State Consumer Disputes Redressal Commission
Anuj Kumar Verma vs M/S Premium Acres Infratech Pvt. Ltd. on 3 June, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Consumer Complaint : 67 of 2015 Date of Institution : 07.04.2015 Date of Decision : 03.06.2015 Sh. Anuj Kumar Verma S/o Late Sh. Jagdish Chand Verma, R/o Verma Niwas, Village Maniara, P.O. Pahra Palampur. H.P. ......Complainant. Versus 1. M/s Premium Acres Infratech Pvt. Ltd., Corporate and Correspondence Office: SCO No.139-141, Sector 17-C, First Floor Opposite Mehfil Restaurant, Chandigarh through its Director/authorized representative. 2. M/s Premium Acre Infratech Pvt. Ltd., Villa No.205, TDI City Premium Acre Court Yard, Sector 110-111, S.A.S. Nagar, Mohali. 3. M/s Premium Acre Infratech Pvt. Ltd. through Sh. Sanjay Jain S/o Sh. M. R. Jain R/o H.No.2235, Sector 21-C, Chandigarh, Director M/s Premium Acres Infratech Pvt. Ltd. ....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: SH. DEV RAJ, PRESIDING MEMBER.
MRS. PADMA PANDEY, MEMBER.
Argued by:
Sh. Sandeep Bhardwaj, Advocate for the complainant.
Sh. Parmjinder Singh, Advocate for Opposite Parties No.1&2.
Sh. Pankaj Chandgothia, Advocate for Opposite Party No.3.
PER DEV RAJ, PRESIDING MEMBER The facts, in brief, are that complainant does not have a residential place in his own name and he was in search of a residential house when he came across the alluring advertisement of the opposite parties. It was stated that on the assurances of the Opposite Parties about the approval of the project and handing over possession within two years from the date of booking, the complainant applied for registration of the apartment with the Opposite Parties. It was further stated that the Opposite Parties blocked unit no.18502 at 'The Courtyard', Sector 110, TDI City MP2. It was further stated that the Basic Sale Price of the unit was told to be Rs.25,80,000/-. It was further stated that the car parking was included in the price and EDC was told to be Rs.1,16,800/- and, as such, the total cost of the apartment as per Welcome letter was Rs.26,96,800/-.
2. It was further stated that Buyer Agreement dated 05.05.2011 (Annexure C-1) was got executed between the parties and the Opposite Parties agreed to handover possession of the unit and completion of the apartment within two years from the date of agreement. It was further stated that the Opposite Parties received an amount of Rs.10,32,000/- prior to execution of the agreement. It was further stated that the complainant kept on paying the installments ignoring the fact that the payment had to be paid in accordance with the stage of construction and the Opposite Parties were demanding and receiving the payment against the stage of construction. It was further stated that Opposite Parties No.1 to 3 received an amount of Rs.28,76,174/- from the complainant till date. It was further stated that the Opposite Parties did not honor the condition of handing over the possession in time in accordance with the agreement and did not give any positive response on repeated visits and repeated calls to the opposite parties. It was further stated that the Opposite Parties issued letter dated 02.06.2014 (Annexure C-2) admitting therein that there was nothing due towards the principal and interest in the account of complainant.
3. It was further stated that in August 2014, a meeting took place between the complainant and one Mr. Vijay, Accounts Manager and the Opposite Parties told to pay an amount of Rs.2,87,200/- towards the 10th and 11th installment alongwith Rs.6,269/- towards interest and Rs.10,552/- towards the service tax. It was further stated that the Opposite Parties assured to handover the possession of the unit immediately. It was further stated that the complainant paid the amount under the impression of getting the possession. It was further stated that the Opposite Parties inspite of handing over possession, issued an email dated 14.08.2014 (Annexure C-3) and raised a demand of Rs.1,80,000/- towards other charges, which were electrification charges, water meter and connection charges, sewerage charges, IFMS and club Membership fee.
