State Consumer Disputes Redressal Commission
Rohit Wadhawan vs M/S Premium Acres Infratech Pvt. Ltd. on 10 January, 2017
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDIGARH Consumer Complaint No. 204 of 2016 Date of Institution 11.05.2016 Date of Decision 10.01.2017 Rohit Wadhawan S/o Sh. S.P.Wadhawan, resident of F-204, Kaveri Apartment, Dwarka, Sector 6, Plot No.4, New Delhi - 110075. Sunita Wadhawan W/o Sh. Rohit Wadhawan, resident of F-204, Kaveri Apartment, Dwarka, Sector 6, Plot No.4, New Delhi - 110075. .......Complainants V E R S U S 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] M/s Premium Acres Infratech Private Limited, (Regd. Office), 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi-110005. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.1227, Sector 42-B, Chandigarh - 160036. Second Address :- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 5] Sanjay Jain (Director) Premium Acres Infratech Pvt. Limited, r/o House No.2235, Sector 21, Chandigarh. ...... Opposite Parties Consumer Complaint No. 203 of 2016 Date of Institution 11.05.2016 Date of Decision 10.01.2017 Anand Shankar S/o Sh. Lalit Shankar, resident of C 21607, Capital Apartment Vasundhara Enclave, Delhi - 110096. Meenakshi W/o Anand Shanker, resident of C 21607, Capital Apartment Vasundhara Enclave, Delhi - 110096. .......Complainants V E R S U S 1] M/s Premium Acres Infratech Pvt. Ltd., SCO 56-57, 3rd Floor, Sector 17-D, Chandigarh, through its Managing Director. 2] M/s Premium Acres Infratech Pvt. Ltd., Villa No.205, TDI City, Premium Acre Court Yard, Sector 110-111, SAS Nagar (Mohali). 3] M/s Premium Acres Infratech Private Limited, (Regd. Office), 17/6, Anand Parbat, Industrial Area, Near Gali No.10, New Rohtak Road, New Delhi-110005. 4] Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.1227, Sector 42-B, Chandigarh - 160036. Second Address :- Parminder Singh Sehgal (Director), Premium Acres Infratech Private Limited, r/o H.No.61-62, Sector 70, Mohali. 5] Sanjay Jain (Director) Premium Acres Infratech Pvt. Limited, r/o House No.2235, Sector 21, Chandigarh. ...... Opposite Parties BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT SH.DEV RAJ, MEMBER
SMT.PADMA PANDEY, MEMBER Argued by:
Mrs. Vertika H.Singh, Advocate for the complainants.
Sh.Parminder Singh, Advocate for Opposite Parties No.1 to 4.
Sh. Sanjay Jain (Opposite Party No.5) in person.
PER PADMA PANDEY, MEMBER Vide this common order, we propose to dispose of two complaints bearing No.204 of 2016 and 203 of 2016, referred to above. The facts involved in the two complaints and by and large, are the same and, therefore, these two complaints can be disposed of by passing a consolidated order.
2. To dictate order, facts are being taken from Consumer Complaint No.204 of 2016 titled as 'Rohit Wadhawan & Anr. Vs. M/s Premium Acres Infratech Pvt. Ltd.'
3. In brief, the facts of the case are that the Opposite Parties had launched the project of "TDI City" and the complainants were allured by the Opposite Parties, who depicted the magnanimous benefits of the said project. On believing the glorified benefit of the project of the Opposite Parties, the complainants had applied for a Villa in their project vide application dated 03.06.2013 (Annexure C-1). Thereafter, villa No.99 having an approximately area of 1700 sq. ft. was allotted to the complainants vide allotment letter dated 03.06.2013. Buyer Agreement was executed between the parties on 25.06.2013 (Annexure C-2). According to Clause 9 of the Agreement, possession of the villa was to be delivered within a period of 24 months from the date of the Agreement i.e. latest by 25.06.2015. It was further stated that the agreegate sale price of the villa, as per the Agreement, was Rs.44,50,400/- including EDC. The complainants had opted for Construction Linked Payment Plan. It was further stated that the complainants had made the initial payment of Rs.12,50,000/- out of the total sale consideration before the execution of the Agreement. It was further stated that after receipt of the payment, the Opposite Parties never communicated to the complainants regarding the stage of construction work. The complainants enquired from the Opposite Parties telephonically on several occasions regarding the status of construction work of the said villa but they evaded the queries. It was further stated that when the complainants visited the site recently, they found only a basic structure of the concerned building was standing and no other work had been done in the said villa. The complainants had visited the site to enquire regarding the status of the construction work in order to make payment of the further installments but they were utterly disappointed by seeing that the construction work of the said villa had been completely shunned by the Opposite Parties without any rhyme and reason. It was further stated that there was no approach to the said villa, no park and amenities in the surrounding area. Photographs of the concerned villa is Annexure C-3. It was further stated that the photographs clearly depicted that only a basic structure is standing without any plastering work of electrical or plumbing work being complete. The Opposite Parties have abandoned the construction work of the said villa and there is a wild growth of jungle around the block, in which, the villa of the complainants exists. It was further stated that despite receipt of the huge payment, the Opposite Parties failed to show their bonafide and did not commence the construction work. Ultimately, the complainants sent a legal notice dated 07.04.2016 (Annexure C-4) to the Opposite Parties but to no avail. It was further stated that the Opposite Parties failed to pay any delay charges, which is mentioned in Clause 9 of the Agreement. It was further stated that the Opposite Parties did not have the required sanctions/permissions for the development of the site and even they did not apply for the completion certificate of the said project. Due to the aforesaid act and conduct of the Opposite Parties, they were deficient, in rendering service, as also, indulged into unfair trade practice. When the grievance of the complainants was not redressed, left with no alternative, a complaint under Section 17 of the Consumer Protection Act, 1986 (in short "Act" only), was filed.
