State Consumer Disputes Redressal Commission
Irvinder Singh Gill vs M/S Premium Acres Infratech Pvt. Ltd. on 22 June, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint No. : 69 of 2015 Date of Institution : 08.04.2015 Date of Decision : 22.06.2015 Irvinder Singh Gill son of Col. Gurlal Singh Gill, resident of House No.189, Sector 33-A, Chandigarh, presently residing at House No.603/2, Shikhargarh, Jodhpur, Rajasthan, through his General Power of Attorney Holder Col. Gurlal Singh Gill, resident of House No.189, Sector 33-A, Chandigarh. .....Complainant Versus M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, through its Managing Director. M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, S.A.S. Nagar (Mohali). M/s Premium Acres Infratech Pvt. Ltd., (Regd. Office) 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi-110005. Parminder Singh Sehgal (Director), Premium Acres Infratech Pvt. Ltd., R/o H.No.1227, Sector 42-B, Chandigarh-160036. Second Address:- Parminder Singh Sehgal (Director), Premium Acres Infratech Pvt. Ltd., R/o House No.61-62, Sector 70, Mohali. Sanjay Jain (Former Director) Premium Acres Infratech Private Limited, R/o House No.2235, Sector 21, Chandigarh. .... 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:Mrs. Vertika H. Singh, Advocate for the complainant.
Sh. Parminder Singh, Advocate for Opposite Parties No.1 to 4.
Sh.Pankaj Chandgothia, Advocate for Opposite Party No.5.
JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
The facts, in brief, are that the complainant applied to the Opposite Parties, for the allotment of a Villa, in their project, vide application dated 19.01.2010. As such, vide allotment letter dated 17.04.2010 Annexure C-2, the complainant was allotted Villa No.118, approximately measuring 1700 square feet (hereinafter to be referred as Villa No.118), in the project of the Opposite Parties, namely 'The Court Yard' in Mega Housing Project of TDI City, in Sector 110-111, Mohali, Punjab.
It was stated that the Buyer Agreement dated 21.05.2011 Annexure C-3, was executed between the complainant and Opposite Parties No.1, 2 and 3, in respect of Villa No.118. It was further stated that, as per Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3, the possession of Villa No.118, 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 21.05.2011) i.e. on or before 20.05.2013.
The basic sale price of Villa No.118, was to the tune of Rs.41,80,000/- and the External Development Charges were Rs.3,50,400/-. It was further stated that, since the complainant was given discount of Rs.4,47,000/-, he being the first customer of the Opposite Parties. In this manner, the complainant was required to pay a sum of Rs.40,83,400/-, in respect of the cost of Villa No.118, which included External Development Charges (EDC) to the tune of Rs.3,50,400/- as is evident from the payment plan, at page 38 of the file, forming part of the Buyer Agreement dated 21.05.2011 Annexure C-3. It was further stated that the complainant opted for the down payment plan.
It was further stated that, as per the down payment plan, the complainant had made payment of Rs.35 lacs, which constituted about 90% of the total basic sale price of Villa No.118. However, the remaining price, as also Interest Free Maintenance Charges were required to be paid at the time of delivery of possession of Villa No.118.
It was further stated that vide letter dated 06.02.2013, the Opposite Parties made a demand of more amount, towards water, electricity, sewerage, IFMS and service tax. The complainant vide letter dated 19.04.2013 Annexure C-5, sought clarification from the Opposite Parties, in respect of the demand made by them, vide letter dated 06.02.2013.
It was further stated that when the complainant did not see any development and construction work at the site, he vide letters dated 25.06.2013 Annexure C-6 and 28.06.2013 Annexure C-7, requested the Opposite Parties, to expedite the same (construction work), so that possession could be handed over to him at the earliest.
It was further stated that, on the other hand, vide letter dated 05.06.2013 Annexure C-8, Opposite Parties No.1 to 4, raised the demand of additional amount of Rs.9,61,967/-, towards the remaining sale consideration, in respect of Villa No.118. It was further stated that vide the said letter, it was also intimated that Villa No.118 had reached the stage of completion, and was ready for possession, subject to making payment, demanded vide letter dated 05.06.2013 Annexure C-8.