4. That the complainant sent an email dated 18.09.2014 (Annexure C-4) to the Opposite Parties and informed and requested to handover possession and pay the delay charges. It was further stated that the complainant sent another email dated 27.09.2014 (Annexure C-5) and disputed the charges raised by the Opposite Parties. It was further stated that the complainant again requested to pay the delay charges at the rate of Rs.7,000/- per month. It was further stated that the complainant again wrote to the Opposite Parties vide e-mails dated 06.10.2014, 16.10.2014, 27.10.2014 (Annexures C-7, C-8 and C-9 respectively) and requested to provide the modified demand letter. It was further stated that the Opposite Parties sent a payment demand notice dated 21.03.2015 (Annexure C-10) and told the complainant to pay an amount of Rs.3,28,445/- towards club membership fee, electrification charges, water connection charges, sewerage connection charges, IFMS charges, inflation charges, which were totally illegal. It was further stated that the Opposite Parties calculated the delay in construction charges as Rs.98,000/- whereas the delay in construction charges was much more than the calculated by the Opposite Parties.
5. It was further stated that there was no clause for payment of club charges in the agreement, which were to be paid to TDI recreation and amusement Ltd. It was further stated that the Opposite Parties did not construct any club. It was further stated that the complainant did not opt for any club facility. It was further stated that TDI had not demanded any club charges and, as such, the same were not payable. It was further stated that as per Clause 22, IFMS and the maintenance charges were to be paid to the Company or its nominee. It was further stated that no maintenance agreement had been executed in between the parties and no possession had been taken. It was further stated that the Opposite Parties had not placed, on record, any evidence in order to prove the completion of the project and the maintenance agreement signed and executed by the complainant and, as such, the demand was illegal and against Clause 22 of the agreement.
6. It was further stated that Clause 4(c) deals with sewerage charge, which were to be paid to the respective companies but, in the present case, the Opposite Parties were demanding the charges without placing, on record, any documentary evidence in order to prove that the Company had arranged the sewerage connection for the allottee. It was further stated that the Opposite Parties had not placed, on record, any completion certificate or any other documentary evidence in order to prove the completion of the project and the existence of the amenity, for which, the charges were demanded.
7. It was further stated that the Opposite Parties were demanding an amount of Rs.9,888/- towards the service tax on other charges. It was further stated that the demand of the charges were made in 2015 through notice dated 21.03.2015 and the payment had already been paid by the complainant. It was further stated that the clause specifically speaks about the taxes levy or imposed by the statutory authority. It was further stated that the Opposite Parties demanded an amount of Rs.2,32,674/- towards the inflation in terms of Clause 11, which were based on wholesale Index for all commodities. It was further stated that unit was not ready for possession as the necessary permissions had not been issued by the concerned authorities enabling the Opposite Parties to handover the possession of the unit to the complainant. It was further stated that no completion certificate had been issued till date. It was further stated that the basic amenities were not present and no amount was due towards the complainant. It was further stated that the Company was liable to pay an amount of Rs.7000/- per month i.e. Rs.1,61,000/- (04.05.2013 to 04.04.2015) and continuing thereafter till the handing over the possession after issuance of completion certificate. It was further stated that the agreement could not be read in part only to suite the convenience of the Opposite Parties but the agreement would be read as a whole.
8. It was further stated that the Opposite Parties were threatening the complainant to pay the amount otherwise to cancel the unit after deducting the majority of the amount on their own which was totally unfair trade practice. It was further stated that as per Clause 4 (f) of the Agreement, the Opposite Parties could charge interest @ 18% p.a. compounded in case there was delay in payment of any installment at the end of the consumer. It was further stated that since delay in completing the project was on the part of Opposite Parties and since they had used the money of the complainant, they were also liable to pay the penalty along with interest on the deposited amount to the complainant.
9. 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/charges mentioned in legal notice dated 21.03.2014 issued by Opposite Parties; and had over the physical possession of Flat No.18502, complete in all respects; to pay Rs.7,000/- per month as delay charges for the period of delay in handing over possession since 04.05.2013 till the actual date of handing over of possession; interest @18% P.A. on the amount deposited by the complainants from the date of respective deposits till the date of actual physical possession; pay Rs.5 Lacs, as compensation, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.50,000/-.
