D. S. Dhiman, Advocate for the Opposite Parties JUSTICE SHAM SUNDER (RETD.), PRESIDENT The facts, in brief, are that the complainant vide application dated 26.08.2010, applied to the Opposite Parties, for the purchase of a flat/unit, in their project, namely 'The Court Yard' in Mega Housing Project of TDI City, in Sector 110, Mohali, Punjab. Alongwith the said application, the complainant also deposited the amount of Rs.50,000/-, as booking amount, vide cheque No.158677 dated 26.08.2010. The complainant was allotted unit No.20102, First Floor, in the said project, vide Allotment Letter dated 20.11.2010 Annexure C-2. The sale price of the unit was Rs.23,50,000/-. The external development charges were to the tune of Rs.1,16,800/-. The discount given was to the tune of Rs.23,500/-. Thus, the composite sale price of the unit was Rs.24,43,300/-. The complainant opted for the construction linked plan. Vide welcome letter dated 30.08.2010, while acknowledging the receipt of Rs.50,000/-, as booking amount, the Opposite Parties demanded a sum of Rs.4,20,000/-, for completion of payment of 20% of the basic sale price, which the complainant paid.
It was stated that, thereafter, the Opposite Parties made a demand of Rs.2,36,738/-, to complete 30% of the basic sale price, which was paid by the complainant. It was further stated that another amount of Rs.4,97,340/-, on account of completion of 40% of the basic sale price of the said unit was paid by the complainant.
It was further stated that, thereafter, the Buyer Agreement dated 12.05.2011, Annexure C-5, was executed between the parties, in respect of unit No.20102. It was further stated that, as per Clause 9 of the Buyer Agreement dated 12.05.2011 Annexure C-5, the possession of unit No.20102, was to be given within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 12.05.2011).
It was further stated that, thereafter, the Opposite Parties kept on demanding amount, towards the price of the said unit, which was regularly paid by the complainant. It was further stated that by 19.04.2013, substantial amount had been paid by the complainant, yet, no offer of possession, in respect of the said unit, was made to her.
It was further stated that on 07.04.2014 Annexure C-13, a letter was received from the Opposite Parties, wherein it was intimated to the complainant that construction work of the unit, in question, was near completion. In the said letter, the Opposite Parties also made a demand of Rs.2,68,093/-, as also Rs.1,30,000/-, towards IFMS, water, sewerage, and electricity charges. Apart from these amounts, the complainant was also asked to keep ready the amount of Rs.2,50,000/-, towards stamp duty and registration charges. It was further stated that another letter dated 14.06.2014 Annexure C-14 was received from the Opposite Parties, wherein the complainant was asked to be ready for taking over possession, on payment of Rs.40,000/-. It was further stated that the complainant visited the office of the Opposite Parties, for payment of Rs.40,000/-, but the same (Office) had been shifted without any intimation.
It was further stated that the complainant visited the site and was surprised to see that there was no construction. It was further stated that, to the utter surprise of the complainant, she received another letter dated 13.09.2014 Annexure C-15, from the Opposite Parties, wherein she was asked to take possession of the said unit, on making payment of Rs.2,35,753/-, within thirty days. It was further stated that the demand of Rs.2,35,753/-, made by the Opposite Parties was illegal and arbitrary, as she had already made more than 95% of the entire sale consideration, towards the said unit. It was further stated that even the club membership, inflation and holding charges were arbitrarily levied by the Opposite Parties.
It was further stated that the complainant had made timely payments towards instalments of the price of unit No.20102. However, if there was any delay, in payment of the amount, the Opposite Parties had charged interest @18% P.A. thereon. It was further stated that the complainant was compelled to make payment of Rs.26,99,343/-, in all, towards the price of the said unit, against the composite basic price of Rs.24,43,300/-.
It was further stated that even thereafter, there was no construction, at the site. It was further stated that even the basic amenities had not been provided, in the said sector, where the unit, in question, was located. It was further stated that even after making full payment towards unit No.20102, the Opposite Parties did not hand over the possession thereof. It was further stated that since the complainant did not accept the illegal and arbitrary demand of Rs.2,35,753/-, made vide letter/notice dated 13.10.2014 Annexure C-17, she was intimated that the allotment of unit No.20102, stood cancelled. It was further intimated to the complainant vide the said letter/notice dated 13.10.2014 Annexure C-17, that she could collect the amount of Rs.19,46,261/-.