4. Opposite Parties No.1 to 4, in their joint written statement, have stated that the complaint is not maintainable, as the replying Opposite Parties filed a criminal complaint against the complainants (Annexure R-7), which is pending before the SSP office, Chandigarh. It was further stated that the criminal complaint has been filed on the ground that there is a big difference in the basic sale price of the villa, in question, because the basic sale price, as per the price list (Annexure R-8) is Rs.65 lacs and not Rs.41 lacs, as allegedly shown by the complainants in Annexures C-1 & C-2 (allotment letter and Buyer Agreement) and further as per Annexure R-9 the interim audit report of the replying Opposite Parties clearly shows the name and amount difference of the BSP qua the complainants and the villa, in question. It was further stated that the criminal conspiracy committed by the complainants with the active connivance of Opposite Party No.5 and one Mr.Amit Jain, who has not been impleaded as a party in this case, which shows that in order to make loss to the Company, the complainants allegedly purchased the villa, in question, at Rs.41 lacs, whereas, the actual BSP was Rs.65 lacs. It was further stated that under what circumstances, Opposite Party No.5 had signed the allotment letter and one Mr.Amit Jain, who was not authorized to sign any documents of the Company has entered into Agreement and signed on behalf of the Company and that too on a lesser BSP by Rs.24 lacs. It was further stated that the documents annexed by the complainants i.e Annexures C-1 and C-2 are forged and fabricated documents and could not be appreciated in the eyes of law, especially when FIR was registered against Mr.Sanjay Jain (Opposite Party No.5) and Mr.Amit Jain & others for their illegal conspiracy, and the fraud committed by them with the Company. It was further stated that the replying Opposite Parties received the total amount of Rs.12,50,000/- only, which is not even 1/5th of the BSP, and the last payment was made way back on 21.06.2013. The complainants intentionally blocked the villa by just giving a booking amount and, thereafter, did not follow the payment schedule, which is admittedly the construction linked plan and in that plan, the timely payment is the essence and, therefore, still the balance amount of Rs.1,05,19,882/- is pending against the complainants, which has been shown in the summary calculation (Annexure R-2). It was further stated that this Commission has no territorial jurisdiction to adjudicate the complaint, as Clause 36 of the Agreement clearly states that Courts at Delhi alone have the jurisdiction for adjudication of all the matters arising out in connection with the Agreement and even the concerned Chandigarh office is lying closed for the last so many years. It was further stated that 75% of the persons are fully satisfied and have paid their dues and have already been given the possession, whereas, only some of these persons are adamant of not making the payment. It was further stated that the complainants have purchased the property not for residential purpose as they are living in Delhi and no evidence has been attached with this complaint, which suggest that the complainants alongwith his family want to live in this villa at any point of time, and, therefore the villa purchased by the complainants is only for speculation purposes and, as such, they cannot be termed as a Consumer under the Consumer Protection Act, 1986. It was further stated that the complaint is also not maintainable on the ground of non-joinder of necessary parties as the Buyer's Agreement was signed by Mr.Amit Jain, for which, he is a necessary party to be impleaded. It was further stated that the villa, in question, was already cancelled vide cancellation notice dated 11.10.2014 (Annexure R-11). It was further stated that the complainants in order to have the possession of the villa have to make that payment and possession of the villa could be handed over in another 30 days time from that day, as 95% work of the villa is complete since October, 2014 and only fixtures and painting work is pending. It was further stated that final notice for possession, as per the Agreement, is always issued in the end when the complete payment as per the agreed plan is made without any delay whatsoever and the intermediate letters are just to inform about the status. It was further stated that the complainants made the last payment on 21.06.2013 and, thereafter, no payment was made and, therefore, the question of handing over of possession without taking the complete payment is out of question. It was admitted regarding purchase of the villa, in question and denied the issuance of Annexures C-1 and C-2. It was admitted that as per Clause 9 of the Agreement, possession of the villa was to be given within 24 months i.e. 20.05.2015 but is subject to other terms and conditions such as timely payment, as per the payment plan opted by the complainants. It was further stated that the replying Opposite Parties were not duty bound to inform the complainants regarding the progress of construction work because duty is casted upon the complainants to come present at the site, check the construction work and make the payment, which the complainants failed to do so. It was denied that the complainants visited the site to know the status of construction and also denied regarding receipt of any legal notice. It was further stated that there is not a single evidence on record which suggests that no proper approach road to the villa and no park and amenities are there because photographs (Annexure R-10) clearly shows the development of the area. It was further stated that neither there was any deficiency, in rendering service, on the part of the replying Opposite Parties, nor they indulged into unfair trade practice.