10. Opposite Parties No.1 and 2 put in appearance on 11.05.2015. In their joint written version, Opposite Parties No.1 and 2, took up a specific preliminary objection that this Commission lacks the territorial jurisdiction on the ground that as per Clause 36 of the Agreement, the Courts situated at Delhi shall have exclusive jurisdiction to adjudicate any dispute arising out of the Agreement.
11. On merits, it was denied that the complainant does not have a residential place in his name. It was further denied that alluring advertisements were issued by Opposite Parties No.1 and 2. It was stated that Opposite Parties No.1 and 2 were to handover possession of the flat, subject to making full and final payment by the complainant as per Annexure C-10, according to which, 95% work of the flat had been completed and only sanitary work, other touchup works and construction work was left, which was to be done only when the payment demanded was received. It was further stated that admittedly the complainant opted for construction linked plan, according to which, the construction was to be raised as per the stages and on receipt of due installments from time to time. It was further stated that the complainant had not paid the charges for the work to be done, therefore, the question of giving possession in two years was totally dependent upon the payments made by the complainant. It was further stated that the last payment was made by the complainant on 18.8.2014 as per Annexure C-3. It was further stated that still an amount under different heads was pending. It was further stated that as per Annexure R-2, which was the summary of account of the complainant, an amount of Rs.4,26,445/- under different heads, was still due.
12. It was further stated that Buyer Agreement dated 5.5.2011 was entered into but the condition of completion of apartment in two years was subject to payment on time by the complainant as well as subject to force majure conditions. It was further stated that FIR no.64 dated 23.2.2015 was registered against Opposite Party No.3 for embezzlement of crores of rupees and vide Annexure R-7, the Civil Court has stayed the construction work. It was denied that installments were to be paid after completion of particular stage of construction. It was stated that Rs.28,76,174 were received by Opposite Parties No.1 and 2. It was further stated that amount was adjusted in BSP only and apart from BSP, other charges as per Annexure R-2 were still to be paid. It was further stated that the alleged emails were never received by Opposite Parties No.1 and 2. It was further stated that Opposite Parties No.1 and 2 issued demand notice dated 21.3.2015 (Annexure C-10), which was totally legal and correct. It was further stated that delayed construction charges to the tune of Rs.98,000/- were correctly calculated as per Annexures R-2, R-4 and C-1. It was further stated that there was a separate clause for the club membership charges, which were to be paid compulsory by the complainant. It was further stated that as per Clause 22, IMFS and maintenance charges were to be paid by the complainant. It was further stated that 95% work had been completed and rest of the work was to be completed when the rest of the complete payment was made. It was further stated that the complainant was trying to find all kind of lame excuses for not making payments on account of sewerage, electricity and storm water etc.. It was further stated that the complainant could not say that first complete the work and then charge. It was further stated that since the complainant opted for construction linked plan, he was required to make the payment as per the demands raised from time to time in accordance with the said plan.
13. It was further stated that Opposite Parties No.1 & 2 had demanded Rs.9,888/- as service tax only on other charges and they never demanded tax for the previous charges. It was admitted that Opposite Parties No.1 & 2, in view of Clause 11 of the Agreement, demanded Rs.2,32,674/- as inflation charges, which were correctly calculated as per Annexure R-3 on whole sale price index of Government of India. It was further stated that Opposite Parties No.1 &2 were not liable to make payment of Rs.7,000/- per month, as alleged, because as admitted by the complainant himself, the last payment was paid by him only on 18.8.2014, which showed that till date, the amount was not fully paid. It was further stated that still an amount of Rs.4,26,445/- was due against the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 & 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
14. Opposite Party No.3 put in appearance on 12.5.2015. However, Counsel for Opposite Party No.3 stated at bar that Opposite Party No.3 does not want to file any reply and evidence.