It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to withdraw the demand letter/notice dated 13.09.2014 Annexure C-15 and letter/notice dated 13.10.2014 Annexure C-17, being illegal, null and void; deliver physical possession of unit No.20102, complete in all respects; pay delayed compensation, to the tune of Rs.7,000/- per month, for the period of delay till the delivery of possession of unit No.20102; interest @18% per annum, on the amount of Rs.26,99,343/-, from the date(s) of respective deposits, till the possession of unit No.20102, was actually delivered; Rs.3 lacs, as compensation, for mental agony, physical harassment, and deficiency in rendering service; and cost of litigation, to the tune of Rs.33,000/-
The Opposite Parties, put in appearance on 10.03.2015. In their joint written version, filed on 17.03.2015, the Opposite Parties, pleaded that the complainant did not fall with the definition of a consumer, as defined under Section 2(1) (d) of the Act, as she had purchased the unit, in question, with an intention to earn profits, after selling the same, as and when, there was escalation in prices of the real estate, and, as such, the consumer complaint was not maintainable. It was further pleaded that this Commission has got no pecuniary Jurisdiction to entertain and decide the complaint. It was further pleaded that since as per Clause 36 of the Buyer Agreement dated 12.05.2011 Annexure C-5, only the Courts at Delhi, had Jurisdiction to adjudicate any dispute arising between the parties, as far the present unit was concerned, this Commission has got no territorial Jurisdiction, to entertain and decide the instant complaint. It was admitted that the complainants purchased unit No.20102, in the said project of the Opposite Parties. Execution of the Buyer Agreement dated 12.05.2011 Annexure C-5, between the parties was also admitted. The price of unit No.20102, as mentioned in the complaint was also admitted. It was stated that as per Clause 9 of the Buyer Agreement dated 12.05.2011 Annexure C-5, the possession of unit No.20102, was to be given within a period of 24 months (18 months plus 6 months grace period) from the date of execution of the same (Agreement dated 12.05.2011). It was admitted that the complainant had made payment of Rs.26,99,343/-, in respect of unit No.20102. It was further stated that the complainant was liable to pay delayed payment interest, as per Clause 7 of the Buyer Agreement dated 12.05.2011 Annexure C-5. It was further stated that, in addition to the basic sale price of the unit, in question, the complainant was required to pay various charges towards service tax, building cess, sewerage, electricity, water charges etc. etc. It was denied that there was any delay, in construction work, in respect of unit No.20102, allotted in favour of the complainant. It was further stated that the Opposite Parties were always ready and willing to hand over the possession of unit No.20102, to the complainant, but it was she (complainant), who did not pay the remaining sale consideration, towards the same. It was further stated that the demand made by the Opposite Parties, vide letter/notice dated 13.09.2014 Annexure C-15 was legal and valid. It was further stated that had the complainant made timely payments, the possession of unit No.20102 would have been delivered to her. It was further stated that the Opposite Parties had already given possession of the units, to a number of similarly located allottees, in the said project.
It was further stated that Mr. Sanjay Jain former Director of the Opposite Parties, in connivance with various customers, with malafide intention, committed fraud by issuing forged statements of account, thereby causing financial loss to the Company. It was further stated that complaint under Section 156 (3) of the Criminal Procedure Code was filed against Mr. Sanjay Jain, and the complainant. It was further stated that since the complainant failed to pay the amount demanded vide the demand letter dated 13.09.2014 Annexure C-15, the allotment of unit No.20102, was rightly cancelled, vide letter/notice dated 13.10.2014 Annexure C-17. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
In the rejoinder, filed by the complainant, she reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of the Opposite Parties.
The complainant, in support of her case, submitted her own affidavit, by way of evidence, alongwith which, a number of documents were attached.
The Opposite Parties, in support their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager, by way of evidence, alongwith which, a number of documents were attached.