It was further stated that, thereafter, the father of the complainant visited the office of the Opposite Parties, and raised an objection, in respect of the demand made vide letter dated 05.06.2013 Annexure C-8. It was further stated that finally, against the demand of Rs.9,61,967/-, the amount of Rs.7 lacs, was paid by the complainant, and the remaining amount was waived off by the Opposite Parties. It was further stated that at the time of making payment of Rs.7 lacs, it was assured by the Opposite Parties that the possession of Villa No.118 would be delivered to the complainant, at the earliest.
It was further stated that vide letter dated 18.09.2013, Annexure C-10, Opposite Parties No.1 to 3 informed the complainant that they had received full and final payment, in respect of Villa No.118, except Rs.1 lac, towards IFMS.
It was further stated that, thereafter, the father of the complainant met the Officials of the Opposite Parties, a number of times, with a request to deliver the possession of Villa No.118, and also handover possession letter, in respect of the same, but they lingered on the matter, on one pretext or the other.
It was further stated that, shockingly, vide legal notice dated 26.08.2014 Annexure C-13, Opposite Parties No.1 to 4, raised the demand of additional amount of Rs.17,00,361/- under various heads, despite the fact that vide letter dated 18.09.2013, Annexure C-10, they (Opposite Parties No.1 to 3) had already informed the complainant that they had received full and final payment, in respect of Villa No.118, except Rs.1 lac, towards IFMS. It was further stated that the demand of Rs.17,00,361/- under various heads, made by Opposite Parties No.1 to 4, except Rs.1 lac towards IFMS, vide notice dated 26.08.2014 Annexure C-13, was illegal and arbitrary. It was further stated that even inflation charges and club membership charges were illegally demanded by Opposite Parties No.1 to 4, vide the letter aforesaid. It was further stated that not only this, the construction work of Villa No.118 had not been completed by Opposite Parties No.1 to 4, by the stipulated date or even till the date of filing the complaint. It was further stated that even the basic amenities had not been provided, at the site. It was further stated that even the necessary permissions/ sanctions, had not been obtained by the Opposite Parties, from the Competent Authorities, in respect of the project, in question.
It was further stated that the complainant replied to the notice dated 26.08.2014 Annexure C-13 through letter dated 20.09.2014 Annexure C-14, and sought clarification, regarding the demand made by the Opposite Parties, as also requested to reconcile the account, but to no avail.
It was further stated that the physical possession of Villa No.118, was actually required to be delivered by the Opposite Parties, on or before 20.05.2013, as per Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3, but they failed to do so.
It was further stated that since the complainant did not accept the illegal and arbitrary demand of Rs.17,00,361/-, made vide notice dated 26.08.2014 Annexure C-13, he was intimated by the Opposite Parties, vide legal notice dated 06.10.2014 Annexure C-16, that the allotment of Villa No.118, stood cancelled. It was further intimated to the complainant vide the said legal notice dated 06.10.2014 Annexure C-16, that he could collect the amount of Rs.24,32,585/-, after completing the requisite formalities.
It was further stated that even after making payment of more than 98% of the sale consideration, towards Villa No.118, the Opposite Parties did not hand over the possession thereof. It was further stated that even compensation/penalty, for the period of delay was not paid by the Opposite Parties, to the complainant. It was further stated that the complainant enquired from the Opposite Parties, regarding the delivery of possession of Villa No.118, a number of times, but they did not give any satisfactory reply, and lingered on the matter, on one pretext or the other.
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 notice dated 26.08.2014 Annexure C-13, being illegal, null and void; set aside legal notice dated 06.10.2014 Annexure C-16, vide which Villa No.118 had been cancelled; deliver physical possession of Villa No.118, complete in all respects; pay delayed compensation, to the tune of Rs.15,000/- per month, from 20.05.2013 till the delivery of possession of Villa No.118; interest @18% per annum, on the amount paid by them, from the date of respective deposits, till the possession of Villa No.118, was actually delivered; pay Rs.5 lacs, as compensation, for mental agony, physical harassment, deficiency in rendering service, and adoption of unfair trade practice; and cost of litigation, to the tune of Rs.50,000/-.
Opposite Parties No.1 to 5 were served and put in appearance on 12.05.2015.