15. The complainant, in support of his case, submitted his affidavit, by way of evidence, alongwith which, a number of documents were attached.
16. Opposite Parties No.1 and 2, in support of their case, submitted the affidavit of Sh. Ranjit Singh, their General Manager (Legal & Administration), by way of evidence, alongwith which, a number of documents were attached.
17. The complainant filed replication wherein, he reiterated all the averments, contained in the complaint and repudiated the same, contained in the written version of Opposite Parties No.1 & 2.
18. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
19. It is evident from the terms of the Buyer Agreement dated 05.05.2011 (Annexure C-1) that the complainant opted for construction linked installment payment plan (page 39). The total basic sale price of the flat, in question, was Rs.26,96,800/- including Rs.1,16,800/- on account of external development charges. The construction linked installment payment plan, opted by the complainants, is extracted hereunder:-
Payment Milestones Basis of Calculation Amount in INR BSP (Basic Sales Price) 2580000.00 EDC 116800.00 PLC 0.00 Discount 0.00 At the time of registration 20% of BSP 516000.00 Within three months of allotment 10% of BSP 258000.00 Within three months of first installment 10% of BSP 258000.00 On commencement of demarcation of plot 10% of BSP 258000.00 On casting of ground floor roof 7.5% of BSP 193500.00 On casting of first floor roof 7.5% of BSP 193500.00 On start of brick work 7.5% of BSP + 25% of EDC 222700.00 On start of internal plastering 7.5% of BSP + 25% of EDC + 50% of PLC 222700.00 On start of flooring 5% of BSP + 25% of EDC + 50% of PLC 158200.00 On start of internal electrification 5% of BSP + 25% of EDC - 50% of Discount 158200.00 On start of internal plumbing 5% of BSP - 50% of Discount 129000.00 On final notice of possession 5% of BSP 129000.00 Total 2696800.00
20. It is also evident that the complainants, in fact, made payment in the total sum of Rs.28,76,174/- as admitted by Opposite Parties No.1 & 2, in Para 4 of their written statement. In the accounts statement (Annexure R-2) (Page 84-85) also, Opposite Parties No.1 & 2 admitted receipt of Rs.28,76,174/-.
21. The first question, which falls for consideration, is, as to whether existence of Clause 36 in the Buyers Agreement, bars the territorial jurisdiction of this Commission, to entertain and try the complaint. Section 17(2) of the Act, being relevant, is extracted hereunder:-
(2) A complaint shall be instituted in a State Commission within the limits of whose jurisdiction,--
(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain; or
(b) any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the State Commission is given or the opposite parties who do not reside or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.
22. No doubt, the Counsel for Opposite Parties No.1 & 2 submitted that since the parties as per Clause 36 of the Buyer Agreement (Annexure C-1), 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 & 2, 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, Annexure C-1, 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 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 material 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 (Annexure C-1) was executed between the complainants and the Opposite Parties on 5.5.2011 at Chandigarh. Letter dated 2.6.2014 (Annexure C-2), written to the complainant, was also issued by the Chandigarh Office of the Opposite Parties. As such, a part of cause of action, accrued to the complainant, at Chandigarh. Accordingly, this Commission at Chandigarh, in view of the provisions of Section 17 of the Act, has territorial jurisdiction to entertain and decide the complaint. The submission of the Counsel for Opposite Parties No.1 & 2, in this regard, therefore, being devoid of merit, fail and the same stands rejected.