We have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
The first question, that falls for consideration, is, as to whether, the complainant fell within the definition of a consumer, as defined by Section 2 (1) (d) (ii) of the Act, or not. The objection taken by the Opposite Parties, in this regard, does not appear to be correct. It may be stated here, that the complainant, in para No.35 of the complaint, in clear-cut terms, stated that she purchased the unit, in question, to reside therein, as she had been residing in rented accommodation, in House No.204, Sector 38A, Chandigarh. Otherwise also, the mere fact that it was a residential unit, which was allotted, in favour of the complainant, was sufficient to prove that it was to be used for the purpose of residence, by her. On the other hand, there is nothing, on the record, that the complainant is a property dealer, and deals in the sale and purchase of property. No evidence was also produced by the Opposite Parties, to prove that the complainant owned a number of other residential properties, in the tricity, and, as such, the plot, in question, was purchased by her, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. The complainant, thus, availed of the services of the Opposite Parties, for the allotment of a residential unit, in question, with a view to construct house thereon, and reside in the same. The complainant, thus, fell within the definition of a consumer, as defined by Section 2(1)(d)(ii) of the Act. Such an objection, taken by the Opposite Parties, in their written statement, therefore, being devoid of merit, is rejected.
The next question, that falls for consideration, is, as to whether, this Commission has got territorial Jurisdiction to entertain and decide the consumer complaint, or not. No doubt, the Counsel for the Opposite Parties, submitted that since the parties as per Clause 36 of the Buyer Agreement dated 12.05.2011 Annexure C-5, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement), this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, being devoid of merit, is liable to be rejected, for the reasons, to be recorded hereinafter. In the first instance, it may be stated here, that the Consumer Foras' are not the Courts. Clause 36 of the Buyer Agreement dated 12.05.2011 Annexure C-5, only confers Jurisdiction on the Courts at Delhi. Under these circumstances, no help can be drawn, from this Clause, for coming to the conclusion that this Commission at Chandigarh, has no territorial Jurisdiction, to entertain and decide the instant complaint. In Associated Road Carriers Ltd. Vs. Kamlender Kashyap and Ors., I (2008) CPJ 404 (NC), it was held by the National Commission, that a clause of Jurisdiction, by way of an Agreement, between the parties, could not be made applicable, to the Consumer Complaints, filed before the Consumer Foras, as the Foras are not the Courts. It was further held, in the said case, that there is a difference between Section 11 of the Act, which is para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction. In the instant case, the Buyer Agreement dated 12.05.2011 Annexure C-5, was made at Chandigarh. Not only this, bare perusal of the documents, placed on record, clearly goes to establish that almost all the correspondence, in respect of the unit, in question, took place with the Chandigarh Office of the Opposite Parties. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial Jurisdiction to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
No doubt, the Counsel for the Opposite Parties, placed reliance on M/s Swastik Gases P. Ltd. Versus Indian Oil Corporation Ltd., Civil Appeal No. 5086 of 2013, arising out of SLP (Civil) No.5595 of 2012, decided on 03.07.2013, by the Hon'ble Supreme Court of India, to contend that where the Agreement/contract specifies the Jurisdiction of the Court, at a particular place, all other Courts are excluded from invoking the same (Jurisdiction). It may be stated here that, as stated above, the Consumer Foras' are not the Courts. There is a difference between Section 11 of the Act, which a para materia to Section 17 of the Act and the provisions of Sections 15 to 20 of the Civil Procedure Code, regarding the place of Jurisdiction In Ethiopian Airlines Vs Ganesh Narain Saboo, IV (2011) CPJ 43 (SC) = VII (2011) SLT 371, the principle of law, laid down, was to the effect, that the restriction of Jurisdiction to a particular Court, need not be given any importance in the circumstances of the case. In Cosmos Infra Engineering India Ltd. Vs Sameer Saksena & another I (2013) CPJ 31 (NC) and Radiant Infosystem Pvt. Ltd. & Others Vs D.Adhilakshmi & Anr I (2013) CPJ 169 (NC), the Agreements were executed, between the Parties, incorporating therein, a condition, excluding the Jurisdiction of any other Court/Forum, in case of dispute, arising under the same, and limiting the Jurisdiction to the Courts/Forums at Delhi, and Hyderabad. The National Consumer Disputes Redressal Commission, New Delhi, in the aforesaid cases, held that such a condition, incorporated in the Agreements, executed between the Parties, excluding the Jurisdiction of a particular Court/Forum, and limiting the Jurisdiction to a particular Court/Forum, could not be given any importance, and the complaint could be filed, at a place, where a part of cause of action arose, according to Sections 11/17 of the Act. Under these circumstances, Clause 36 of the Buyer Agreement dated 12.05.2011 Annexure C-5, being in breach of Section 17 of the Act, could not operate. No help, therefore, can be drawn, by the Counsel for the Opposite Parties, from M/s Swastik Gases P. Ltd.'s case (supra). The submission of the Counsel for the Opposite Parties, in this regard, therefore, being devoid of merit, must fail, and the same stands rejected.