In their joint written version, filed on 10.06.2015, Opposite Parties No.1 to 4, pleaded that the complainant did not fall within the definition of a consumer, as defined under Section 2 (1) (d) of the Act, as he had purchased the Villa, in question, with an intention to earn profits, after selling the same, as and when there was escalation in the prices of real estate. 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 21.05.2011 Annexure C-3, only the Courts at Delhi, had Jurisdiction to adjudicate any dispute, arising between the parties, as far as the present unit was concerned, this Commission has got no territorial Jurisdiction, to entertain and decide the instant complaint. It was further pleaded that since complicated and complex questions were involved, in the present case, this Commission, in summary proceedings, cannot adjudicate the same and, as such, the complainant was required to be relegated to the Civil Court. It was admitted that the complainant purchased Villa No.118, in the project of Opposite Parties No.1 to 4. It was stated that the complainant had paid Rs.35 lacs, towards part price of Villa No.118. It was denied that any discount of Rs.4,47,000/-, in respect of Villa No.118 was given to the complainant. It was further stated that, on the other hand, only discount of Rs.1,17,000/-, in respect of Villa No.118 had been given to the complainant. It was further stated that the Buyer Agreement dated 21.05.2011 Annexure C-3, was never executed between the complainant and Opposite Parties No.1 to 4. It was further stated that the Buyer Agreement dated 21.05.2011 Annexure C-3, was signed by one Mr. Sanjay Jain, who was never authorized by Opposite Parties No.1 to 4. It was further stated that, as such, the complainant could not claim that the possession of Villa No.118 was to be delivered to him, within 24 months from 21.05.2011. It was further stated that even if it was assumed for the sake of arguments that the possession of Villa No.118 was to be delivered within 24 months, from the date of execution of the Buyer Agreement dated 21.05.2011 Annexure C-3, then too the complainant could not claim the same, as he breached the terms and conditions of the same (Buyer Agreement dated 21.05.2011), by not making the timely payments, in respect of the same (Villa No.118), as per the construction linked plan opted by him. It was denied that the complainant opted for down payment plan. It was further stated that the complainant was not entitled to the delayed payment interest, as per Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3. It was further stated that the complainant was required to pay various charges, other than the sale consideration of Villa No.118, which included sale price, service tax, building cess, sewerage, electricity, water charges etc. etc. It was further stated that Opposite Parties No.1 to 4, were always ready and willing to hand over the possession of Villa No.118, to the complainant, but it was he (complainant), who did not pay the remaining sale consideration, towards the same. It was further stated that the demand raised by Opposite Parties No.1 to 4, vide demand notice dated 26.08.2014 Annexure C-13, was legal and valid. It was further stated that a number of documents, placed on record, by the complainant, were not issued by Opposite Parties No.1 to 4, but, on the other hand, the same were forged and fabricated by Mr. Sanjay Jain former Director. It was further stated that Mr. Sanjay Jain, former Director of Opposite Parties No.1 to 3, with malafide intention, committed fraud by issuing forged statement of account, as also other documents, related to financial matters, thereby causing financial loss to the Company. It was further stated that FIR No.64 dated 23.02.2015 was filed against Mr. Sanjay Jain. It was further stated that there was stay on mining of sand, in the area, by the Punjab and Haryana High Court, and, as such, there was some delay in construction of the Villas. It was further stated that all these circumstances were beyond the control of Opposite Parties No.1 to 4. It was further stated that Opposite Parties No.1 to 4 had already given possession of the units, to a number of similarly located allottees, in the said project. It was further stated that all the necessary approvals/sanctions, in respect of the said project, had been obtained by Opposite Parties No.1 to 4, from the Competent Authorities. It was further stated that since the complainant failed to pay the amount of Rs.17,00,361/-, as per the calculations, made at page 65 of the file, in respect of the remaining sale consideration, including various charges of Villa No.118, he had no right to claim any compensation, as per the Buyer Agreement dated 21.05.2011 Annexure C-3. It was further stated that neither letter dated 05.06.2013 Annexure C-8, vide which demand of Rs.9,61,967/- was made, nor letter dated 18.09.2013, Annexure C-10, in respect of full and final payment, except IFMS charges to the tune of Rs.1 lac, were issued from the office of Opposite Parties No.1 to 4, whereas, on the other hand, the same were illegally issued by Mr. Sanjay Jain aforesaid, who was no more the Director of the Company. It was further stated that the complainant might have exchanged various communications with Mr. Sanjay Jain, aforesaid, with whom, Opposite Parties No.1 to 4 had no concern, as he was no more the Director of their Company. It was further stated that, still the complainant was required to pay the amount of Rs.18,17,219/- under various heads, in respect of Villa No.118. It was further stated that since the complainant failed to pay the amount demanded vide notice dated 26.08.2014 Annexure C-13, the allotment of Villa No.118, was rightly cancelled vide legal notice dated 06.10.2014 Annexure C-16. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 to 4, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
The Counsel for Opposite Party No.5 stated that Opposite Party No.5 did not want to file any reply and evidence.