5. Opposite Party No.5 in his short reply, admitted that the complainants deposited an amount of Rs.12,50,00/- with Premium Acres Infratech Pvt. Ltd. It was stated that Sh. Parminder Singh Sehgal & Smt. Parminder Kaur Sehgal, alleged Directors - Premium Acres Infratech Pvt. Ltd. have not only defrauded the replying Opposite Party but also committed criminal breach of trust and several other frauds with the Company and, as such, he lodged an FIR (Annexure OP-5/1) against them and also attached copy of CFSL report (Annexure OP-5/2). It was further stated that due to the disputes between the Directors of the Company, the complainants should not be made to suffer. It was further stated that another FIR dated 13.04.2016 was registered against the captioned persons for cheating, fraud and breach of trust done by Mr. Kapil Aggarwal, Chartered Accountant C/o B.Aggarwal and Co. in criminal conspiracy with Mr.Parminder Singh Sehgal and his wife Smt. Parminder Kaur Sehgal and other associates (Annexure OP-5/5). It was further stated that Mrs. & Mr. P.S.Sehgal have left no stone unturned to harass all the allottees of the project of the Company by fabricating and manipulating the entire account statements of the allottees just to extort maximum money from the allottees. It was further stated that the letters have been issued by the Company on the instructions of Mr.P.S.Sehgal and the replying Opposite Party has been fraudulently disassociated by Mr.P.S.Sehgal since June, 2014 and hence the replying Opposite Party has not been dealing with the affairs of the Company since June, 2014. However, the dispute regarding the ownership and Directorship of the Company is pending before the Hon'ble Company Law Board, New Delhi. Hence, the replying Opposite Party could not be held liable for any kind of grievance of the complainants arising after June, 2014. It was further stated that neither there was any deficiency, in rendering service, on the part of replying Opposite Party, nor he indulged into unfair trade practice and prayed for dismissal of the complaint qua Opposite Party No.5.
6. The complainants filed rejoinder to the written statement of Opposite Parties No.1 to 4, wherein they reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.1 to 4.
7. The Parties led evidence, in support of their case.
8. We have heard the Counsel for the complainants, Counsel for Opposite Parties No.1 to 4 and Opposite Party No.5 in person, and have gone through the evidence and record of the case, carefully.
9. The first 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, Counsel for Opposite Parties No.1 to 4, submitted that since the parties as per Clause 36 of the Buyer Agreement, agreed that the Courts at Delhi alone, would have Jurisdiction, for adjudication of all matters arising out or in connection with the same (Agreement). He further submitted that the concerned office at Chandigarh was lying closed for the last so many years, so, this Commission has got no territorial Jurisdiction, to entertain and decide the complaint. The submission of 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. It is pertinent to note that Buyer Agreement which was executed between the parties, at Chandigarh, on 25.06.2013 vide Clause 36 of the Agreement, 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. Now the plea of Counsel for Opposite Parties No.1 to 4 that the Company office of Chandigarh has closed and this Commission has no jurisdiction, has also no value, at all because at the time of booking of the unit by the complainants, the office of the Company was functioning at Chandigarh. It means that the Company kept the complainants in dark since no such communication was ever sent to the complainants regarding closing down of the Chandigarh office. Moreover, the allotment letter (Annexure C-1) annexed by the complainants, issued by the Company from their Chandigarh office clearly shows the Chandigarh address of the Company on the aforesaid document. As such, a part of cause of action, accrued to the complainants, 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.
10. The objection taken by Opposite Parties No. 1 to 4, to the effect that the complainants have not purchased the property for residential purpose but for selling/investment for reaping extra profits and, as such, they cannot be termed as "Consumer" under the Consumer Protection Act, 1986. It may be stated here that there is nothing, on the record, that the complainants are the property dealers, and deal in the sale and purchase of property, on regular basis, and as such, the villa, in question, was purchased by them, by way of investment, with a view to resell the same, as and when, there was escalation in the prices thereof. Thus, in the absence of any cogent evidence, in support of the objection raised by Opposite Parties No.1 to 4, mere bald assertion i.e. simply saying that the complainants being investors, did not fall within the definition of a consumer, cannot be taken into consideration. The complainants in para No.10 of the complaint clearly stated that they had bought the villa for own residential purpose since the complainants required a residential accommodation in Mohali as they wanted to shift to Mohali with their near and dear ones. In a case titled as Kavita Ahuja Vs. Shipra Estate Ltd. and Jai Krishna Estate Developer Pvt. Ltd. 2016 (1) CPJ 31, by the National Consumer Disputes Redressal Commission, New Delhi, it was held that the buyer(s) of the residential unit(s), would be termed as consumer(s), unless it is proved that he or she had booked the same for commercial purpose. Similar view was reiterated by the National Commission, in DLF Universal Limited Vs Nirmala Devi Gupta, 2016 (2) CPJ 316. The principle of law, laid down, in the aforesaid cases, is fully applicable to the present case. The complainants, thus, fall within the definition of a 'consumer', as defined under Section 2(1)(d) of the Act. Such an objection, taken by Opposite Parties No.1 to 4, therefore, being devoid of merit, is rejected.