It was next submitted by the Counsel for Opposite Parties, that this Commission has no pecuniary Jurisdiction to entertain and decide the complaint. He further submitted that possession of the unit, in question, was offered to the complainant, vide letter/notice dated 13.09.2014 Annexure C-15, on payment of amount of Rs.2,35,753/-, being due against her. He further submitted that the complainant was given time of 30 days, to deposit the said amount, failing which, it was made clear that the allotment of unit No.20102, in her favour shall be cancelled. He further submitted that since the possession of unit No.20102 was ready and the same was offered to the complainant, vide the letter aforesaid, by seeking the possession in the complaint, she only wanted to usurp the pecuniary Jurisdiction of this Commission. He further submitted that if the amount of reliefs, is clubbed together, then only the District Forum had the pecuniary Jurisdiction to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, is devoid of merit, and is liable to be rejected. It is, no doubt, true that vide letter/notice dated 13.09.2014 Annexure C-15 an intimation was given to the complainant, to the effect, that the unit was ready for possession, and the payment of amount due again her be made. However, the demand raised in the said letter was challenged by the complainant, being illegal. There was no clear-cut offer of possession, vide letter/notice dated 13.09.2014 Annexure C-15. On the other hand, it was only an intimation that the unit was ready for possession. This letter carried a rider that the remaining amount was allegedly due against the complainant. Since the complainant considered the demand raised by the Opposite Parties, to be illegal, there was no alternative with her than to challenge the same, and seek possession by way of filing the consumer complaint. Had the possession been actually offered to the complainant without any rider, the matter would have been different. Since possession of the unit has also been sought, in the complaint, the value of the same is also required to be added to the amount of other reliefs, so as to determine the pecuniary Jurisdiction of this Commission. Once the price of the unit to the tune of Rs.24,43,300/- and amount of other reliefs are clubbed, only one and one conclusion that can be arrived at, is that this Commission has pecuniary Jurisdiction to entertain and decide the complaint. The submission of the Counsel for the Opposite Parties, in this regard, therefore being devoid of merit, must fail and the same stands rejected.
It was next submitted by the Counsel for the Opposite Parties, that Sanjay Jain, Ex-Director of the Company, embezzled huge amount of the Company and also played fraud with it (Company) in connivance with the complainant and other consumers. He further submitted that he also forged receipts and other documents, in connivance with the consumers, as a result whereof, a criminal case has been lodged against him. He further submitted that, as such, this Commission, in summary proceedings, cannot adjudicate such complicated questions of forgery and fraud. No evidence has been brought, on record, establishing the alleged forgery of documents by Sanjay Jain. If he allegedly embezzled the huge amounts of the Company and defrauded it, then it (Company) can proceed against him, for the recovery of amount by filing a civil suit and also under the criminal law by lodging an FIR. For his alleged acts of omission and commission, the third parties, cannot suffer. No complicated questions of law and fact are involved, in this case. This Commission has, thus, got the Jurisdiction to decide the complaint.
The next question, that falls for consideration, is, as to within which period, the delivery of possession of unit No.20102, was to be given to the complainant. According to Clause 9 of the Buyer Agreement dated 12.05.2011 Annexure C-5, subject to force majeure conditions and reasons, beyond the control of the Opposite Parties, they were to deliver physical possession of unit No.20102 within a maximum period of 24 months, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that the Opposite Parties, were required to deliver possession of unit No.20102 in favour of the complainant, within 24 months, from the date of execution of the Buyer Agreement dated 12.05.2011 Annexure C-5, i.e. latest by 11.05.2013.