In the rejoinder, filed by the complainant, by way of affidavit of Col.Gurlal Singh, his General Power of Attorney Holder, he reiterated all the averments, contained in the complaint, and repudiated those, contained in the written version of Opposite Parties No.1 to 4.
The complainant, in support of his case, submitted the affidavit of Col.Gurlal Singh, his General Power of Attorney Holder, by way of evidence, alongwith which, a number of documents were attached.
Opposite Parties No.1 to 4, in support their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal and Administration), 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. No doubt, it was submitted by the Counsel for Opposite Parties No.1 to 4 that since the complainant failed to prove that Villa No.118 was purchased by him, for his residential purpose, as such, it could very well be said that he (complainant) had purchased the same (Villa No.118), for commercial purpose, i.e. to resell the same, as and when there was escalation in the prices of real estate. The submission of the Counsel for Opposite Parties No.1 to 4, in this regard, does not appear to be correct. It may be stated here, that the complainant had clearly averred in paragraph No.12 of his complaint, supported by the affidavit, referred to above, that he had purchased Villa No.118 for his residential purpose. On the other hand, there is no reliable evidence, on the record, that the complainant has a number of other residential units and houses or commercial plots. Even no evidence, was produced by Opposite Parties No.1 to 4, that the complainant is a property dealer, and, as such, is dealing in the sale and purchase of the property. Under these circumstances, by no stretch of imagination, it could be said that Villa No.118, was purchased by the complainant, by way of investment, with a view to earn huge profits. 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 Opposite Parties No.1 to 4, 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 Opposite Parties No.1 to 4, submitted that since the parties as per Clause 36 of the Buyer Agreement dated 21.05.2011 Annexure C-3, 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 Opposite Parties No.1 to 4, 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 21.05.2011 Annexure C-3, 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 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 the instant case, the Buyer Agreement dated 21.05.2011 Annexure C-3, was executed at Chandigarh. The letter dated 05.06.2013 Annexure C-8, clearly establishes that the same was issued by the Chandigarh Office of Opposite Parties No.1 to 4, to the complainant, in respect of demand of payment, towards Villa No.118. 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 Opposite Parties No.1 to 4, in this regard, therefore, being devoid of merit, must fail and the same stands rejected.
The next question, that falls for consideration, is as to whether, this Commission has got pecuniary Jurisdiction to entertain and decide the consumer complaint, or not. It may be stated here, that the submission of the Counsel for Opposite Parties No.1 to 4, to the effect that this Commission has got no pecuniary Jurisdiction, to entertain and decide the consumer complaint, is devoid of merit, and is liable to be rejected. It is, no doubt, true that vide notice dated 26.08.2014 Annexure C-13, an intimation was given to the complainant, to the effect, that payment of Rs.17,00,361/- was due for possession of unit, and the same be made. However, the demand raised in the demand notice dated 26.08.2014 Annexure C-13, was challenged by the complainant, being illegal. There was no clear-cut offer of possession, vide demand notice dated 26.08.2014 Annexure C-13. Nothing was mentioned in the demand notice dated 26.08.2014 Annexure C-13, that the possession of Villa No.118 shall be delivered by a specific date. This letter carried a rider that the remaining amount was allegedly due against the complainant. Since the complainant considered the demand raised by Opposite Parties No.1 to 4, to be illegal, there was no alternative with him than to challenge the same, and seek possession by way of filing the consumer complaint. In paragraph No.15 of the written version, Opposite Parties No.1 to 4 admitted that since there was stay on mining of sand, in the area, by the Punjab and Haryana High Court, and, as such, there was some delay in completion of the project. Since possession of the unit has also been sought, in the complaint, the value of the unit is 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.40,83,400/-, 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 Opposite Parties No.1 to 4, in this regard, therefore being devoid of merit, must fail and the same stands rejected.