11. The next question that falls for consideration is whether the complaint is maintainable on the ground of non-joinder of necessary party i.e. Mr.Amit Jain, who has signed the Buyer's Agreement. It may be stated here that the complainants booked the villa/unit of M/s Premium Acres Infratech Pvt. Ltd. and paid the huge amount in respect of the unit and they did not know who is Mr. Amit Jain. If the aforesaid official/any other official received the amount of the unit from the complainants and signed the Buyer Agreement, it was done by him being an employee, who could receive the said amount on behalf of the Company. In the present case, we do not feel that Mr.Amit Jain is the necessary party. So, the objection taken by Opposite Parties No.1 to 4 has no force, at all and the same stands rejected.
12. The next question that falls for consideration is whether Annexures C-1 & C-2 i.e. allotment letter and Buyer Agreement attached by the complainants alongwith their complaint are forged and fabricated documents. The Counsel for Opposite Parties No.1 to 4 submitted that the documents Annexures C-1 & C-2 are forged and fabricated documents because these documents are created with the active connivance of the complainants with Mr.Sanjay Jain, Mr.Amit Jain and others for causing huge loss to the Company. It was next submitted by the Counsel for Opposite Parties No.1 to 4, that criminal complaint was also filed by the Company against the complainants. It was further submitted that there is a big difference in he basic sale price of the villa, in question, because the basic sale price as per the price list is Rs.65 lacs and not Rs.41 lac, as allegedly shown in the documents Annxures C-1 & C-2. He further submitted that Mr.Sanjay Jain (Opposite Party No.5) and Mr. Amit Jain, embezzled its (Company) huge amount and also played fraud with it (Company). He further admitted regarding the receipt of the amount of Rs.12,50,000/- for the villa, in question. He further submitted that Opposite Party No.5 had signed the allotment letter an one Mr.Amit Jain, who was not even authorized to sign any document of the Company had entered into a Buyer Agreement and signed on behalf of the Company, that too on a lesser BSP by Rs.24 lacs. He further submitted that an FIR registered against Mr. Sanjay Jain, Mr. Amit Jain and others for their illegal and conspiracy regarding the fraud committed by them with the Company. It is, no doubt, true that Mr.Sanjay Jain and Mr.Amit Jain were the officials of the Company. On the other hand, Counsel for the complainants submitted that the complainants were being victimized due to the internal disputes amongst the Directors of the Company. She further submitted that the Company had allotted the said villa to the complainants for a total sale consideration of Rs.44,50,400/- including EDC, as the same price was mentioned in the allotment letter and Buyer Agreement. She further submitted that the last payment was made by the complainants on 21.06.2013, which was duly accepted by the Company and the Company never sent any kind of communication to the complainants regarding the sale price in dispute. It is, no doubt, true that the complainants booked the villa, in question. A bare perusal of the allotment letter (Annexure C-1) clearly reveals that villa No.99 (copper) was allotted in Sector 110, Mohali to the complainants. It is also the admitted fact that the complainants opted for Construction Linked Installment Plan, in which, Basic Sale Price of the villa is clearly mentioned as Rs.41,00,000/- (at page No.26 of the file) and the said allotment letter was duly signed by the complainants as well as Authorised Signatory of the Company. Thereafter, Buyer Agreement was executed between the parties at Chandigarh on 25.06.2013. A bare perusal of Construction Linked Installment Plan, mentioned in the Buyer Agreement, clearly reveals that Basic Sale Price is mentioned as Rs.41,00,000/- and the said Agreement was duly stamped and signed by the responsible officer of the Company on each and every page of the Agreement. It is not understandable that when the Company admitted regarding the booking of the villa, in question and receipt of the amount of Rs.12,50,000/- from the complainants, then how could they deny the issuance of allotment letter and execution of Buyer Agreement ? It is admitted that the aforesaid disputed documents were signed by Mr.Sanjay Jain and Mr.Amit Jain because both the officials were on reputed post of the Company. It is pertinent to note that the said villa was purchased by the complainants from the Company and not from any individual official of the Company. After receipt of the huge amount from the complainants, the complainants cannot be questioned regarding the authenticity of the documents or the sanctity of the sale price agreed between the parties. The complainants had bought the unit at a price offered by the Company itself. Mr.Amit Jain was one of the Directors of the Company, who had signed the Buyer Agreement on behalf of the Company. The allotment letter was issued by the Company on the letter head of the Company and bears the signatures of the former Director of the Company. It may be stated here that if Mr.Sanjay Jain and Mr.Amit Jain, appointed by the Company, played fraud with the Company then what was the fault of the complainants ? The said documents i.e. Annexure C-1 & C-2 issued by the aforesaid officials on behalf of the Company and not on his/their personal capacity. This was an internal affair of the Company vis-à-vis its Director who allegedly committed fraud with it (Company). If the aforesaid officials allegedly embezzled the huge amounts of the Company, and defrauded it, then it (Company) can proceed against them, for the recovery of amount, by filing a civil suit, and also under the criminal law by lodging an FIR. For their alleged acts of omission and commission, the third parties, cannot suffer. We are of the view that once the sale price of the said villa, in question, has already been settled between the parties, the Company cannot again refix the sale price and demanded such huge amount from the complainants. So, the objection taken by Counsel for Opposite Parties No.1 to 4 regarding the authenticity of both the documents (Annexures C-1 & C-2) has no force, at all, and the same stands rejected.