The next question, that falls for consideration, is, as to whether, the construction of unit No.20102 was complete and the same (unit, in question), was ready for delivery of possession to the complainant, by the stipulated date i.e. 11.05.2013 or not. It may be stated here, that there is nothing, on the record, that the possession of unit No.20102, had been offered to the complainant, till the date of filing the complaint. Had offer of possession of the said unit, been made to the complainant, by the Opposite Parties, till the date of filing the complaint, some document must have been placed, on record, by them. Had the development, in respect of unit No.20102 and amenities promised, been complete as per the Buyer Agreement dated 12.05.2011 Annexure C-5, then certainly the Opposite Parties, being in possession of the best evidence, having engaged a number of engineers/architects, would have placed on record, their reports, to prove that factum. They, however, failed to produce the cogent and convincing evidence, to prove that unit No.20102, was complete in all respects, and that possession thereof was offered to the complainant. It is, no doubt, true that vide letter/notice dated 13.09.2014 Annexure C-15, an intimation was given to the complainant, to the effect, that the unit was ready for possession, and the payment of amount due against her be made. However, the demand raised in the said letter was challenged by the complainant, being illegal. As stated above, there was no clear-cut offer of possession, vide demand letter/notice dated 13.09.2014 Annexure C-15. Thus, under these circumstances, it could very well be said that by 13.09.2014, possession of the same (unit No.20102) was not ready to be delivered to the complainant. Otherwise also, as stated above, the said letter carried a rider that the remaining amount was allegedly due against the complainant. Since the complainant considered the demand raised by the Opposite Parties, to be illegal, as such, she challenged the same, and sought possession by way of filing the consumer complaint. Thus, it is held that possession of unit No.20102, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, despite the fact that more than 95% of the sale consideration, including miscellaneous charges, in respect thereof, as per the Buyer Agreement dated 12.05.2011 Annexure C-5, had been paid. By making a misleading statement, that the possession of unit No.20102, shall be delivered within 24 months, from the date of execution of the Buyer Agreement dated 12.05.2011 Annexure C-5, and by not abiding by the commitments, made by the Opposite Parties, they were not only deficient, in rendering service, but also indulged into unfair trade practice. The complainant is certainly entitled to physical possession of the unit, in question.
The next question, that falls for consideration, is, as to what was the actual price of unit No.20102 and the amount yet to be paid by the complainant. It may be stated here, that the complainant opted for the construction linked instalment payment plan. Thus, as per the payment schedule attached with the Buyer Agreement dated 12.05.2011 Annexure C-5, the basic sale price of unit No.20102, was Rs.23,50,000/- plus (+) Rs.1,16,800/- as External Development Charges minus (-) Rs.23,500/- i.e. total Rs.24,43,300/-. As such, the total price of unit No.20102, which the complainant was required to pay was Rs.24,43,300/-. On the other hand, it is evident from the letter dated 14.06.2014 Annexure C-14, issued by the Opposite Parties, to the complainant, that "the payment of Rs.40,000/- is pending as on date on account of 100% of completion alongwith late payment interest charges". Not only this, alongwith the said letter dated 14.06.2014 Annexure C-14, the statement of account was also attached. As per this statement of account, at page 90 of the file, the complainant had already paid an amount of Rs.26,99,343/-, which included the price of unit No.20102, as also the miscellaneous charges towards External Development Charges, water, electricity, sewerage, IFMS etc. etc. It means that the complainant was only liable to pay a sum of Rs.40,000/-, out of the entire sale consideration, including other charges. No doubt, letter/notice dated 13.09.2014 Annexure C-15 was sent by the Opposite Parties, to the complainant, claiming that payment of Rs.2,35,753/-, pending towards the said unit. However, as stated above, as per letter dated 14.06.2014 Annexure C-14, as also the statement of account, attached therewith, the total amount received from the complainant, towards the price of unit No.20102, alongwith other charges was shown as Rs.26,99,343/-. The remaining outstanding against the complainant was shown as "Rs.40,000/-". It means that according to these documents, only the amount of Rs.40,000/- was due against the complainant to the Opposite Parties, as arrears towards unit No.20102, which was allotted in her favour.