The next question, that falls for consideration, is, as to within which period, the delivery of possession of Villa No.118, was to be given to the complainant. According to Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3, subject to force majeure conditions and reasons, beyond the control of Opposite Parties No.1 to 4, they were to deliver physical possession of Villa No.118, within a maximum period of 24 months, from the date of execution of the same (Agreement). It is, thus, evident, from this Clause, that Opposite Parties No.1 to 4, were required to deliver possession of Villa No.118, in favour of the complainant, within 24 months, from the date of execution of the Buyer Agreement dated 21.05.2011 Annexure C-3 i.e. latest by 20.05.2013.
No doubt, the Counsel for Opposite Parties No.1 to 4, submitted that since the Buyer Agreement dated 21.05.2011 Annexure C-3, was signed by Mr. Sanjay Jain, who was not authorized to do so, as such, the same (Buyer Agreement dated 21.05.2011 Annexure C-3, could not be said to be a genuine document. He further submitted that no reliance, therefore, on the document, referred to above, could be placed. The submission of the Counsel for Opposite Parties No.1 to 4, in this regard, does not appear to be correct. Mr. Sanjay Jain signed the Agreement, on behalf of Opposite Parties No.1 to 4, by representing himself, as their duly authorized signatory. If there was any dispute between Opposite Parties No.1 to 4, and Sh. Sanjay Jain, then the third parties i.e. the consumers including the complainant was not to suffer. The consumers, while dealing with the Company, did not know as to who were the Authorized Signatories/Officers thereof, and how their internal affairs were being managed. For any alleged act of Sh. Sanjay Jain, the consumers could not be held liable to suffer for that. Opposite Parties No.1 to 4, had their legal remedy by filing a Civil Suit and also proceeding against him, under the criminal law. Thus, the Buyer Agreement dated 21.05.2011 Annexure C-3, could not be said to be an unreliable document. Even otherwise, in the demand notice dated 26.08.2014 Annexure C-13, as also cancellation notice dated 06.10.2014 Annexure C-16, sent to the complainant, Opposite Parties No.1 to 4, had relied upon Clauses 4 (f), 9 and 11, of the Buyer Agreement dated 21.05.2011 copy of which has been placed as Annexure C-3. Thus, in these letters dated 26.08.2014 Annexure C-13 and 06.10.2014 Annexure C-16, aforesaid, the execution of Buyer Agreement dated 21.05.2011 Annexure C-3 was admitted by Opposite Parties No.1 to 4. On the other hand, Opposite Parties No.1 to 4, have neither placed on record, any other Buyer Agreement, if executed between the parties, in respect of the unit, in question, except the present one nor any such averment, in respect of the execution thereof, (other Buyer Agreement), has been made, in the complaint, nor such a contention was advanced at the time of arguments, before this Commission. In these circumstances, Opposite Parties No.1 to 4, could not wriggle out of the terms and conditions of the Buyer Agreement dated 21.05.2011 Annexure C-3, as the same contained admission against their interests. Had any other Buyer Agreement, executed between the allottees and Opposite Parties No.1 to 3, in respect of the unit, in question, been produced, on record, the matter would have been different. In these circumstances, the submission of the Counsel for Opposite Parties No.1 to 4, being devoid of merit, must fail, and the same stands rejected.
The next question, that falls for consideration, is, as to whether, the construction of Villa No.118 was complete and the same (unit, in question), was ready for delivery of possession to the complainant, by the stipulated date i.e. 20.05.2013 or not. It may be stated here, that there is nothing, on the record, that the possession of Villa No.118, 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 Opposite Parties No.1 to 4, till the date of filing the complaint, some document must have been placed, on record, by them. Had the construction, of Villa No.118 and amenities promised, been complete as per the Buyer Agreement dated 21.05.2011 Annexure C-3, then certainly Opposite Parties No.1 to 4, 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 Villa No.118, was complete in all respects, and that possession thereof was offered to the complainant.