13. To the objection whether Opposite Party No.5 was authorized to sell the unit of the Company and determine the price of the unit to be sold. Opposite Party No.5 has also moved an application for placing on record additional evidence i.e. Annexures OP-5/6 to OP-5/7 alongwith his affidavit. Opposite Party No.5 has stated in his affidavit that he is the owner/director of the Company M/s Premium Acres Infratech Pvt. Ltd. and Opposite Party No.4 had transferred 5000 shares vide share certificate dated 08.01.2010 to Opposite Party No.5. Copy of the share certificate is Annexure OP-5/6 and the income tax return filed by Opposite Party No.5 on behalf of the Company is Annexure OP-5/7. Mr.Sanjay Jain further stated that he being the Director of the Company was absolutely authorized to sell the unit of the Company and determine the price of the unit to be sold. He admitted that villa No.99 was sold to the complainants at a price of Rs.44,50,400/- including EDC. He further stated that Mr.Amit Jain was the duly authorized signatory on behalf of the Company for executing the Buyer Agreement as well as for processing all the necessary documentation for the sale of the unit.
On the other hand, Counsel for Opposite Parties No.1 to 4 stated that the present application filed by Opposite Party No.5 is an afterthought and his sole purpose is to cause loss to Opposite Parties No.1 to 4. He further submitted the said application is just to cover up lacuna, which shows that there is connivance between the complainants and Opposite Party No.5, so all the annexures are not a proper and relevant documents.
After going through the documents annexed by Opposite Party No.5 alongwith his application, it is clearly proved that the Company had transferred 5000 shares vide share certificate dated 08.05.2010 to Opposite Party No.5 and the income tax return was filed by Opposite Party No.5 on behalf of Opposite Parties No.1 to 4 for the assessment year 2012-13, which clearly proves that Sh.Sanjay Jain, Opposite Party No.5 was absolutely authorized to sell the said unit of the Company and determine the price of the unit to be sold. So, we are of the view that the documents, annexed by Opposite Party No.5, as additional evidence are necessary for the just decision of the case and the same are taken on record.
The application stands disposed of accordingly.
So, it is clearly proved that the objection taken by Counsel for Opposite Parties No.1 to 4 that Opposite Party No.5 was not authorized to sell the unit of the Company and determine the price of the unit to be sold the complainants, has no force, at all and the same stands rejected.
14. The next question, that falls for consideration, is as to whether, Opposite Parties No.1 to 4 rightly cancelled the unit of the complainants. It is no doubt, true that the complainants booked the villa/unit in the project of Opposite Parties No.1 to 4/Company and Buyer Agreement was also executed between the parties, at Chandigarh, on 25.06.2013. As per Clause 9 of the Agreement, possession of the unit was to be delivered within a maximum period of 24 months from the date of Agreement i.e. latest by 24.06.2015. It is the admitted fact that the complainants deposited the total amount of Rs.12,50,000/- in respect of the villa, in question. According to Opposite Parties No.1 to 4, the complainants in order to have the possession of the villa, have to make that payment and possession of the villa could be handed over in another 30 days time from that day, as 95% work of the villa is complete since October, 2014 and only fixtures and painting work is pending. It was further stated that the complainants made the last payment on 21.06.2013 and, thereafter, no payment was made, so question of handing over of possession did not arise at all. The complainants in their rejoinder have stated that they were assured by the Company that they would receive a demand letter from the Company regarding the next due date of installment but they failed to send any communication to the complainants regarding any payment due and they also denied regarding receipt of the cancelled notice dated 11.10.2014. According to the complainants, they visited the site of the villa to enquire regarding the status of the construction work and make payment of further installments to the Company but they were utterly disappointed by seeing that construction work of the said villa had been completely shunned by the Company and they even not bothered to intimate the complainants regarding the progress of the construction work of the villa. After perusal of the documents, we found that the Company did not inform regarding stage wise construction to the complainants, so that they could make the payment, as per the Construction Linked Installment Plan, opted by them. It was practically impossible for the complainants to again and again visit the site from Delhi to check the construction status and make the payment. Moreover, the complainants sent a legal notice dated 07.04.2016 (Annexure C-4) through Regd. Post to the Company and also annexed Regd. AD with the said notice but Opposite Parties No.1 to 4 did not bother to send any reply to the said legal notice and denied regarding receipt of the legal notice. Moreover, the complainants denied the receipt of any cancellation notice dated 11.10.2014 from Opposite Parties No.1 to 4. Even, no evidence or postal receipts has been placed on record by the Company that the cancellation notice was ever issued to the complainants or in which mode it was sent to them because neither they produced any courier receipt nor Regd. AD to prove the said fact. Opposite Parties No.1 to 4 have never sent any communication to the complainants regarding any kind of payment due to be paid by them. So, we are of the view that Opposite Parties No.1 to 4 hurriedly cancelled the unit of the complainants and, therefore, the said cancellation notice dated 11.10.2014 is null and void.