No doubt, it was argued by the Counsel for the Opposite Parties, that since the statement of account, at page 90 of the file, was not signed by any authorized signatory of the Opposite Parties, as such, the same could not be held to be an authentic document. It may be stated here, that the statement of account, aforesaid, was sent alongwith the letter dated 14.06.2014 Annexure C-14, wherein (letter dated 14.06.2014), the said figure of Rs.40,000/-, was also mentioned, as pending to paid by the complainant, before taking over possession of the unit, in question. Perusal of the said letter dated 14.06.2014 Annexure C-14 reveals that the same had been signed by the Team Accounts of the Opposite Parties. At the same time, all the letters, placed on record, wherein the complainant was intimated with regard to the payment schedule/details, in respect of the said unit, have also been signed by the same Team Accounts of the Opposite Parties. Since, the letter dated 14.06.2014 Annexure C-14, accompanied by the statement of account, referred to above, contained the admission of the Opposite Parties, that only the amount of Rs.40,000/- was due to them, against the complainant, in so far as the unit, in question, is concerned, now, at this stage, they cannot wriggle out of the same, on flimsy grounds. Thus, in our considered opinion, since the complainant did not pay the remaining amount of Rs.40,000/-, aforesaid, she is liable to pay the same with interest @12% P.A. Thus, the complainant is entitled to possession of the said unit, on making payment of Rs.40,000/- with interest @12% P.A., in the manner, indicated above.
No doubt, as per the summary dated 12.03.2015, Annexure R-3, at page 126 of the file, produced by the Opposite Parties, a sum of Rs.7,02,170/-, has also been shown to be due to them, against the complainant, under various heads, as under:-
S.No. Head Amount in Rs.
1.
Principal 12,25,521.30Ps.
2. Service Tax 4,805.75ps.
3. Interest 940.98/-
4. Electrification Charges 30,000/-
5. Water meter charges 30,000/-
6. Sewerage charges 20,000/-
7. Add. Service tax on other charges 9,888/-
8. IFMS (RWD) 50,000/-
9. Inflation charges 2,09,596/-
10. Holding charges 1,72,800/-
11. Club membership fee 50,000/-
12. Add. Maintenance charges 1618/-
Total Rs.7,02,170/-
It may be stated here, that as stated above, total sale consideration to the tune of Rs.24,43,300/-, was required to be paid by the complainant, in respect of the said unit. As per the statement of account, at page 90 of the file, the complainant had already paid an amount of Rs.26,99,343/-, which included the price of unit No.20102, as also the miscellaneous charges towards External Development Charges, water, electricity, sewerage, IFMS etc. etc. On the other hand, as stated above, it is evident from the letter dated 14.06.2014 Annexure C-14, issued by the Opposite Parties, to the complainant, that "the payment of Rs.40,000/- is pending as on date on account of 100% of completion alongwith late payment interest charges". It means that the complainant was only liable to pay a sum of Rs.40,000/-, out of the entire sale consideration, including other charges, as per the statement of account attached with Annexure C-14. The demand raised vide Annexure R-3 is illegal.
The next question, that falls for consideration, is, as to whether the demand of inflation charges, to the tune of Rs.2,09,596/-, club membership fee to the tune of Rs.50,000/-, as also the holding charges of Rs.1,72,800/-, made by the Opposite Parties vide Annexure R-3, is legal or not. First coming to the inflation charges to the tune of Rs.2,09,596/-, claimed by the Opposite Parties, in Annexure R-3, it may be stated here, that they (Opposite Parties), failed to produce on record, any cogent and convincing evidence, in the shape of wholesale price index of commodities, to prove as to how much inflation was there, during the course of construction of the unit, in question. In the absence of cogent and convincing evidence, having been produced by the Opposite Parties, with regard to the inflation charges, the demand of amount of Rs.2,09,596/-, could be said to be illegal. Now coming to the demand of Rs.50,000/-, in respect of club membership fee, made by the Opposite Parties, it may be stated here, that in the Agreement, aforesaid, there is no Clause, authorizing them to charge the same. As far as the demand of Rs.1,72,800/-, towards holding charges is concerned, it may be stated here, that since it has been held above, by this Commission, that the possession of unit No.20102, was not offered/delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, the question of charging holding charges, did not at all arise. As such, in our considered opinion, this demand of the Opposite Parties is also illegal. Thus the demand mentioned in this paragraph, being illegal, is liable to be set aside.