It is, no doubt, true that vide demand notice dated 26.08.2014 Annexure C-13, an intimation was given to the complainant, to the effect that the unit was ready for possession, and the payment of amount due against them be made. Yet, it was further mentioned in this demand notice dated 26.08.2014 Annexure C-13, that "My client will hand over possession of Villa/Unit within 90 days from the day you make the payment, which includes the registration charges and other misc. expenses in addition to the amount mentioned above". Not only this, it has also been candidly admitted by Opposite Parties No.1 to 4, in paragraph 15 of their written version, that since there was stay on mining of sand, in the area, by the Punjab and Haryana High Court, as such, there was some delay in completion of the project. Thus, under these circumstances, it could very well be said that by 20.05.2013, possession of the unit was not ready to be delivered to the complainant. On the other hand, the demand raised in notice dated 26.08.2014 Annexure C-13 was challenged by the complainant, being illegal. As stated above, there was no clear-cut offer of possession, vide the demand notice, dated 26.08.2014 Annexure C-13. 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 Opposite Parties No.1 to 4, to be illegal, as he had already made the entire payment, except Rs.1 lac, towards IFMS, which fact was intimated to him (complainant), by them, vide letter dated 18.09.2013, Annexure C-10, as such, he challenged the same, and sought possession by way of filing the consumer complaint. Thus, it is held that the possession of Villa No.118, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, despite the fact that the entire sale consideration, including miscellaneous charges, in respect thereof, except Rs.1 lac towards IFMS, referred to above, as per the Buyer Agreement dated 21.05.2011 Annexure C-3, had been paid. By making a misleading statement that the possession of Villa No.118, shall be delivered within 24 months, from the date of execution of the Buyer Agreement dated 21.05.2011 Annexure C-3, and by not abiding by the commitment made, Opposite Parties No.1 to 4, 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 Villa No.118. It may be stated here, that the complainant opted for the down payment plan. Thus, as per the payment schedule attached with the Buyer Agreement dated 21.05.2011 Annexure C-3, the basic sale price of Villa No.118, was Rs.41,80,000/- plus (+) Rs.3,50,400/- as External Development Charges. The complainant was given discount to the tune of Rs.4,47,000/-. As such, the total price of Villa No.118, which the complainant was required to pay was Rs.40,83,400/-.
No doubt, the Counsel for Opposite Parties No.1 to 4, submitted that the complainant opted for construction linked plan, as per letter Annexure C-2 and not down payment plan. He also submitted that since the complainant did not make payments, on time, as per the construction linked plan, opted by him, as such, the amount as demanded vide legal notice dated 26.08.2014 Annexure C-13, as reflected in Annexure R-4 was due to Opposite Parties No.1 to 4, against him (complainant), which he failed to pay, as a result whereof, the allotment was cancelled. The submission of the Counsel for Opposite Parties No.1 to 4, in this regard, does not appear to be correct. After the allotment, Buyer Agreement dated 21.05.2011 Annexure C-3 was executed between the complainant and Opposite Parties No.1 to 3 and 5. Alongwith the Buyer Agreement dated 21.05.2011 Annexure C-3, down payment plan was attached, according to which, the total price of Villa No.118, which the complainant was required to pay was Rs.40,83,400/-. The down payment plan attached with the Buyer Agreement dated 21.05.2011, Annexure C-3, not only bears the signatures of the complainant but also the signatures of authorized signatory of Opposite Parties No.1 to 3. The factum that it was down payment plan, which was opted by the complainant is further proved from the Buyer Agreement dated 21.05.2011 Annexure C-3. It is evident from page 32 of the file, forming part of the Buyer Agreement dated 21.05.2011 Annexure C-3, that the complainant had made payment of Rs.5 lacs on 02.01.2010, through two cheques i.e. Rs.3 lacs vide cheque No.925077 and Rs.2 lacs vide cheque No.6860. Not only this, Rs.13 lacs, in cash, on the same day i.e. 02.01.2010, whereas, Rs.5 lacs, vide cheque No.6334 on 18.01.2010, had also been paid by the complainant, to Opposite Parties No.1 to 4. In this manner, by 18.01.2010, Rs.23 lacs had already been paid by the complainant to Opposite Parties No.1 to 4. Whereas, the Buyer Agreement Annexure C-3 was executed on 21.05.2011. These payments were made by the complainant, before execution of the Buyer Agreement. Had the complainant not opted for the down payment plan, the question of making the payment of Rs.23 lacs, by 18.01.2010, as depicted at page 32 of the file, forming part of the Buyer Agreement dated 21.05.2011 Annexure C-3, would not have arisen. The submission of the Counsel for Opposite Parties No.1 to 4, that down payment plan at page 38 of the file, was a forged document and that the complainant opted for the construction linked plan, therefore, being devoid of merit, must fail, and the same stands rejected.