23. The next question, which falls for consideration, is, as to whether there was any deficiency attributable to the Opposite Parties, in handing over possession of the unit, in question, to the complainants. Clause 9 of the Buyer Agreement executed on 5.5.2011 (Annexure C-1), being relevant is extracted hereunder:-
"9. That the possession of the said premises is likely to be delivered by the company to the Floor allottee within a period of 24 months (18 months plus 6 months grace) from the date of this agreement subject to force majeure circumstances, & on receipt of all payments punctually as per agreed terms and on receipt of complete payment of the basic sale price and other charges due and payable up to the date of possession according to the payment plan applicable to him. The Company on completion of the construction shall issue final call notice to the Floor Allottee who shall within 30 days thereof, remit all dues and take possession of the Floor. In the event of his failure to take possession for any reason whatsoever, he shall be deemed to have taken possession of the allotted unit for purposes of payment of maintenance charges or any other levies on account of the allotted unit, but the actual physical possession shall be given on payment of all outstanding payments as demanded by the Company. The Allottee would be liable to pay holding charges @5/- per sq. ft. per month if he fails to take possession within 30 days from the date of offer of possession. That if the construction is delayed due to normal course, other than conditions set out in point 10, then the company shall pay Rs.7,000/- per month as delay charges for the period of delay."
24. The Buyer Agreement was executed on 5.5.2011 and computing 24 months period therefrom, the Opposite Parties were required to hand over possession by 4.05.2013. It is, no doubt, true that vide letter dated 6.2.2014 (Annexure C-2), Opposite Parties No.1 & 2 informed the complainant, inter-alia, as under:-
"We wish to inform you that we have already casted second floor slabs while the rest are getting done in the coming period and the work of electrification & plumbing is also in progress. We shall keep you updated with the progress on site.......
......We wish to bring it to your kind notice that a payment of Rs.0 is pending as on dated 2.6.2014 on account of BSP completion alongwith late payment interest charges....."
25. It may be stated here, that there is nothing, on the record, that the possession of unit, had been offered to the complainant, till the date of filing the complaint.
26. It is, no doubt, true that vide demand notice dated 21.03.2015 Annexure C-10, an intimation was given to the complainant, to the effect, that the unit was ready for possession, and the payment of amount due be made. It was further mentioned in demand notice aforesaid, that "Possession will be handed over within 90-120 days from the date of realization of the payment". Not only this, it has also been candidly admitted by Opposite Parties No.1 & 2, in paragraphs No.3, 8 and 14 of the reply on merits, that 95% work of the unit, in question, was complete and rest of the work i.e. sanitary work, other touchup works and construction work was left, which would be completed on receipt of payment from the complainant. Thus, under these circumstances, it could very well be said that by 21.3.2015, possession of the unit was not ready to be delivered to the complainant. On the other hand, the demand raised in demand notice dated 21.03.2015 Annexure C-10, was challenged by the complainant. Since the complainant considered the demand raised by Opposite Parties No.1 & 2, to be illegal, as such, he challenged the same, and sought possession by way of filing the consumer complaint. Thus, it is held that possession of unit, in question, was not delivered to the complainant, by the stipulated date, or even by the time, the complaint was filed, despite the fact that more than 95% of the sale consideration, including miscellaneous charges, in respect thereof, as per the Buyer Agreement dated 5.05.2013 Annexure C-1, had been paid. By not delivering possession of unit, in question, within 24 months, from the date of execution of the Buyer Agreement dated 5.5.2011 Annexure C-1, thereby not abiding by the commitment made, Opposite Parties No.1 & 2, 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. For delay in delivering possession beyond stipulated period of 24 months in Buyer Agreement i.e. 5.5.2013, the complainant is entitled to Rs.7,000/- per month on account of delay charges, till delivery of possession, in terms of Clause 9 of the Agreement.
27. The next question, which falls for consideration, is, as to whether the Opposite Parties were entitled to inflation charges. As per the account summary dated 06.05.2015 (Annexure R-2), at page 85 of the file, produced by the Opposite Parties, a sum of Rs.4,26,445/-, was demanded from the complainant, under various heads, as under:-
S.No. Heads Amount to be paid (Rs.) Amount rcvd. and Adjusted Amount (Rs.)
1.