15. As regards restoration charges of Rs.13,00,000/- demanded by Opposite Parties No.1 to 4 in Annexure R-2 is concerned, when the cancellation notice itself dated 11.10.2014 is declared as null and void, so we are of the view there is no issue for restoration of the same.
16. As regards inflation charges of Rs.3,29,621/-, as per Annexure R-2, is concerned, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"The price for the unit stipulated herein is based on wholesale index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale Index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottees(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately".
It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 to 4, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 to 4, submitted Annexure R-3 at page 87 i.e. Inflation Working Detail for Copper units. The Buyer Agreement was executed between the parties on 25.06.2013 and possession of the unit, in question, was to be delivered, as per Clause 9 of the same (Buyer Agreement), within 24 months i.e. on or before 24.06.2015. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 to 4, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013, 2013-2014 and 2014-2015. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.88,172.69Ps, for 2013-2014, the same have been shown as Rs.66,491.93Ps and for 2014-2015, the same have been shown as Rs.1,12,776.79Ps. This escalation in cost was worked out, by Opposite Parties No.1 to 4, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainants, to rebut the calculation of inflation charges made by Opposite Parties No.1 to 4, for the years 2012-2013, 2013-2014 and 2014-2015. Under these circumstances, the complainants are liable to pay Rs.2,67,441.41 (say Rs.2,67,441/-). (Rs.88,172.69Ps. plus (+)Rs.66,491.93Ps + Rs.1,12,776.79Ps ), on account of escalation in cost, as calculated by Opposite Parties No.1 to 4.
17. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 to 4, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 to 4, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 to 4 in this regard, being devoid of merit, must fail, and the same stands rejected.
18. As far as the levying of delayed interest payment of Rs.27,38,742/- is concerned, it may be stated here that the complainants were not informed about the stage of construction of the unit, in question because it is not practically possible for the complainants to visit again and again at the site from Delhi and check the status of construction and make the payment. So, we are of the view that since the complainants were not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, therefore, no delayed payment interest is leviable.
19. The next question, that falls for consideration, is as to what amount is required to be paid by the complainants. It is, no doubt, true that the complainants opted Construction Linked Installment Plan and as per the payment plan, the total consideration of the unit, in question, was Rs.44,50,400/-, which includes EDC of Rs.3,50,400/-. It is not disputed that the complainants paid the total amount of Rs.12,50,000/- for the unit, in question. On going through the demand raised by Opposite Parties No.1 to 4 (Annexure R-2), we are of the considered opinion that the following amounts are liable to be paid by the complainants at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price + EDC 44,50,400/-
2. Service Tax + Building Cess 2,67,995/-
3. Club charges 50,000/-
4. IFMS 1,00,000/-
5. Sewerage 20,000/-
6. Electricity 50,000/-
7. Water 40,000/-
8. Service tax on services 16,500/-
9. Inflations 2,67,441/-
10. Add. Maintenance charges) 6,624/-
Total Rs.52,68,960/-
Less Rs.12,50,000/- already paid by the complainants Amount to be paid Rs.40,18,960/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 to 4, are legally entitled to only Rs.40,18,960/-, under various heads, as discussed hereinbefore.
20. Whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, is the next question, that requires determination. The complainants booked the villa/unit, in question, with the hope to have a shelter over their head, but their hopes were dashed to the ground, when Opposite Parties No.1 to 4, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.12,50,000/- was paid by them. Even as per the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 24.06.2015 but they failed to deliver the unit within the stipulated period and neither informed the complainants regarding stage wise construction and regarding payment to be paid by them. In this view of the matter, the complainants, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 to 4, to the tune of Rs.1.00 lac (one lac), which could be said to be reasonable.
21. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainants are not entitled to any other relief, as claimed by them, in the prayer clause.
22. No other point, was urged by the Counsel for the Parties.
22-A. The complaint qua Opposite Party No.5 stands dismissed.
23. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 4, in the following manner:-
(i) Complainants are directed to make the payment of sale consideration of the balance amount of Rs.40,18,960/- to Opposite Parties No.1 to 4, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 to 4 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants.
(iii) Opposite Parties No.1 to 4 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
(iv) Opposite Parties No.1 to 4 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.00 lac (one lac) for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 to 4 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 to 4 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
Complaint Case No.203 of 2016 titled 'Anand Shankar & Anr. Vs. M/s Premium Acres Infratech Pvt. Ltd. & Ors.'