Now the stage is set for determination of the question, as to what amount is required to be paid by the complainant, if any, towards the remaining sale consideration or other charges, in relation to the said unit. As stated above, the total price of Villa No.118, which the complainant was required to pay was Rs.40,83,400/-. On the other hand, it is evident from the letter dated 18.09.2013 Annexure C-10, issued by Opposite Parties No.1 to 4, to the complainant, that "We have received full and final payment except IFMS charges of Rs.100000.00 (Rupees one lac only) of copper villa.118". Not only this, alongwith the letter dated 05.06.2013 Annexure C-8, the statement of account was also attached. As per this statement of account, at page 55 of the file, the complainant had already paid an amount of Rs.35 lacs, out of Rs.40,83,400/- and, thereafter, Rs.7 lacs, was paid by him, vide cheque No.857600 dated 18.09.2013, (as depicted from his account statement at page 57 of the file) as a result whereof, letter dated 18.09.2013 Annexure C-10, was issued by Opposite Parties No.1 to 4, to him, towards full and final payment, except IFMS to the tune of Rs.1 lac, in respect of the said unit. It means that the entire sale consideration including other charges, except IFMS to the tune of Rs.1 lac, had already been paid by the complainant by 18.09.2013. No doubt, demand letter/legal notice dated 26.08.2014 Annexure C-13, was sent by Opposite Parties No.1 to 4, to the complainant, claiming that payment of Rs.17,00,361/- was pending on account of service tax, club charges, Interest Free Maintenance Security, water, sewerage and electric charges, service tax on services, delayed payment interest, inflation, additional maintenance charges etc. alongwith pending basic price. However, as stated above, as per letter dated 18.09.2013 Annexure C-10, issued by Opposite Parties No.1 to 4, they had received the full and final payment except IFMS charges of Rs.100000.00 (Rupees one lac only) in respect of Villa No.118. It means that according to these documents, only an amount of Rs.1 lac, towards IFMS was due against the complainant to Opposite Parties No.1 to 4, as arrears towards Villa No.118. Annexure C-10 letter dated 18.09.2013, contained the admission of Opposite Parties No.1 to 4, that only Rs.1 lac towards IFMS was due to them, against the complainant, in so far as the unit, in question, was concerned. Thus, the submission of the Counsel for the complainant, to the effect that the entire amount which was due towards the price of Villa No.118, plus (+) other charges, except Rs.1 lac towards IFMS, had been paid by the complainant, to Opposite Parties No.1 to 4 carries substance and stands accepted. The complainant, is, thus, liable to pay the amount of Rs.1 lac to Opposite Parties No.1 to 4, and nothing more than that, at the time of taking possession of Villa No.118. The demand of the remaining amount vide Annexure C-13, being illegal is liable to be set aside.
No doubt, the Counsel for Opposite Parties No.1 to 4, submitted that letter dated 05.06.2013 Annexure C-8, the statement of account attached therewith, as also letter dated 18.09.2013 Annexure C-10 were issued by Mr. Sanjay Jain, their Ex-Director, who was not authorized to do so, and, as such, no reliance, therefore, on these documents, could be placed. The submission of the Counsel for Opposite Parties No.1 to 4, in this regard, does not appear to be correct. As stated above, if there was any dispute between Opposite Parties No.1 to 4,and its Director Sanjay Jain and he allegedly played fraud with the Company as also allegedly embezzled its amount, then the third parties i.e. the consumers were not to suffer. The consumers, while dealing with the Company, did not know as to who were the Directors thereof, and how their internal affairs were being managed. In case, Mr. Sanjay Jain, former Director of Opposite Parties No.1 to 4, allegedly played fraud with them, or allegedly embezzled the amount belonging to the Company, then the consumers could not be held liable to suffer for that. Opposite Parties No.1 to 4, had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a Civil Suit and also proceeding against him under the criminal law. Thus, letter dated 05.06.2013 Annexure C-8, the statement of account attached therewith, as also letter dated 18.09.2013 Annexure C-10, could not be said to be unreliable documents. Once, in letter dated 18.09.2013 Annexure C-10, outstanding shown against the complainant was Rs.1 lac, it is not known, as to how, Opposite Parties No.1 to 4, served legal notice dated 26.08.2014, demanding the amount of Rs.17,00,361/-. Opposite Parties No.1 to 4 could not wriggle out of the contents of letter dated 18.09.2013 Annexure C-10, as the same contained admission against their interests. This demand was, therefore, illegal and arbitrary and liable to be set aside. By raising the illegal demand, Opposite Parties No.1 to 4, indulged into unfair trade practice.