Basic sale price 25,80,000/-
25,80,000/-
-
2. Preferred Location charges
-
-
-
3. External Development Charges 1,16,800/-
1,16,800/-
-
4. Service Tax + Building Cess 1,05,222/-
1,05,222/-
-
5. Less Discount
-
-
-
6. Club charges 50,000/-
-
50,000/-
7. IFMS 50,000/-
-
50,000/-
8. Sewerage 20,000/-
-
20,000/-
9. Electricity 30,000/-
-
30,000/-
10. Water 30,000/-
-
30,000/-
11. Service tax on services 9,888/-
-
9,888/-
12. Delayed payment Interest 73859/-
73,859/-
-
13. Inflation charges 2,32,674/-
-
2,32,674/-
12. Holding charges
-
-
-
12. Add. Maintenance charges 3,883/-
-
3,883/-
Total Rs.33,02,619/-
Rs.28,76,174/-
Rs.4,26,445/-
It may be stated here that there is no material difference in demand raised in Annexure C-10 and Annexure R-2. The amount in Annexure C-10 was on the lower side as amount of Rs.98,000/- on account of delay charges was reduced from the demand of Rs.4,26,445/-. There is a specific clause relating to inflation in the Buyer Agreement. Clause 11 of the Buyer Agreement dated 5.5.2011 (Annexure C-1), being relevant is extracted hereunder:-
"11. 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 Allottee(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 the afore-extracted Clause 11 of the Buyer Agreement dated 5.5.2011 (Annexure C-1), that the Opposite Parties, were entitled to escalation in cost during the course of construction work, based on All India Wholesale Index for all commodities. In terms of this Clause, the Opposite Parties, submitted a chart (page 94-95) i.e. Inflation Working Details for Avenue Unit. The Buyer Agreement was executed on 5.5.2011 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 4.5.2013. The parties were bound by the terms and conditions of the Buyer Agreement duly signed by them. Once the Buyer Agreement was executed, the terms thereof shall prevail. Under these circumstances, Opposite Parties No.1 & 2 were entitled to escalation in cost of the unit, in question, if any took place, for the years from 2011-2012 and 2012-2013 i.e. 5.5.2011 to 4.5.2012 and 4.5.2012 to 4.5.2013 (latter being the promised date of delivery of possession of unit). For the years 2011-2012, the inflation charges shown in the document (Annexure R-3) at page 94 of the file are Rs.43,891.39Ps and for 2012-2013, the same have been shown as Rs.62,239.54Ps. This escalation in cost totaling Rs.1,06,130/- worked out, by Opposite Parties No.1 & 2, on the basis of Wholesale Price Index of the commodities, for the years 2011-12 and 2012-13 is payable by the complainants. It is evident from account statement (Annexure R-2), at page 94-95 of the file that the escalation in cost was arrived at, on the basis of Wholesale Price Index of the commodities/construction material, by Opposite Parties No.1 & 2, in case, the same was not correct, it was for the complainant, to rebut the same, by producing some cogent and convincing evidence, but he failed to do so. Under these circumstances, there is no reason, not to rely upon this chart, running into two pages i.e. 94-95, to come to the conclusion that escalation in cost arrived at, by Opposite Parties No.1 & 2, for the years 2011-2012 and 2012-2013 is correct and payable by the complainant. The formula applied by Opposite Parties No.1 & 2, is also correct. Under these circumstances, the complainants are liable to pay Rs.1,06,130.93Ps (Rs.43,891.39Ps plus (+) Rs.62,239.54Ps.), on account of escalation in cost, correctly calculated by the Opposite Parties.