24. The facts, in brief, are that the complainants applied for a villa in the project of the Opposite Parties vide application dated 06.03.2013 and villa No.103 was allotted on the same date vide allotment letter dated 06.03.2013 (Annexure C-1). Thereafter, Buyer Agreement was executed between the parties on 20.05.2013 (Annexure C-2) and as per Clause 9 of the Agreement, possession of the villa was to be delivered within a period of 24 months i.e. latest by 19.05.2015. According to the complainants, the Basic Sale Price of the villa including EDC was Rs.44,50,400/-. The complainants opted Construction Linked Payment Plan. The complainants paid the total amount of Rs.36,00,000/- in respect of the villa, in question. It was stated that the Opposite Parties failed to deliver possession of the villa to the complainants, despite repeated requests. It was further stated that there is no proper approach road to the said villa, no park and amenities in the surrounding area and even the Opposite Parties failed to procure the necessary approvals and not applied for completion certificate. It was further stated that the complainants wrote letter dated 01.12.2015 and thereafter, reminder on 14.01.2016 (Annexures C-5 to C-7) but the Opposite Parties never bothered to file reply to the same. So, there was deficiency in service and indulgence into unfair trade practice on the part of the Opposite Parties.
25. Opposite Parties No.1 to 4 filed joint written statement, in which, they took similar objections as mentioned in the aforesaid consumer complaint No.204 of 2016 i.e. regarding Annexures C-1 and C-2 (allotment letter and Buyer Agreement) are forged and fabricated documents and stated that price of the villa, in question, was Rs.65 lacs instead of Rs.41 lacs ; territorial jurisdiction ; non joinder of necessary party i.e. Mr.Amit Jain and complainants are not consumers as per the Consumer Protection Act, 1986 because they are living in Delhi and no evidence produced by the complainants to prove that they want to live in this villa at any point of time. It was admitted regarding purchase of villa No. 103, in question and receipt of the amount of Rs.36 lacs from the complainants.
26. Opposite Party No.5 (Sh.Sanjay Jain) filed the same reply, as filed in earlier Consumer Complaint No.204 of 2016, so there is no need to reiterate it again.
27. Opposite Party No.5 also filed application for placing on record additional evidence (Annexures C-5/6 & C-5/7), which was rebutted by Opposite Parties No.1 to 4 by filing reply to the application.
28. In view of above, we are of the view the aforesaid documents are necessary for the just decision of the case. So, the application is allowed and both the documents are taken on record, as detailed given in Consumer complaint No.204 of 2016.
29. After going through the documents produced by both the parties, we are of the view that all the objections leveled by Opposite Parties No.1 to 4 in their written statement i.e. Annexures C-1 & C-2 are forged and fabricated documents ; territorial jurisdiction ; non joinder of necessary party and complainants are not consumers have already decided by this Commission in the aforesaid Consumer Complaint No.204 of 2016, so there is no need to reiterate it again.
30. As regards inflation charges of Rs.3,29,621/-, as per Annexure R-2, is concerned, it may be stated here that Clause 11 of the Buyer Agreement, reads as under:-
"The price for the unit stipulated herein is based on wholesale index for all commodities as ruling in. However, during the progress of the work, escalation in cost takes place which will be based on all India wholesale Index for all commodities the effect of such increase as assessed by the Company and intimated to the intending (allottees) shall be payable by him/her over and above the price. The decision of the Company in this respect shall be final and binding on the intending Allottees(s). The increased incidence may be charged and recovered by the Company from the intending allottee(s) with anyone or more of the installments or separately".
It is evident, from afore-extracted Clause 11 of the Buyer Agreement, that Opposite Parties No.1 to 4, were entitled to escalation in cost, during the course of construction work, based on All India Wholesale Index for all commodities. Based on this Clause, Opposite Parties No.1 to 4, submitted Annexure R-3 at page 76 i.e. Inflation Working Detail for Copper Villa. The Buyer Agreement was executed between the parties on 20.05.2013 and possession of the villa/unit, in question, was to be delivered, as per Clause 9 of the same (Buyer Agreement), within 24 months i.e. on or before 19.05.2015. The parties were bound by the terms and conditions of the Agreement, duly signed by them. Under these circumstances, Opposite Parties No.1 to 4, were entitled to escalation in cost of the unit, in question, if any, for the years from 2012-2013, 2013-2014 and 2014-2015. For the years 2012-2013, the inflation charges shown, in the document Annexure R-3 are Rs.88,172.69Ps, for 2013-2014, the same have been shown as Rs.66,491.93Ps and for 2014-2015, the same have been shown as Rs.1,12,776.79Ps. This escalation in cost was worked out, by Opposite Parties No.1 to 4, on the basis of Wholesale Price Index of the commodities, for these years. No cogent and reliable evidence was produced by the complainants, to rebut the calculation of inflation charges made by Opposite Parties No.1 to 4, for the years 2012-2013, 2013-2014 and 2014-2015. Under these circumstances, the complainants are liable to pay Rs.2,67,441.41 (say Rs.2,67,441/-). (Rs.88,172.69Ps. plus (+)Rs.66,491.93Ps + Rs.1,12,776.79Ps ), on account of escalation in cost, as calculated by Opposite Parties No.1 to 4.
31. So far as the escalation in cost, with regard to the remaining years is concerned, Opposite Parties No.1 to 4, are not entitled to the same. In case, for the years aforesaid Opposite Parties No.1 to 4, are also held entitled to escalation in cost, then there will be no end to their nefarious activities. If the unscrupulous builders continue delaying construction of the units/flats/villas, allotted to the consumers, for years together, then the latter cannot be penalized for the same. If the builders are given liberty to continue construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without existence of any circumstances, beyond their control, then they may delay the construction, for years together, and the consumers will suffer at their hands, on account of making payment of escalation in cost. It would thus amount to indulgence into unfair trade practice. The submission of Opposite Parties No.1 to 4 in this regard, being devoid of merit, must fail, and the same stands rejected.