The next question, that falls for consideration, is, as to whether, the allotment of Villa No.118, was legally and validly cancelled by Opposite Parties No.1 to 4, vide letter dated 06.10.2014 Annexure C-16. It may be stated here, that once it is held that the demand raised by Opposite Parties No.1 to 4, vide demand letter/legal notice dated 26.08.2014 Annexure C-13, was partly illegal and arbitrary, the cancellation made by them, vide letter dated 06.10.2014 Annexure C-16, could be said to be illegal and arbitrary. By cancelling the allotment of Villa No.118, illegally and arbitrarily, Opposite Parties No.1 to 4 were not only deficient, in rendering service, but also indulged into unfair trade practice, on this score.
Whether, the complainant is entitled to compensation, if so, at what rate, for non-delivery of physical possession of the unit, in question, by Opposite Parties No.1 to 4, by the promised date is the next question, that requires determination. According to Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3, Opposite Parties No.1 to 4, were liable to pay a sum of Rs.15,000/- 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.15,000/- per month, for the period of delay, per month, from 20.05.2013 (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.
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 him, as also for deficiency in rendering service and indulgence into unfair trade practice, by not delivering physical possession of the unit, in question, to him, by the stipulated date on account of the illegal demand of the amount made by Opposite Parties No.1 to 4, except Rs.1 lac, towards IFMS, is the next question, that requires determination. The complainant purchased the unit, in question, with the hope to have a shelter over his head, but his hopes were dashed to the ground, when Opposite Parties No.1 to 4, failed to complete the unit, in question, and deliver possession of the same, despite the fact that the entire sale consideration except Rs.1 lac, towards IFMS, was paid by him. Till date, physical possession of the unit, in question, has not been given to the complainant, by Opposite Parties No.1 to 4. The complainant, thus, underwent a tremendous mental agony and physical harassment, on account of the acts of omission and commission of Opposite Parties No.1 to 4. 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 him, at the hands of Opposite Parties No.1 to 4, to the tune of Rs.1,00,000/-, which could be said to be adequate and reasonable.
Coming to the liability of Opposite Party No.5/Mr.Sanjay Jain, Ex-Director, of Opposite Parties No.1 to 4, it may be stated here, that, no doubt, he was a party to the Buyer Agreement dated 21.05.2011 Annexure C-3, yet, it has been admitted by them (Opposite Parties No.1 to 4), that he is no more a Director of the Company. Opposite Parties No.1 to 4, may avail of their legal remedy, if any, available to them, against Opposite Party No.5. Hence, the complaint against Opposite Party No.5 is liable to be dismissed.
For the reasons recorded above, the complaint is partly accepted, with costs, against Opposite Parties No.1 to 4. Opposite Parties No.1 to 4 are jointly and severally held liable and directed as under:_ To hand over to the complainant, legal physical possession of Villa No.118, complete in all respects, within three months, from the date of receipt of a certified copy of this order, on payment of Rs.1 lac, towards IFMS, by him (complainant).
To execute the sale deed and get the same registered, in respect of Villa No.118, 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.15000/-, per month, from 20.05.2013 (the promised date of delivery of possession), till the delivery of possession of Villa No.118, as per Clause 9 of the Buyer Agreement dated 21.05.2011 Annexure C-3.
To pay compensation, in the sum of Rs.1 lac, to the complainant, on account of deficiency in rendering service, adoption of unfair trade practice mental agony and physical harassment, caused to him (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 30.05.2015, shall be paid, 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 20.05.2013, till realization.
Compensation accruing due @Rs.15,000/-, per month, w.e.f. 01.06.2015, 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 lac, 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 and compliance of other directions.
Demand letter/Legal notice dated 26.08.2014 Annexure C-13, issued by Opposite Parties No.1 to 4, being partly illegal, as indicated above, and is set aside to that extent.
Cancellation of allotment of Villa No.118, vide letter dated 06.10.2014 Annexure C-16 issued by Opposite Parties No.1 to 4, being illegal and arbitrary is also set aside.
Complaint against Opposite Party No.5, is dismissed with no order as to costs.
Certified Copies of this order be sent to the parties, free of charge.
The file be consigned to Record Room, after completion.
Pronounced.
22.06.2015 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Sd/-
[PADMA PANDEY] MEMBER Rg.