28. So far as the escalation in cost, with regard to the years 2013-2014 and 2014-2015 is concerned, it may be stated here, that Opposite Parties No.1 & 2, are not entitled to the same, for the reasons, to be recorded hereunder. As stated above, the Buyer Agreement Annexure C-1 was executed on 5.5.2011. As per Clause 9 of the Buyer Agreement dated 5.5.2011 Annexure C-1, the possession of unit 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 5.5.2011) i.e. on or before 4.5.2013. It was for Opposite Parties No.1 & 2, to complete the construction, within 24 months. If there was any escalation in cost, during the period of 2 years, referred to above, they were certainly entitled to the same (escalation in cost), as per Clause 11 of the Buyer Agreement dated 5.5.2011 Annexure C-1. Thus, Opposite Parties No.1 & 2, are held to be entitled to Rs.1,06,130.93Ps., on account of escalation in cost, for the period from 05.05.2011 to 04.05.2012 and 05.05.2012 to 04.05.2013 only. In case, Opposite Parties No.1 & 2, are held entitled to escalation in cost, for the years 2013-2014 and 2014-2015 i.e. beyond 04.05.2013 onwards, then there will be no end to their illegal demands. If the builders continue delaying construction of the units/flats/premises, allotted to the consumers, for years together, then the latter could not be blamed for escalation in cost. If the builders are given liberty to delay construction of the units, beyond the promised date of delivery of possession, as per the Agreement, without the existence of any circumstances, beyond their control, then they may not adhere to the time schedule and delay the construction, for years together, making the consumers suffer at their hands. Clearly such an act would amount to indulgence into unfair trade practice. Under these circumstances, beyond the promised date of delivery of unit, Opposite Parties No.1 & 2, are not entitled to escalation in cost. The submission of the Counsel for Opposite Parties No.1 & 2, that Opposite Parties No.1 & 2, were also entitled to escalation in cost, for the years 2013-2014 and 2014-2015, therefore, being devoid of merit, must fail, and the same stands rejected.
29. Regarding demand of Rs.50,000/- on account of club membership charges, it may be stated here, that the demand with regard to club charges is legal and valid. Annexure R-4 (Pages 96-100 of the file) is the allotment letter dated 15.11.2010 duly signed by the Authorized Signatory of Opposite Parties No.1 & 2. It is evident from page 99 forming part of the allotment letter "IMP: 100% does not include IFMS, Club charges, Taxes, levies and Stamp duty. These shall be payable additionally at the time of possession". The complainant, thus, undertook to pay club charges, as is evident from the allotment letter. Thus, demand of Rs.50,000/- on account of club charges is legal and valid. Further vide email dated 14.8.2014 (Annexure C-3), Opposite Parties No.1 & 2 wrote to the complainant that electrification charges, water meter and connection charges, sewerage charges, IFMS, club membership fee to the tune of Rs.30,000/-, Rs.30,000/-, Rs.20,000/- Rs.50,000/- & Rs.50,000/- respectively plus service tax, inflation, maintenance charges, registration charges (as applicable) were pending against him.
30. In view of the above and in absence of any cogent evidence by the complainant that he paid the same, it is held that the total of other amounts, tabulated hereunder, due against the complainant, comes to Rs.2,96,901.93Ps:-
Sr. No. Description Amount (Rs.)
1.
Club Charges 50,000.00
2. IFMS 50,000.00
3. Sewerage 20,000.00
4. Electricity charges 30,000.00
5. Water charges 30,000.00
6. Service Tax on services Rs.9,888.00
7. Inflation charges 1,06,130.93 Total:
2,96,018.93 The aforesaid charges could be claimed, as per the terms and conditions of the Agreement and the allotment letter. Since the complainant did not pay the amount of Rs.2,96,018.93Ps, he is liable to pay the same. Thus, only a sum of Rs.2,96,018.93Ps is payable by the complainant.
31. No doubt, the Counsel for Opposite Parties No.1 & 2, also submitted that various documents, including some statements of account, placed on record, by the complainant, were issued by Mr. Sanjay Jain, their Ex-Director, who was not authorized to do so. He further submitted that it was found that he (Sanjay Jain) had embezzled huge amount of the Company and had played fraud with it and, as such, a criminal case against him and the complainant was lodged. He further submitted that no reliance, therefore, on such forged and fabricated documents, could be placed. The submission of the Counsel for Opposite Parties No.1 & 2, in this regard, does not appear to be correct. If there was any dispute between Opposite Parties No.1 & 2 and their 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 including the complainant were not to suffer. As stated above, 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 & 2, 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 & 2 had their legal remedy of recovery of the amount allegedly embezzled by Sanjay Jain, Ex-Director, by filing a civil suit, and also by proceeding against him under the criminal law. Thus, the documents, referred to above, could not be said to be unreliable documents. Opposite Parties No.1 & 2, could not wriggle out of the documents, referred to above, as the same contained admission against their interests. Thus, the submission of the Counsel for Opposite Parties No.1 & 2, in this regard, being devoid of merit, must fail, and the same stands rejected.