32. As far as the levying of delayed interest payment of Rs.49,691/- is concerned, it may be stated here that the complainants were not informed about the stage of construction of the unit, in question because it is not practically possible for the complainants to visit again and again at the site from Delhi and check the status of construction and make the payment. So, we are of the view that since the complainants were not informed regarding the stages of construction at the site and the construction at the site was not going on as per the schedule, therefore, no delayed payment interest is leviable.
33. The next question, that falls for consideration, is as to what amount is required to be paid by the complainants. It is, no doubt, true that the complainants opted Construction Linked Payment Plan and as per the payment plan, the total consideration of the unit, in question, was Rs.44,50,400/-, which includes EDC of Rs.3,50,400/-. It is not disputed that the complainants paid the total amount of Rs.36,00,000/- for the unit, in question. On going through the demand raised by Opposite Parties No.1 to 4 (Annexure R-2), we are of the considered opinion that the following amounts are liable to be paid by the complainants at the time of taking over the possession :-
S.No Heads Amount (Rs.)
1.
Basic Sale Price + EDC 44,50,400/-
2. Service Tax + Building Cess 2,65,850/-
3. Club charges 50,000/-
4. IFMS 1,00,000/-
5. Sewerage 20,000/-
6. Electricity 50,000/-
7. Water 40,000/-
8. Service tax on services 16,500/-
9. Inflations 2,67,441/-
10. Add. Maintenance charges) 6,624/-
Total Rs.52,66,815/-
Less Rs.36,00,000/- already paid by the complainants Amount to be paid Rs.16,66,815/-
Thus, as per the calculations made in the table above, Opposite Parties No.1 to 4, are legally entitled to only Rs.16,66,815/-, under various heads, as discussed hereinbefore.
34. Whether, the complainants are entitled to compensation, under Section 14(1)(d) of the Act, on account of mental agony and physical harassment and injury caused to them, is the next question, that requires determination. The complainants booked the villa/unit, in question, with the hope to have a shelter over their head, but their hopes were dashed to the ground, when Opposite Parties No.1 to 4, failed to deliver physical possession of the unit, in question, within the stipulated period, despite the fact that huge amount of Rs.36,00,000/- was paid by them. Even as per the Agreement, possession of the unit was to be delivered within a period of 24 months from the date of execution of the Agreement i.e. latest by 19.05.2015 but they failed to deliver the unit within the stipulated period and neither informed the complainants regarding stage wise construction and regarding payment to be paid by them. In this view of the matter, the complainants, in our considered opinion, is entitled to compensation, for mental agony and physical harassment caused to them, at the hands of Opposite Parties No.1 to 4, to the tune of Rs.1.00 lac (one lac), which could be said to be reasonable.
35. Since we are granting possession alongwith compensation and litigation expenses, therefore, the complainants are not entitled to any other relief, as claimed by them, in the prayer clause.
35-A. The complaint qua Opposite Party No.5 stands dismissed.
36. No other point, was urged by the Counsel for the Parties.
37. For the reasons recorded above, the complaint is partly accepted with costs, against Opposite Parties No.1 to 4, in the following manner:-
(i) Complainants are directed to make the payment of sale consideration of the balance amount of Rs.16,66,815/- to Opposite Parties No.1 to 4, within a period of one month from the date of receipt of a certified copy of the order.
(ii) Opposite Parties No.1 to 4 shall jointly and severally hand over the legal physical possession of the unit, in question, within a period of four months, to the complainants, from the date of receipt of a certified copy of this order, on payment of the legally due amount, by the complainants.
(iii) Opposite Parties No.1 to 4 shall jointly and severally execute the sale/conveyance deed and get it registered in the name of the complainants after handing over the actual physical possession of unit, in question, within a period of one month thereafter. The stamp duty, registration charges and all other incidental and legal expenses for execution and registration of sale deed shall be borne by the complainants.
(iv) Opposite Parties No.1 to 4 are further jointly and severally, directed to pay compensation, in the sum of Rs.1.00 lac (one lac) for causing mental agony and physical harassment, to the complainants, within two months from the date of receipt of a certified copy of this order.
(v) Opposite Parties No.1 to 4 are further jointly and severally, directed to pay cost of litigation, to the tune of Rs.50,000/- to the complainants.
(vi) In case the order is not complied with, within the stipulated period, as indicated above, then Opposite Parties No.1 to 4 shall be jointly and severally liable to pay the amount mentioned in Clause (iv) alongwith interest @12% per annum from the date of default, till realization, besides payment of cost of litigation.
38. Certified copy of this order be placed in Consumer Complaint No.203 of 2016.
39. Certified Copies of this order be sent to the parties, free of charge.
40. The file be consigned to Record Room, after completion.
Pronounced.
10.01.2017 Sd/-
[JUSTICE JASBIR SINGH [RETD.] PRESIDENT Sd/- [DEV RAJ] MEMBER Sd/- [PADMA PANDEY] MEMBER rb