The next question, that falls for consideration, is, as to whether, the allotment of unit No.20102, was legally and validly cancelled by the Opposite Parties, vide letter dated 13.10.2014 Annexure C-17. It may be stated here, that once it is held that the demand raised by the Opposite Parties, vide demand letter/notice dated 14.06.2014 Annexure C-14, was illegal and arbitrary, the cancellation made by them, vide letter dated 13.10.2014 Annexure C-17, could also be said to be illegal and arbitrary. By cancelling the allotment of unit No.20102, illegally and arbitrarily, the Opposite Parties were not only deficient, in rendering service, but also indulged into unfair trade practice, on this score.
The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, by the Opposite Parties, by the promised date. According to Clause 9 of the Buyer Agreement dated 12.05.2011 Annexure C-5, the Opposite Parties, were liable to pay a sum of Rs.7,000/- per month, as compensation/ penalty, for the period of delay, beyond 24 months, from the date of execution of the same. Possession of the unit, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed. The complainant is, thus, entitled to compensation/penalty @ Rs.7,000/- per month, for the period of delay, per month, from 11.05.2013 (promised date) onwards, on account of delay, in the delivery of possession of the unit, in question, as per Clause 9 of the Agreement, referred to above.
The next question, that falls for consideration, is, as to whether, the complainant is entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to her, by not delivering physical possession of the unit, in question, to her, on account of the partial illegal demand of the amount made by the Opposite Parties. The complainant booked the unit, in question, with the hope to have a shelter over her head, but her hopes were dashed to the ground, when the Opposite Parties, failed to construct the unit, in question, complete, in all respects, and deliver possession of the same, despite the fact that almost the entire sale consideration thereof had been paid by her. Till date, physical possession of the unit, in question, has not been given, to the complainant, by the Opposite Parties. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for deficiency in service, adoption of unfair trade practice, mental agony and physical harassment caused to her, at the hands of the Opposite Parties, to the tune of Rs.1,00,000/-, which could be said to be adequate and reasonable.
No other point, was urged, by the Counsel for the Opposite Parties.
For the reasons recorded above, the complaint is partly accepted, with costs. The Opposite Parties are jointly and severally held liable and directed as under:_ To hand over legal physical possession of unit No.20102, complete in all respects, to the complainant, within three months, from the date of receipt of a certified copy of this order, on payment of Rs.40,000/-, the remaining amount due with interest @12% P.A. To execute the sale deed and get the same registered, in respect of unit No.20102 in favour of the complainant, on payment of stamp duty and registration charges by the latter (complainant), within a period of 1 (one) month, from the date of delivery of possession.
To pay penalty/compensation @ Rs.7000/-, per month, from 11.05.2013 (the promised date of delivery of possession), onwards, as per Clause 9 of the Buyer Agreement dated 12.05.2011 Annexure C-5.
To pay compensation, in the sum of Rs.1,00,000/-, to the complainant on account of deficiency in rendering service, adoption of unfair trade practice mental agony and physical harassment, caused to her (complainant), at their hands.
To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
Compensation, granted to the complainant, as mentioned in Clause (iii), which has fallen due upto 31.03.2015, shall be paid by the Opposite Parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 11.05.2013, till realization.
Compensation accruing due @Rs.7000/-, per month, w.e.f. 01.04.2015, onwards, shall be paid by the 10th of the following month, failing which, the same shall also carry interest @9 % P.A., from the date of default, till the delivery of possession.
Compensation granted, in favour of the complainant, on account of deficiency in rendering service, unfair trade practice, mental agony and physical harassment, to the tune of Rs.1,00,000/-, as mentioned in Clause (iv), shall be paid, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
Demand raised vide summary dated 12.03.2015 Annexure R-3, issued by the Opposite Parties being illegal, is set aside.
Cancellation of allotment of unit No.20102, vide letter dated 13.10.2014 Annexure C-17, issued by the Opposite Parties, being illegal and arbitrary is also set aside.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
April 1, 2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Rg.