32. The next question which falls for consideration, is, 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 & 2, by the promised date. According to Clause 9 of the Buyer Agreement dated 5.5.2011 Annexure C-1, Opposite Parties No.1 & 2, were liable to pay a sum of Rs.7,000/- per month, as compensation/delay charges, 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/delay charges @ Rs.7,000/- per month, for the period of delay, per month, from 5.5.2013 (promised date of possession) 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.
33. 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 partial illegal demand of the amount made by Opposite Parties No.1 & 2 is the next question, that requires determination. The complainant booked the unit, in question, with the hope to have a shelter, but his hopes were dashed to the ground, when Opposite Parties No.1 & 2, failed to complete the unit, in question, and deliver possession of the same, despite the fact that more than 95% of the sale consideration thereof 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 & 2. No doubt, the complainant made a default in making payment of Rs.2,96,018.93Ps, as held above, yet Opposite Parties No.1 & 2 have charged interest on the delayed payments, as shown in summary dated 06.05.2015, page 84-85. For the default of the complainant, he has been penalized, by charging interest on the delayed payments. He, thus, cannot be doubly penalized, by disallowing him compensation under Section 14 (1) (d) of the Act. The complainant underwent mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In this view of the matter, the complainant, in our considered opinion, is entitled to compensation, for deficiency in service, adoption of unfair trade practice, mental agony and physical harassment caused to him, at the hands of the Opposite Parties, to the tune of Rs.70,000/-, which could be said to be adequate and reasonable.
34. For the reasons recorded above, the complaint is partly accepted, with costs, against the Opposite Parties. The Opposite Parties are jointly and severally held liable and directed as under:_
(i) To hand over legal physical possession of unit No.18502, complete in all respects, to the complainant, within two months, from the date of receipt of a certified copy of this order, on payment of Rs.2,96,018.93Ps, as indicated above.
(ii) To execute the sale deed and get the same registered, in respect of unit No.18502 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.
(iii) To pay delay chargers/compensation @Rs.7000/-, per month, to the complainant, from 4.5.2013 (the promised date of delivery of possession), till 31.05.2015, as per Clause 9 of the Buyer Agreement dated 5.5.2011 (Annexure C-1).
(iv) To pay compensation, in the sum of Rs.70,000/-, to the complainant on account of deficiency in rendering service, adoption of unfair trade practice by the Opposite Parties, mental agony and physical harassment, caused to him (complainant), at their hands.
(v) To pay cost of litigation, to the tune of Rs.20,000/-, to the complainant.
(vi) Compensation, granted to the complainant, as mentioned in Clause (iii), which has fallen due up-to 31.05.2015, shall be paid by the Opposite Parties, within 2 months, from the date of receipt of a certified copy of this order, failing which, the said amount shall carry interest @9% P.A., from 4.5.2013, till realization.
(vii) Delay charges/compensation accruing due @Rs.7000/- 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.
(viii) 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.70,000/-, as mentioned in Clause (iv) above, shall be paid, within a period of 2 months, from the date of receipt of a certified copy of the order, failing which they (Opposite Parties) shall pay interest @9% P.A., on the same, from the date of filing the complaint, till realization, besides payment of litigation costs.
(ix) Demand of Rs.3,28,445/-, made vide legal notice dated 21.3.2015 Annexure C-10/Rs.4,26,445/- vide Annexure R-2 as on 6.5.2015, is partially held to be illegal, as indicated above, and, as such, is set aside to that extent.
35. Certified Copies of this order be sent to the parties, free of charge.
36. The file be consigned to Record Room, after completion.
Pronounced.
June 03, 2015.
Sd/-
[DEV RAJ] PRESIDING MEMBER Sd/-
[PADMA PANDEY] MEMBER Ad